(Unrn^ll ilam Bt\^oa\ SItbraty
Cornell University Library
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V.2
Commentaries on the law of wills :embrac
3 1924 018 846 356
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COMMENTARIES
ON THE
LAW OF WILLS
EMBRACING
EXECUTION, INTERPRETATION AND ADMINISTRATION
INCLITDnsrG THOSE EXILES OP EEAL PROPERTY AND PRINCIPLES
OF EQUITY WHICH APPECT TESTAMENTARY DISPOSITIONS,
WITH PULL REPERENCE8 TO AMERICAN AND ENGLISH
STATUTES AND DECISIONS, AND ALSO AN AP-
PENDIX CONTAINING FORMS AND PRECE-
DENTS, AND THE LEADING WILLS ACTS.
BY
JOHN E. ALEXANDER.
OP THE SAN FRANCISCO BAR.
IN THREE VOLUMES.
VOLUME TWO.
SAN FRANCISCO, CALIFORNIA.
BENDER-MOSS CO.
1918.
COPYRIGHT. 1918,
BY JOHN E. ALEXANDER.
Williams Printing Cowpant
Independent Pressroom
Table of Contents OF%QLt!fM^' Two
CHAPTEE XXII.
rEATTD AND UNDUE INFLUENCE, FORQEKY, DUKESS, MISTAKE.
Sec. Page.
573. Undue influence refers to mental coercion 867
574. Undue influence allied to coercion 868
575. Influence, to be undue, must destroy the free agency of testator. . 869
576. Undue influence is determined by effect produced, not by means
employed 871
577. Influence, to be undue, must bear directly on the testa,mentary
act 871
578. The same subject: Must not be remote 873
579. Influence resulting from kindness or affection is not wrongful. .. . 874
580. Advice, argument, flattery, or persuasiouj alone, does not estab-
lish undue influence 876
581. The same subject 878
582. Soundness of mind of testator: How considered 879
583. Mental weakness, in conjunction with other matters, may raise
suspicion of undue influence 880
584. A testator has the right to make an unequal disposition of his
estate 881
585. An unjust will alone causes no presumption of undue influence. . 883
586. When provisions of an unjust will may be considered 884
587. Suspicious circumstances dehors the will are heightened by unjust
provisions 885
588. Influence resulting from family relations 886
589. The same subject 888
590. Illicit relationship alone raises no presumption of undue influence 889
591. The same subject : Contrary view 891
592. Suspicious circumstances: Beneficiary directing execution of will 893
593. Influence, although combined with opportunity and motive, does
not render will void 895
594. Confidential relationship between testator and beneficiary : Parent
and child 897
595. The same subject: Some decisions hold that the law presumes
undue influence 898
596. The same subject: A suspicious circumstance to be considered. . . 900
597. The same subject: Slight evidence only may be required 902
598. Fraud and undue influence distinguished 904
599. The same subject: Either may exist without the other 905
600.' The same subject 906
(III)
IV TABLE OF CONTENTS OP VOLUME TWO-
Sec. Fage.
601. Duress and undue influence distinguished 908
602. Forgery and mistake 909
603. Great latitude is allowed as to the character of evidence 910
604. Undue influence may be established by circumstantial evidence. . 911
605. Forgery: Matters not establishing 913
606. Evidence of forgery: Suspicious circumstances 914
607. Forgery: Declarations of testator: Conflict of authority 915
608. Declarations of testator not proof of facts stated 917
609. Declarations as to intended manner of disponing of property:
Undue influence 918
610. Declarations of testator as evidence of mental condition 920
611. The same subject 922
612. Declarations of one of several beneficiaries: Will void in part
only 92.3
613. Declarations of sole beneficiary: Conspiracy 924
614. Declarations of executor or one of several beneficiaries: Not
admissible in evidence 925
615. Testator's knowledge of contents of will: Presumption 927
616. The same subject: May be shown by circumstances 928
617. Burden of proof on the issue of undue influence 929
618. Forgery: Burden of proof 932
619. Bequirements as to pleadings 934
CHAPTER XXIII.
EIGHTS OP HUSBAND, WIFE AND CHILDREN.
620. Limitations upon testamentary power, in general 936
621. Limitations because of public policy 937
622. Eights of husband or wife as Kmiting the testamentary power of
the other 937
623. Husband or wife may consent to the will of the other: Greneral
or specific consent 939
624. The same subject: Nature and effect of consent 940
625. Antenuptial agreements 942
626. The same subject: Statute of Frauds •. , 944
627. The same subject: What property rights may be affected 945
628. Postnuptial agreements 947
629. Agreements between husband and wife as limitations on testa-
mentary power g^g
630. Eights of pretermitted children generally 949
631. After-born and posthumous children defined 95O
632. Eights of after-bom and posthumous children 950
633. The term "children" includes after-born children 95,1
TABLE OF CONTENTS OF VOLUME TWO. V
See. Page.
634. Object of statutes providing for children omitted from will 953
635. Intent to omit children from will: How expressed 955
636. Presumption that omission of children was unintentional 956
637. Parol evidence as to intention of testator to omit child from
will : Conflict of authority 957
638. The same subject 958
639. The same subject: Reason for conflicting decisions 960
640. Remedies of pretermitted heirs 960
641. Rights of adopted children 963
642. Rights of illegitimate children 963
643. Forced heirs: Law of Louisiana 96o
644. Nature of ownership of forced heirs 965
CHAPTER XXrV.
CLASSIFICATION OF LEGACIES AND DEVISES.
645. Legacies classified 968
646. Intention of testator prevails : Specific legacies not favored 969
647. Genera) legacies defined 972
648. The same subject: Hlustrations 972
649. Specific legacies defined 974
650. The same subject : As of the date of the will 976
651. The same subject : Descriptive words 977
652. Money may be specifically bequeathed 978
653. Stocks, bonds, and securities 979
654. Insurance policies 981
655. Proceeds from sales 981
656. Real estate 982
657. Distinction between specific and demonstrative legacies 984
658. Demonstrative legacies defined 985
659. The same subject : Illustrations 987
660. The same subject : Sources from which they may be directed to be
paid ! 988
661. Annuities defined 989
662. Annuity and gift of income distinguished 991
663. Time when annuities are payable 99.S
664. Duration of payment of annuities 993
665. From what source delinquent installments of an annuity may be
collected 994
666. Interest on delinquent payments of an annuity 995
667. Apportionment upon death of annuitant: When allowed 996
668. Residuary devises and legacies defined 997
669. The same subject: Ko particular form of words necessary 997
VI TABLE OP CONTENTS OF VOLUME TWO.
Sec. Page.
670. Who are residuary devisees or legatees 998
671. Eesiduary devises and legacies usually classed as general 999
672. Position of the residuary clause 1001
673. Describing property in the residuary clause, effect of 1001
674. Eesiduary clause, descriptive words: "rest," "residue," and
"remainder" 1002
675. The same subject: "Balance" , 1003
676. The same subject : ' ' Not otherwise disposed of " 1004
677. Residuary clause: Construction controlled by intention: Expres-
sions considered 1005
678. As to real property acquired after the execution of the will being
covered by the residuary clause 1006
679. What passes under residuary devises and bequests 1007-
680. The same subject: Presumptions 1007
681. The same subject: Lapsed and void legacies 1008
682. The words ' ' cumulative ' ' and ' ' substitutional ' ' as applied to
legacies 1010
683. Intention controls as to whether or not legacies are cumulative or
substitutional 1010
684. Bequeathing a specific article twice 1012
685. Two gifts, in the same will, to one person: When cumulative. . . 1013
686. Two gifts, in different instruments, to the same persons: For
same amount and same expressed reason, not cumulative 1014
687. The same subject : With different reasons expressed, or for differ-
ent amounts, are cumulative 1014
688. The same subject: When given simpUciter, are cumulative 1015
689. Substituted or additional legacies: Subject to incidents of first
legacies 1016
CHAPTER XXV.
ABATEMENT OP LEGACIES.
690. Abatement defined : Order in which legacies abate 1019
691 . Effect of testamentary directions ] 020
692. Eesiduary legacies, abatement of 1021
693. General legacies, abatement of X023
694. Annuities, abatement of 1023
695. Specific legacies and devises, abatement of 1024
696. Demonstrative legacies, abatement of 1026
697. Legacies given for a valuable consideration 1027
698. Legacy to widow in lieu of dower 1029
699. The same subject: The will may provide that such legacies abate 1031
700. Legacy or devise in exercise of a power of appointment 1031
TABLE OF CONTENTS OF VOLUME TWO. VII
iSee. Page.
701. Additional legacies > given by eodieil 10.^2
702. Order in which legacies are stated is immaterial 10.33
703. Time of payment generally immaterial 1033
704. Eelationship of legatee to testator generally immaterial , . . . ]0.'!4
705. Devastavit by executor 1035
706. To make up share of a pretermitted heir 1 036
707. Burden of proof 1036
CHAPTEE XXVI.
ADEMPTION AND SATISFACTION OF LEGACIES AND DEVISES.
708. Ademption defined 1039
709. Ademption and satisfaction distinguished 1041
710. The same subject 1043
711. The same subject: The class of legacy to which each is applicable 1043
712. Effect of ademption ■ 1045
713. Adeemed or satisfied legacies not revived by republication or
re-execution of will 1045
714. As to evidence of the testator's intention 1046
715. The same subject 1047
716. Ademption by act of testator; Delivery by testator to legatee. . . 1049
717. Ademption by loss or destruction of property specifically be-
queathed 1050
718. Ademption by alienation of property bequeathed 1052
719. Ademption by change in form of property bequeathed 1053
720. The same siibject: Conversion after testator's death, or while he
is of unsound mind . .' 1054
721. Ademption by removal of property 1054
722. Ademption by fulfillment of purpose for which legacy was given 1055
723. Satisfaction of general legacies 1056
724. Where legatee is a stranger: Presumptions 1058
725. Legacy of a debt paid before testator's death 1058
726. Legacy to debtor by creditor: No presumption that debt is for-
given 1060
727. The same subject: Parol evidence of intention 1062
728. Legacy to creditor as satisfaction of debt: General rule 1062
729. The same subject: Exceptions to general rule 1064
730. The term "advancements" defined: Gifts and debts distin-
guished 3 066
731. Meaning of "in loco parentis " 1068
732. The same subject: Gift by parent to spouse of child 1070
733. Legacy must precede advanee<l portion in point of time, otherwise
no deduction 1070
VIII TABLE OF CONTENTS OP VOLUME TWO.
See. Page.
734. Presumption as to advanced portions: General rule 1072
735. The same subject: Slight differences between gift and legacy 1074
736. The same subject: 'Exceptions to general rule 1075
737. Beason for presumption of satisfaction of legacy by advanced por-
tions 1076
738. Advancements, value thereof, and interest thereon 1077
739. Statutory regulations as to gifts and advancements 1078
740. Evidence of testator's intention: Statutory regulations and pro-
visions of the will 1079
741. The same subject: Parol declarations and other evidence 1080
742. The same subject : Oral declarations: By whom, time when made,
and parties present 1083
743. The same subject: Declarations against interest 1084
744. A devise of real property fails if the testator has no interest
therein at his death 1084
745. The same subject: Effect of re-acquiring ownership 1086
746. The same subject: Effect of agreement to sell 1087
747. The same subject : Effect of mortgage 1088
748. The same subject: Realty directed to be converted into money. . 1089
CHAPTER XXVn.
LAPSED LEGACIES AND DEVISES.
749. Lapsed legacies and devises defined 1092
750. The same subject: Distinguishing features 1093
751. Instances of lapsed legacies or devises 1094
752. Statutory regulations as to lapse 1095
753. The same subject : Purpose of statutes 1098
754. Illustrations of the regulation in the Victorian Statute of "Wills . . 1098
755. Construction of terms used in the statutes : ' ' Descendants, " " rel-
atives," and "lapse" 1099
756. Beneficiary dead when will is executed, or dying before testator 1101
757. Conditional or contingent legacies or devises may lapse 1104
758. Legacy given to pay a debt owing to legatee 1105
759. Legacy of a debt owing testator 1106
760. Legacy charged upon real estate 1107
761. The same subject: Contingent charges: "Exception" differs
from "charge" 1108
762. Legacy of proceeds of real estate 1110
763. Devises in trust IHO
764. Effect of failure of residuary devise or legacy 1111
765. Divorce will not cause a lapse 1112
766. Object of devise failing 1112
767. Gifts to joint tenants and tenants in common 111.",
TABLE OF CONTENTS OF VOLUME TWO. IX
Sec. Page.
768. Death of beneficiary before or after title vests 1114
769. Death of life tenant does not cause gift of remainder to lapse. . . 1115
770. Testator may, by provisions in his will, prevent lapse 1117
771. The same subject 1117
772. Substituted legatees or devisees 1118
773. The same subject: Words of inheritance 1119
774. The same subject: Gift to beneficiary "and hia heirs" 1120
775. The same subject : Gift to beneficiary ' ' or his heirs " 1122
776. The same subject: Construing "and" as "or," and "or" as
"and" 1123
777. To whom the benefit of lapsed legacies and devises accrues 1126
778. The same subject 1128
779. To whom the benefit of void legacies and devises accrues 1129
780. The same subject 1131
781. General rule as to lapsed or void legacies or devises 1132
CHAPTER XXVIII.
CHARGES FOB PAYMENT OF DEBTS AND LEGACIES.
782. As to liability of heir, devisee, or legatee for debts of decedent:
Common law rule 1136
783. The same subject: Statutory changes 1137
784. Order in which property is resorted to for payment of debts. . . . 1138
785. Personal property of estate is primarily liable for debts and lega-
cies 1139
786. Direction in will that all debts and legacies be paid 1141
787. The same subject: Construed, if possible, as referring to per-
sonalty 1143
788. The same subject : Doubtful expressions 1144
789. Direction in will that executor pay all debts and legacies 1145
790. Presumption where testator knows the personalty is inadequate. . 1147
791. Waste of personalty by executor 1148
792. Charges on lands specifically devised 1148
793. Exoneration of personalty from charges: Personalty specifically
bequeathed 1149
794. Common law rule as to debts secured by mortgage 1151
795. The same subject : Expressions of intent 1152
796. The same subject : Exceptions to rule 1153
797. Testamentary gift of mortgaged property: Modern rule 1154
798. Effect of blending realty with personalty 1156
799. Effect of realty and personalty being blended in the residuary
clause 1157
BOO. Whether the charge is upon the devise or upon the devisee 1159
801. The same subject 1160
X TABLE OP CONTENTS OP VOLUME TWO.
See. Page.
802. Limitations upon charges 1161
803. Charges following the land 1162
804. Marshaling of assets 1164
805. The same subject 1165
806. Widow's right of dower 1166
807. Constructive or equitable conversion defined 1167
808. Conversion depends on intention of testator: How expressed.^ . . . 1168
809. Time when conversion is considered to take place 1170
810. Effect of failure of purpose for which sale was directed 1172
811. Eealty converted into personalty does not bar dower, but other-
wise is distributed as personalty 1174
812. Beconversion defined : How effected 1175
CHAPTER XXIX.
BOCTRIJfE OF ELECTION AS APPLIED TO WILLS.
813. Election defined 1178
814. Immaterial whether or not testator knew he did not own the prop-
erty disposed of 1180
815. When presumption arises that testator intended to dispose of his
own property only: Community property 1181
816. The same subject: Where testator had only a partial interest in
property devised 1182
817. Doctrine of election founded on equitable principles 1183
818. Nature of cases calling for election 1185
819. Manner in which intent to put widow to her election must be
expressed 1186
820. The same subject 1188
821. The same subject : No absolute rule 1189
,822. Gifts in trust, of life estates, or of income 1192
823. Right of election is personal: Reasons for election immaterial .. . 1195
824. The same subject: Creditors can not force survivor to claim stat-
utory rights as against the will 1196
825. Court may make election for donee if he be alive but incapable of
acting 1197
826. Acts constituting election 1198
827. Election made through ignorance, fraud, or mistake may be
repudiated 1199
828. Election by estoppel 1200
829. The same subject: Where the widow is executrix 1202
830. The same subject: Effect of acceptance of benefits under will. . . 1203
831. What law governs election in case of conflict 1205
832. Waiver of dower includes claim of dower in lands conveyed by
husband alone during coverture 1208
TABLE OP CONTENTS OF VOLUME TWO. XI
Seo. Page.
833. 'Kglits of widow who elects to take under will, as to intestate
property 1209
834. Bights of widow as affected by debts of husband 1211
835. Rights of widow where property reverts to estate because of her
remarriage 1212
836. Election against the will: Eights of widow 1213
837. Rights affected by widow electing against the will 1211
838. The same subject: Where widow relinquishes life estate : Doctrine
of acceleration 1217
839. Effect on, balance of will of election to take under the statute. . . . 1218
CHAPTER XXX.
WOEDS DESCKIPTIVE OP CLASSES OP BENEPICIAEIES.
840. Gifts to "children," who included 1222
841. The same subject 1224
842. Children en ventre sa mere 1226
843. Illegitimate children: When may take under will 1227
844. After-bom illegitimate children: When may take under will. . . . 1231
845. Effect of marriage of parents of illegitimate chUd 1232
846. Illegitimate child as heir of the mother 1234
847. Adopted children, how considered 123.5
848. Who included in term "issue": Strict rule 1237
849. The same subject: Modem tendency 1238
850. Who included in the term ' ' heirs " 1240
851. The same subject 1243
852. "Heirs" as a class: As to the date which determines who are
included 1245
853. Who included in the term "next of kin" 1248
854. The same subject: With reference to the statutes of distribution 1249
855. "Next of kin" as a class: As to the date which determines who
are included 1250
856. Who included in the term "relatives" or "relations" 1252
857. "Relatives" or "relations" as a class: As to the date which
determines who are included 1254
858. Who included in the term "representatives" or "legal repre-
sentatives " 1255
859. Who included in the term ' ' nephews " or " nieces " 1257
860. Who included in the terra ' ' cousins " 1260
861. Who included in the term "family" 1261
862. Neither husband nor wife is heir or next of kin of the other. . . . 1263
863. "Husband" or "wife": Effect of an illegal marriage 1265
864. The same subject: Effect of divorce 1266
865. Gift with limitation over in event of death of beneficiary 1267
Xn TABLE OF CONTENTS OF VOLUME TWO.
Seo, Page.
SC6. The same subject: "Die without issue": English rale 1267
867. The same subject: American rule 1269
868. In what proportion beneficiaries collectively designated take; per
capita or per stirpes 1271
869. The same subject: When reference is had to the statutes of dis-
tribution 1273
870. The same subject: Directions by the testate : to division 1276
871. The same subject: Where testator directs division "equally" or
"share and share alike" •. . . . 1276
872. The same subject 1279
873. Gifts to a class defined 1280
874. Effect of statutes to prevent lapse 1282
875. The same subject : Circumstances considered 1283
876. Members of class dying before testator are excluded 1284
877. Where beneficiaries are designated both by individual names and
as a class 1286
878. Manner of designating beneficiaries as a class: Where share of
each is mentioned 1288
879. Mistake in designating number in class 1290
880. As of what date members of a class are determined 1291
881. Effect of additional words of description of beneficiaries desig-
nated as a class 1294
882. Where gift is to those of a class who attain, or when they attain,
a certain age 1295
883. The same subject 1296
884. The same subject : Where contingency which determines member-
ship of class occurs during testator 's lifetime 1298
885. The same subject: Where the contingency is " youngest " of class
attaining specified age 1298
886. Where right to share in benefits depends upon an indefinite future
event 1299
887. Where right to share in benefits depends upon termination of a
preceding estate 1301
888. The doctrine generally where enjoyment of benefits depends upon
a contingency 1302
889. The same subject : As to after-born members of class 1303
890. Remainder over to a class upon termination of life estate : Vested
and contingent remainders 1304
891. When word "survivor" is construed to mean "other" 1306
892. The same subject: Where gift to survivors depends upon a con-
tingency 1308
893. When gift is direct, words of survivorship refer to testator's
death 1309
894. To what date words of survivorship refer when gift is preceded
by a life estate : English rule 1310
TABLE OF CONTENTS OP VOLUME TWO. XIII
See. Tage.
895. The same subject: American decisions 1311
896. The same subject: Intention of testator 1313
897. Accrued interest of one survivor generally does not pass at his
death to remaining survivors 1315
CHAPTEE XXXI.
EULE IN SHELLEY'S CASE.
898. Eule in Shelley's Case defined 1317
899. Purpose of the rule 1319
900. Eeasonableness of the rule 1320
901. A rule of law and property, not of construction 1322
902. Circumstances under which the rule is applicable 1324
903. Limitation must be to heirs of first taker, in their capacity as such
heirs 1326
904. Effect of a limitation to the heirs of the heirs 1327
905. The rule as applied to equitable estates 1327
906. The same subject: Estates in trust 1328
907. Where the remainder is vested or contingent 1329
908. The rule as applicable to gifts of personalty 1329
909. Effect of words of limitation and of purchase 1332
910. "Heirs" as a word of limitation 1332
911. Eule does not apply where the limitation is to particular heirs. . . 1334
912. The same subject : ' ' Heirs ' ' as meaning ' ' children' ' 1335
913. "Children" as a word of purchase 1337
914. "Children" as a word of limitation 1339
915. Where the limitation is to "issue" or "issue of the body" 1341
916. Burden of proof 1342
917. Where rule in Shelley's Case prevails, and where abolished by
statute 1342
CHAPTEE XXXn.
DEVISES OP ESTATES IN PEE SIMPLE — WORDS OF LIMITATION.
918. Common law rule as to words of limitation 1345
919. The same subject : The word ' ' heirs ' ' unnecessary 1346
920. Context may show intent to pass the fee 1349
921. The same subject: Effect of use of word "estate" 1351
922. The same subject : Effect of use of such words as ' ' property " or ■
"real effects" 1352
923. The same subject: Effect of use of such words as "forever,"
"absolutely," or "exclusively" 1353
XIV TABLE OF CONTENTS OF VOLUME TWO.
'*''''«■• Page.
924. Where devise is upon conditions, or in trust 1353
925. Where devisee is charged with payment of debts 1354
926. Devise of life estate with no gift over 1355
927. Devise coupled with power of disposition 1355
928. The same subject 1356
929. The same subject: Where devise is limited to a life estate, or
power of disposition is restricted 1357
930. Gift over of what remains unexpended by devisee 1358
931. Where fee is devised, rights of devisee can not be limited 1359
932. As to cutting down a devise in fee by subsequent provisions in the
will 1360
933. The same subject 1361
934. The same subject: Where the expressions are of doubtful meaning 1363
935. Statutory changes regarding words of limitation 1364
936. The same subject: Creation of estates generally: Limited to those
recognized by law 1366
CHAPTEE XXXin.
ESTATES TAIL BT DEVISE.
937. Estates tail defined 1367
938. The same subject: As to personalty 1368
939. Effect of the statute de donis on conditional fees 1369
940. Converting estates tail to fees simple by fine or common recovery 1370
941. Estates tail in the United States : Statutory regulations 1371
942. Words sufficient to create an estate tail 1374
943. The same subject 1375
944. The same subject: Statutory requirements 1376
945. Adding words of inheritance 1377
946. ' ' Issue " as a word of limitation or of purchase 1377
947. Creation of estates tail by implication: Gift over if devisee "die
without issue " 1379
948. "Die without issue": At common law meant indefinite failure
of issue 1380
949. The same subject : Statutory changes 1381
950. The same subject: Referring to death of first devisee 1382
951. The same subject: Eef erring to death of testator 1384
952. "Children" as a word of purchase 1385
953. ' ' Children " as a word of limitation 1387
954. Children not in being: Rule in Wild's Case 1388
955. The same subject 13S9
956. The same subject: Will speaks as of date of testator's death. . . . 1390
Seo.
TABLE OF CONTENTS OF VOLUME TWO. XV
CHAPTER XXXIV,
TESTAMENTARY GIFTS: LIFE ESTATES.
961.
962.
Page.
957. Life estates defined 1393
958. Common law rule and statutory changes 1394
959. Words sufficient to create life estates 1895
960. Eftect of the use of the word "loan," or "lend" 1396
Gift of rents, issues, profits, income, etc., of land 1397
Gift of the right of use, enjoyment and occupation 1399
963. Gift of a "home" on certain property 1400
964. Devise ' ' during widowhood, " or " until marriage, ' ' confers a life
estate 1401
965. Creation of estates by implication 1402
966. The same subject : Exceptions 1404 '
967. Creation of Ufe estate by implication 1405
968. The same subject: Devise to A upon death of B 1406
969. The same subject: Gift over if first taker "die without issue". . 1407
970. The same subject: Where devise to first taker is a life estate. . . . 1409
971. The same subject: Where devise to first taker is in fee i . . . 1410
972. Apparent devise of fee limited by additional provisions to a life
estate 1411
973. Life estate coupled with absolute power of disposition 1413
974. The same subject : Statutory regulations 1415
975. Life estate with limited power of disposition 1416
976. Where power of disposition is not exercised 1418
977. Express devise not affected by subsequent doubtful expressions. . 1418
978. Life estate in personalty: Money 1420
979. Gift of income of personal property 1421
980. Life estate in personalty with power of disposition 1421
981. Personalty consumable in its use: Specific and general or residuary
bequests distinguished 1423
982. Compelling security from life tenant of personalty 1425
983. Respective rights of life tenant and remainderman 1426
984. The same subject: Extraordinary dividends from stock 1428
985. The same subject: English rule 1428
986. The same subject : Massachusetts rule 1429
987. The same subject: Pennsylvania rule 1429
988. The same subject : Kentucky rule 1430
CHAPTER XXXV.
TESTED AND CONTINGENT INTERESTS.
989. Vested and contingent interests generally 1431
990. Effect of expressions of contingency 1432
991. Where the contingency occurs during lifetime of testator 1434
XVI TABLE OF CONTENTS OP VOLUME TWO.
Sec. Page.
992. Contingency that beneficiary be living at a designated time !1435
993. Gift "payable" when beneficiary attains a certain age 1438
994. Gift upon attaining a certain age 1439
995. Effect of intermediate gift of income of principal which is to pass
to beneficiary at a certain age 1441
996. Where payment is postponed for the convenience of the estate. . . 1444
997. Divesting of vested estates: Interest contingent upon surviving
termination of preceding estate 1445
998. The same subject 1447
CHAPTER XXXVI.
EEMAINDEES AND EXECUTOKY DEVISES.
999. Estates in remainder defined 1450
1000. The same subject 1451
1001. Remainders in personalty 1452
1002. Testamentary disposition of contingent and executory interests . . 1454
1003. "Vested and contingent remainders defined 1455
1004. Vested and contingent remainders distinguished 1456
1005. Postponement of enjoyment only does not make remainder con-
tingent 145S
1006. Contingent remainders must vest at termination of preceding
estate, or be defeated : Statutory regulations 1400
1007. Remainder vrill be construed, if possible, as vested rather than
contingent 1461
1008. The same subject: Reason for the rule 1403
1009. Remainder may vest although apparent contingencies are ex-
pressed 3463
1010. The same subject: Contingency with reference to termination of
preceding estate 1465
1011. Power of disposition in life tenant does not make remainder con-
tingent 1466
1012. The same subject: In trust 14G8
1013. Contingent remainders as affected by the rule as to perpetuities 1468
1014. The same subject : Where two contingencies are expressed 1470
1015. Alternative contingent remainders 1470
1016. Limitations and conditional limitations defined 1471
1017. Executory devises defined 1472
1018. Vested and contingent executory devises 1473
1019. Indestructibility of executory devises 1473
1020. Eight of disposition in first taker repugnant to an executory
devise 1474
1021. Contingent remainders preferred in law to executory devises. .. 1475
1022. Remainders and executory devises compared 1476
TABLE OP CONTENTS OF VOLUME TWO. XVII
Seo. Fage.
1023. Remainders and executory devises distinguished 1476
1024. Effect on contingent remainder of termination of preceding
estate 1477
1025. Executory devise converted into remainder by change of circum-
stances 1478
1026. Limitation over if first devisee ' ' die without issue " 1479
1027. The same subject 1480
1028. Limitation over if first taker die under age or unmarried 1483
1029. Executory interests in personalty 14S4
1030. Executory devises as affected by the rule as to perpetuities 1485
CHAPTEB XXXVU.
TESTAMENTAEY GIFTS UPON CONDITION.
1031. Conditions precedent and subsequent defined 1488
1032. No particular language required to create a condition 1489
1033. Condition is precedent or subsequent according to testator's
intention 1489
1034. Examples of conditions precedent and subsequent 1490
1035. General effect of conditions precedent 1491
1036. General effect of conditions subsequent 1492
1037. Construction favors conditions subsequent 1493
1038. Limitations distinguished from conditions 1493
1039. The same subject 1495
1040. Elegal or void conditions 1496
1041. The same subject : Civil law rule 1497
1042. Invalid condition coupled with valid one makes result the same as
if both were invalid 1497
104.3. Where conditions precedent are impossible of performance 1498
1044. The same subject: Statutory regulations 1499
1045. Where conditions subsequent are impossible of performance. .. . 1500
1046. Effect of accepting gift burdened with a condition of payment,
or the lilte 1502
1047. Time within which conditions must be performed: Where no time
specified 1504
1048. The same subject: Where will prescribes time of performance. . 1504
1049. Conditions as to occupation, study, and habits 1506
1050. Conditions requiring residence at a certain place 1507
1051. Conditions as to change of name 1509
1052. Conditions affecting religious freedom 1510
1053. Conditions against making claims against testator's estate 1511
1054. Conditions against contesting will 1512
1055. The same subject: Vhere annexed to gifts of personalty: Doc-
trine of in terrorem 1514
XVm TABLE OP CONTENTS OF VOLUME TWO.
Sec. Page.
1056. The same subject: Where probable cause for contest exists 1517
1057. What amounts to a contest 1520
1058. The same subject 1521
1059. Conditions in restraint of marriage 1522
1060. The same subject: A limited restraint is valid 1523
1061. The same subject: Limited restraint 1524
1062. The same subject: Condition invalid if annexed to gift of per-
sonalty unless there is a gift over 1525
1063. The same subject: Words of condition or of limitation 1526
1064. The same subject: Intent of testator governs whether condition
or limitation 1529
1065. Condition in restraint of remarriage of widow 1530_
1066. Condition in restraint of remarriage of widower 1532
1067. Conditions predicated upon divorce or separation 1533
1068. The same subject 1534'
1069. Condition that beneficiary marry only with consent of certain
persons 1537
1070. The same subject 1539
1071. Conditions repugnant to estate given are void 1539
1072. General restraint upon alienation void 1541
1073. Limiting or prohibiting conveyance to particular person or class:
English decisions 1543
1074. The same subject : American decisions , 1545
1075. Restraining alienation until donee reaches a certain age 1546
1076. Bestrictions on alienation do not follow the land 1547
1077. Construction of provisions restraining alienation 1547
CHAPTER XXXVIIL
SPENDTHEIFT TRUSTS AND CONDITIONS AGAINST DEBT.
1078. Common law rule that judgments were not liens upon realty. . . 1549
1079. Statutory changes as to effect of judgments : Trusts and powers
of appointment 1550
1080. Condition of forfeiture if beneficiary becomes insolvent 1552
1081. Voluntary and involuntary assignments distinguished. 1555
1082. Inalienability of property and non-liability for debt secured
through spendthrift trusts 1556
1083. Devises in trust to defeat claims of creditors of beneficiaries. . . . 1557
1084. As to necessity of provision terminating estate in event of attach-
ment: English decisions 1560
1085. The same subject: American decisions 1562
1086. Necessary incidents of spendthrift trusts 1.'564
1087. Language sufficient to create a spendthrift trust 1566
TABLE OF CONTENTS OF VOLUME TWO. XIX
CHAPTER XXXIX.
PEECATOET AND SECRET TRUSTS.
See. Fage.
1088. Precatory trusts defined 1570
1089. Early rule of construetion as to precatory words 1571
1090. Modem tendency to restrict the rule 1572
1091. Essential elements of precatory trusts 1573
1092. Effect of uncertainty of subject matter or objects of the trust. . 1574
1093. Points to be considered in construing the effect of precatory
words 1576
1094. The same subject: Relationship of parties 1577
1095. Precatory words are imperative in effecting primary gifts 1579
1096. Distinction where expressions are addressed to executors and not
beneficiary 1580
1097. No particular form of language required to create a precatory
trust 1581
1098. Intention of testator governs: No universal rule of construction 1582
1099. The same subject 1583
1100. Where absolute gift is not diminished by subsequent precatory
words 1585
1101. Where words merely express motive for gift, no trust is created 1588
1102. Words used must be intended to impose an imperative obligation,
or no trust is created 1589
1103. "Will" a word of command 1591
1104. Precatory words referring to dependents : Where no trust is cre-
ated 1592
1105. The same subject: Where trust is created 1594
1106. Precatory expressions which have been construed as creating
trusts 1596
1107. Precatory expressions which have been construed not to create
trusts 1597
1108. Various precatory words considered 1598
1109. The same subject 1600
1110. Gift upon ' ' understanding " or " promise " 1602
1111. Secret trusts, creation and effect of 1602
1112. The same subject: Necessity of promise by beneficiary 1603
CHAPTER XL.
CHAEITABLE USES AND TRUSTS.
1113. Charitable trusts distinguished from private trusts 1606
1114. Doctrine of charitable uses and trusts only partially accepted in
some states, and wholly rejected in others 1607
1115. English statutes of mortmain and charitable uses 1611
1116. Statutes of Charitable Uses of 43 Eliz., ch. 4 1613
XX TABLE OP CONTENTS OP VOLUME TWO.
Sec. Page.
1117. Eestrictions on corporate holdings of land in the United States 1614
1118. Statutory restrictions on gifts to charity, as to amount and time
of execution 1615
1119. The same subject: Purpose of statutes 1617
1120. How value of estate is computed 1618
1121. Charity, in a legal sense, defined 1619
1122. Objects construed as not charitable 1622
1123. Examples of charitable uses 1623
1124. The same subject 1627
1125. Superstitious uses and trusts : English rule 1628
1126. Masses for repose of souls of the dead: American rule 1629
1127. Eeligious and pious uses 1632
1128. Churches 1634
1129. Christian Science 1335
1130. Christian associations for young men or women 1636
1131. Home and foreign missions 1638
1132. Cemeteries, churchyards, or burial grounds 1638
1133. Hospitals 1640
1134. Libraries 1641
1135. Public purposes 1641
1136. Prohibition and temperance 1643
1137. Woman's suffrage 1644
1138. Medals and prizes 1645
1139. Benefit of animals 1645
1140. Rule as to perpetuities as affecting charitable gifts 1646
1141. The same subject: Where gift vests in the future 1648
1142. Testamentary gifts to charity liberally construed 1649
1143. Purpose of trust must not be so indefinite that chancery can not
correct abuse 1651
1144. Purpose of trust must be stated in will 1652
1145. Uncertainty of objects of charitable trusts 1653
1146. Corporations and voluntary associations as trustees 1656
1147. Trust will not fail for lack of trustee , 1656
1148. Trustees may be vested with discretionary power of administra-
tion 1658
1149. Chancery may compel trustee to account: Statute of Limitations 1660
1150. Doctrine of cy pres: English and American chancery jurisdiction
distinguished 1660
1151. The same subject: General American rule stated 1662
1152. The same subject 1663
1153. Cy pres doctrine: English rule where object or purpose of trust
fails 1665
1154. The same subject 1666
1155. The same subject: American authorities 1667
TABLE OF CONTENTS OP VOLUME TWO. XXI
CHAPTEB LXI.
PERPETUITIES AND TRUSTS TO AOOUMTOATB.
See. Page.
1156. Perpetuities defined 1669
1157. Development of the rule against perpetuities 1670
1158. Statement of the rule against perpetuities 1671
1159. The same subject 1673
1160. To what interests the rule applies 1674
1161. Contingent and vested interests distinguished 1675
1162. Provisions construed as of (late of testator's death 1677
1163. A rule of law: Possibility of violation of rule the test 1677
1164. Cases illustrating application of rule 1679
1165. Time runs from date of testator's death 1681
1166. Powers of appointment: Effect of, if void 1682
1167. Private trusts subject to rule against perpetuities 1682
1168. Effect of provisions violating rule against perpetuities 1683
1169. The same subject: Effect on preceding estates 1685
1170. The same subject: Effect on other estates 1686
1171. Gifts to a class 1687
1172. Accumulations defined 1689
1173. Common law rule as to accumulation 1689
1174. The Thellusson Case 1690
1175. The Thellusson Act 1691
1176. Statutory regulations regarding accumulations 1692
1177. The same subject: Charities 1694
1178. Implied directions to accumulate 1694
1179. Effect of trust to accumulate for longer period than allowed
by rule or statute 1696
TABLE OF CASES OF VOLUME TWO 1697
INDEX FOE VOLUME TWO 1785
COMMENTARIES ON THE
LAW OF WILLS
CHAPTER XXII.
FRAUD AND UNDUE INFLUENCE FOEGEKY, DURESS, MISTAKE.
§ 573. Undue influence refers to mental coercion.
§ 574. Undue influence allied to coercion.
§ 575. Influence, to be undue, must destroy the free agency of
testator.
§ 576. Undue influence is determined by effect produced, not by
means employed.
§ 577. Influence, to be undue, must bear directly on the testa-
mentary act.
§ 578. The same subject : Must not be remote.
§ 579. Influence resulting from kindness or affection is not
wrongful.
§ 580. Advice, argument, flattery, or persuasion, alone, does not
establish undue influence.
§ 581. The same subject.
§ 582. Soundness of mind of testator : How considered.
§ 583. Mental weakness, in conjunction with other matters, may
raise suspicion of undue influence.
§ 584. A testator has the right to make an unequal disposition
of his estate.
§ 585. An unjust will alone causes no presumption of undue
influence.
§ 586. "When provisions of an unjust will may be considered.
§ 587. Suspicious circumstances dehors the will are heightened
by unjust provisions.
§ 588. Influence resulting from family relations.
11 Com. on wills— 1 (865)
866 COMMENTABIBS ON THE LAW OF WlliS,
§ 589. The same subject.
§ 590. Illicit relationship alone raises no presumption of undue
influence.
§ 591. The same subject: Contrary view.
§ 592. Suspicious circumstances: Beneficiary directing execu-
tion of will.
§ 593. Influence, although combined with opportunity and mo-
tive, does not render will void.
§ 594. Confldential relationship between testator and benefi-
ciary : Parent and child.
§ 595. The same subject : Some decisions hold that the law pre-
sumes undue influence.
§ 596. The same subject: A suspicious circumstance to be con-
sidered.
§ 597. The same subject: Slight evidence only may be required.
§ 598. Fraud and undue influence distinguished.
§ 599. The same subject: Either may exist without the other.
§ 600. The same subject.
§ 601. Duress and undue influence distinguished.
§ 602. Forgery and mistake.
§ 603. Great latitude is allowed as to the character of evidence.
§ 604. Undue influence may be established by circumstantial evi-
dence.
§605. Forgery: Matters not establishing.
§ 606. Evidence of forgery : Suspicious circumstances. /-
§ 607. Forgery : Declarations of testator : Conflict of authority.
§ 608. Declarations of testator not proof of facts stated.
§ 609. Declarations as to intended manner of disposing of prop-
erty: Undue influence.
§ 610. Declarations of testator as evidence of mental condition.
§ 611. The same subject.
§ 612. Declarations of one of several beneficiaries: Will void in
part only.
§ 613. Declarations of sole beneficiary : Conspiracy.
§ 614. Declarations of executor or one of several beneficiaries :
Not admissible in evidence.
FRAUD AND UNDUE INFLUENCE, 867
§ 615. Testator's knowledge of contents of will: Presumption,
§ 616. The same subject: May be shown by circumstances.
§ 617. Burden of proof on the issue of undue influence.
§ 618. Forgery: Burden of proof.
§ 619. Requirements as to pleadings.
§ 573. Undue Influence Refers to Mental Coercion,
Undue influence refers strictly to the freedom of the
testator's mind. Such freedom of mind presupposes the
testator's capability of self-determination, the absolute
and inherent freedom of his disposing mind. Under mod-
ern philosophy there may be doubts that a mind can be
absolutely free from all influence, but those acts and
things which subvert the will of a testator and vitiate his
testamentary act were determined under the presumption
of the freedom of the will and any change would mean a
reconstruction of our entire testamentary law.^
Legally speaking, influence to be undue must be such
as in a measure destroys the free agency of the testator ;
it must be sufficient to prevent the exercise of that dis-
cretion which the law requires in relation to testamentary
dispositions. It must constrain the testator to do that
which is against his will but which, from fear, desire of
1 In re Hermann's Will, 87 Misc. is one of peculiar character; It
Rep. 476, 150 N. Y. Supp. 118, does not arise until after the
124. death of the one who , alone
Undue influence, in order to fully knows the influences which
avoid a will, must be such as to have produced the instrument; it
destroy free agency of the testa- does not touch the outward act,
tor at the time the Instrument is the • form of the instrument, the
made. It must be a present re- signature, the acknowledgment;
straint operating on the mind of it enters the shadowy land of the
the testator at the time of the mind in search of its conditions
making of the testament. But, as and processes." — In re Miller's
was said by Mr. Justice Brewer, Estate, 31 Utah 415, 88 Pac. 338,
"the question of undue influence 342.
868
COMMENTARIES ON THE LAW OP WILLS.
peace, or tlie like, he is unable to resist. When this is so,
the act which is the result of such influence is invalid.*
§ 574. Undue Influence Allied to Coercion.
In order that a testamentary act be valid the testa-
mentai-y common law has always required that the tes-
tator not only be free from physical restraint, but also
that his mind must be free. The technical term employed
is "coerced."* The Roman law required that a wiU must
originate in the free mind of the testator, and if he was
coerced to make or alter his will it was voidable for that
reason.* The principle of wrongful coercion of the tes-
tator's mind undoubtedly originated in the Roman law,
but in the spiritual courts of England, whence we derive
our testamentary common law, any coercion was wrong-
2 Gilbert v. Gilbert, 22 Ala. 529, 223, 239, 54 S. W. 546; Herster v.
58 Am. Dec. 268; Hall's Heirs v.
Hall's Exrs., 38 Ala. 131; In re
Hess' Will, 48 Minn. 504, 31 Am.
St. Rep. 665, 51 N. W. 614;
O'Neall V. Farr, 1 Ricb. L. (S. C.)
80.
In Eckert v. Flowry, 43 Pa. St.
46, tbe following language is
used: "Now tbat is undue influ-
ence wbicb amounts to constraint
which substitutes tbe will of an-
other for that of the testator. It
may be either through threats or
fraud, but, however exercised, it
inust, in order to avoid a will,
destroy the free agency of. the
testator at the time when the in-
strument is made." See, also, In
re Snowball's Estate, 157 Cal. 301,
107 Pac. 598, 600; In re Ricks'
Estate, 160 Cal. 467, 117 Pac. 539,
545; Gordon v. Burris, 153 Mo.
Herster, 122 Pa. St. 239, 9 Am. St.
Rep. 95, 16 Atl. 342.
To constitute undue influence,
the influence must "destroy free
agency, so that the will in ques-
tion was the result of the domina-
tion of the mind of another, rather
than the expression of the will
and mind of the testator." — ^In re
Miller's Estate, 36 Utah 228, 102
Pac. 996, 999.
3 Williams v. Goude, 1 Hagg.
Ecc. 577, 581; Wingrove v. Win-
grove, L. R. 11 Pro. Div. 81, 82;
In re Campbell's Will, 136 N. Y.
Supp. 1086, 1105; In re Van Ness'
Will, 78 Misc. Rep. 592, 139 N. Y.
Supp. 485, 492; Children's Aid So-
ciety V. Loveridge, 70 N. Y. 387,
394.
4 Domat, 29, 6, 1.
PEAUD AND UNDUE INFLUENCE.
869
ful, the term being applied in the general sense of re-
straint.® Under modern practice, coercion, with reference
to the testator's freedom of will, is the essence of undue
influence.®
Hermann's Will, 87
476, 150 N. Y. Supp.
§ 575. Influence, to Be Undue, Must Destroy the Free Agency
of Testator.
The influence on account of which a testament will be
disallowed must have been such as to have destroyed
freedom of action, and have consisted of coercion or
importunities which could not be resisted,'^ destroying
99, 102; Matter of Van Ness' Will,
78 Misc. Rep. 592, 599, 139 N. Y.
Supp. 485^ Matter of Hermann's
Will, 87 Misc. Rep. 476, 150 N. Y.
Supp. 118.
7 Layman v. Conrey, 60 Md. 286;
BracKey v. Bracliey, 151 Iowa 99,
130 N. W. 370; In re Caffrey's
Will, 95 Misc. Rep. 466, 159. N. Y.
Supp. 99, 102.
Undue influence has been de-
fined as influence of such a nature
that the volition of a testator is
subjected to the coercion or dom-
ination of another person. — Par-
fitt V. Lawless, (1876) L. R. 2
P. & D. 462; Wingrove v. Win-
grove, (1886) L. R. 11 Pro. Div. 81;
Baudains v. Richardson, (1906)
A. C. 169, at pages 184, 185, per
Lord Macnaghten.
Undue influence has been de-
fined to be a fraudulent influence
overruling the control of the mind
of the person operated on. — In re
Craven's Will, 169 N. C. 561, 86
S. E. 587.
6 In re
Misc. Rep.
118, 125.
The Irish probate law, from its
foreign origin, its tradition and
its substance, more nearly resem-
bles our own than modem Eng-
lish probate law. It is well said
in a leading Irish case:
"That a contestant is not en-
titled to have an issue of undue
influence left to the jury unless
reasonable evidence is given: (1)
That the person charged had In-
fluence over the testator; (2) that
he exercised such undue influence
over him to the extent of co-
ercion; and (3) that the execution
of the impeached paper was pro-
cured by the exercise of such co-
ercion as the causa causans of the
act itself." — Longford v. Purdon,
1 L. R. Ir. 75, 80; In re Caffrey's
Will, 95 Misc. Rep. 466, 159 N. Y.
Supp. 99, 104.
6 Mason v. Bowen, 122 Ark. 407,
183 S. W. 973; In re Caffrey's Will,
95 Misc. Rep. 466, 159 N. Y. Supp.
870
COMMENTARIES ON THE LAW OP WILLS.
the free agency of the testator,* and so overpowering his
volition as to produce a disposition of the property which
he would not have made if left free to act.^ It may be
exercised through threats, fraud, importunity, or by the
silent, resistless power which the strong often exercise
over the weak; but in order to avoid the will, it must
destroy the voUtion of the testator at the time it was
made so that the instrument, in effect, expresses the in-
tent of some one other than the testator.^"
8 Williams v. Goude, 1 Hagg.
Ecc. 577; Kinleside v. Harrison,
2 Phillim. 449, 551; Armstrong v.
Huddlestone, 1 Moore P. C. C. 478;
Blakey's Heirs v. Blakey's Exx., 33
Ala. 611; Hall's Heirs v. HaU's
Exrs., 38 Ala. 131; Councill v. May-
hew, 172 Ala. 295, 55 So. 314;
Dolliver v. Dolliver, 94 Cal.- 642,
646, 30 Pac. 4; In re Welch's Es-
tate, 6 Cal. App. 44, 91 Pac. 336,
337; Morris v. Stokes, 21 Ga. 552;
Small V. Small, 4 Greenl. (4 Me.)
220, 223, 16 Am. Dec. 253; Davis v.
Calvert, 5 Gill & J. (Md.) 269, 302,
25 Am. Dec. 282; Wampler v.
Wampler, 9 Md. 540; Llndsey v.
Stephens, 229 Mo. 600, 129 S. W.
641; McMahon v. Ryan, 20 Pa. St.
329; Eckert v. Flowry, 43 Pa. St.
46; Turner v. Cheesman, 15 N. J.
Eq. 243; Gardiner v. Gardiner, 34
N. Y. 155, 162; RoUwagen v. RoU-
wagen, 63 N. Y. 504; Brick v.
Brick, 66 N. Y. 144; Children's Aid
Society V. Loveridge, 70 N. Y. 387;
Coit V. Patchen, 77 N. Y. 533; Se-
guine V. Seguine, 3 Keyes (42
N. Y.) 663, 669, 4 Abb. Dec. 191,
33 How. Pr. 336.
See, also, Boyse v. Rossborough,
6 H. L. Cas. 2; Newhouse v. God-
win, 17 Barb. (N. Y.) 236.
9 Sheppey v. Stevens, 185 Fed.
147; In re Snowball's Estate, 157
Cal. 301, 107 Pac. 598; Whitcomb
V. Whitcomb, 205 Mass. 310, 18
Ann. Cas. 410, 91 N. E. 210; Marx
v. McGlynn, 88 N. Y. 357.
10 Estate of McDevitt, 95 Cal. 17,
30 Pac. 101; Estate of Motz, 136
Cal. 558, 563, 59 Pac. 294; Estate
of Weber, 15 Cal. App. 224, 114
Pac. 597, 603 ; Goodbar v. Lidikey,
136 Ind. 1, 43 Am. St. Rep. 296,
35 N. E. 691; Schmidt v. Schmidt,
47 Minn. 451, 50 N. W. 598; In re
Hess' Will, 48 Minn. 504, 31 Am.
St. Rep. 665, 51 N. W. 614; In re
Mueller's Will, 170 N. C. 28, 86
S. E. 719; In re Pickett's Will,
49 Ore. 127, 89 Pac. 377, 396.
Undue influence is that degree
of importunity which deprives a
testator of his free agency, so that
the instrument executed under its
operation Is not his free and un-
constrained act; or, to state it in
other language, undue influence Is
any improper or wrongful con-
FRAUD AND UNDUE INFLUENCE. 871
§ 576. Undue Influence Is Determined by Effect Produced, Not
by Means Employed.
The various means employed to influence testators un-
duly are too numerous for specific mention ; but whatever
destroys free agency, and constrains a person to do what
is against his will, and what he would not do if left
to himself, is undue influence, whether the control be
exercised by physical force, threats, importunity, or any
other species of mental or physical coercion. For undue
influence is not measured by degree or extent, but by its
effect. If it is sufficient to destroy free agency it is undue,
even if it is slight.^^ It is safe to say, however, that evi-
dence neither of kind nor unkind treatment can alone
suffice to establish undue influence.^^
§ 577. Influence, to Be Undue, Must Bear Directly on the Tes-
tamentary Act.
Influence to be undue so as to avoid a will must bear
directly upon the testamentary act; it must destroy the
stralnt, urgency, or persuasion ter upon him would so affect him
whereby the will of a person is that, for the sake of quietness, he
overcome, and he is induced to do might do that which he did not
an act which he would not do if want to do, and which, if his
left to act freely. — In re Miller's health had been better, or his will
Estate, 36 Utah 228, 102 Pac. 996, stronger, he would not have done.
999. Such a case would constitute . . .
11 Leverett's Heirs v. Carlisle, coercion as truly as force or du-
19 Ala. 80; In re Hess' Will, 48 ress." See, also, Ginter v. Ginter,
Minn. 504, 31 Am. St. Rep. 665, 79 Kan. 721, 22 L. R. A. (N. S.)
51 N. W. 614; Haydock's Exrs. v. 1024, 101 Pac. 634; In re Hermann's
Haydock, 33 N. J. Eq. 494. Will, 87 Misc. Rep. 476, 150 N. Y.
In Hoffman v. Hoffman, 192 Mass. Supp. 118 ; Ekern v. Ericksou,
416, 78 N. E. 492, the court says: (S. D.) 157 N. W. 1062, 1066.
"There is no hard and fast rule. 12 Tingley v. Cowgill, 48 Mo.
A person may be so situated, so 291; In re Gleespin's Will, 26 N. J.
weak and feeble, or so dependent Eq. 523; Tawney v. Long, 76 Pa.
on another, for instance, that mere St. 106.
talking to him or pressing a mat-
872
COMMENTAEIES ON THE LAW OF WILLS.
free agency of the testator at the time and in the act of
the making of his testament." The influence must oper-
ate upon the mind of the testator in relation to the mak-
ing of the will. It is not proof of undue influence to show
that coercion was exercised in respect to other matters ;^*
13 In re McDevitt, 95 Cal. 17, 33,
30 Pac. 101; Estate of Langford,
108 Cal. 608, 41 Pac. 701; Estate
of Calkins, 112 Cal. 296, 44 Pac.
577; In re Wilson's Estate, 117
Cal. 262, 49 Pac. 172, 711; Estate
of Donovan, 140 Cal. 390, 73 Pac.
1081; Estate of Higgins, 156 Cal.
257, 104 Pac. 6, 9; In re Shaw's
Will, 11 PWla. (Pa.) 51.
"The undue influence which will
avoid a will must be such as oper-
ates upon the mind of the testator
at the time of making the will,
and must be an influence relating
to the will itself." — ^In re Kauf-
man's Estate, 117 Cal. 288, 295,
59 Am. St. Rep. 179, 49 Pac. 192.
See, also. In re Rick's Estate, 160
Cal. 450, 117 Pac. 532, 536.
Undue influence must have ex-
isted and been exercised at the
time the will is made. — Kerr's
Estate, 251 Pa. St. 223, 96 Atl. 464.
14 Seguine v. Segulne, 3 Keyes
(42 N. Y.) 663, 669, 4 Abb. Dec.
191, 35 How. Pr. 336; In re Caf-
frey's Will, 95 Misc. Rep. 466, 159
N. Y. Supp. 99, 103.
"It is extremely difficult to state
in the abstract what acts will con-
stitute undue influence. ... It
is sufficient to say that, allowing a
fair latitude of construction, they
must range themselves under one
or other of these heads — <Mjercion
or fraud. ... In a popular
sense, we often speak of a person
exercising undue influence over
another, when the influence cer-
tainly is not of a nature which
would invalidate a will. A young
man is often led into dissipation
by following the example of a
companion of riper years, to whom
he looks up and who leads him to
consider habits of dissipation as
venial, and perhaps even credit-
able; the companion is then cor-
rectly said to exercise an undue
influence. But if, in these circum-
stances, the young man, influ-
enced by his regard for the person
who has thus led him astray, were
to make a will, and leave him
everything he possessed, such a
will certainly could not be im-
peached on the ground of undue
influence; nor would the case be
altered merely because the com-
panion had urged, or even impor-
tuned, the young man so to dis-
pose of his property; provided
only that in making such a will,
the young man was really carry-
ing into effect his own intention,
formed without either coercion or
fraud." — Boyse v. Rossborough, 6
H. L. Cas. 6.
FRAUD AND UNDUE INFLUENCE. 873
it must be used directly to procure the will and must
amount to coercion of the testator's mind.^^ It must have
been exercised to procure the making or executing of the
will itself; exerted in regard to something else, it is at
most only a circumstance, leading to a suspicion that it
may have been exercised in connection with the will.^®
§ 578. The Same Subject: Must Not Be Remote.
Influence exercised some considerable time before,^'^ un-
less it continue until the time of making the will, is not
considered properly to invalidate it.^* Evidence of the
relations between a husband and wife, existing eight
years before the making of the will, may be properly ex-
cluded ;^® and influence shown to have existed eleven years
before the execution of the will, with no proof of con-
tinuance, is too remote to be considered undue.^" No tech-
nical period can be stated within which the evidence
should be limited, but influence is more readily shown by
recent than by past events, and testimony of fresh events
15 In re Snowball's Estate, 157 by the beneficiary in other impor-
Cal. 301, 107 Pac. 598, 600; In re tant matters, an inference may be
Keegan's Estate, 139 Cal. 123, 127, drawn that the same undue influ-
72 Pac. 828 ; In re Morcel's Estate, ence was exercised with regard to
162 Cal. 188, 121 Pac. 733, 735 ; In the will.— Fairbank v. Fairbank, 92
re Mueller's Estate, 170 N. C. 28, Kan. 45, 139 Pac. 1011.
86 S. B. 719; In re Holman's Will, 17 McMahon v. Ryan, 20 Pa. St.
42 Ore. 345, 358, 70 Pac. 908; In re 329; Eckert v. Flowry, 43 Pa. St.
Pickett's Will, 49 Ore. 127, 89 Pac. 46; Thompson v. Kyner, 65 Pa. St.
377, 386; In re Miller's Estate, 36 368; Wainwright's Appeal, 89 Pa.
Utah 228, 102 Pac. 996, 999. St. 220, 222.
16 Jones V. Godrich, 5 Moore is Boyse v. Rossborough, 6 H. L.
P. C. C. 16, 40; Rutherford v. Mor- Cas. 2, 51; Rossborough v. Boyse,
ris, 77 111. 397; McMahon v. Ryan, 3 Ir. Ch. 489, 510.
20 Pa. St. 329; Eckert t. Flowry, is Batchelder v. Batchelder, 139
43 Pa. St. 46. Mass. 1, 29 N. E. 61.
If a testator at about the time 20 Ketchum t. Stearns, 76 Mo.
a will is made is unduly controlled 396.
874 COMMENTARIES ON THE LAW OF WILLS.
is less likely to be manufactured than that of transac-
tions long past.^^
§ 579. Influence Resulting From Kindness or Affection Is Not
Wrongful.
It may be stated generally that any wrongful inter-
ference, by which the testator's freedom of will is over-
come, is fatal to his testamentary act provided that such
interference amounts to coercion.^^ But the character of
influence which the law denounces as undue is that which
is exercised through persuasion, force or fraud whereby
the free agency of the mind of the testator is destroyed
and the will of another is substituted in its place. li is
such influence, as distinguished from that exercised
through Mndness or affection, which the law denounces.-^
A favor expressed by a testator in his will may be the
result of devoted attachment, self sacrificing kindness
21 Pierce V. Pierce, 38 Mich. 412; destroys the free agency of the
In re Hess' Will, 48 Minn. 504, party, and constrains him to do
31 Am. St. Rep. 665, 51 N. W. 614. what is against his will. Mere per-
22 Matter of Van Ness' Will, 78 suasion or argument addressed to
Misc. Rep. 592, 599, 139 N. Y. Supp. the judgment or affections, in
485; Brick v. Brick, 66 N. Y. 144, which there is no fraud or deceit,
149 ; Coit V. Patchen, 77 N. Y. 533, does not constitute undue influ-
539. ence."
23 Teckenbrock v. McLaughlin, In Jackson v. Hardin, 83 Mo. 175,
209 Mo. 533, 108 S. W. 46; Winn v. 185, the supreme court of Missouri
Grier, 217 Mo. 420, 117 S. W. 48; said: "The influence denounced
In re Holman's Will, 42 Ore. 345, by law must be such as amounts
358, 70 Pac. 908; In re Patterson's to overpersuasion, coercion, or
Estate, 68 Wash. 377, 123 Pac. 515, force, destroying the free agency
518. and will power of the testator. It
In Eastis v. Montgomery, 93 Ala. must not be merely the influence
293, 300, 9 So. 311, the court said: of affection or attachment, nor the
"The undue influence which will desire of gratifying the wishes of
avoid a will must amount to coer- one beloved, respected, and trusted
cion or fraud — an influence tanta- by the testator."
mount to force or fear, and which
rRAXJD AND UNDUE INFLUENCE. 875
and beneficent ministrations of friendsMp and love.
These influences are not undue, since they bring prefer-
ment as their natural reward, although they influence
him to provide for the pleasure and comfort of the one so
exercising the influence. Other influences less worthy
may stiU be lawful ; they may be specific and direct with-
out being undue. It is not improper to advise, to per-
suade, to solicit, to importune, to entreat, or to implore.
Appeals may be made to vanity and to pride, to the sense
of justice and to the obligation of duty. The ties of
kindred and of friendship, the sentiment of gratitude
or of pity, may be urged as reasons why a testator
should not forget in his will a person or persons so
deserving to be remembered. The mere fact that the mind
of the testator is brought into harmony with such ap-
peals or importunities is not sufficient to show undue
influence; his views must be radically changed, for so
long as his mind is not overborne and rendered incapable
of acting freely, so long does he remain a free agent and
his will is not the will of another.^*
24 Hall V. Hall, L. R. 1 P. & D. bons, 22 N. J. L. 117; Howell t.
481; Mackall v. Mackall, 135 U. S. Taylor, 50 N. J. Eq. 428, 26 Atl.
167, 34 L. Ed. 84, 10 Sup. Ct. 705; 566; In re Eatley's Will, 82 N. J.
Smith v. Boswell, 93 Ark. 66, 124 Eq. 591, 89 Atl. 776, 780; In re
S. "W. 264; In re Rick's Estate, Mannion's Estate, (N. J.) 95 Atl.
160 Cal. 450, 117 Pac. 532, 536; 988; In re Goodhart, 173 App. Div.
Ginter v. Ginter, 79 Kan. 721, 22 256, 159 N. Y. Supp. 261, 262;
L. R. A. (N. S.) 1024, 101 Pac. 634; In re Darst's Will (Hurley v.
In re Harrison's Will, 1 B. Mon. O'Brien), 34 Ore. 58, 54 Pac. 947;
(40 Ky.) 351; Watson's Exr. v. In re Turner's Will, 51 Ore. 1,
Watson, 137 Ky. 25, 121 S. W. 626; 93 Pac. 461, 464; Converse v. Mix,
In re Hess' Will, 48 Minn. 504, 63 Wash. 318, 115 Pac. 305; In re
31 Am. St. Rep. 665, 51 N. W. 614; Patterson's Estate, 68 Wash. 377,
Campbell v. Carlisle, 162 Mo. 634, 123 Pac. 515, 518.
63 S. W. 701; In re Gleespin's Will, Any degree of influence over
26 N. J. Eq. 523; Trumbull v. Gib- another, acquired by kindness and
876
COMMENTARIES ON THE LAW OF WIIiLS.
§ 580. Advice, Argument, Flattery, or Persuasion, Alone, Does
Not Establish Undue Influence.
It is not every influence brought to bear upon a testator
in the making of his will that is to be regarded as undue.
attention, can never constitute
undue influence within the mean-
ing of the law, and although the
jury may believe from the evi-
dence, that the deceased. In mak-
ing her will, was influenced by
any of the said defendants, still,
it the jury further believe from
the evidence that the influence
which was so exerted was only
such as was gained over the de-
ceased by kindness and friendly
attention to her, then such influ-
ence can not be regarded in law
as undue influence. Influence se-
cured through affection is not
wrongful. — ^Waters v. Waters, 222
111. 26, 113 Am. St. Rep. 359, 78
N. E. 1; Thompson v. Bennett, 194
111. 57, 62 N. E. 321; Nicewander
V. Nicewander, 151 111. 156, 37
N. E. 698; Francis v. Wilkinson,
147 111. 370, 35 N. B. 150; Burt v.
Qnisenberry, 132 111. 385, 24 N. E.
622.
The testator, who was 90 years
of age, made a will in which his
principal beneficiary was one to
whom he was not related, but with
whom he had lived for a short
time prior to his death. The court
said: "Influence which is gained
alone through kindness, and
springs from the fondness of affec-
tion, is not of that character which
the law condemns as undue, and
because of which a last will and
testament may be set aside." —
Luebbert v. Brockmeyer, 158 Mo.
App. 196, 138 S. W. 92.
"As to Mrs. Boltz, the residuary
legatee, there is, in my opinion, no
evidence whatever of 'undue in-
fluence.' Doubtless, when she dis-
covered that the decedent had a
small estate, she was consistently
and deliberately kind to the de-
cedent; but that is not forbidden
by the law."- — In re Goodhart, 173
App. Div. 256, 159 N. Y. Supp. 261,
262.
As put by Mr. Justice Moore,
in Re Darst's Will (Hurley v.
O'Brien), 34 Ore. 58-65, 54 Pac.
947: "Influence arising from grati-
tude, affection, or esteem is not
undue, nor can it become such un-
less it destroys the free agency of
the testator at the time the instru-
ment is executed, and shows that
the disposition which he attempted
to make of his property therein
results from the fraud, imposition,
and restraint of the person whose
superior will prompts the execu-
tion of the testament in the par-
ticular manner which the testator
adopts." See, also. In re Turner's
Will, 51 Ore. 1, 93 Pac. 461, 464.
A daughter left for her own
home, and left the duty of looking
to the mother's comfort fall again
upon the sons. One of these sons
had been the mother's favorite
FRAUD AND UNDUE INFLUENCE.
877
That which is obtained by argument, flattery, persuasion,
appeals to the affection,*^ and good feeling of the testator,
although influencing his better judgment,^^ does not nec-
essarily vitiate the will, unless his free agency be thereby
destroyed,^'' notwithstanding that but for such influence
the will might not have been made.^* The test of the
unlawfulness of the influence is its effect upon the testa-
tor's free agency, and no influence is undue where free
agency is not essentially impaired.^' So the services of a
friend or relative of a testator may be lawfully urged
as an argument to persuade him to the giving of a
legacy.***
from his babyhood. His conduct
towards her during his whole life
seems to have been imiformly
courteous and kind. While the
mother had had trouble at differ-
ent times with her other son, and
with her daughter whenever they
met, her relations with this son
were always harmonious, and of a
character unusually affectionate,
even for mother and son. The
court said: "It is not surprising
nor unnatural, therefore, that she
should make him the object of her
greatest bounty; and, while her
affection for this son may have In-
fluenced her to remember him in
her will to the partial exclusion
of her other son and her daughter,
it is not that character of influ-
ence that is classed by the law as
undue influence, or that character
of influence that authorizes the
courts to vacate and hold for
naught last wills and testaments."
—Converse v. Mix, 63 Wash. 318,
115 Pac. 305.
25 Toe V. McCord, 74 111. 33;
Bundy v. McKnight, 48 Ind. 502,
516, 518; Elliott's Will, 2 J. J.
Marsh (Ky.) 340; Sechrest v. Ed-
wards, 4 Mete. (Ky.) 163; Harri-
son's Will, 1 B. Mon. (40 Ky.) 351;
Wise v. Foote, 81 Ky. 10; Davis v.
Calvert, 5 Gill & J. (Md.) 269, 301,
25 Am. Dec. 282; Schofield v.
Walker, 58 Mich. 96, 24 N. W. 624;
Gilreath v. Gilreath, 57 N. C. 142;
Tyler v. Gardiner, 35 N. Y. 559.
Even threats of estrangement
and non-intercourse may be used.
— Moore's Exrs. v. Blauvelt, 15
N. J. Eq. 367.
26 Tucker v. Field, 5 Redf.
(N. Y.) 139.
27 Wise v. Foote, 81 Ky. 10;
Wait V. Breeze, 18 Hun (N. Y.)
403.
28 Bundy v. McKnight, 48 Ind.
502, 516, 518.
29 Bundy v. McKnight, 48 Ind.
502.
30 Estate of Williams, 13 Phlla.
(Pa.) 302, 303.
878 COMMENTARIES ON THE LAW OF WILLS.
A testator may be aided by the views of others in arriv-
ing at a just conclusion as to the testamentary disposition
of his property, the same as in the ordinary transactions
of life. If the influence is disinterested, no inference can
arise that it was unduly or improperly exercised or that
the testator was deceived by unfair means.^^ Suggestion,
advice, persuasion, or even importunity, does not vitiate
a will where the testator possesses testamentary capacity
and is free and unrestrained in exercising his own voli-
tion.*^
§ 581. The Same Subject.
Attempted coercion which leaves th& testator's mind
free to act is not sufficient to establish undue influence.
The provisions of a will may be suggested to a testator,
yet if he possesses testamentary capacity and is able to
comprehend the suggestion and voluntarily adopts it, the
wiU is valid. Importunity which vitiates the instrument
must be of such a nature and degree that the testator is
31 Hall V. Hall, L. R. 1 P. & D. Mo. 197, 38 S. W. 932, 39 S. W.
481; In re Harrison's Will, 1 B. 771; Turner v. Anderson, 236 Mo.
Men. (40 Ky.) 351; In re Hess' 523, 139 S. W. 180; In re Patter-
Will, 48 Minn. 504, 31 Am. St. Rep. son's Estate, 68 Wash. 377, 123
665, 51 N. W. 614. Paa 515, 518; In re Tresidder's
32 In re McDevitt, 95 Cal. 17, 30 Estate, 70 Wash. 15, 125 Pac. 1034,
Pac. 101; In re Kilbom's Will, 1035.
162 Cal. 4, 120 Pac. 762 ; In re Mor- It was held that the fact that
eel's Estate, 162 Cal. 188, 121 Pac. the beneficiaries of the will hav-
733; In re Higgins' Estate, 156 Ing by kind offices and congenial
Cal. 257, 104 Pac. 6; In re Rick's intercourse acquired considerable
Estate, 160 Cal. 450, 117 Pac. 532; influence over the testatrix, and
Lucas V. Cannon, 13 Bush (Ky.) having requested, or "teased" her
650; Small v. Small, 4 Greenl. to make provisions In their favor,
(Me.) 220, 16 Am. Dec. 253; Mitch- was not sufficient to establish
ell V. Mitchell, 43 Minn. 73, 44 undue influence. — McCulloch v.
N. W. 885; Jackson v. Hardin, 83 Campbell, 49 Ark. 367, 5 S. W. 590.
Mo. 175; McFadin v. Catron, 138
FRAUD AND UNDUE INFLUENCE. 879
unable to resist it; but the mere fact tbat he was, at the
time of the execution of his will, surrounded by interested
persons, does not render the instrument invalid.^^ Impor-
tunities and general dictatorial conduct, unless connected
with the act of making the will, do not establish mental
coercion: this is especially true when the testator at tlie
time of executing his will was surrounded by all the safe-
guards and precautions which the statute prescribes.^*
It is not wrongful for a person by honest advice or per-
suasion to influence a testator to make a will in his favor
if such influence is exerted by means of fair speech, argu-
ment or kind conduct.*^
§ 582. Soundness of Mind of Testator : How Considered.
Although it be conceded that the testator was of sound
mind, in the best of health, possessing unquestioned testa-
mentary capacity, yet such facts do not imply immunity
from undue influence. The theory of the issue is that
the testator did not freely exercise such testamentary
capacity.^* A person of strong mind and body may be
33 Constable v. Tufnell, 4 Hagg. pare his neighbor's will, and may
Bcc. 465. even suggest to him that a will
34 In re Caffrey's Will, 95 Misc. ought to be prepared, without rais-
Rep. 466, 159 N. Y. Supp. 99, 103. ing the presumption that he un-
35 Chambers v. Brady, 100 Iowa duly influenced him, or that his
622, 69 N. W. 1015 ; Townsend v. conduct is reprehensible. — In re
Townsend, 128 Iowa 621, 105 N. W. Ferris' Estate, (Mich.) 157 N. W. '
110; In re Dobals' Estate, (Iowa) 380, 381, 382.
157 N. W. 169, 170; In re Ferris' 36 In re Patterson's Estate, 68
Estate, (Mich.) 157 N. W. 380, Wash. 377, 123 Pac. 515, 518.
381; In re Miller's Estate, 36 Utah There can be no undue influence
228, 102 Pac. 996, 1000; In re unless there is a person incapable
Enos' Estate, 79 Wash. 590, 140 of protecting himself, as well as a
Pac. 677, 680. wrongdoer to be resisted. — ^Latham
A man enjoying the perfect con- v. Udell, 38 Mich. 238.
fidence of his neighbor may pre-
880 COMMfflSfTABIES ON THE LAW OF WILLS.
less easily influenced than one who is weaker both physi-
cally and mentally, and more evidence may be required
to show that his will was overcome ; but experience has
shown that strong minds have been persuaded to consent
to matters to which, if free from undue influence, they
would not have agreed.*'' If the mind of the testator was
sufficiently strong to resist the influence, and if, no matter
what means may have been employed, he made a disposi-
tion of his property according to his own desires, the
disposition will stand because the influence was unavail-
ing. On the other hand, although the influence exerted
would have had no effect over a mind of ordinary resist-
ance, yet if in the particular case it resulted in a disposi-
tion of property contrary to the testator's free will, the
influence was undue.** In fact, in a legal sense, undue
influence can be exercised only upon those possessing
testamentary capacity, for if such capacity be lacking,
the testator can not make a valid will.**
§ 583. Mental Weakness, in Conjunction With Other Matters,
May Raise Suspicion of Undue Influence.
A circumstance, which in conjunction with others often
raises a suspicion of undue influence, is the age or bodily
or mental infirmity of the testator. For example, where
a testator, old and suffering, at the solicitation of a friend
37 In re Olson's Estate, 19 Gal. Mont. 353, Ann. Cas. 1912C, 380,
App. 379, 126 Pac. 171, 174. 116 Pac. 1004, 1009.
The question of undue influence Where the pleadings allege men-
Is allied to that of testamentary tal unsoundness and undue influ-
capacity. See §§ 360, 361, 369. ence, the former having been
38 Leverett's Heirs v. Carlisle, shown, it is immaterial whether
19 Ala. 80; In re Hess' Will, 48 the latter was exercised or not. —
Minn. 504, 31 Am. St. Rep. 665, Hannlgan's Estate, Myrick's Prob.
51 N. W. 614. (Cal.) 135.
39 In re Murphy's Estate, 43
FKAUD AND UNDUE INFLUENCE. 881
makes a "will in his favor which revokes a previous will
in favor of his relations, executed when he was in full
mental and bodily health, there is sufficient ground for an
issue as to undue influence, and the burden of proof is
upon the proponent of the later will.*" Evidence of feeble-
ness and decrepitude, detention and slanders upon bene-
ficiaries of an altered will, throws the burden of proof
upon the proponents of the codicils.*^ But age and in-
firmity alone will not be deemed a cause of suspicion,
where the bequests are in accordance with the usual dic-
tates of natural affection. Thus a testatrix, ninety-four
years of age, without near kindred, made a will leaving
all her property to one who had sustained toward her the
relation of a daughter for many years. Although her
memory had failed considerably, her mind was not shown
to have been impaired. In view of all the facts it was
decided that the will should not be set aside on the ground
of undue influence.** Slight and uncertain evidence will
not establish undue influence (nor mental incapacity)
where the testator, although seventy years of age, gave
intelligent directions concerning the will, and was pos-
sessed of vigorous intellect at the time it was made.**
§ 584. A Testator Has the Right to Make an Unequal Disposi-
tion of His Estate.
A testator has the inherent right, subject to certain
limitations imposed by statute, to make such testamen-
tary disposition of his property as he desires. The law
40 Wilson's Appeal, 99 Pa. St. incapacity. — Wood's Estate, 13
545. See, also, Bwen v. Perrine, Phila. (Pa.) 236.
5 Redf. (N. Y.) 640. See §§ 360, 361, 369.
41 Swenarton v. Hancock, 22 43 Black v. Foljambe, 39 N. J.
Hun (N. Y.) 38. Eq. 234.
42 Nor on the ground of mental
II Com. on Wills— 2
882 COMMENTAKIES ON THE LAW OF WILLS.
does not demand that a parent distribute his estate
equally among his children, nor upon any basis of rela-
tive merit. Either with or without reason a parent may
prefer one child to another, or may intentionally cut off
all of his children and leave his property to a stranger.
In such a case the only question is whether or not he was
of sound mind and free from undue influence. If a parent
disposes of his property to one child, although at his
solicitation, but because of his great affection for him,
it is not undue influence. To render the disposition in-
valid the influence affecting the testator or grantor — the
same principle applying to deeds as to wills — ^must have
been of such a nature as to deprive him of his free
agency.** In general, it may be said that undue influence
and fraud in obtaining the testator's signature to an
instrument other than that intended by him to be signed
as his last will, are not to be lightly presumed ; and when
the evidence in support of such charges is overcome by
the inherent probabilities of the case, a will is not to be
rejected, even at the suit of children disinherited without
apparent reason.*®
44 Burt V. Quisenberry, 132 111. of each ^ven case. The mental
385, 24 N. E. 622; Nicewander v. and physical condition of the tes-
Nlcewander, 151 111. 156, 37 N. E. tator, and the provisions of the
698; Waters v. Waters, 222 111. 26, will Itself, may he considered.—
113 Am. St. Rep. 359, 78 N. E. 1; In re Welch's Will, 6 Cal. App. 44,
In re Poppleton's Estate, 158 Mich. 91 Pac. 336, 337.
21, 122 N. W. 272. Mere discrimination hetween
The question as to the boundary children is not proof of undue in-
of legitimate influence must be de- fluence. — Buzalsky v. Buzalsky,
termined by consideration of the 108 Minn. 422, 122 N. W. 322.
relation between the parties, the To the same effect. — ^Abrahams
character, strength, and condition v. WooUey, 243 111. 365, 90 N. E.
of each of them, the circumstances 667.
of the case, and the application of 45 Hagan v. Yates, 1 Demarest
sound practical sense to the facts (N. T.) 584; Hubbard r. Hubbard,
FRAUD AND UNDUE INFLUENCE. 883
§ 585. An Unjust Will Alone Causes No Presumption of Undue
Influence.
Unequal distribution alone will not raise a presumption
of undue influence.*® Thus, in a case where a mother gave
nearly all her property to one son who was on confidential
terms with her and assisted in having the wiU drawn and
executed, and the evidence showed that she harbored
resentment against her other son on account of certain
business transactions between them, these facts were not
considered sufficient to establish undue influence over a
testatrix of sound mind, in the absence of proof of im-
portunity or persuasion.*'^
It is the formally expressed intent of the testator which
prevails, and courts have neither the right nor power to
change or to overthrow such intent, when properly ex-
pressed, on the ground of undue influence, in the absence
of direct and substantial proof bringing the case within
the established rules defining such influence. If the evi-
dence in any case, when viewed from a standpoint most
favorable to the contestant, does not show undue influence
as defined by law, the case should not be submitted to the
jury merely because of a suspicion or because it does not
conform to ideas of propriety.**
7 Ore. 42. See, also, Herster v. cised, because in the absence of
Herster, 116 Pa. St. 612, 11 Atl. statutory restrictions every one
*10. Tvltli testamentary capacity has
46 Kitchen v. Beach, 35 N. J. the right to dispose of his prop-
Eq. 446. See, also, Kise v. Heath, g^ty according to his own desires.
33 N. J. Eq. 239. —Singer v. Taylor, 90 Kan. 285,
While an unnatural disposition j^gg p^^^, ^^^ „,2
of property may be considered in
..,. . , , , 47 Dale V. Dale, 36 N. J. Eq. 269.
connection with evidence of undue ' . . m-
influence, it is ineffectual as proof *» In re Lavinburg's Estate, 161
in the absence of other evidence Cal. 536, 119 Pac. 915, 918; In re
that undue Influence was exer- Kilborn's Estate, 162 Cal. 4, 120
884 COMMENTARIES ON THE LAW OP WILLS.
§ 586. When Provisions of an Unjust Will May Be Considered.
An unjust or unnatural will, although not in itself evi-
dence of undue influence, may be considered by the jury
as tending to show that the testator was subjected to
wrongful influences. Courts look with suspicion upon
those testamentary dispositions which disregard natural
ties, and this suspicion is increased when any controlling
influence is shown to have been exercised, or is seen to
have been in a position to have been exercised, in oppo-
sition to the canons of descent and distribution. Although
the testator has the abstract right of disposing of his
estate by will as he may desire, yet a will which produces
unnatural and unjust results demands close judicial scru-
tiny. If there is substantial evidence of undue influence,
a harsh and unreasonable will calls for suspicion, and its
provisions should be submitted to the jury as tending
to show undue influence when such is an issue. They may
be considered by the jury with all the other facts and cir-
cumstances of the case.**
Pac. 762, 765; Beckett v. Stuart, App. 390; affirmed, 73 Mo. 242;
23 Cal. App. 373, 138 Pac. 115. Catholic University v. O'Brien, 181
An unjust and unnatural will Is Mo. 68, 79 S. W. 901; Roberts v.
not proof of mental incapacity. Bartlett, 190 Mo. 680, 700, 89 S. W.
See §§353-355. 858; King v. Gilson, 191 Mo. 307,
Where the issue of undue Influ- 327, 90 S. W. 367.
ence is raised in a will contest. See §§ 354, 355, as to unjust and
the court may direct a verdict unnatural wills being considered
when the facts require It. — ^In re on the issue of testamentary ca-
Carey's Estate, 56 Colo. 77, Ann. pacity.
Gas. 1915B, 951, 136 Pao. 1175, In Minnesota it has been ruled
1179 ; In re Shell's Estate, 28 Colo, that evidence shall not be ad-
167, 89 Am. St. Rep. 181, 53 mitted to show that the distrlbu-
L. R. A. 387, 63 Pac. 413. tion was grossly unequal, even if
49 Kletschka v. Kletschka, 113 offered in connection with proof
Minn. 228, 129 N. W. 372; Muller of impaired intellect, in the ab-
V. St. Louis Hospital Assn., 5 Mo. sence of actual evidence of undue
FRAUD AND UNDUE INFLUENCE.
885
§ 587. Suspicious Circumstances Dehors the Will Are Height-
ened by Unjust Provisions.
Suspicious circumstances dehors the instrument may
be heightened in effect by the provisions of the will itself ;
as where it shows an unaccountable preference for one
child above another, or where a large portion of the estate
is devised away from those whom natural affection would
select as the beneficiaries of the testator's bounty. Ac-
cordingly, we find it held that when the testator's mind
was very feeble at the time he executed the will, render-
ing him liable to undue influence, an unnatural and
unreasonable disinheriting of one who would naturally
share in the property should be shown to have been freely
and intelligently made.^" Thus, if a father, without appar-
ent cause, disinherit four of his six children, the burden
and the call upon the court for
jealous scrutiny, where the dispo-
sitions made by a testator in mo-
ments of great physical weakness,
are extraordinary, and especially
when they indicate an insensibility
to the dictates of natural affection
influence. — ^In re Storer's Will, 28
Minn. 9, 8 N. W. 827.
In an action to set aside, on the
ground of undue influence, a will
which makes an unnatural and in-
adequate provision for one of the
children of the testator, evidence
that prior to the execution of the
■ will advancements were made to
all the children of the testator
except the one insufficiently pro-
vided for by the will is competent
on the issues of undue influence
and testamentary incapacity, in
that it tends to show an unnatural
will. — Meier v. Buchter, 197 Mo.
68, 7 Ann. Cas. 887, 6 L. R. A.
(N. S.) 202, 94 S. W. 883.
In Jackson v. Jackson, 39 N. Y.
153, it is said: "I recognize the
weight of authority found in the
cases relied on by the appellant,
on the subject of undue influence.
and what are ordinarily recog-
nized as the claims of children,
or other near relatives, and still
more so if those dispositions are
in favor of unworthy objects."
60 Esterbrook v. Gardner, 2
Demarest (N. Y.) 543.
Where a bachelor, over seventy
years of age, while in a moribund
condition, executed at the instance
of his housekeeper a will she had
had prepared for four years, which
gave her all of his property, and
of which his relatives, and his
brother, who lived in an adjoining
house, had no knowledge, the facts
886
COMMENTARIES ON THE LAW OP WILLS.
of proof is upon the two taking under the will to show
the absence of undue influence.^^ Where the question is
susceptible of doubt, inherent justice of the provisions
of the will tends to solve the doubt in favor of the propo-
nents.^^
§ 588. Influence Resulting From Family Relations.
Lawful influence, such as that arising from legitimate
family and social relations, must be allowed to produce
its natural results, even in influencing last wiUs. How-
ever great the influence thus generated may be, it has no '
taint of unlawfulness. There can be no presumption of its
actual unlawful exercise merely from the facts that it is
were considered sufficient to show
undue influence. — Byard v. Con-
over, 39 N. J. Eq. 244.
See, also, Phipps v. Van Kleeok,
22 Hun (N. T.) 541; McCoy v.
McCoy, 4 Redf. (N. Y.) 54; Dem-
mert v. Schnell, 4 Redf. (N. Y.)
409.
Where for three months before
executing her will a testatrix in
feeble health was in personal in-
tercourse with a son who was ap-
parently hostile to her other son,
and who prevented the latter from
visiting his mother, and under
these circumstances the will was
written devising her whole fortune
of forty-five thousand dollars to
the former, except two thousand
dollars to the children of the lat-
ter, the facts were considered suffi-
cient to show undue influence. —
Dale v. Dale, 38 N. J. Bq. 274. See,
also, Greenwood v. Cline, 7 Ore. 17.
SI Gay V. Gillilan, 92 Mo. 250,
1 Am. St. Rep. 712, 5 S. W. 7. See,
also. In re Andrews' Will, 33 N. J.
Eq. 514; Kise v. Heath, 33 N. J.
Eq. 239.
Where a will is contrary to the
dictates of natural affection, of
justice, and of duty, the burden
is on the proponents of giving
some reasonable explanation of its
unnatural character, or at least,
that it was not the result of men-
tal defect, obliquity, or perver-
sion.— Meier v. Buchter, 197 Mo.
68, 7 Ann. Cas. 887, 6 L. R. A.
(N. S.) 202, 94 S. W. 883; Matter
of Cleveland's Will, 28 Misc. Rep.
369, 59 N. Y. Supp. 985.
It is competent to show that no
foundation existed for the exclu-
sion by the testator of the children
of his first marriage from partici-
pation in his estate. — Mullen v.
Helderman, 87 N. C. 471.
52 Estate of Williams, 13 Phila.
(Pa.) 302, 303; Patterson v. Pat-
terson. 6 Serg. & R. (Pa.) 55.
PKATJD AND UNDXJE INFLUENCE.
887
known to have existed and that it has manifestly operated
on the testator's mind as a reason for his testamentary
dispositions. Such influences are naturally very unequal
and naturally productive of inequalities in distribution ;
but as they are lawful, and as the law can not criticize
and measure them so as to attribute to them their proper
effect, no will can be condemned because the existence of
such influences is proved, or because the will contains
in itself proof of their effect. It is only when such an
influence is unduly exerted so as to prevent the will from
being truly the act of the testator, that the law condemns
it as a vicious element of the testamentary act.^^ A broad
distinction as to the effect of influence has been drawn
where each of two legatees stands in a confidential rela-
tionship to the testator, one being a stranger and the
53 Dean v. Negley, 41 Pa. St. 312,
317, 80 Am. Dec. 620; In re Weed's
Will, 143 App. Dlv. 822, 127 N. Y.
Supp. 966.
If a wife by her virtues has
gained such an ascendency over
her husband, and so riveted his
affections that her good pleasure
is a law to him, such an influence
can never he a reason for Im-
peaching a will made In her favor,
even to the exclusion of the resi-
due of his family; nor would It
be safe to set aside a will on the
ground of influence, importunity,
or undue advantage taken of the
testator by his wife, though it
should be proved she possessed a
powerful influence over his mind
and conduct in the general con-
cerns of life, unless there should
be proof that such Influence was
specially exerted to procure a will
of such a kind as to be peculiarly
acceptable to her, and to the preju-
dice and disappointment of others.
— Small v. Small, 4 Greenleaf, (4
Me.) 220, 16 Am. Dec. 253.
In a New Jersey case a charge
of undue influence was considered
not to be sustained by the fact
that a testator shortly after the
discharge of a son from an insane
asylum where he had been placed
by his brothers in good, faith, re-
voked a devise of a farm to him,
and, by codicil, gave him instead
an annuity of a hundred dollars,
and thereafter attempted t o
change the codicil, but merely for
the purpose of increasing the an-
nuity to two hundred dollars. —
Conover v. Conover, (N. J.) 8 Atl.
500.
There is no presumption that
the will favoring a parent or a
888
COMMENTARIES ON THE LAW OP WILLS.
other a child. In the latter instance, the relation of con-
fidence and participation in the estate is natural.®*
§ 589. The Same Subject.
Something is due to the dictates of humanity, and it
must not be said of the child who attempts to soothe the
last sufferings of her parent, that she is guilty of impo-
sition, even if the charge is preferred by those who have
shielded themselves from suspicion of influence by care-
fully abstaining from offices of affection.^® And a wife
may properly influence the making of her husband's will
for her own benefit,^® or for the benefit of others, provided
she do not act fraudulently or extort benefits from her
husband when he is not in a condition to exercise his
faculties as a free agent,^'' or unless there is proof that
child is the result of undue influ-
ence.— Craven's Will, 169 N. C.
561, 86 S. B. 587.
The law does not regard as Im-
proper the presence of a brother
nor of a nephew of the testator at
the execution of the Instrument,
although they are legatees under
the will. — Pennypacker v. Penny-
packer, (Pa.) 8 Atl. 634.
54 Lockwood V. Lockwood, 80
Conn. 513, 69 Atl. 8; Appeal of
Fitzpatrick, 87 Conn. 579, 89 Atl.
92, 94.
55 Miller V. Miller, 3 Serg. & R.
(Pa.) 267, 269, 8 Am. Dec. 651;
Estate of Williams, 13 Phila. (Pa.)
302, 303.
In Dale's Appeal, 57 Conn. 127,
17 Atl. 757, the court says: "It is
the duty of a son to entitle him-
self to the confidence of his par-
ents; it is his right to ask with
earnestness, restrained within
proper limits, for testamentary re-
membrance; it is the privilege of
the parents to make it, having ca-
pacity to know what is done." See,
also. Appeal of Fitzpatrick, 87
Conn. 579, 89 Atl. 92, 94.
Influence caused by the affec-
tion of a mother for her daughter
is not undue. — Gibony v. Foster,
230 Mo. 106, 130 S. W. 314.
Influence gained by a son over
his mother by courtesy and kind
treatment is not imdue. — Converse
V. Mix, 63 Wash. 318, 115 Pac. 305.
56 Small V. Small, 4 Greenl. (4
Me.) 220, 223, 16 Am. Dec. 253;
In re Hall's Estate, 68 Misc. Rep.
581, 125 N. Y. Supp. 253; Lide's
Admrs. v. Lide, 2 Brev. (S. C.) 403.
67 Latham v. Udell, 38 Mich. 238;
FRAUD AND UNDUE INFLUENCE. 889
she exerted her influence in an especial degree to secure
advantages to herself to the injury of other natural
objects of the testator's bounty."*^ It has been held that
a wife 's influence, in order to be considered undue, must
amount to coercion or fraud.®* The relationship, how-
ever, may be considered in connection with other evidence
tending to show undue influence, and may be of consid-
erable importance where the will contains unnatural pro-
visions; but where the will is reasonable and in the
absence of other evidence tending to show undue influ-
ence, the relationship does not establish such fact.^°
§ 590. Illicit Relationship Alone Raises No Presumption of
Undue Influence.
The mere fact that illicit relations exist between a man
and a woman raises no presumption of undue influence
because of a testamentary disposition by one in favor
Pierce v. Pierce, 38 Mich. 412; in which he should leave to her
Hughes V. Murtha, 32 N. J. Eq. 288. the larger portion or all of his
Undue influence of a husband estate. She was his lawful wife,
over his wife is more readily pre- and it was his duty to protect her
sumed than that a wife exercised by his will, and he evidently de-
her influence unduly over her bus- sired to do as he did in that
band. — Marsh v. Tyrrell, 2 Hagg. respect." — In re Enos' Estate, 79
Ecc. 84. Wash. 590, 140 Pac. 677, 680.
That a wife requests her hus- 58 Meeker v. Meeker, 75 111. 260,
band to appoint her one of the Rankin v. Rankin, 61 Mo. 295; Mil-
executors of his will is not evi- ler v. Miller, 3 Serg. & R. (Pa.)
dence of fraud or undue influence; 267, 8 Am. Dec. 651; Zimmerman
nor is the fact that the wife's sis- v. Zimmerman, 23 Pa. St. 375;
ters, one of whom testator was Farr v. Thompson, 1 Speers (S. C.)
visiting, procured the attendance 93; O'Neall v. Farr, 1 Rich. L.
of the lawyer of one of them to (S. C.) 80.
assist the testator's lawyer in 59 Boyse v. Rossborough, 6 H. L.
drawing the disputed will. — ^Black Cas. 2.
V. Foljambe, 39 N. J. Bq. 234. eo In re Morcel's Estate, 162 Cal.
"It was also a privilege of his 188, 121 Pac. 733, 735.
wife to solicit him to make a will
890
COMMENTAEIES ON THE LAW OF WILLS.
of the other.*^ It is not essential to a will or a deed that
the motives which led to the act should be virtuous or
that the object of the donor's bounty should be meri-
torious. To the argument that the influence of a mistress
is illegal because it sprang from an unlawful relationship,
it has been said that "however reprehensible such influ-
ences may be, if a testator 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 restraint upon his own judgment
61 In re Morcel's Estate, 162 Cal.
ISS, 121 Pac. 733, 735; In re Hess'
Will, 48 Minn. 504, 31 Am. St. Rep.
665, 51 N. W. 614; Sunderland v.
Hood, 84 Mo. 293; Scliucliliardt v.
Schuchhardt, 62 N. J. Eq. 710, 714,
49 Atl. 485; In re Willford's Will,
(N. J.) 51 Atl. 501; Piatt v. Elias,
186 N. Y. 374, 116 Am. St. Rep.
558, 9 Ann. Gas. 780, 11 L. R. A.
(N. S.) 554, 79 N. B. 1; Monroe v.
Barclay, 17 Ohio St. 302, 93 Am.
Dec. 620; Rudy v. Ulrich, 69 Pa.
St. 177, 8 Am. Rep. 238; Waln-
wright's Appeal, 89 Pa. St. 220;
O'Neall V. Farr, 1 Rich. L. (S. C.)
80.
In Porschet v. Porschet, 82 Ky.
93, 98, 56 Am. Rep. 880, the court
says: "It (a will is) the offspring
of a sound and disposing mind
and memory, the mere fact that
the testator has given his estate
by the will to one with whom he
has lived for years as his wife, in
preference to his brothers and sis-
ters, will not authorize the court
to say to the jury that the law
presumes the existence of undue
influence, and, In the absence of
any proof to the contrary, they
must find against the will."
In Monroe v. Barclay, 17 Ohio
St. 302, 93 Am. Dec. 620, the court
says: "Every will ... 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 accordance with
his individual will, that influence
alone is illegal which places the
freedom of a testator's will under
some kind of restraint. If this
be so, it follows that it matters
not what may be the origin or
character of any influence oper-
ating upon a testator, if it does
not place him 'under any re-
straint.' It would seem to follow,
also, that it would be equally im-
material how an individual may
have acquired an Influence over a
testator, unless such influence is
exerted in a manner that tends to
restrain the free exercise of his
will in the disposition of his prop-
erty."
FEAUD AND UNDUE INFLUENCE.
891
and conscience."®^ The proof of illicit relations, how-
ever, becomes important when taken in connection with
other circumstances, and may call for close scrutiny of
the circumstances,** but the exercise of undue influence
still remains a question of fact for the jury.**
§ 591. The Same Subject: Contrary View.
By statute, in some states, gifts to a mistress or an
illegitimate child are condemned. Thus in South Carolina
if a testator have a wife and legitimate children, a devise
or bequest to a mistress or bastard is void, so far as it
62 Monroe v. Barclay, 17 Ohio
St. 302, 93 Am. Dec. 620. See, also,
Piatt V. Ellas, 186 N. Y. 374, 116
Am. St. Rep. 558, 9 Ann. Cas. 780,
11 L. R. A. (N. S.) 554, 79 N. B. 1;
In re Chidester's Estate, 227 Pa.
St. 560, 76 Atl. 418.
Some decisions show an inclina-
tion to limit the inquiry into the
private history of the testator.
Thus in Iowa it has been held that
evidence of the testator's relations
to his second wile before the
death of the first was inad-
missible.— ^Webber v. Sullivan, 58
Iowa 260, 12 N. W. 319. See, also.
Pierce v. Pierce, 38 Mich. 412.
And in Minnesota the court re-
fused to allow it to be shown that
a wife exercised great influence in
controlling the testator in ordi-
nary affairs. — In re Storer's Will,
28 Minn. 9, 8 N. W. 827.
If the will be in conformity to
the testator's wishes, it is em-
phatically his will, and not the
will of another, and we are bound
to give it effect, without reference
to the motive of the testator, or
the unworthiness of the legatee,
until the legislature, upon consid-
erations of public policy, shall
think proper further to abridge
the right of an owner to dispose
of his property. — In re Hess' Will,
48 Minn. 504, 31 Am. St. Rep. 665,
51 N. W. 614; O'Neall v. Farr, 1
Rich. L. (S. C.) 80, 83.
Compare: Where the entire es.
tate of the testator was given to
one with whom he had sustained
meretricious relations, to the ex-
clusion of his only daughter. In-
fluence was presumed. — Snyder v.
Erwin, 229 Pa. St. 644, 140 Am.
St. Rep. 737, 79 Atl. 124.
63 Schuchhardt v. Schuchhardt,
62 N. J. Eq. 710, 714, 49 Atl. 485;
Piatt v. Elias, 186 N. Y. 374, 116
Am. St. Rep. 558, 9 Ann. Cas. 780,
11 L. R. A. (N. S.) 554, 79 N. E. 1.
64 Sunderland v. Hood, 84 Mo.
293; Dean v. Negley, 41 Pa. St.
312, 317, 80 Am. Dec. 620; Main v.
Ryder, 84 Pa. St. 217; Farr v.
Thompson, Cheves (S. C.) 37.
892 COMMENTARIES ON THE LAW OF WILLS.
exceeds one-fourth, part of his estate after payment of
debts f^ and under the Louisiana Code, there are restric-
tions upon gifts to natural children and concubines,®®
a will in favor of a mistress being in that state absolutely-
void as against public policy."''
In some decisions a distinction has been drawn between
the influence of a "wife and that of a mistress, to the effect
that although the influence of a wife is not undue unless
it amounts to coercion of the husband's mind, yet it
"would do violence to the morality of the law, and there-
fore, to the law itself, if we should apply this rule to
unlawful as well as to lawful relations; for we should
thereby make them both equal in this regard at least,
which is contrary to their very nature."®* Ordinary in-
fluence may be inferred in both cases, where the nature
of the will seems to imply it ; but in the former it is right
because the relation is lawful ; and in the latter it may be
condemned because the relation is unlawful.®*
65 S. C. Gen. Stats., (1882) society, and the domestic relations
§§1785, 1866; Stlmson's Am. Stat, of life."— Kessinger v. Kessinger,
Law, § 2615. 37 Ind. 341, 343.
66 La. Rev. Civ. Code, (1875) 69 Although the case of Dean v.
§§ 1481, 1483-1488. Negley, 41 Pa. St. 312, 80 Am. Dec.
67 Gibson v. Dooley, 32 La. Ann. 620, is often cited in support of
959. the position that no presumption
68 Kessinger v. Kessinger, 37 of law of undue influence is raised
Ind. 341, 343. from the mere existence of illicit
"We are of opinion that there cohahitation, yet the court in that
is a difference in the two cases, case, 41 Pa. St., page 317, used
and that an influence when exer- the following language; "If the
cised by a wife might be lawful law always suspects and inex-
and legitimate, but which, if ex- orably condemns undue influence,
ercised by a woman occupying and presumes it from the very
merely an adulterous relation to nature of the transaction in the
the testator, might be undue and legitimate relations of attorney,
illegitimate. This must be so from guardian, and trustee, where such
the very nature of civilized human persons seem to go beyond their
FRAUD AND UNDUE INFLUENCE. 893
§ 592. Suspicious Circumstances : Beneficiary Directing Exe-
cution of Will.
The mere fact that the party, whether attorney or not,
who prepared the will of a testator, was himself a legatee,
does not in itself Qreate a presumption of undue influence
so as to call upon the court to reject the will unless addi-
tional evidence is produced to prove the knowledge of its
contents by the deceased. It is, however, a suspicious
circumstance and is entitled to more or less weight, ac-
cording to the facts of each particular case.''" Thus if the
interest of the beneficiary is small in proportion to the
whole estate, and the testator is strong physically and
mentally, an inference of undue influence could not be so
strongly drawn as where the testator is mentally feeble
and the beneficiary takes a considerable portion of the
estate, to the exclusion of the heirs.''^
Where a will is drawn at the request and direction of
a sole beneficiary who was active in procuring and super-
intending its execution, some authorities hold that the
circumstances are sufiicient to raise a presumption of
undue influence so as to cast upon the proponent the bur-
den of showing that the will was voluntarily executed;
but the better rule is that the burden of proof does not
legitimate functions, and work for 737, 110 Pac. 1099, 1105; Goodloe
their own advantage, how much v. ti-oodloe, 47 Tex. Civ. App. 493,
more oug:ht It to deal sternly with 105 S. W. 533 ; Montague v. Allan's
unlawful relations, where they Exr., 78 Va. 592, 49 Am. Rep. 384.
are, in their nature, relations of Compare: Estate of Byrne, My-
influence over the kind of act rick's Prob. (Gal.) 1.
which is under investigation." 7i Council v. Mayhew, 172 Ala.
70 Barry v. Butlln, 1 Curt. Ecc. 295, 55 So. 314; Snodgrass v.
637; Snodgrass v. Smith, 42 Colo. Smith, 42 Colo. 60, 15 Ann. Gas.
60, 15 Ann. Cas. 548, 94 Pac. 312; 548, 94 Pac. 312; Drake's Appeal,
Rusling^v. Rusling, 36 N. J. Eq. 45 Conn. 9; Kelty r. Burgess, 84
603; Gldney v. Chappell, 26 Okla. Kan. 678, 115 Pac. 583.
894
COMMENTARIES ON THE LAW OF WILLS.
shift. Such wills, however, are not looked upon with
favor, and cast a suspicion which should appeal to the
vigilance of the court. All attendant circumstances should
be carefully scrutinized, and in some instances they may
be sufficient to exclude the will unless the suspicion be
removed, and the court be judicially satisfied that the
instrument is the true will of the deceased.''^
72 Delafield v. Parish, 25 N. T.
9; In re Everett's Will, 153 N. C.
83, 68 S. E. 924; In re Miller's
Estate, 31 Utah 415, 88 Pac. 338,
342. See §§ 397, 398.
Where the proponent accompa^
nied the testatrix to the attorney's
office within the hearing of, and in
a position so that he could see, the
parties in the execution of the
said will, and departed from said
offiice with the testatrix, this cir-
cumstance was held to be perti-
nent and of probative force, and
to be properly considered in con-
nection with other circumstances
on the question of undue influ-
ence.— In re Olson's Estate, 19 Cal.
App. 379, 126 Pac. 171, 175.
Where the favored daughter of
the testatrix went to the office of
the lawyer with the testatrix, who
then made the will "while the
daughter remained in another
room," such fact was given sig-
nificance. — Estate of Snowball,
157 Cal. 301, 307, 107 Pac. 598.
If there is evidence tending to
show that the testatrix knew the
contents of her will and was free
from undue influence, the contro-
verted questions of fact should be
submitted to the jury under proper
instructions, and It Is error for the
court to direct a verdict for the
contestant. — Snodgrass v. Smith,
42 Colo. 60, 15 Ann. Cas. 548, 94
Pac. 312.
Where defendant, a beneficiary
under the will to the extent of
probably $3000, or more, drew the
will when he and his mother alone
were present, in his own home,
and at a time when there was a
fiduciary relation existing between
him and the deceased, and when
he had been managing her busi-
ness and acting as her agent, the
circumstances were held to be
such that a presumption arose
against such beneficiary that re-
quired an explanation, and under
the circumstances it was held to
be a question for the jury as to
whether any explanation which
might be offered was suflScient. —
Squires v. Cook, (Iowa) 157 N. W.
253, 256.
"The beneficiary gave the In-
structions for the will, directed its
terms, and It was drawn at her
request, and. In judgment of law,
it must be regarded as written by
herself. We perceive no differ-
ence as to whether she herself
wrote the will, or as to whether it
FEAXTD AND UNDXJE INFLUENCE.
895
§ 593. Influence, Although Combined With Opportunit7 and
Motive, Does Not Render Will Void.
The general rule is that undue influence must be proved
and can not be assumed f^ and certainly until some sus-
picious circumstances be shown, the burden of proof is
upon the side seeking to establish undue influence.''*
Mere possession of influence and the opportunity and
motive to exercise it are not sufficient; it must appear
either directly or by justifiable inference from the facts
proved that the influence was exercised so as to destroy
the free agency of the testator and control the dispo-
sition of the property under the will. Unless the influence
of the beneficiary be unduly exercised, it is not material
■was written by another at her re-
quest and under her direction.
... A will made under such
circumstances ought to appeal to
the vigilance of the court and
open a broad field of inquiry." —
In re Miller's Estate, 31 Utah 415,
88 Pac. 338, 342.
"In this case It was shown con-
clusively, we think, that the tes-
tatrix did not understand the Eng-
lish language sufficiently to carry
on an ordinary conversation, and
it is clearly shown that she did
not understand enough of the Eng-
lish language to comprehend the
terms of the will, which was read
to her in the English language. It
seems plain, therefore, that if it
can be shown that the will was
procured by the principal bene-
ficiaries, who stated to the scriv-
ener the terms of the will, and
it was then drawn according to
their dictation and not according
to the dictation or desires of the
testatrix, and it was not fully ex-
plained to her, or that she did
not understand it as it was read
to her in English, this would be
sufficient to set the will aside. V^e
are satisfied, therefore, that the
court should have allowed the full-
est investigation into the facts
surrounding the drafting of the In-
strument, and if they were unex-
plained and not shown to have
been thoroughly understood by
the testatrix, the will was clearly
not her will." — In re Beck's Es-
tate, 79 Wash. 331, 140 Pac. 340,
342.
73 Beekman v. Beekman, 2 Dem-
arest (N. Y.) 635; In re Martin,
98 N. Y. 193.
74 Webber v. Sullivan, 58 Iowa
260, 12 N. W. 319.
Compare: Delafield T. Parish,
25 N. Y. 9, 34.
896
COMMENTARIES ON THE LAW OF WILLS.
that lie was interested in the will or had better oppor-
tunity for solicitation or persuasion than the contes-
tants.^s
75 Boyse v. Rossborough, 6 H. Li.
Cas. 2, 49; Parfitt v. Lawless,
L. R. 2 P. & D. 462; Estate of
Black, 132 Cal. 392, 395, 64 Pac.
695; Estate ofWeber, 15 Cal. App.
224, 114 Pac. 597, 603; Estate of
Dolbeer, 153 Cal. 652, 15 Ann. Cas.
207, 96 Pac. 266; Davis v. Calvert,
5 Gill & J. (Md.) 269, 25 Am. Dec.
2S2; Fothergill v. Fothergill, 129
Iowa 93, 105 N. W. 377; In re
Dobals' Estate, (Iowa) 157 N. W.
169, 170; Mitchell v. Mitchell, 43
Minn. 73, 44 N. W. 885; In re Hess'
Will, 48 Minn. 504, 31 Am. St. Rep.
665, 51 N. W. 614; Turnure v.
Turnure, 35 N. J. Eq. 437; Schuch-
hardt v. Schuchhardt, 62 N. J. Eq.
710, 49 Atl. 485; In re Eatley's
Will, 82 N. J. Eq. 591, 89 Atl. 776,
780; Seguine v. Seguine, 3 Keyes
(42 N. Y.) 663, 669, 4 Abb. Dec.
191, 35 How. Pr. 336; Matter of
Glhon, 44 App. Div. 621, 60 N. Y.
Supp. 65; In re Campbell's Will,
136 N. Y. Supp. 1086, 1105; Cud-
ney v. Cudney, 68 N. Y. 148, 149;
Matter of Mondorf, 110 N. Y. 450,
456, 18 N. E. 256; Snedeker v.
Rulong, 69 W. Va. 223, 71 S. E.
180.
Although the evidence shows
that the respondents had the op-
portunity to exercise undue in-
fluence upon the testatrix in the
matter of the making of this will,
and might have done so if they
had been so disposed, and had
possessed such influence, it Is not
sulHcIent. The undue influence
must actually exist, it must be
actually exerted, and it must be
so exerted as to affect the terms
of the will. — ^In re Purcell's Estate,
164 Cal. 300, 128 Pac. 932, 934.
Evidence of an opportunity for
exercising undue Influence on a
testatrix, and the circumstance
that her will makes her precep-
tress and friend, instead of her
relatives, the principal beneficiary,
are insufficient to support a charge
of undue influence, the will not
being under the circumstances an
unnatural one. — Estate of Dolbeer,
153 Cal. 652, 15 Ann. Cas. 207, 96
Pac. 266.
• Upon the issue of undue influ-
ence, there being some evidence
that the wife had sought to keep
certain friends from communi-
cating with her husband, and that
she had expressed a fear that he
might be Induced to make some
change in his papers, it amounted
to nothing beyond the Interest and
possible opportunity of the wife
to sway her husband's mind. Much
more is needed to make out a case
of undue influence. Proof must
be had of a pressure which over-
powered the mind and bore down
the volition of the testator at the
very time the will was made. — ^In
re Carithers' Estate, 156 Cal. 422,
105 Pac. 127, 130; Estate of Nel-
FRAUD AND UNDUE INFLUENCE. 897
§ 594. Confidential Relationship Between Testator and Bene-
ficiary: Parent and Child.
There is no reason why a testator may not make dis-
position of his estate in favor of one occupying a fidu-
ciary relationship toward him if his will does not con-
travene any of the limitations prescribed by law, and
he is not defrauded or unduly influenced. Warm personal
friendship and business dealings do not establish fidu-
ciary relationship.''® The mere fact that a legatee, who
may also be named as executrix of a will, is the cousin
and friend as well as the nurse and business partner
of the testatrix, has been said not to create a fiduciary
relationship. ''''
When the relationship of parent and child exists, more
must be shown by the contestants than the mere opportu-
nity for unfair dealing.'^® The effect of a confidential
relationship between testator and legatee, as suggestive
of undue influence, is materially different where the leg-
atee is a child, not a stranger, for in the former case
the relationship of confidence and of participation in the
testator's estate is natural.'^®
son, 132 Cal. 182, 64 Pao. 294; Es- sumiition ol undue Influence. —
tate of Calef, 139 Cal. 673, 73 Pac. Craven's Will, 169 N. C. 561, 86
539; Estate of Black, 132 Cal. 392, S. B. 587.
64 Pac. 695; Estate of Donovan, 76 In re Carey's Estate, 56 Colo.
140 Cal. 390, 73 Pac. 1081. 77, Ann. Cas. 1915B, 951, 51
The fact that the testator on L. R. A. (N. S.) 927, 136 Pac. 1175,
his death-hed was surrounded by 1179.
beneficiaries in his will does not t7 Snodgrass v. Smith, 42 Colo,
furnish any presumption of undue 60, 15 Ann. Cas. 548, 94 Pac. 312.
influence.— Bundy v. McKnight, 48 78 In re Martin, 98 N. Y. 193.
Ind. 502. 79 Lockwood v. Lockwood, 80
The presence of legatees and Conn. 513, 69 Atl. 8; Appeal ol
devisees at the death bed of the Fitzpatrick, 87 Conn. 579, 89 Atl.
testator will not raise the pre- 92, 94.
n Com. on Wills — 3
898 COMMENTARIES ON THE LAW OF WHIS.
§ 595. The Same Subject: Some Decisions Hold That the Law
Presumes Undue Influence.
The decisions are not harmonious as to the effect of*"'
confidential relationship between the testator and a bene-
ficiary. In some cases it is said that such relationship
raises the presumption of undue influence, and that it
casts the burden on a legatee or devisee who occupied
such a position when the will was made, to show that
the testator acted of his own free agency. Thus, where
a testator, enfeebled by disease, executed a codicil pre-
pared by his confidential adviser, by which the legacies
of a will made in full vigor of mind were cut down, and
the difference with the greater part of the residuary
estate was given to his adviser, it was ruled that the lat-
ter must show affirmatively that the testator knew clearly
what he was doing, and that his mind was free from
undue influence.*^ Where one stands in the relationship
of attorney to the testator at the time the will is made,
and is also the principal beneficiary under the will, the
fiduciary relationship being of the highest trust, it has
been said the law indulges in the presumption that undue
influence was used to procure the will, and that the bur-
den is on such beneficiary to show the contrary. ^^ And
80 Burden of proof is on a bene- making of the will is not suffl-
ficiary occupying confidential re- cient; there must be also evidence
lationship to rebut undue influ- that the testator was of ordinary
ence. — Ryan v. Rutledge, (Mo.) intelligence, that he acted volun-
187 S. W. 877. tarily, without persuasion, and
SI Delafield v. Parish, 25 N. Y. that he made fair provision for
9. 35. See, also, Yardley v. Cuth- those who would naturally be his
bertson, 108 Pa. St. 395, 56 Am. heirs. — Marx v. McGlynn, 88 N. Y.
Rep. 218, 1 Atl. 765. 357.
To sustain a will in favor of a sz Gidney v. Chappell, 26 Okla.
religious adviser to the exclusion 737, 110 Pac. 1099, 1105. See, also,
of the natural objects of the testa- Gay v. Gillilan, 92 Mo. 250, 1 Am.
tor's bounty, proof of the bare St. Rep. 712, 5 S. W. 7; Campbell
FRAUD AND UNDUE INFLUENCE.
899
it has been held that the presumption of undue influence
arising from a bequest from a ward to a guardian ex-
tends to the wife of the guardian.^^ Thus it has been
decided that a large bequest to one in a confidential rela-
tion to the testator would require him to show that the
testator acted voluntarily.^* Still the language of the
will itself,^^ or circumstantial evidence, may overcome the
presumption.^^ It is sufficient if the court or jury be sat-
V. Carlisle, 162 Mo. 634, 63 S. W. Where the relations between
701; Mowry v. Norman, 204 Mo. the testator and the proponent
173, 103 S. W. 15.
83 Bridwell v. Swank, 84 Mo. 455.
84 Paske V. Olatt, 2 Phlllim. 323;
Barry v. Butlin, 1 Curt. 637; Bur-
ling V. Loveland, 2 Curt. 225;
Walker v. Smith, 29 Beav. 394;
Greville v. Tylee, 7 Moore P. C. C.
320; Ashwell v. Lomi, L. R. 2
P. & D. 477; Breed v. Pratt, 18
Pick. (Mass.) 115; Meek v. Perry,
36 Miss. 190; Harvey v. Sullens,
46 Mo. 147, 2 Am. Rep. 491; Wil-
son V. Moran, 3 Bradf. (N. Y.)
172; Crispell v. Dubois, 4 Barb.
(N. Y.) 393; Newhouse v. Godwin,
17 Barb. (N. Y.) 236; Delafield v.
Parish, 25 N. Y. 9, 35; Boyd v.
Boyd, 66 Pa. St. 283; Downey v.
Murphy, 18 N. C. 82, 90; Riddell
V. Johnson's Exr., 26 Gratt. (Va.)
152.
Where it was shown that the
principal beneficiary had acquired
dominion over the testator by
threats of violence and other im-
proper means, the burden of proof
was upon him to prove that he did
not exercise undue influence over
the testator in the making of the
will. — Gay v. Gillilan, 92 Mo. 250,
1 Am. St. Rep. 712, 5 S. W. 7.
were confidential, and the propo-
nent drew the will, taking the en-
tire estate or a large bequest, and
would have taken nothing as heir,
while near, needy, and deserving
relatives take nothing, then the
law not only regards the transac-
tion with suspicion, but the bur-
den should be cast upon the pro-
ponent to show that he did not,
nor did any one in his behalf,
unduly infiuence the testator, and
that the instrument propounded is
the testator's will, and not the
will of another person. — Snod-
grass V. Smith, 42 Colo. 60, 15
Ann. Cas. 548, 94 Pac. 312; In re
Barney's Will, 70 Vt. 352, 40 Atl.
1027.
85 Coffin V. Coffin, 23 N. Y. 9,
80 Am. Dec. 235.
86 Ingram v. Wyatt, 1 Hagg. Ecc.
384, 394; Paske v. Olatt, 2 Phillim.
323, 325. See, also, Billinghurst v.
Vickers, 1 Phillim. 187; Barton
V. Robins, 3 Phillim. 455, n.;
Hitchings v. Wood, 2 Moore
P. C. C. 355; Beall v. Mann, 5 Ga.
456; Harvey v. Sullens, 46 Mo. 147,
2 Am. Rep. 491; Tyler v. Gardiner,
35 N. Y. 559; Carr v. McCamm,
900 COMMENTARIES ON THE LAW OF WILIjS.
isfied that the testator was not imposed upon, that he
understood the nature of his act, and the dispositions of
the will."
§596. The Same Subject: A Suspicious Gircumstaiice to Be
Considered.
The better rule seems to be that a confidential relation-
ship alone does not raise a presumption of undue influ-
ence which the beneficiary must overcome before the will
can be admitted; but it is a suspicious circumstance to
be considered in connection with all the facts of the case.
Thus, no presumption arises that the testator was unduly
influenced from the mere fact that the will makes pro-
vision for one who occupied a fiduciary relationship to
him ; there must be a further showing that the person so
benefited influenced the testator to so make his will.** To
maintain the contrary is to cast the burden in the first
18 N. C. 276; Watterson v. Waiter- Will, 141 App. Div. 188, 126 N. Y.
son, 1 Head (38 Tenn.) 1. Supp. 33; In re McCarty's Will,
The denial of the beneficiary, 141 App. Dlv. 816, 126 N. Y. Supp.
standing alone, if otherwise cred- 699.
ible, and not challenged by other The fact that the confidential
facts, is sufficient to overcome the relation of attorney and client ex-
legal presumption of undue influ- isted between the testatrix and a
ence resulting from confidential beneficiary does not in itself prove
relationship. — ^In re Eatley's Will, that the will was procured by
82 N. J. Eq. 591, 89 Atl. 776, 780. undue influence arising from that)
8T Barry v. Butlin, 1 Curt. 637; relation, nor cast upon him the
Durnell v. Corfield, 1 Rob. Ecc. 51; burden of proving the absence of
Duffield v. Robeson, 2 Har. (Del.) such Influence at the time of its
375, 384. execution.— In re Purcell's Estate,
88 Boyse v. Rossborough, 6 H. L. 164 Cal. 300, 128 Pac. 932, 934.
Cas. 49; Parfitt v. Lawless, L. R. Confidential relations existing
2 P: & D. 462; Spiers v. Eng- between the testator and bene-
lish, (1907) P. 24, 122; In re Hig- fioiary do not alone furnish any
gins' Estate, 156 Cal. 257, 104 Pac. presumption of undue influence. —
6; In re Packer's Estate, 164 Cal. Lee v. Lee, 71 N. C. 139.
525, 129 Pac. 778; In re Kindberg's Nor that the testator, an old
FKAtn> AND UNDXXB INFLUENCE.
901
instance on those preferred by a will, whenever a will
is offered for probate, to disprove nndne influence. But
where a confidential relationship existed between the tes-
tator and a beneficiary at the time the will was made,
slight circumstances in addition to such a showing are
sufficient to throw upon the beneficiary the burden of
proving that the testator's mind was not unduly influ-
enced.*® The bare facts that the draughtsman was made
executor, and that his relatives received much of the
and helpless man, made his will
in favor of a son who had for
years cared for him and attended
to all his business affairs, his
other children having forsaken
him. — ^Mackall v. Mackall, 135
U. S. 167, 34 L. Ed. 84, 10 Sup. Ct
705; Elliott's Will, 2 J. J. Marsh
(25 Ky.) 340.
A mere confidential relation ex-
isting between the testator and a
beneficiary under a will, or the
opportunity of such beneficiary to
exercise xindue influence over the
testator, is not enough to avoid
a will. The fraud or undue influ-
ence that will sufiice to set aside
a will, "must be such as to ovei^
come the free volition or con-
scious judgment of the testator,
and to substitute the wicked pur-
poses of another instead, and must
be the efficient cause, without
which the obnoxious disposition
would not have been made." — ^In
re Turner's Will, 51 Ore. 1, 93 Pac.
461, 464.
89 In re Cooper's Will, 75 N. J.
Eq. 177, 71 Atl. 676. See, also.
In re Turner's Will, 51 Ore. 1, 93
Pac. 461, 464.
Where the deceased was old and
feeble and a confidential relation
existed, we think the rule an-
nounced in Ross V. Ross, 140 Iowa
51, 61, 117 N. W. 1105, to the
effect, briefly stated, that if a per-
son who was aged and of impaired
mind and memory, though he may
not have been legally incompetent
to make a will, yet the will of
such a person ought not to be sus-
tained unless it appears that such
disposition of his property has
been fairly made, and to have
emanated from a free will, with-
out the interposition of others,
and that if the jury should find
under all the circumstances that
the disposition of the property did
not emanate from a free will and
was not in accord with testator's
previous intentions, etc., the jury
would be justified in finding that
the will was not the voluntary act
of the testator, but that it was
obtained by undue influence. —
Squires v. Cook, (Iowa) 157 N. W.
253, 256.
The rule to be deduced from the
decisions on the subject is this:
That where a person, enfeebled
902
COMMENTARIES ON THE LAW OP WILLS.
property, do not of themselves raise a presumption of
undue influence.*" But a large gift to the scrivener of a
will often excites the suspicion of fraud or of undue in-
fluence,*^ and this suspicion is strong in proportion to the
amount of the bequest.*^
§597. The Same Subject: Slight Evidence Only May Be
Required.
There are certain cases in which undue influence may
be established by a slight degree of evidence, and others
in which certain facts being proven it will rest with
the beneficiary under the will to show affirmatively the
absence of undue influence."^ Thus, taken in connection
with other facts, it is often a cause of suspicion that gifts
are made to persons standing in confidential or fiduciary
by old age or illness, makes a
will in favor of another person;
upon whom tie is dependent, and
that will is at variance with
a former will made, or intentions
formed when his faculties were in
lull vigor, and is opposed to the
dictates of natural justice, the pre-
sumption is that such a will Is
the result of undue influence, un-
less that presumption is satisfac-
torily rebutted by other evidence
in the case. — In re Hess' Will, 48
Minn. 504, 31 Am. St Rep. 665,
51 N. W. 614; Demmert v. Schnell,
4 Redf. (N. Y.) 409.
Slight circumstances in addition
are sufficiently shown by the
action of the beneficiary in at-
tending to the preparation of the
will and codicil, in drafting the
residuary clause of the will in his
own favor, and in selecting the
witnesses. — In re Gordon's Estate,
(N. J.) 89 Atl. 33, 35.
90 Carter v. Dixon, 69 Ga. 82.
91 Baker v. Batt, 2 Moore
P. C. C. 317; Durling v. Loveland,
2 Curt. 225; Paske v. Olatt, 2
Phillim. 323; Duffield v. Robeson,
2 Har. (Del.) 375, 384; Hughes
V. Meredith, 24 Ga. 325, 71 Am.
Dec. 127; Adair v. Adair, 30 Ga.
102; Cramer v. Crumbaugh, 3 Md.
491; In re Everett's Will, 153 N. C.
83, 68 S. E. 924; Tomklns v. Tom-
kins, 1 Bail. L. (S. C.) 92, 19 Am.
Dec. 656; Fatten v. Allison, 7
Humph. (26 Tenn.) 320.
92 Barry v. Butlin, 1 Curt. 637;
Durnell v. Corfield, 1 Rob. Ecc.
51, 63; Lee v. Dill, 11 Abb. Pr.
(N. Y.) 214.
93 W h e r e, in a testamentary
transaction, the facts show the ex-
istence of a confidential relation
between testator and a beneficiary,
slight circumstances in addition
to such relations will throw upon
the beneficiary the burden of
FRAUD AND UNDUE INFLUENCE.
903
relations to the testator: legal,'* religious,*® and medical
advisers,®® the scrivener of the will,"^ guardians,®* trus-
showlng that the testator's mind
was not unduly Influenced. — In re
Cooper's Will, 75 N. J. Eq. 177,
71 Atl. 676; In re Gordon's Es-
tate, (N. J.) 89 Atl. 33, 35.
94 It has been held that an attor-
ney who has been the testator's
legal adviser, and who draws a
will containing a legacy to him-
self, must show affirmatively the
absence of fraud and undue in-
fluence.— Post V. Mason, 26 Hun
(N. Y.) 187. But in a higher court
in the same case it was said that
there is no presumption of fraud
and undue influence from a legacy
to one who had been the testator's
legal adviser for a long time, and
who was the scrivener of the will.
—Post v. Mason, 91 N. Y. 539, 43
Am. Rep. 689.
95 T h e r e was not sufficient
ground for presuming undue influ-
ence, from the fact that a testatrix
devised her real estate to a priest
in trust for a Romish church of
which she was a member, the
priest attending to drawing and
executing the will for her through
a lawyer, at her request, the will
being in accordance with her pre-
viously declared intentions, al-
though she had held no conversa-
tion with the priest upon the
subject before her sickness. — Ker-
rigan V. Leonard, (N. J.) 8 Atl.
503. See, also, Marx v. McGlynn,
4 Redf. (N. Y.) 455.
Where a convert to spiritualism
whose life was dominated thereby,
and who was influenced by the
person through whom he had em-
braced that belief to become alien-
ated from wife and child, and to
make a will in favor of his ad-
viser, the facts were considered
sufficient to justify setting the will
aside. — Thompson v. Hawks, 14
Fed. 902, 11 Eiss. 440.
96 A large bequest to an attend-
ing physician has been regarded
with suspicion. — Major v. Knight,
4 Notes of Cas. 661; Cockcraft v.
Rawles, 4 Notes of Cas. 237;
Jones V. Godrich, 5 Moore P. C. C.
16. See, also, Barry v. Butlin, 2
Moore P. C. C. 480.
97 See, ante, § 592.
In a case in Maryland it was
ruled that it was proper to refuse
to instruct the jury that large
benefits to the draftsman are al-
ways a suspicious circumstance of
more or less weight. — Stirling v.
Stirling, 64 Md. 138, 21 Atl. 273.
A will of a testator being drawn
by a confidential friend whose
wife was a beneficiary, does not
necessarily raise a presumption
of undue influence. — Montague v.
Allan's Exr., 78 Va. 592, 49 Am.
Rep. 384. Nor does the fact that
it was drawn by a favored legatee.
— Rusling V. Rusling, 36 N. J. Eq.
603.
But see, contra: Estate of Byrne,
Myrick's Prob. (Cal.) 1.
98 Evidence that the proponent
of a will had before its date and
after an inquest been appointed
904
COMMENTAKIES ON THE LAW OF WILLS.
tees, or other persons having the ear of the testator. But
in these cases the inference is one of fact to be drawn by
the jury, and not a presumption of law f^ and its strength
will depend upon the circumstances of each case.^ A leg-
acy to the wife of one standing in such a relation, but
who was not proven to have drafted the will, nor to have
given advice as to its provisions, nor to have known of
the testator's intention to make it, was not vitiated by the
bare existence of the relation.^
§ 598. Fraud and Undue Influence Distinguished.
Undue influence and fraud often go hand in hand. It
was early said ' ' that undue influence must be of the na-
ture of fraud or duress."^ The first may involve ele-
ments of the two latter, but the general rule now is that
the allegation or plea of undue influence is distinct from
that of fraud or duress. Fraud, which includes misrepre-
conservator of tte testator, and ists between tlie principal devisee
and the testator, and they live to-
gether In the same house, it is not
easy to establish an allegation of
undue influence by direct or posi-
tive proof, nor is it necessary to
do so. But while circumstantial
evidence (such as disproportion-
ate gifts to one, to the exclusion
of others having a claim, upon the
testator's bounty) is not to be dis-
regarded, rash conclusions are not
to be drawn therefrom, and such
evidence must be of a satisfactory
and convincing character.^ — Hers-
ter V. Herster, 116 Pa. St. 612,
11 Atl. 410.
2Bristed t. Weeks, 5 Redf.
(N. Y.) 529.
3 Sir John Nicholl in Williams v.
Goude, 1 Hagg. Ecc. 577, 596.
continued to act in that capacity
up to the date of the testator's
death, is admissible on the ques-
tion of "fraud, compulsion, or
other improper conduct" — Critz's
Heirs v. Pierce, 106 111. 167.
A will of a female of sixteen,
easily influenced and in poor
health, made in favor of her
guardian, who took an active part
in its execution, was subjected to
close scrutiny. — Seiter v. Straub,
1 Demarest (N. Y.) 264.
89 Horah v. Knox, 87 N. C. 483
iBristed V. Weeks, 5 Redf.
(N. Y.) 529.
As to a will In favor of a part-
ner, see Brooks' Estate, 54 Cal
471.
Where a confidential relation ex-
FRAUD AND UNDUE INFLUENCE!. 905
sentation, is the subject of a separate plea under mod-
ern English probate practice. An allegation or plea of
undue influence raises only the question of coercion.*
Fraud and undue influence are often confounded. While
undue influence may be associated with and exercised
by means of fraud,^ yet importunity sufficient to invali-
date a will may be exercised without fraudulent mo-
tives.* In probate law undue influence has become suffi-
ciently differentiated from fraud to be regarded as of a
distinct genus of wrongs.''
§599. The Same Subject: Either May Exist Without the
Other.
In a will contest on the ground of fraud or undue influ-
ence, the law regards only the acts perpetrated against
the testator, although incidentally those who would
4 Sefton V. Hopwood, 1 Fost. & Misc. Rep. 476, 150 N. Y. Supp.
Fin. 578; Lovett v. Lovett, 1 Fost. 118, 123; Herster v. Herster, 122
& Fin. 581; Parfitt v. Lawless, Pa. St. 239, 9 Am. St. Rep. 95,
L. R. 2 P. & D. 462, 471. 16 Atl. 342.
5 In re Snowball's Estate, 157 Tlie fact that tie jury does find
Cal. 301, 107 Pac. 598, 600; Powell against proponents upon the issue
V. Plant, (Miss.) 23 So. 399; Rob- whether the will was procured by
inson v. Robinson, 203 Pa. St. 400, fraud will not preclude it from
53 Atl. 253. considering evidence of fraud as
6 Stewart v. Elliott, 2 Mackey being upon the issue of undue in-
(13 D. C.) 307. fluence. — In re Snowball's Estate,
7 In re Snowball's Estate, 157 157 Cal. 301, 107 Pac. 598, 600.
Cal. 301, 107 Pac. 598, 600; In re "Fraud is a distinct head of
Ricks' Estate, 160 Cal. 467, 117 objection from importunity and
Pac. 539, 545; Hopper v. Sellers, undue influence. Importunity and
91 Kan. 876, 139 Pac. 365, 368; undue influence may be fraudu-
In re Hess' Will, 48 Minn. 504, lently exerted, but they are not
31 Am. St. Rep. 665, 51 N. W. 614; inseparably connected with fraud."
Powell V. Plant, (Miss.) 23 So. — Davis v. Calvert, 5 Gill & J.
399; In re Hermann's Will, 87 (Md.) 269, 25 Am. Dec 282.
906 COMMENTAEIES ON THE LAW OF WILLS.
otherwise receive the estate of the testator are deprived
of its benefits.^
Either fraud or undue influence may exist without the
other.^ Fraud, generally, is exercised by means of false
statements, false pretenses, or some trick, device, or
other mode of deception. Undue influence is exercised
by persuasion, importunity and the like whereby the mind
of the testator, through weakness, ignorance, dependence,
or implicit reliance on the good faith of another, is sub-
jugated to the will of the one operating on it, thus de-
stroying its free agency. Fraud relates to the deception
practiced; undue influence has reference to coercion of
the mind of the testator. Undue influence need not be
associated with fraud; a testator may make his will in
favor of some one because of importunity or imposition
unaccompanied by any false representation or fraudulent
practice. The testator is not deceived, but is unduly in-
fluenced. In a sense, however, there may be said to be
an element of fraud, but only in so far as the heir is con-
cerned, he being deprived of what he otherwise would
have received.^"
§ 600. The Same Subject.
Fraud may be practiced without any attempt at unduly
influencing the will of the testator. Thus a stranger
through malice may make false charges against an heir
and thus poison the mind of the testator against him.
The stranger may neither expect nor receive any benefit
8 In re Ricks' Estate, 160 Cal. lo See In re Hess' Will, 48 Minn.
467, 117 Pac. 539, 545. 504, 31 Am. St. Rep. 665, 51 N. W.
9 Davis V. Calvert, 5 Gill & J. 614; Herster v. Herster, 122 Pa.
(Md.) 269, 25 Am. Dec. 282; St. 239, 9 Am. St. Rep. 95, 16 Atl.
Powell V. Plant, (Miss.) 23 So. 342.
399; Robinson v. Robinson, 203
Pa. St. 400, 53 Atl. 253.
FRAUD AND UNDUE INFLUENCE. 907
under tlie will. Such is a case of simple fraud, although
such fraud may so influence the testator as to pervert
his mind, even though there was no coercion.^^ But if
such false charges were made by one as a basis for influ-
encing the mind of the testator and were followed by a
successful effort whereby the heir was disinherited be-
cause of the belief of the testator of the truth of such
false statements and because of his being influenced by
them, such fraudulent representations may be considered
as an element in proof of undue influence. In such a
case, however, they must have been made not only for the
purpose of influencing the testator, but made the basis of
importunities resulting in the coercion of the testator's
mind. Thus undue influence may be exerted by means of
fraud.^^ The distinction is important, as a plea or finding
of undue influence will not be supported by evidence
purely of fraud, nor will a plea or finding of fraud be
supported by evidence showing only the exercise of undue
influence.^* If, however, the fraud or fraudulent repre-
sentations were made the basis of a successful solicitation
whereby the mind of the testator was coerced into making
11 Fraud is a species of undue 12 Undue influence is not the
influence; but undue influence same thing as fraud. One may
may be exercised otherwise than exist without the other. Undue
through fraud. If, therefore, the influence may, however, be ex-
mlnd of the testatrix was so per- erted by means of fraud. — ^In re
verted by deceit or other sinister Snowball's Estate, 157 Cal. 301,
means that she lacked power to 107 Pac. 598, 600; Davis v. Cal-
give expression to her true de- vert, 5 Gill & J. (Md.) 269, 25 Am.
sires, provisions of the will pro- Dec 282; Powell v. Plant, (Miss.)
cured by such influences were 23 So. 399; Eckert v. Flowry, 43
void, notwithstanding the fact that Pa. St. 46; Robinson v. Robinson,
she possessed capacity to make 203 Pa. St. 400, 53 Atl. 253.
the will, and was under no co- i3 In re Ricks' Estate, 160 Cal.
ercion.— Hopper v. Sellers, 91 Kan. 467, 117 Pac. 539, 544.
876, 139 Pac. 365, 368.
908 COMMENTABIES ON THE LAW OF WILLS.
a will in a certain manner which he otherwise would not
have done, then such fraud becomes an element of undue
influence and may be considered in support of such plea
or finding on such issue.^*
§ 601. Duress and Undue Influence Distinguished.
Duress is an actual or threatened violence of one's
person, contrary to law, to compel him to do some act.
It exists whenever there has been violence, actual or
threatened, so that it is not the free act of the person
on whom it is practiced.^® Executing an instrument re-
luctantly and upon repeated urgings does not constitute
duress.^® The compulsion must deprive the person of his
free agency.^''
In many decisions statements will be noted to the effect
that undue influence may be exercised by force and ac-
complished through fear. Undue influence, strictly
speaking, may be established without showing any phys-
14 In re Ricks' Estate, 160 Cal. tJnder the early Englisli law,
467, 117 Pac. 539, 544. prisoners, captives, and the like,
Confidence or influence may be those lacking liberty or freedom
used to obtain an unfair advaa- of will, were not prevented abso-
tage over another In a variety of lutely from making wills, but each
ways, and no less by means case was decided according to the
of fraudulent misrepresentations particular circumstances surround-
than by means of duress or other ing it, and it was for the judge to
pressure. — In re Snowball's Es- say, considering the duress,
tate, 157 Cal. 301, 107 Pac. 598, whether the person had "liberum
601. animum testandi." — 2 Bl. Com.
15 King V. Williams, 65 Iowa *497.
167, 21 N. W. 502. 16 Hamilton v. Smith, 57 Iowa
Those wanting liberty, or lack- 15, 42 Am. Rep. 39, 10 N. W. 276.
ing freedom of will, such as pris- 17 Commonwealth v. Drew, 3
oners, captives, and the like, were Cush. (57 Mass.) 279; State v.
incapable of devising under the Bryant, 14 Mo. 340; Common-
civil law. — Godolph, pt. 1, ch. 9; wealth v. Gillespie, 7 Serg. & R.
Swinb. Wills, pt. 2, § 8. (Pa.) 469, 10 Am. Dec. 475.
FRAUD AND UNDUE INFLUENCE.
909
ical coercion or restraint; it may be subtle without out-
ward demonstration. It imports mental coercion as dis-
tinct from "duress," which latter term refers to menace
or actual or threatened physical violence or restraint.
Undue influence is a moral wrong and is cognizable in
equity ; duress is a physical wrong and is primarily a mat-
ter of legal cognizance. Where duress is established, con-
sent of the testator is impossible.^'
§ 602. Forgery and Mistake.
A will, in its very nature, is the legally expressed in-
tent of the maker. It is needless to say that a forged
instrument not only fails to express the intentions of the
purported testator, but lacks every element of due exe-
cution. A will made by mistake, or containing disposi-
tions not intended, may be formally executed, yet it fails
to correctly state the intentions of the maker. The mere
fact of execution does not make it a valid will, it must
be made with animus testandi.^^ But an instrument, exe-
cuted with due formality and reasonable on its face,
should not be lightly considered or rejected because of
parol evidence of mistake.^" Nor will a mistake by the
18 In re Hermann's Will, 87 "If such declarations could be
Misc. Rep. 476, 150 N. Y. Supp. admitted to prove that the will
118, 125; Anderson v. Anderson, was procured by fraud or duress
43 Utah 26, 134 Pac. 553, 557. or mistake, no man's will would
19 See § 46. Watson v. Clark, be safe. The temptation to disap-
(lowa) 122 N. W. 913. pointed seekers after the testa-
20 Nichols V. Nichols, 2 Phillim. tor's bounty to watch the testator
180; Lister v. Smith, 3 Sw. & Tr. and, as his mind grew weaker, to
282; Comstock v. Hadlyme Eco. tamper with him and to induce
Soc, 8 Conn. 254, 20 Am. Dec. 100; him to make declarations that
Farrar v. Ayres, 5 Pick. (Mass.) were inconsistent with the will,
404; Fleming v. Morrison, 187 would be sufficient to induce un-
Mass. 120, 105 Am. St. Rep. 386, scrupulous persons to ' do such
72 N. E. 499. As to parol declara- miserable work, and even go fur-
tions, see § 53. ther and suborn witnesses, to
910 COMMENTARIES ON THE LAW OP WILLS.
scrivener in drafting a will, wherein lie has omitted to
insert certain legacies, render the will void.^^
§ 603. Great Latitude Is Allowed as to the Character of Evi-
dence.
To ascertain when coercion and consequent subversion
of intention exist requires a very extended and refined
inquiry in a probate case, and for this reason the courts
allow great latitude on an issue of undue influence.^^ The
financial worth of a contestant is admissible to show why
he did not receive a larger share.^* It has been said
that when the issues before the jury are fraud and undue
influence, any evidence, however slight, tending to prove
the issues, is admissible.^* Accordingly we find that evi-
dence has been held admissible which afforded an insight
not otherwise obtainable into the private history of the
family, the relations of the testator with his second wife,
and the means she employed to alienate his affections
from the children of his first wife.^^ So where a man just
divorced married a woman of means, who died a few
swear to imaginary declarations 87 Misc. Rep. 476, 150 N. Y. Supp.
of the testator, inconsistent with 118, 126; Rollwagen v. Rollwagen,
the terms of his will, pretended to 63 N. Y. 504, 519 ; Horn v. Pull-
have been made both before and man, 72 N. Y. 269, 276; In re
after the will was executed. The Woodward's Will, 167 N. Y. 28, 31,
statute, which requires the will 60 N. B. 233; In re Esterbrook's
to be in writing and properly wit- Estate, 83 Vt. 229, 75 Atl. 1.
nessed, would afford but little pro- 23 Mowry v. Norman, 223 Mo.
tection to the testator or to the 463, 122 S. W. 724; In re Ester-
real objects of his bounty, if proof brook's Estate, 83 Vt. 229, 75
of such declarations could be ad- Atl. 1.
mitted." — Couch v. Eastham, 27 24 Clark v. Stansbury, 49 Md.
W. Va. 796, 55 Am. Rep. 346. 346. See, also, Gilmore v. Gil-
21 Comstock V. Hadlyme B. Soc, more, 86 N. C. 301.
8 Conn. 254, 20 Am. Dec. 100. 25 Reynolds v. Adams, 90 IH.
22 Boyse v. Rossborough, 6 H. L. 134, 32 Am. Rep. 15.
Cas. 42, 58; In re Hermann's Will,
FRAUD AND UNDUIE INFLUENCE. 911
weeks after leaving him all her property, a broad lati-
tude of inquiry into their relations before and after mar-
riage was considered proper.^® And evidence of a suit
brought by the testator against his son is admissible to
show the feeling entertained by the deceased.^'^ But it is
not all circumstances, nor all misconduct on the part of a
beneficiary, that may be placed in evidence; any fact
which does not logically bear on the coercion of the tes-
tator's mind in and about the very act of the will is not
entitled to be received on the issue of undue influence.^^
§ 604. Undue Influence May Be Established by Circumstantial
Evidence.
Undue influence need not be established by direct proof,
but may be shown by facts from which it may be ration-
ally inferred. From the very nature of things, it can
rarely be proved by direct evidence. It is seldom exer-
cised openly in the presence of others.^® The relations of
the parties, surrounding circumstances, the habits and
inclinations of the testator, his purposes and wishes, ex-
pressed at times and under conditions which lent verity
to his statements, all furnish competent sources for the
guidance of courts when called upon to decide the ques-
tion.*" However, the circumstances relied upon to show
26 Potter's Appeal, 53 Mich. 106, mann's Will, 87 Misc. Rep. 476, 150
18 N. W. 575. N. Y. Supp. 118, 126.
27 Canada's Appeal, 47 Conn. 30 In re Patterson's Estate, 68
450. See, also, Mooney v. Olsen, Wash. 377, 123 Pac. 515; Matter
22 Kan. 69. of Van Ness' Will, 78 Misc. Rep.
28 In re Cailrey's Will, 95 Misc. 592, 139 N. Y. Supp. 485; Roll-
Rep. 466, 159 N. Y. Supp. 99, 102. wagen v. Rollwagen, 63 N. Y. 504,
29 Meier v. Buchter, 197 Mo. 68, 505; In re Tresid.der's Estate, 70
7 Ann. Cas. 887, 6 L. R. A. (N. S.) Wash. 15, 125 Pac. 1034, 1036.
202, 94 S. W. 883; Matter of Van It can not be doubted, however,
Ness' Will, 78 Misc. Rep. 592, 602, that the exercise of undue influ-
139 N. Y. Supp. 485; In re Her- ence in fact may be inferred from
932
COMMENTARIES ON THE LAW OF WILLS.
undue influence must be sucli as, taken together, point
unmistakably to the fact that the mind of the testator
was so governed by another that the will was the product
of the latter.*^ It has been said it is not sufficient to show
that the circumstances attending the execution of the will
of a testator of sound mind are consistent with the hy-
pothesis of its having been obtained by undue influence ;
it must be shown they are inconsistent with a contrary
hypothesis.®*
surrounding circumstances, taken
iu connection with statements
made by the person alleged to
have exercised such influence, and
who Is a beneficiary under the
will. — Falrbank v. Fairbank, 92
Kan. 45, 139 Pac. 1011, 92 Kan.
492, 141 Pac. 297; Qrundmann v.
Wilde, 255 Mo. 109, 164 S. W. 200;
Naylor v. MoRuer, 248 Mo. 423,
154 S. W. 772.
31 In re Storer's Will, 28 Minn.
9, 11, 8 N. W. 827; In re Hess*
Will, 48 Minn. 504, 31 Am. St. Rep.
665, 51 N. W. 614.
This court has approved the fol-
lowing as a correct announcement
of the law governing will contests,
when the issue is whether the will
■was or was not produced by undue
influence: "A charge of undue in-
fluence is substantially that of
fraud, and it can seldom be shown
by direct and positive evidence.
While it is true that it must be
proved, and not presumed, yet it
can be, and most generally is,
proven by evidence of facts and
circumstances which as to them-
selves may admit of little dispute,
but which are calculated to es-
tablish It, and from which it may
reasonably and naturally be In-
ferred. It was also said that a
court should be liberal in admit-
ting evidence of all circumstances,
even though slight, which may
tend, in conjunction with other
circumstances, to throw light
upon the relations of the parties
and upon the disputed questions
of undue influence." — Lehman v.
Lindenmeyer, 48 Colo. 305, 109
Pac. 956, 959; In re Shell's Estate,
28 Colo. 167, 89 Am. St. Rep. 181,
53 L. R. A. 387, 63 Pac. 413.
As was said in Estate of Mc-
Devitt, 95 Cal. 17, 33, 34, 30 Pac.
101: "Evidence must be produced
that pressure was brought to bear
directly upon the testamentary
act; but this evidence need not
be direct Circumstantial evidence
is suflScient. It must, however, do
more than raise a suspicion." See,
also. In re Weber's Estate, 15 Cal.
App. 224, 114 Pac. 597, 602.
32 Boyse V. Rossborough, 6 H. L.
Cas. 51. See, also. Council v. May-
hew, 172 Ala. 295, 55 So. 314;
Brackey v. Brackey, 151 Iowa 99,
130 N. W. 370; In re Hess' Will,
FRAUD AND UNDUE INFLUENCE. 913
§ 605. Forgery : Matters Not Establishing.
The fact that the body of the will is in decedent's hand-
writing affords no presumption that he signed the will.
Such a fact is useful in several respects after the due
execution of the will is established, but is not proof in
any way of due execution.^* Neither does the fact that
the will bore date of the 20th, while the petition of the
proponent states that the testator died on the 17th of the
same month, afford any presumption that the will is a
forgery; the more reasonable supposition is that the peti-
tioner was mistaken in the date of the death or that a
mistake was made in dating the instrument.** No in-
ference that a will has been forged can be drawn from
the fact that it is written on one side of two pieces of
paper instead of on two sides of one piece when the
scrivener has testified to the reason therefor.*^ Nor is
the fact that the testatrix signed her name to the will as
"Eoxa Lana" instead of "Roxalana," as she usually
wrote it, any more an argument in favor of the falsity
of the signature than for its genuineness. It would be
most imnatural for a party seeking to commit a forgery
48 Minn. 504, 31 Am. St. Rep. 665, testator at the date of the instru-
51 N. W. 614; In re Caffrey's Will, ment is a legal element of proof
95 Misc. Rep. 466, 159 N. T. Supp. to be considered, as is also the
99, 103; Whelpley v. Loder, 1 mode by which the party present-
Demarest (N. Y.) 368. ing the will acquired possession of
Contra: Gay v. Gillilan, 92 Mo. -the same. The court will also con-
250, 1 Am. St. Rep. 712, 5 S. W. 7. sider the character of the pro-
33 Matter of Burtis' Will, 43 visions as a means of testing the
Misc. Rep. (N. Y.) 437, 89 N. Y. validity of the will by the proba-
>Supp. 441. biUtles of the disposition of the
34 Doran v. Mullen, 78 111. 342. property. — Succession of Gaines,
In a contest over the genuine- 38 La. Ann. 123.
ness of a holographic will, the 35 Lamb v. Lippincott, 115 Mich,
alleged physical incapacity of the 611, 73 N. W. 887.
n Com. on Wills— 4
914 COMMENTARIES ON THE LAW OP WILLS.
to adopt a signature unlike the genuine.^* Nor can the
charge of forgery be supported by proof that the pro-
ponent and legatee had committed other independent for-
geries.^''
§606. Evidence of Forgery: Suspicious Circumstances.
In suits involving the validity of wiUs where forgery
is charged, all legal modes of proof, including the tes-
timony of experts, comparisons of writing, and the like,
are proper, and the evidence must be given the consid-
eration the facts warrant.^* Any evidence of suspicious
actions tending to show the improbability of the genu-
ineness of the purported will, or to disclose the motive
of the party in offering it, may he received.^® The truth
or falsity of matters recited in the will may be shown as
bearing upon the genuineness of the instrument; as
where the recitals are of the feelings of the alleged tes-
tatrix, her acts and declarations may be put in evidence
to show that her feelings were not as stated in the will.*"
Evidence of a former suit between the testator and a
beneficiary tending to show the hostility of the former
36 In re Williams' Will, 64 Hun The testimony of experts,
636, 19 N. T. Supp. 778, 46 N. Y. coupled with suspicious circum-
St. Rep. 791, affirming 2 Con. Sur. stances such as the fact that the
579, 15 N. Y. Supp. 828, 40 N. Y. proponent, who was also the prin-
St. Rep. 356. cipal beneficiary, failed to explain
As to testator signing wrong how he happened to know of the
name, see § 430. existence of the will and the place
37 Franklin v. Franklin, 90 where it could be found, held suffl-
Tenn. 44, 16 S. W. 557. cient to show forgery. — Succes-
38 Succession of Gaines, 38 La. sion of Drysdale, 127 La. 890, 54
Ann. 123; Gurley v. Armentraut, 6 So. 138.
Ohio C. C. (N. S.) 156. 40 Breck v. State, 4 Ohio Cir.
39Farleigh v. Kelley, 28 Mont. Ct. R. 160, 2 O. C. D. 477; Cor-
421, 63 L. R. A. 319, 72 Pac. 756; bett v. State, 5 Ohio Cir. Ct. R.
Dolan V. Meehan, (Tex. Civ. App.) 155, 3 O. C. D. 79.
80 S. W. 99.
PEAUD AND UNDUE INFLUENCE. 915
toward the latter, may be received.*^ But the fact that
the testator attempted to make a will at a date subse-
quent to the proposed instrument is not proper evidence
to establish forgery.*^
§607. Forgery: Declarations of Testator: Conflict of Author-
ity.
There is a conflict of authority as to whether or not
declarations of a testator made prior to the execution
of his will may be put in evidence, on an issue of for-
gery, to show that the testator had a pre-existing tes-
tamentary scheme or design for the disposition of his
property. It is argued that a will containing provisions
greatly at variance with such design would show the im-
probability of its having been executed by the testator,
and therefore such declaration should be admitted as
tending to show the instrument to be a forgery. The
Supreme Court of the United States, in a well-consid-
ered case which reviews many authorities, has held such
evidence inadmissible. The court said there was no good
ground for distinguishing between declarations made
before or after the execution of the will. Some decisions
argue that such declarations made prior to the will in-
dicate an intention as to the testamentary disposition
of property thereafter to be made, and are corroborative
of other testimony tending to establish a forgery. If a
document be forged, however, it was not executed by the
testator, and if a distinction be allowed between declara-
tions before and those after the will was made, the one
committing the forgery could affix such a date to the
will as to exclude declarations prior to an arbitrarily
41 Dolan V. Meehaii, (Tex. Civ. 42 Jolmson v. Brown, 51 Tex. 65.
App.) 80 S. W. 99. See, also, John-
son V. Brown, 51 Tex. 65.
916 COMMENTABIES ON THE LAW OF WILLS.
fixed period. The opinion of the court was that mental
capacity not being involved, nor matters of pedigree or
of revocation, evidence of the declarations of the tes-
tator were inadmissible even as merely corroborative of
evidence denying the genuine character of the handwrit-
ing.** In a subsequent case in New Jersey the above
mentioned case in the Supreme Court of the United
States was referred to at length, and the inferences
drawn from the decisions therein referred to were ques-
tioned. In the latter case it was held that statements
by a testator prior to the execution of his will were ad-
missible, on an issue of forgery, to show a fixed and
pre-existing intent as to the disposition of his prop-
erty.** The two cases mentioned review the leading au-
thorities, both English and American, and they need not
be herein further referred to. The better reasoning,
which seems to be supported by the weight of authority,
is that declarations of a testator, whether before or after
the execution of his will, but close enough thereto to have
a bearing, are admissible when the question of testa-
mentary capacity is involved, likewise revocation, but
not in a case involving the question as to whether or not
the will was a forgery.
43 Throckmorton v. Holt, 180 surrounding circumstances for the
U. S. 552, 45 L. Ed. 663, 21 Sup. purpose of ascertaining intent, see
Ct. 474. §§ 52, 53.
As to extrinsic evidence and As to declarations of a testator,
declarations as affecting the ques- on the issue of mental capacity,
tion of revocation, see §§ 54, 546, see §§ 359-363.
548, 549. 44 State v. Ready, 78- N. J. L.
As to parol declarations being 599, 28 L. R. A. (N. S.) 240, 75
received as part of the res gestae, Atl. 564. See, also, Kennedy v.
see § 53. Upshaw, 66 Tex. 442, 1 S. W. 308.
As to parol declarations and
FRAUD AND UNDUE INFLUENCE.
917
§ 608. Declarations of Testator Not Proof of Facts Stated.
Declarations of a testator made in connection with the
execution of his "will, when pertinent to the issue, are
admissible as part of the res gestae.*^ As proof of the
fact, however, of undue influence, declarations not con-
temporaneous with the execution are inadmissible; they
must be treated as hearsay.** For example, a declaration
of the testator as to the conduct of the suspected legatees
toward him is inadmissible as evidence of acts consti-
tuting undue influence.*^ And evidence was excluded of
statements by the testator two years prior to death that
some of his children did not treat him right.** The fact
that the testatrix, after the time that it was claimed she
made the will, denied that she had made one and said
she did not intend to make a will, but would leave her
children to share equally in her property, is not com-
45 Shailer v. Bumstead, 99 Mass. Bradlee, 127 Mass. 414; Gibson v.
112.
As to difference In effect be-
tween oral and written declara-
tions, see § 359.
Testimony of the scrivener that
the testator objected to the inser-
tion of the name of a beneficiary
is admissible as part of the res
gestse. — Nelson v. McClanahan, 55
Cal. 308.
46 Stevens v. Van Cleve, 4
Wash. C. C. 262, 265, Fed. Cas.
No. 13412; Reynolds v. Adams, 90
111. 134, 32 Am. Rep. 15; Runkle v.
Gates, 11 Ind. 95; Hayes v. West,
37 Ind. 21; Vanvalkenberg v. Van-
valkenberg, 90 Ind. 433, 438; Con-
way V. Vizzard, 122 Ind. 266, 23
N. E. 771; Mooney v. Olsen, 22
Kan. 69, 76; Storer's Will, 28
Minn. 9, 8 N. W. 827; May v.
Gibson, 24 Mo. 227; Bush v. Bush,
87 Mo. 480; Whitman v. Morey, 63
N. H. 448, 2 Atl. 899; In re Pem-
berton's Will, 40 N. J. Eg. 520,
4 Atl. 770; Jackson v. Kniffen, 2
Johns. (N. Y.) 31, 3 Am. Dec. 390;
Cudney v. Cudney, 68 N. Y. 148;
Marx V. McGlynn, 88 N. Y. 357,
374; Smith v. Keller, 205 N. Y. 39,
9S N. B. 214. See § 362.
The evidence of undue influence
must be other than that which
proceeds from the testator's own
mouth after a will is made. — In re
Hess' Will, 48 Minn. 504, 31 Am.
St. Rep. 665, 51 N. W. 614.
47 Rusting V. Rusling, 36 N. J.
Eq. 603.
48 Stephenson v. Stephenson, 62
Iowa 163, 17 N. W. 456.
918 COMMENTARIES ON THE LAW OF WILLS.
petent to show undue influence.*® Conversations express-
ing only wishes and desires, and a dissatisfaction with a
previous will, are irrelevant on such an issue f° nor can
undue influence be established by proof of the testator's
declarations that the will was procured by fraud and
undue influence.^^ The general rule is that statements
by the testator, either before or after the execution of
his will, although in conflict with its provisions, do not
invalidate or modify the will in any manner. A will can
not be altered or revoked by parol declarations.^^ This''
is especially true when made after the will has been exe-
cuted; the instrument can not be impeached in such a
manner.^^
§ 609. Declarations as to Intended Manner of Disposing of
Property: Undue Influence.
Although the declarations of a testator may be inad-
missible to establish undue influence, yet there is a dis-
tinction when offered to defend the will against an attack
on that ground. Declarations made prior to the execu-
tion of the will may be admitted by way of rebuttal to
show the testator's intentions as to the disposition of
his property. A will made in conformity with repeated
statements of the testator is more likely to have been
49 Barker v. Barker, 36 N. J. Eq. 37 N. E. 837; Hill v. Bahms, 158
259. 111. 314, 41 N. E. 912; Harp v.
Such evidence would te com- Parr, 168 111. 459, 48 N. E 113;
petent to show that the will was England v. Fawbush, 204 111. 384,
spurious. — Barker v. Barker, 36 68 N. E. 526. See § 363.
N. J. Bq. 259. 53 Estate of Ricks, 160 Cal. 450,
BoRyman v. Crawford, 86 Ind. 117 Pac. 532, 538; Estate of Ben-
262. ton, 131 Cal. 472, 63 Pac. 775;
51 Crissick's Will, (Iowa) 156 Estate of Arnold, 147 Cal. 583, 593,
N. W. 415. 82 Pac. 252; Estate of Snowball,
52 Taylor v. Pegram, 151 111. 106, 157 Cal. 301, 107 Pac. 598.
FRAUD AND UNDUE INFLTTENCB.
919
executed without undue influence than if contrary
thereto.^* But the mere fact that a will differs from the
testator's previously expressed intentions is of no weight
in an issue of undue influence, although it may become im-
portant when taken in conjunction with other faets.^^
Thus the fact that dispositions are made in accordance
■with the testator's previously expressed intentions, and
that the objects of his bounty are his relatives and
friends, is strong evidence in rebuttal of undue influ-
ence ; while unnatural bequests not in accordance with his
previously declared purposes are in its support.^^ Also
54 Roberts v. Trawick, 17 Ala.
55, 52 Am. Dec. 164;, Waters v.
Waters, 222 111. 26, 113 Am. St
Rep. 359, 78 N. E. 1; Bundy v. Mc-
Knight, 48 Ind. 502; Lamb v.
Lamb, 105 Ind. 456, 5 N. E. 171;
Goodbar v. Lldikey, 136 Ind. 1,
43 Am. St Rep. 296, 35 N. B. 691;
Dye V. Young, 55 Iowa 433, 7
N. W. 678; Montague v. Allan's
Bxr., 78 Va. 592, 49 Am. Rep. 384.
Undue influence can not be in-
ferred when the provisions of a
will are consistent with the pre-
viously expressed intentions of
the testator, and are not, in them-
selves, unnatural or unfair, and
when those charged with exerting
undue influence derive no advan-
tage from the will. — Cornwell v.
Riker, 2 Demarest (N. Y.) 354.
55 Waters v. Waters, 222 111. 26,
113 Am. St Rep. 359, 78 N. E. 1;
Wood V. Bishop, 1 Demarest
(N. Y.) 512.
56 Mooney v. Olsen, 22 Kan. 69
Beaubien v. Cicotte, 12 Mich. 459
Cawthorn v. Haynes, 24 Mo. 236
Allen V. Public Admr., 1 Bradf.
(N. Y.) 378; Rambler v. Tryon,
7 Serg. & R. (Pa.) 90, 10 Am. Dec.
444; Howell v. Barden, 14 N. C.
442; Hester v. Hester, 15 N. C.
228.
In Sheehan v. Kearney, 82 Miss.
688, 35 L. R. A. 102, 21 So. 41,
Whitfield, J., suggested, as the
true solution of the admissibility
of declarations of intention, the
following: "What such declara-
tions are evidence of is not in
themselves alone that the testator
did have the testamentary inten-
tions he declared he had, . .
but that he did say he had the
testamentary intentions testified
to; and the jury are then to draw
such inference as the whole evi-
dence warrants, that they were
or were not his real testamentary
intentions, from these declarations
as compared with those set forth
in the will, and looking to the
change or absence of change in
his condition, family, property,
state of feelings, affections, etc.,
920 COMMENTARIES ON THE LAW OF WILLS.
the testator's known wishes and previous declarations
are admissible on an issue of fraud as tending to show
knowledge of the contents of the instrument. ^'^
§ 610. Declajrations of Testator as Evidence of Mental Condi-
tion.
Declarations of a testator, not part of the res gestce,
are not admissible either to prove or disprove any state-
ment of fact contained in them, nor for the purpose of
showing the exercise of undue influence.^* But undue in-
fluence is associated with testamentary capacity, a strong
and vigorous mind being better able and more likely to
resist any influence than one which is weak and vacillat-
ing.^® For such reasons declarations of a testator, either
before or after the execution of the will, are admissible
because from a fair inference from all the circumstances
such declarations show the party's mind at the time the
will was executed, his susceptibility to the influence, and
his relations with those around him and the persons who
are the beneficiaries of his bounty.®" Where mental ca-
between the time of making them Cal. 301, 107 Pac. 598, 602; Water-
and the will. . . . And if . . . man v. Whitney, 11 N. Y. 157,
they believe they were really as 62 Am. Dec. 71; Marx v. McGlynn,
declared, at that time, an infer- 88 N. T. 357, 374; Matter of Wood-
eoce might legitimately be drawn ward's Will, 167 N. Y. 28, 60 N. E.
that, when the subsequent will 233; Smith v. Keller, 205 N. Y.
conformed to them, they had con- 39, 98 N. E. 214.
tinued down to the making of the See § 362.
will, and when the subsequent will As to the admission of declara-
did not conform to them, the tes- tions of the testator, and extrinsic
tator had purposely misstated his circumstances, on the issue of tes-
intentions, ... or that the will tamentary capacity, see §§ 356-363.
was not his will, but the product B9 See § 361.
of undue influence." eo Piercy v. Piercy, 18 Cal. App.
67 Montague v. Allan's Exr., 78 751, 124 Pac. 561; Canada's Appeal,
Vt. 592, 49 Am. Rep. 384. 47 Conn. 450; Cockeram v. Cock-
58 In re Snowball's Estate, 157 eram, 17 111. App. 604; Todd v.
FRAUD AND UNDUE INFLUENCE.
921
pacity is involved, as upon the issue of undue influence,
it is only necessary that the declarations testified to
should be sufficiently near in point of time so as to be
of value in determining the matter in issue. The question
of remoteness is one for the court to determine according
to all the circumstances of the case, and the weight of
the testimony is to be governed according to the facts.^^
The question of fraud may or may not involve mental
capacity.®^ Where the issue is mistake, fraud, duress
Fenton, 66 Ind. 25; Mooney v.
Olsen, 22 Kan. 69; May v. Bradlee,
127 Mass. 414; Griffith v. Diffen-
derfEer, 50 Md. 466, 480; In re
Clark, 40 Hun (N. Y.) 233; In re
Hermann's Will, 87 Misc. Rep. 476,
150 N. Y. Supp. 118, 133; Water-
man V. Whitney, 11 N. Y. 157,
62 Am. Dec. 71; Cudney v. Cudney,
68 N. Y. 148; Bkem v. Erickson,
(S. D.) 157 N. W. 1062, 1066; In
re Miller's Estate, 31 Utah 415, 88
Pac. 338, 342. See, also, Dennis v.
Weekes, 51 Ga. 24; Boylan v.
Meeker, 28 N. J. L. 274; Allen v.
Public Admr., 1 Bradf. (N. Y.) 378.
When declarations of a testator
have been introduced for the pur-
pose of showing a settled dislike
to the son to whom he has given
the whole of his property, it may
be shown that the declarations
had no foundation in fact. — Can-
ada's Appeal, 47 Conn. 450.
Declarations of the testator that
the will was procured through
undue influence are admissible as
evidence of the testator's mental
condition. — Crissick's Will, (Iowa)
156 N. W. 415; Wilson v. Taylor,
167 Ky. 162, 180 S. W. 45.
Evidence that one said after
making his will, that if he had it
to do over again he would make a
different disposition of his prop-
erty, was held admissible. — Par-
sons V. Parsons, 66 Iowa 754, 21
N. W. 570, 24 N. W. 564.
In a will contest, declarations
made by the testatrix prior to the
execution of the will are admis-
sible in evidence for the purpose
of showing the mental capacity of
the testatrix and her susceptibility
to extraneous influences, but are
not admissible for the purpose of
establishing the substantive fact
of undue influence. — Hobson v.
Moorman, 115 Tenn. 73, 5 Ann.
Cas. 601, 3 L. R. A. (N. S.) 749,
90 S. W. 152.
61 See § 361; In re Denison's
Appeal, 29 Conn. 399; Shailer v.
Bumstead, 99 Mass. 112; Lane v.
Moore, 151 Mass. 87, 21 Am. St.
Rep. 430, 23 N. E. 828; Chambers
V. Chambers, 61 App. Div. 299,
70 N. Y. Supp. 483; Miller v. Liv-
ingstone, 31 Utah 415, 88 Pac. 338.
62 See §§ 598-600.
922 COMMENTARIES ON THE LAW OF WILLS.
or some other cause not involving the strength of mind
of the testator, declarations by him would generally be
limited to those so connected with the execution of the
will as to be a part of the res gestae, since otherwise they
would be mere hearsay statements.**
§ 611. The Same Subject.
On the issue of undue influence two elements are in-
volved: (1) The conduct of the party charged with exer-
cising the influence, and (2) the mental state of the tes-
tator as affected by such influence which may require a
disclosure of his strength of mind and of his purpose as
to the disposition of his property. The declarations of
the testator are competent because in such way the con-
dition of his mind is revealed, and the state of his mind
at one time is competent evidence of its state at other
times not too remote, because mental conditions have
some degree of permanency.®* Such declarations, how-
ever, can not be received for the purpose of showing the
exercise of undue influence by another, but are limited to
the sole question of the condition of the testator's mind,
and are received for the purpose of showing the effect
of undue influence established by other evidence. Unless
there be independent proof indicating the presence of un-
due influence, there would be no basis for the introduc-
tion of evidence showing a condition of mind susceptible
to an influence not shown to have existed.*®
68 See § 360. Pac. 798; In re Snowball's Estate,
64 piercy V. Piercy, 18 Cal. App. 157 Cal. 301, 107 Pac. 598, 607;
751, 124 Pac. 561; Rusling v. Rus- Peery v. Peery, 94 Tenn. 328, 29
ling, 36 N. J. Eq. 603; In re Snow- S. W. 1; Klrkpatrick v. Jenkins,
ban's Estate, 157 Cal. 301, 107 Pac. 96 Tenn. 85, 33 S. W. 819; Hobson
598, 602. V. Moorman, 115 Tenn. 73, 5 Ann.
85 In re Arnold's Estate, 147 Cal. Gas. 601, 3 L. R. A. (N. S.) 749,
683, 594, 82 Pac. 252; In re 90 S. W. 152.
Tliomas' Estate, 15R Cal. 4SS, 10 L
FRAUD AND UNDUE INFLUENCE. 923
While declarations of a testator are not sufficient to
establish the fact of undue influence, they are admissible
to show its extent and effect.®* For this purpose, evidence
was admitted to show that after making his "will the tes-
tator said: "I don't know anything about it, they got
around me and confuddled me; it is to be done over
again."*'' So declarations of the testator at different
times within eight years before the will was made, were
admitted to show that while he was in the presence of the
person who was charged with having exercised the undue
influence, he could not resist her; also a declaration the
night before he died that he did not know but that he had
been deceived in disinheriting his son.*® Diaries or let-
ters written by the testator are received the same as oral
declarations.**
§612. Declarations of One of Several Beneficiaries: Will Void
in Part Only.
Where there are several beneficiaries under a will and
it is charged that only one, or a part of them, unduly
influenced the testator, the decisions are not harmonious
as to whether or not declarations of a beneficiary charged
with having coerced the testator's mind may be admitted
in evidence. All beneficiaries under a will have an inter-
est in it, but such interest is several, not joint, and under
such conditions the general rule is that admissions of
one, although against interest, are not to be received in
evidence against the others.'^" Some decisions hold, how-
ever, that declarations against interest should be received,
66Rusling V. Rusling, 35 N. J. 68 Potter v. Baldwin, 133 Mass.
Eq. 120; Kitchell v. Beach, 35 N. J. 427.
Eq. 446. ^5 Marx v. McGlynn, 88 N. Y.
67 Stephenson v. Stephenson, 62 357. See § 363.
Iowa 163, 17 N. W. 456. to See § 366.
924 COMMENTAEIES ON THE LAW OP WILLS.
not as an admission against the other beneficiaries, hut as
evidence tending to prove the issue.''^ Again, there are
cases holding that admissions by a beneficiary against
his interest, which establish the fact of undue influence
exercised by himself, may be received in evidence against
such beneficiary alone; and if the evidence is sufficient
any devise or legacy in his favor may be stricken from
the will and the remainder allowed to stand J^ If the lega-
cies are separate and distinct, none in anywise depending
upon the others, it has been said that fraud and undue
influence by one beneficiary in procuring a legacy in his
favor do not necessarily invalidate the whole will; and
that where such conditions exist a will should not be
refused probate as to the undisputed legacies without
affording the legatees an opportunity to be heard. ''^* Thus
fraud and undue influence on the part of one beneficiary
in procuring a legacy in his favor have been held not
necessarily to invalidate the whole will unless the bequest
be so connected with the others as to affect the entire
scheme of disposition.'^*
§613. Declarations of Sole Beneficiary: Conspiracy.
It is a general rule that declarations of third persons,
not a part of the res gestcB, are inadmissible in evidence
on the ground of hearsay; if against interest, however,
they may be received. A statement by a beneficiary under
71 See § 367. pesley v. Homer, Turn. & R. 48, n.;
72 See § 368. Trimlestown v. D' Alton, 1 Dow.
73 Snodgrass v. Smith, 42 Colo. & C. 85; Moray's Exrs. v. Florey,
60, 15 Ann. Gas. 548, 94 Pac. 312, 24 Ala. 241; Snodgrass v. Smith,
315. 42 Colo. 60, 15 Ann. Cas. 548, 94
74 Allen V. Macpherson, 1 H. L. Pac. 312; Harrison's Appeal, 48
Cas. 191; Haddock v. Trotman, Conn. 202; Baker's Will, 2 Redf.
1 Fost. & Fin. 31; Guillamore v. (N. Y.) 179.
O'Grady, 2 Jones & L. 210; Hip-
FRAUD AND UNDUE INFLUENCE. 926
the will of facts showing or to the effect that he had un-
duly influenced the testator, is an admission against in-
terest, and under the general rule such a declaration will
be received in evidence. Upon the issue of undue influ-
ence, however, the question as to whether or not the dec-
larations of a beneficiary charged with having influenced
the mind of the testator, although against his interest,
may be admitted in evidence will depend upon the facts
of the particular case. If the person so charged is the
sole beneficiary, his declarations may be introduced
against him, since he is the only one affected; and such
evidence is admissible as an admission against interest
and also as bearing on his credibility if called as a wit-
ness.'^® "Wliere the pleadings and evidence show a con-
spiracy among all the beneficiaries to procure the will
by undue influence, all of the beneficiaries would stand
together and the declarations against interest of any one
might be received in evidence against all.^*
§ 614. Declarations of Executor or One of Several Benefi-
ciaries : Not Admissible in Evidence.
The validity of a will is in question on an issue of undue
influence. Although the will was procured through the
wrongful acts of one beneficiary only, it is impossible to
say to what extent the others might have been benefited
had the unlawful influence not been exercised. Such influ-
76 See § 373; Saunders' Appeal, arises In a probate case, other
54 Conn. 108, 6 Atl. 193 ; Gordon acts besides the conspiracy to pro-
V. Burris, 141 Mo. 602, 43 S. W. cure the will are also provable;
642; In re Miller's Estate, 31 Utah thus wrongful acts or schemes to
415, 88 Pac. 338, 343; Crocker v. obtain other property of the testa-
Chase's Estate, 57 Vt. 413. trix than her will may be given in
T6ln re Strachan's Estate, 166 evidence. — ^In re Hermann's Will,
Cal. 162, 135 Pac. 296, 298. 87 Misc. Rep. 476, 150 N. Y. Supp.
When an. Issue of conspiracy 118, 133.
926
COMMENTARIES ON THE LAW OF WILLS.
ence migM have caused the disinheriting of an heir who
otherwise would have received the bulk of the testator's
estate, causing it to be divided among many beneficiaries
who otherwise would not have been remembered. The
weight of authority is against the admission in evi-
dence of declarations of one beneficiary even as against
himself.''^ The same rule applies when such admissions
are made by one named as executor.''*
77 See §§ 369, 370; In re Dol-
beer's Estate, 149 Cal. 227, 9 Ann.
Gas. 795, 86 Pac. 695; In re Dol-
beer's Estate, 153 Cal. 652, 15 Ann.
Cas. 207, 96 Pac. 266; In re De La^
veaga's Estate, 165 Cal. 607, 133
Pac. 307, 317; In re Snowball's
Estate, 157 Cal. 301, 107 Pac. 598;
Campbell t. Campbell, 138 111. 612,
28 N. E. 1080; In re Ames' Will,
51 Iowa 596, 2 N. W. 408; Fother-
glll V. Fotherglll, 129 Iowa 93, 105
N. W. 377; Shailer v. Bumstead,
99 Mass. 112, 121; McConnell v.
Wildes, 153 Mass. 487, 26 N. E.
1114; Wood V. Carpenter, 166 Mo.
465, 66 S. W. 172; Murphy v. Nett,
47 Mont. 38, 130 Pac. 451, 454;
In re Myer's Will, 184 N. Y. 54,
6 Ann. Cas. 26, 76 N. E. 920; In re
Fowler's Will, 156 N. C. 340, Ann.
Cas. 1913A, 85, 38 L. R. A. (N. S.)
745, 72 S. E. 357.
In Blakey's Heirs v. Blakey's
Exx., 33 Ala. 611, it was said: "It
is tbe settled law of this court
that the declarations and acts of
a proponent, who is not the sole
legatee, are not admissible in evi-
dence to defeat the probate of the
will."
78 "It seems that he had influence
over the testator — a very potent
one — and his declarations, if com-
petent, are sufficient to warrant a
finding by the jury of undue in-
fluence, as he had the power to
subdue the will of the testator to
his own; but the vital question is.
Does the law authorize him to
speak for and conclude those who
have not joint Interest with him?
We think not, and the best-con-
sidered authorities we believe to
be against the competency of such
evidence. It is undoubtedly true
that the declaration of the exec-
utor would be competent against
him to show that he is unworthy
of the trust reposed in him and
therefore should be removed from
his office and deprived of its emol-
uments; but to permit him to
prejudice the rights of others ac-
quired independently of his, and
several in their nature, might
open the door to fraud, and would
shock our sense of justice and
right; and this court has virtually
held that such declarations are
not admissible to invalidate a will
where the interests of the declar-
FRAUD AND UNDXJE INFLUENCE. 92Y
§615. Testator's Knowledge of Contents of Will: Presump-
tion.
Ordinarily it need not be proven that tlie testator was
acquainted with the contents of his will, unless the ques-
tion is raised and some circumstance or evidence seems
to point to the contrary.''® If the testator possess testa-
mentary capacity, knowledge of contents will be pre-
sumed from the due execution of the instrument.*" The
legal presumption in such cases is always in favor of the
will; and he who seeks to impeach it must show conclu-
sively that the testator was imposed on, or that there
was some mistake, whereby he was deceived.^^ If the evi-
dence shows that the testator did not read the will him-
self, as where it was not in his possession and he had
no opportunity, or where he was so weak and low as to
be unable to do so, or was blind, or where for any reason
his ability to read was doubtful, the burden of proof is
ant and the beneficiaries under so Smith v. Dolby, 4 Har. (Del.)
the will are not joint and there 350; Downey v. Murphey, 18 N. C.
is no relation of privity between 82; Carr v. McCamm, 18 N. C. 276;
them." — In re Fowler's Will, 156 Pettes v. Bingham, 10 N. H. 514;
N. C. 340, Ann. Cas. 1913A, 85, 38 Day v. Day, 3 N. J. Eq. 549; Stew-
L. R. A. (N. S.) 745, 72 S. B. 357. art's Exr. v. Lispenard, 26 Wend.
79 Fulton V. Andrew, L. R. 7 (N. Y.) 255, 287; Hoshauer v.
H. L. 448; Beall v. Mann, 5 Ga. Hoshauer, 26 Pa. St. 404.
456; Gaither v. Gaither, 20 Ga. si Pettes v. Bingham, 10 N. H.
709; Patton v. Hope, 37 N. J. Eq. 514; Day v. Day, 3 N. J. Eq. 549,
522; Vernon v. Kirk, 30 Pa. St. 551. See, also, Mealey's Estate,
218, 268. See, also, Browning v. 11 Phila. (Pa.) 161, 162; Combs'
Budd, 6 Moore P. C. C. 430, 435. Appeal, 105 Pa. St. 155, 160.
Compare: Layman v. Conrey, 60 A will entirely in the handwrit-
Md. 286. ing of the testator is conclusive
As to knowledge of contents of proof that the testator knew its
will, see § 409. contents. — In re De Hart's Will,
As to presumption that testator 67 Misc. Rep. 13, 122 N. Y. Supp.
knew contents of will, although he 220.
signed by mark, see § 431.
928 COMMENTAKIES ON THE LAW OF WWLS.
then thrown on the person offering the will, to show that
the testator was acquainted with the contents of the in-
strument and approved it.*^ The proponent, however,
need not show an actual reading of the will to the tes-
tator, provided he satisfy the court by competent evi-
dence that the contents of the will, at the time of sign-
ing it, were what the testator intended it to be.** Thus if
the fact can be established, either by direct or circum-
stantial evidence, so conclusive as to admit of no rea-
sonable doubt that the last wiU was truly copied from
a previous will, the contents whereof were known to the
testator, there will be no difficulty in admitting it to pro-
bate.«*
§ 616. The Same Subject: May Be Shown by Circumstances.
If it can be shown that the Mill was substantially in ac-
cordance with the instructions of the testator, it may be
considered sufficient evidence that he was acquainted with
82 Billlnghurst v. Vickers, 1 Phil- exhaustion; and that she had fre-
lim. 187; Gerrish v. Nason, 22 Me. quently expressed her Intent to
438, 39 Am. Dec. 589; Day v. Day, make an ecjual distribution among
3 N. J. Eq. 549, 552. See, also, all the children, the question of
Blume V. Hartman, 115 Pa. St. 32, fraud and undue influence was
2 Am. St Rep. 525, 8 Atl. 219. properly submitted to the jury. —
As to wills of those deaf, dumb, Blume v. Hartman, 115 Pa. St 32,
or blind, see §§ 348, 349. 2 Am. St. Rep. 525, 8 Atl. 219.
It has been held that where the 83 Moore v. Paine, 2 Lee Bcc.
preponderance of evidence showed 595; Morrell v. Morrell, L. R. 7
that the testatrix was not ac- Pro. Div. 68; Parker v. Felgate,
quainted with the contents of the L. R. 8 Pro. Div. 171; Pettes v.
will; that it was executed by her Bingham, 10 N. H. 514; Day v.
at the instigation of the propo- Day, 3 N. J. Eq. 549. See, also,
nent who drew it, and who was Hastilow v. Stobie, L. R, 1 P. & D.
inequitably preferred over the 64; Cleare v. Cleare, L. R. 1 P. &
other children; that the testatrix D. 655.
was at the time In a state of 84 Day v. Day, 3 N. J. Eq. 549,
excessive physical feebleness and 554.
FEAUD AND UNDUE INFLUENCE. 92D
its contents.*' Likewise if a testatrix has given instruc-
tions for her will, and it is prepared in accordance with
them, although at the time of execution she is unable to
remember what those instructions were, and is incapable
of understanding what has been written, yet if relying
upon her solicitor 's having embodied her wishes in proper
words, she accepts the paper put before her as her will
and directs it to be signed, probate will be allowed.^"
The testator's knowledge of the contents of the will
may be shown by circumstances, as by its conformity to
his known wishes and previous declarations.*'^ Although
it is usually said that one who is illiterate must be shown
to have been acquainted with the contents of his will,** it
would seem that where no evidence of fraud is adduced,
this would be unnecessary.*" Likewise it is said that evi-
dence of the partial intoxication of the testator, and that
he understood English imperfectly, does not tend to prove
fraud or undue influence, in the absence of proof that his
condition was taken advantage of.""
§ 617. Burden of Proof on the Issue of Undue Influence.
As in a case where the issue is the testamentary ca-
pacity of the testator,"^ or where a confidential relation-
ship has been shown to have existed between the testator
85 Day V. Day, 3 N. J. Eq. 549, As to wills of those deaf, dumb '
555. and blind, see §§ 348, 349.
86 Parker v. Felgate, L. R. 8 87 Montague v. Allan's Exr., 78
Pro. Div. 171. This case, however, Va. 592, 49 Am. Rep. 384.
was compromised before appeal. ss Guthrie v. Price, 23 Ark. 396;
And see Foot v. Stanton, 1 Day v. Day, 3 N. J. Eq. 549, 551.
Deane & S. Bcc. 19, admitting will 89 Patton v. Hope, 37 N. J. Eq.
of an epileptic, without evidence 522.
of knowledge of contents. so Bonse's Will, 18 111. App. 433.
See §§ 409, 431. 9i See §§ 399-402.
11 Com. on Wills — 5
930 COMMENTARIES ON THE LAW OF WILLS.
and the principal beneficiary under the will,"^ the authori-
ties are conflicting as to where the burden of proof rests.
It is necessary that the proponent should in the first in-
stance establish a prima facie case, by proof of due exe-
cution of the will and of the testamentary capacity of
the testator,"*^ although in some jurisdictions testamen-
tary capacity is presumed and the presumption is ac-
cepted as evidence of the fact.®* If, however, the provi-
sions of the will,^^ or the surrounding circumstances^®
are such as to excite suspicion, such suspicion must be
removed. But after the proponent has made prima facie
proof, the authorities are at variance as upon whoni the
burden of proof rests. Undue influence is not presumed,
neither is mental incapacity. The cases are similar to
this extent: an instrument executed by one lacking tes-
tamentary capacity, or executed by reason of imdue influ-
ence, is not the will of the maker. Both should be denied
probate. There is, however, reason for a distinction
between the two cases. Testamentary capacity is a posi-
tive requirement; it is presumed to exist unless facts to
the contrary be shown. A will executed by one lacking
testamentary capacity is void. Likewise an instrument
which has been forged can not be the will of the pur-
ported testator. Undue influence is a negative quality;
it can become an issue only in a case where the will has
been duly executed by a testator of sound mind. The
issue of testamentary capacity goes to the ability to exe-
cute the will; the issue of undue influence arises only
where it is sought to overthrow a will duly executed
by a testator mentally competent, and which, standing
as his final, legally expressed intent, is not lightly to Jje
92 See §§ 594-597. 95 See § 397.
83 See § 400. 96 See §§ 397, 398, 587.
94 See § 399.
FEAUD AND UNDUE INFLUENCE.
931
set aside. The same may be said of fraud, duress, or mis-
take. Further, fraud directly in many cases, and inci-
dentally in others, is involved in the issue of undue influ-
ence; and where such a charge is made, especially as it
aims to set aside the legally expressed will of a competent
testator, those asserting the charge should be required to
sustain it by competent proof. The weight of authority
is that after the proponent has established his prima facie
case, the burden of proving undue influence by a pre-
ponderance of the evidence is upon those who assert it.^''
97 In re Kilborn's Estate, 162
Cal. 4, 120 Pac. 762, 765; In re
Morcel's Estate, 162 Cal. 188, 121
Pac. 733, 735; Snodgrass v. Smith,
42 Colo. 60, 15 Ann. Cas. 548, 94
Pac. 312, 313; Johnson v. Johnson,
187 111. 86, 58 N. E. 237; Swear-
Ingen v. Inman, 198 111. 255, 65
N. E. 80; Michael v. Marshall, 201
111. 70, 66 N. E. 273; Waters v.
Waters, 222 111. 26, 113 Am. St.
Rep. 359, 78 N. E. 1; Gates v. Cole,
137 Iowa 613, 115 N. W. 236; Han-
rahan v. O'Toole, 139 Iowa 229,
117 N. W. 675; In re Dobals' Es-
tate, (Iowa) 157 N. W. 169, 170;
In re Eatley's Will, 82 N. J. Eq.
591, 89 Atl. 776, 780; Simpson v.
Durbin, 68 Ore. 518, 136 Pac. 347;
In re Herr's Estate, 251 Pa. St.
223, 96 Atl. 464.
In New York the decisions are
somewhat conflicting. In Roll-
wagen v. Rollwagen, 63 N. T. 504,
517, on the plea of undue influ-
ence, the court says: "A party
who offers an instrument for pro-
bate as a will must show satisfac-
torily 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
court that the instrument speaks
the language and contains the will
of the testator, probate must be
refused." This was apparently
overruled in Re KIndberg's Will,
207 N. Y. 220, 221, 100 N. E. 789,
although this was questioned in
Re Hermann's Will, 87 Misc. Rep.
476, 150 N. Y. Supp. 118, 123, and
in Re Tod, 85 Misc. Rep. 298, 147
N. Y. Supp. 161, 164, 165. The rule,
however, would seem to be that
the burden of proof is on the con-
testant. See In re Martin, 98 N. Y.
193, 197; Matter of Kindberg's
Will, 207 N. Y. 220, 228, 229, 100
N. E. 789; In re Palmateer's Will,
78 Hun 43, 48, 28 N. Y. Supp. 1062;
In re Falabella's Will, 139 N. Y.
Supp. 1003; In re Gedney's Will,
142 N. Y. Supp. 157, 160; In re
Hermann's Will, 87 Misc. Rep.
476, 150 N. Y. Supp. 118, 135.
"Where it is said that . . .
the burden of proof is shifted, 'all
that is meant by this is that there
932
COMMENTARIES ON THE LAW OF WILLS.
And it has been said that evidence of circumstances must
not only show the probability of undue influence, but must
be inconsistent with a contrary hypothesis.^® However,
some courts maintain that the burden is always upon
the proponent to sustain the wOl.®®
§ 618. Forgery: Burden of Proof.
All wills, except nuncupative, must be written or signed
by the testator to the extent and in the manner prescribed
by statute. Any instrument failing to meet such require-
Is a necessity of evidence to
answer the prima facie case or it
will prevail, but the burden of
maintaining the affirmative of the
issue involved in the action Is
upon the party alleging the fact
which constitutes the issue; and
this burden remains throughout
the trial.' " — Snodgrass v. Smith,
42 Colo. 60, 15 Ann. Gas. 548, 94
Pac. 312; Compher v. Browning,
219 m. 429, 449; 109 Am. St Rep.
346, 76 N. B. 678.
As to shifting, so called, of the
burden of proof, see § 394.
The party alleging undue in-
fluence must show that but for its
exercise the testator would have
made a different disposition of his
property than he did. — Emery v.
Emery, 222 Mass. 439, 111 N. B.
287.
"Evidence showing the condi-
tion of facts referred to may, or
may not, be sufficient to sustain
the burden of proof resting upon
the contestant, according to the
other circumstances of the case,
and the determination of the tri-
bunal which Is passing upon the
issue. Such a condition might, as
a matter of fact, cast upon the
proponent the burden of explana-
tion, and the absence of satisfac-
tory explanation would be an addi-
tional fact of more or less weight.
But we do not regard it as accu-
rately correct to say that upon the
proof of this situation the burden
of proof shifts from the one party
to the other. This burden upon
the whole evidence, taking into
consideration the situation re-
ferred to and all of the other cir-
cumstances, is still upon the
contestant, who is bound to sus-
tain the proposition asserted by
him by a preponderance of all
the evidence." — O'Brien's Appeal,
100 Me. 156, 60 AU. 880.
98 Boyse V. Rossborough, 6 H. L.
Cas. 6; In re Hess' Will, 48 Minn.
B04, 31 Am. St. Rep. 665, 51 N. W.
614; Gay v. Gillilan, 92 Mo. 250,
1 Am. St. Rep. 712, 5 S. W. 7.
99 Steinkuehler v. Wempner, 169
Ind. 154, 15 L. R. A. (N. S.) 673,
81 N. E. 482; McReynolds v.
Smith, 172 Ind. 336, 86 N. E. 1009;
Herring v. Watson, 182 Ind. 374,
105 N. E. 900.
FRAUD AND UNDUE INFLUENCE. 933
ments must be denied probate. Due execution is one of
the first and essential proofs which the proponent must
make. Where a will offered for probate is attacked as a
forgery, the burden of proving that the instrument is
genuine is upon the proponent.^ The burden of proving
that the will was in fact duly signed by the testator rests
upon the proponent throughout the proceedings whether
the issue of forgery is or is not raised.^ A slight pre-
ponderance of the evidence is sufficient to establish the
fact of the due execution of a will where forgery has been
alleged,* and it is error for the court to charge the jury
that it must be proved by any greater preponderance
than ordinarily obtains in civil cases. Again, however,
the decisions are not harmonious, and it has been held
that the forgery must be established by the contestant.
Thus, in all civil cases involving a charge of criminality,
like forgery, the rule of proof is not so strong as in a
criminal prosecution ; and for the contestant in a will case
to recover on a charge of forgery, he is not compelled
to prove the forgery beyond a reasonable doubt, but a
fair preponderance of evidence has been held to be re-
quired.*
1 Griffin v. Working Women's In case of a holographic will the
Home Assn., 151 Ala. 597, 44 So. burden of proof is on the party
605; Mobley v. Lyon, 134 Ga. 125, presenting it for probate to show
137 Am. St. Rep. 213, 19 Ann. Cas. the actual delivery to him of the
1004, 67 S. E. 668; Beebe v. Mc- will where a mysterious or un-
Faul, 125 Iowa 514, 101 N. W. 267; natural manner is Indicated. — Sue-
Succession of Gaines, 38 La. Ann. cession of Gaines, 38 La. Ann. 123.
123; Green v. Hewett, 54 Tex. Civ. 3 Beebe v. McFaul, 125 Iowa 514,
App. 534, 118 S. W. 170; Kennedy 101 N. W. 267; McBee v. Bowman,
V. Upshaw, 66 Tex. 442, 1 S. W. 89 Tenn. 132, 14 S. W. 481.
308. See, also, MoBee v. Bowman, 4 McDonald v. McDonald, 142
89 Tenn. 132, 14 S. W. 481. Ind. 55, 41 N. E. 336.
2 Matter of Burtis' Will, 43 Misc. In a suit to have a holographic
Rep. (N. Y.) 437, 89 N. Y. Supp. will decreed null on the ground
441. that it has been forged, the
^34 COMMENTAKIES ON THE LAW OF WILLS.
§ 619. Requirements as to Pleadings.
Where objection is made to the probate of a will on
the ground of duress, menace, fraud or undue influence,
the facts constituting it should be stated so that the
court may determine whether these facts constitute in
law the result alleged.^ A general statement that undue
influence was exercised over the testator, or that the will
was the result of duress, menace or fraud, is not suffi-
cient. Such matters are not ultimate facts, but a con-
clusion of law to be drawn from the facts. The facts
relied upon, not the evidence of such facts, must be
stated.'' It can not be expected that a pleading specify
in detail the manner in which the execution of the will
was wrongfully procured since "men love darkness
rather than light because their deeds are evil.'" If the
ultimate facts are alleged from which the legal conclu-
sions fairly follow, it is sufficient.*
weight of the testimony to justify 6 Sheppard v. KendaU, 149 Cal.
a judgment annulling the will 219, 85 Pac. 312, 313.
should make it appear clearly, di- ^ Piercy v. Piercy, 18 Cal. App.
rectly, and positively that the will 751, 761, 124 Pac. 561.
is a forged paper. — Barlaw v. Har- 8 Estate of Gharky, 57 Cal. 274,
rison, 51 La. Ann. 875, 25 So. 378. 279; Estate of Sheppard, 149 Cal.
5 Myers' Estate, Myrick's Proh. 219, 85 Pac. 312; Murphy v. Nett,
(Cal.) 205. See, also, Taylor v. 47 Mont. 38, 130 Pac. 451, 453.
Nuttle, 62 Md. 342.
CHAPTER XXIII.
EIGHTS OF HUSBAND, WIFE AND CHILDREN.
§ 620. Limitations upon testamentary power, in general.
§ 621. Limitations because of public policy.
§ 622. Rights of husband or wife as limiting the testamentary
power of the other.
§ 623. Husband or wife may consent to the will of the other :
General or specific consent.
§ 624. The same subject: Nature and effect of consent.
§ 625. Antenuptial agreements.
§ 625. The same subject : Statute of Frauds.
§ 627. The same subject : What property rights may be affected.
§ 628. Postnuptial agreements.
§ 629. Agreements between husband and wife as limitations on
testamentary power.
§ 630. Rights of pretermitted children generally.
§ 631. After-born and posthumous children defined.
§ 632. Rights of after-born and posthumous children.
§ 633. The term "children" includes after-born children.
§ 634. Object of statutes providing for children omitted from
will.
§ 635. Intent to omit children from will : How expressed.
§ 636. Presumption that omission of children was unintentional.
§ 637. Parol evidence as to intention of testator to omit child
from will: Conflict of authority.
§ 638. The same subject.
§ 639. The same subject: Reason for conflicting decisions.
§ 640. Remedies of pretermitted heirs.
§ 641. Rights of adopted children.
§ 642. Rights of illegitimate children.
§ 643. Forced heirs : Law of Louisiana.
§ 644. Nature of ownership of forced heirs.
(935)
936 COMMENTARIES ON THE LAW OP WIIjLS.
§620. Limitations Upon Testamentary Power, in General.
The power of makiiig a testamentary disposition of
property is not a natural right. The extent of its exer-
cise depends upon the will of the legislature, and may
be subjected to such burdens and limitations as the leg-
islature may deem advisable.^ Legislatures generally
have seen fit to impose various limitations upon the
power of making testamentary dispositions of property
wherever it has appeared that too great latitude might
prove injurious to the demands of the state or the rights
of individuals. This does not prevent a testator from
making an unjust, unwise or unreasonable will if the
maker possesses testamentary capacity, and the will is
executed according to the required formalities and does
not contravene any limitation of the statute or policy of
the law.*
Provisions limiting the right to dispose of the home-
stead or of an estate valued at less than a fixed amount,
or the right of a husband or wife to devise or bequeath
property in which the law gives the other an interest, are
instances of limitations fixed by legislation upon the
power of testamentary disposition.* Also the legislatures
have placed general restraints on alienation, have pro-
tected the rights of husband, wife and children, have laid
1 In re Beck's Estate, 44 Mont. 2 Estate of Hayes, 55 Colo. 340,
561, 121 Pac. 784, 1057; Matter of Ann. Cas. 1914C, 531, 135 Pac. 449.
White, 208 N. Y. 64, Ann. Cas. See, ante, §§ 354, 355.
1914D, 75, 46 L. R. A. (N. S.) 714, 3 Sulzberger v. Sulzberger, 50
101 N. E. 793. Cal. 385; Estate of Walkerly, 108
The legislature has the exclu- Cal. 627, 653, 49 Am. St. Rep. 97,
sive power to designate those 41 Pac. 772; Estate of Miller, 158
whom the testator may make the Cal. 420, 111 Pac. 255, 258.
objects of his bounty. — ^Beck's Es- See, ante, §§ 251-254, 310, as to
tate, 44 Mont 561, 121 Pac 784, community property, and rights of
1057. dower, curtesy and homestead.
HUSBAND, WIPE AND CHILDREN. 937
down rules against perpetuities and accumulations, have
enacted statutes of mortmain, and have limited devises
to charities and charitable uses.
§ 621. Limitations Because of Public Policy.
Limitations have, from time to time, been imposed by
the judiciary wherever testamentary provisions have con-
travened the general policy of the law. For example,
devises for an illegal purpose, as to promote the separa-
tion of husband and wife, can not take effect according to
the intent of the testator.* Under the Louisiana code a
devise to the testator's concubine is void.^ So, too, de-
vises operating in general restraint of marriage are de-
clared invalid. On the other hand, in order to carry out
the intention of the testator so far as it may legally be
done, equity has evolved the doctrine of cypres, a prin-
ciple of equitable construction which substitutes the near-
est feasible condition or purpose for an impossible one.
§ 622. Righits of Husband or Wife as Limitinif the Testamen-
tary Power of the Other.
Li some jurisdictions the husband may make a testa-
mentary disposition of his personal property, and the sur-
viving wife has no right or interest therein as against the
4 Gary v. Abbot, 7 Ves. Jun. 490; a future separation of tbe hiistiand
Habershon v. Vardon, 7 Eng. L. & and wife. — In re Gunning's Estate,
Eq. 228; Conrad v. Long, 33 Mich. 234 Pa. St. 139, 49 L. R. A. (N. S.)
78. 637, 83 Atl. 60.
A legacy upon a condition that 5 Gibson v. Dooley, 32 La. Ann.
it shall be valid only if the legar 959.
tee's wife be dead or divorced As to illicit relationship aud
does not come within the rule undue influence, see §§ 590-592.
which invalidates gifts based upon
938
COMMENTARIES ON THE LAW OP WILLS.
wilL* But as to real property, the wife'' or the husband*
can not devise the same so as to deprive the other of
his estate by curtesy or of her right of dower given by
the statute ; the husband 's or wife 's power of testamen-
tary disposition being limited by the statutory rights
which the surviving spouse may have in the property of
the other.® Even though the wife has been empowered to
6 Laws of 1893, ch. 116, amend-
ing Laws of 1889, ch. 46, did not
change the law in respect to the
right of the disposition by a hus-
band or wife of personal property
by will as against the claims of
the surviving spouse. — State v.
Hunt, 88 Minn. 404, 93 N. W. 314.
7 Smoot V. Heyser's Exr., 113
Ky. 81, 23 Ky. Law Rep. 2401,
67 S. W. 21; Waters v. Herboth,
178 Mo. 166, 77 S. W. 305; Rich-
ardson V. Johnson, 97 Neb. 749,
151 N. W. 314; Neb. Rev. St. 1913,
§§ 1265-1539.
See, ante, §§ 301-311, as to legal
disabilities imposed upon married
women.
Where a wife makes no provi-
sion for her husband in her will
he need not renounce the will in
order to entitle him to one-half of
the surplus personalty left by her,
as provided by Ky. Stats., § 2132. —
Smoot V. Heyser's Exr., 113 Ky.
81, 23 Ky. Law Rep. 2401, 67
S. W. 21.
This rule applies whether the
husband was living with the wife
at the time the will was made or
not. — Spurlock v. Burnett, 183 Mo.
524, 81 S. W. 1221.
The provision of the statute to
the effect that a. wife's testamen-
tary disposition shall not be con-
strued so as to defeat the hus-
band's tenancy by the curtesy in
lands is not such a limitation upon
her testamentary capacity as will
defeat a devise of lands or real
estate to the husband, it being the
manifest intention of the legisla-
ture thereby to protect the hus-
band's tenancy by the curtesy and
not to exclude him from her
bounty. — Hair v. Caldwell, 109
Tenn. 148, 70 S. W. 610.
8 Gaster v. Gaster's Estate, 92
Neb. 6, 137 N. W. 900, denying
rehearing 90 Neb. 529, 134 N. W.
235.
9 See §§ 251, 252, 310; In re Sll-
vey's Estate, 42 Cal. 210; In re
Frey's Estate, 52 Cal. 658; Hayes
V. Seavey, 69 N. H. 308, 46 Atl.
189.
As to the disabilities of married
women to make testamentary dis-
position of their property, see
§§ 301-309.
As to revocation of a will by
marriage, or marriage and the
birth of Issue, see §§ 535-539.
In California the code provision
setting aside an estate not ex-
ceeding fifteen hundred ',\ "'-?!
HUSBAND,, WIli'B AND CHILDREN. 939
act as a feme sole, she can not by will dispose of all of
her property to the exclusion of her husband.^"
§ 623. Husband or Wife May Consent to the Will of the Other :
General or Specific Consent.
Although one spouse may have a statutory interest in
the property of the other, yet the rule is that sach
right may be waived, the statutes generally providing
that the husband or wife may in writing consent that the
other dispose of his or her own property as if unmar-
ried.^^ At common law a general consent by the
husband that his wife could make a testamentary disposi-
tion of property in which he had an interest was not suf-
ficient, his consent was required to the particular will in
question.^^ Such consent is not in the nature of a con-
veyance, but only a waiver of statutory rights.^* And
consent to a particular will has been held not to be a
waiver as to a subsequent will which made no change in
for the use and support of the 305, 105 Pac. 444; Erickson v. Rob-
family is such a limitation on tes- ertson, 116 Minn. 90, Ann. Cas.
tamentary disposition as to vir- 1913A, 493, 37 L. R. A. (N. S.)
tually prevent the husband from 1133, 133 N. W. 164; Beals' Exr.
willing away from his wife any- v. Storm, 26 N. J. Eq. 372; Stew-
thing where the estate does not ard v. Middleton, (N. J.) 17 Atl.
exceed this amount. — Estate of 294. See, ante, §§ 253, 254.
Miller, 158 Cal. 420, 111 Pac. 255. During the period from 1865 to
The husband's statutory right 1868 a married woman could de-
to a distributive share in his vise away from the husband her
wife's estate vests on her death in entire estate without his consent,
case she dies intestate or no pro- — Bennett v. Hutchinson, 11 Kan.
vision is made for him by her will. 398.
—Hayes v. Seavey, 69 N. H. 308, 122 Bl. Com. '*498; Rex v.
46 Atl. 189. Bettesworth, 2 Strange 891; Cut-
10 Cunningham v. Cunningham's ter v. Butler, 25 N. H. 343, 57 Am.
Exr., 140 Ky. 193, 130 S. W. 1075. Dec. 330.
11 Barry v. Barry, 15 Kan. 587, 13 Silsby v. Bullock, 10 Allen
590; Hanson v. Hanson, 81 Kan. (Mass.) 94.
940 COMMENTARIES ON THE LAW OF WILLS.
the legacy in favor of the consenting party, but which
made other dispositions as to the remainder of the prop-
erty. A hnsband might freely waive his rights in favor
of his children, but not for the benefit of others, or for
some purpose he thought not deserving. In such a case
the husband can elect to take the property which the
law grants him, but he must then forego any claim under
the will.^* There is authority, however, that under a stat-
ute which in general terms allows a husband or wife, with
the consent of the other, to bequeath more than one-half
of his or her property from the one so consenting, a gen-
eral consent to wiU is sufficient, and it need not be to a
particular wiU.^*
§624. The Same Subject: Nature aud Effect of Consent.
The consent, in the absence of estoppel, must be in writ-
ing or an oral consent entered by record.^* Unless re-
quired by statute, the consent need not be attested by
subscribing witnesses.^'' No consideration is necessary to
support the consent of a husband or wife to the dispo-
sition by the other of his or her property.^^ Where a
14 Kelley v. Snow, 185 Mass. 288, Gas. 1913A, 493, 37 L. R. A. (N. S.)
70 N. E. 89. 1133, 133 N. W. 164.
16 Keeler v. Lauer, 73 Kan. 388, -*■ written agreement between
85 Pac. 541. husband and wife by which each
16 Steven's Estate, 163 Iowa 364, i-eleased to the other interests in
144 N. W. 644. ^^^ property is void, being con-
trary to section 3609, R. L. 1905.
However, the consent of the hus-
band to the will of the wife dis-
iTNeuber v. Shoel, 8 Kan. App. posing of her real estate is not
345, 55 Paa 350. yoi^^ though given in the perform-
18 Keeler v. Lauer, 73 Kan. 388, ance of a void agreement.— Erick-
85 Pac. 541; Carmen v. Kight, 85 son v. Robertson, 116 Minn. 90,
Kan. 18, 116 Pac. 231; Erickson Ann. Gas. 1913A, 493, 37 L. R. A.
v. Robertson, 116 Minn. 90, Ann. (N. S.) 1133, 133 N. W. 164.
See § 253 as to consent or elec-
tion.
HUSBAND, WIFE AND CHILDREN. 941
valid consent has been given, after the death of the other
such consent is binding although the consenting party
was not named as a beneficiary under the will of the de-
ceased spouse, such consent not being conditional upon
receiving benefits under the will.*® The consent, when
freely and fairly executed in compliance with the statute,
is irrevocable.^"
The consent of one spouse that the other may devise or
bequeath more of his or her property, than otherwise
would be authorized by law, is not regarded as part of
the will and need not be admitted to probate.^* But the
mere signing by the survivor of a petition for letters
testamentary is not such a formal consent as is required
by the statute.^* "Where there is no manifest intent to
devise property which by statute goes to the surviving
spouse, such survivor is not put to his or her election of
taking either under the will or under the statute, but may
claim under both.^*
19 Hanson v. Hanson, 81 Kan. tion on his part. — Estate of Frey,
305, 105 Pac. 444. 62 Cal. 658. See, also, Morrison
20Cliilson Y. Rogers, 91 Kan. ^- Bowman, 29 Cal. 337; Estate
426, 137 Pac. 936. See, ante. § 254. "^ S"^^'^' '^ ^al. 210; Smith v.
Olmstead, 88 Cal. 582, 22 Am. St.
21 Keeler v. Lauer, 73 Kan. 388, R^p ggg^ ^^ l. R. A. 46, 26 Pac.
85 Pac. 541. 52i_
22 Estate of Frey, 52 Cal. 658; 23 Beard v. Knox, 5 Cal. 252, 254,
Tyler v. Wheeler, 160 Mass. 206, 63 Am. Dec. 125; Morrison v. Bow-
35 N. B. 666. man, 29 Cal. 337, 348; Estate of
A widow by applying for and Gwin, 77 Cal. 313, 19 Pac. 527;
receiving letters testamentary and Estate of Redfield, 116 Cal. 637,
by claiming the will, is not 643, 48 Pac. 794.
deemed to have renounced her Under the Kansas Gen. Stats.,
right to one-half of the community 1909, § 9811, a husband may de-
which the law gives her, as such vise one-half of his estate, Includ-
Interest is vested in her at her ing exempt property, away from
husband's death unaffected by any his wife where there are no chil-
attempted testamentary disposi- dren, even though she elects not
942
COMMENTARIES ON THE LAW OF WILLS.
§ 625. Antenuptial Agreements.
Generally speaking, the personal rights, duties and obli-
gations arising out of the marriage relation are those
fixed and determined by law, irrespective of any ante-
nuptial contract to the contrary.^* As to property rights,
however, the rule is different. Although property rights
of the husband and wife are fitted by statute, yet by an
antenuptial agreement either may waive rights in the
property of the other thereafter to be acquired by mar-
riage, or fix and determine their respective rights.^^ Such
agreements are not contrary to public policy and will be
enforced in equity,^* unless contrary to some express stat-
to take under the will. — Breen's
Estate, 94 Kan. 474, 146 Pao. 1147.
But an attempt to will more
than the allotted half will not
operate to transfer or affect the
half interest to which the wife is
entitled. — Williams v. Campbell,
85 Kan. 631, 118 Pac. 1074, affirm-
ing 84 Kan. 46, 113 Pac. 800.
24 Harrison v. Trader, 27 Ark.
288; Neddo v. Neddo, 56 Kan. 507,
44 Pac. 1; Hair v. Hair, 10 Rich.
Bq. (S. C.) 163; Powell v. Manson,
22 Gratt. (Va.) 177.
25 Smith V. Chapell, 31 C!onn.
589; Becker v. Becker, 241 111. 423,
26 L. R. A. (N. S.) 858, 89 N. B.
737; Unger v. Mellinger, 43 Ind.
App. 524, 88 N. B. 74; Hafer v.
Hafer, 33 Kan. 449, 6 Pac. 537;
Hanley v. Drumm, 31 La. Ann.
106; Hosford v. Rowe (Hosford v.
Hosford), 41 Minn. 245, 42 N. W.
1018; White v. White, 20 App. Div.
(N. Y.) 560, 47 N. Y. Supp. 273;
Deller v. Deller, 141 Wis. 255, 25
L. R. A. (N. S.) 751, 124 N. W. 278.
It is held an antenuptial con-
tract must be delivered or may be
declared void. — Slingerland v.
Slingerland, 109 Minn. 407, 124
N. W. 19.
The common law rule that an
executory contract between a man
and woman is invalidated by their
subsequent marriage does not
apply to antenuptial contracts in
contemplation of marriage. — Can-
nel V. Buckel, 2 P. Wms. 243; An-
drews V. Andrews, 8 Conn. 79;
Paine v. Hollister, 139 Mass. 144,
29 N. E. 541.
See §§ 301-309 as to the right of
married women to devise or be-
queath property.
See §§ 251, 252, 310, as to com-
munity property, rights of dower,
curtesy and homestead.
See §§ 535-540 as to implied rev-
ocation of a will by marriage, or
marriage and birth of issue.
26 Andrews v. Andrews, 8 Conn.
79; McGee v. McGee, 91 III. 548;
Moore v. Harrison, 26 Ind. App.
HUSBAND, WIFE AND CHILDREN.
943
Titory prohibition.^''^ The consideration of such a con-
tract generally is marriage, which in itself is sufficient
to support the agreement.^^ Such a contract must he
followed by marriage, but even in the event of no mar-
riage the contract has been held to be enforceable against
the one responsible for its failure, the other not being
at fault.^® And although the marriage may be invalid
through a joint error of the parties to the contract, yet
it is not open to attack by third parties.^" The considera-
tion, however, may be something other than marriage,*^
in which event the contract, upon the failure of the con-
sideration, is not binding upon the party not at fault.^-
408, 59 N. E. 1077; Johnston v.
Spicer, 107 N. Y. 185, 13 N. E. 753;
Green v. Benham, 57 App. Div.
(N. y.) 9, 68 N. Y. Supp. 248.
See, generally, Contracts to
Make Wills, ch. 8, §§ 135-158.
Antenuptial agreements call for
the highest degree of good faith,
and must be free from fraud, but
fraud is not presumed. — In re
Whitmer's Estate, 224 Pa. St. 413,
73 Atl. 551.
As to insufficient evidence to
show fraud, see Settles v. Settles,
130 Ky. 797, 114 S. W. 303.
It is duty of husband to support
his wife, and provision in ante-
nuptial agreement by which hus-
band was to give his wife a
certain amount for clothing and
personal expenses, held void as
against public policy. — Warner v.
Warner, 235 111. 448, 85 N. E. 630.
See, also, Tilton v. Tilton, 130 Ky.
281, 132 Am. St. Rep. 359, 113
S. W. 134.
27 Groesbeck v. Groesbeck, 78
Tex. 664, 14 S. W. 792, referring
to the order of descent.
28 Hobson V. Trevor, 2 P. Wms.
191; Andrews v. Jones, 10 Ala.
400; Barlow's Admr. v. Comstock's
Admr., 117 Ky. 573, 78 S. W. 475;
Settles V. Settles, 130 Ky. 797,
114 S. W. 303; Gibson v. Bennett,
79 Me. 302, 9 Atl. 727; Wood, etc..
Bank V. Read, 131 Mo. 553, 33
S. W. 176; Peck v. Vandemark, 99
N. Y. 29, 1 N. E. 41; Spurlock v.
Brown, 91 Tenn. 241, 18 S. W. 86S;
Boggess V. Richards' Admr., 39
W. Va. 567, 45 Am. St. Rep. 938,
26 L. R, A. 537, 20 S. E. 599.
29 Conner v. Stanley, 65 Cal. 183,
3 Pac. 668.
30 Ogden v. McHugh, 167 Mass.
276, 57 Am. St. Rep. 456, 45 N. E.
731.
31 Naill V. Maurer, 25 Md. 532;
Clark V. Clark, 28 Hun (N. Y.)
509; Peck v. Vandemark, 99 N. Y.
29, 1 N. E. 41.
32 Becker v. Becker, 241 III. 423,
26 L. R. A. (N. S.) 858, 89 N. E.
944 COMMENTARIES ON THE LAW OP WILI&
§626. The Same Subject: Statute of Frauds.
Many states have enacted statutes on the subject of
antenuptial agreements, and the validity "of such a con-
tract is governed by the statute in force at the time it was
made, a subsequent statute not impairing the rights and
obligations of the parties.^^ And generally such agree-
ments are governed by the law in force at the place where
the contract was made, and are not affected by a subse-
quent change of residence of the parties.^* In England,
and in most of the United States, the various statutes
of frauds require that contracts in consideration of mar-
riage must be in writing, and signed by the parties
thereto or by his or her agent thereunto duly authorized
in writing.*^ Where, however, the contract is based upon
a sole consideration of value other than marriage, al-
though the parties may contemplate marriage, the statute
does not apply.^® Part performance likewise may take
the contract out of the Statute of Frauds and make it en-
forceable at the instance of the one who has performed
737; Butman v. Porter, 100 Mass. Dlv. 419; Lloyd v. Fulton, 91 TJ. S.
337; Bliss v. Sheldon, 7 Barb. 479, 23 L. Ed. 363; De Bardelaben
(N. Y.) 152. V. Stoudenmire, 82 Ala. 574, 2 So.
33 Smith V. Turpin, 109 Ala. 689, 488; Richardson v. Richardson,
19 So. 914; Desnoyer v. Jordan, 148 111. 563, 26 L. R. A. 305, 36
27 Minn. 295, 7 N. W. 140. N. E. 608; Manning v. Riley, 52
34 De Lane v. Moore, 14 How. N. J. Eq. 39, 27 Atl. 810; Reade
(U. S.) 253, 14 L. Ed. 409; Smith v. Livingston, 3 Johns. Ch. (N. "J.)
V. Chapell, 31 Conn. 589; Besse v. 481, 8 Am. Dec. 520; Rowell v.
Pellochoux, 73 111. 285, 24 Am. Rep. Barber, 142 Wis. 304, 27 L. R. A.
242; DeBarante v. Gott, 6 Barb. (N. S.) 1140; 125 N. W. 937.
(N. Y.) 492; Hicks v. Skinner, 71 36 Riley v. Riley, 25 Conn. 154;
N. C. 539, 17 Am. Rep. 16. Rainbolt v. East, 56 Ind. 538, 26
See, generally, as to conflict of Am. Rep. 40.
laws, ch. 12, §§ 205-296. As to the effect of the Statute
35 Randall v. Morgan, 12 Ves. of Frauds upon contracts to make
Jun. 67; In re Whitehead, 14 Q. B. wills, see §§ 151-157.
HUSBAND, WIFE AND CHILDREN.
945
his or her part;*'' but marriage subsequent to the con-
tract is not such part performance as will remove the bar
of the statute.*^
§627. The Same Subject: What Property Rights May Be
AflFected.
The. property rights affected by an antenuptial agree-
ment are to be determined by its provisions. Such con-
tracts are liberally construed so as to give effect to the
intention of the parties, and surrounding circumstances
which aid in determining such intention may properly be
considered.*® The agreement may be so worded that each
of the contracting parties will be precluded from any
right which either might otherwise have acquired in the
property of the other by reason of the marriage,*" in-
cluding property acquired subsequent to marriage,*^ and
37 Ungley v. Ungley, 5 Ch. Dlv.
887; Hussey v. Castle, 41 Cal. 239;
Bradley v. Saddler, 54 Ga. 681;
Dygert v, Remerschneider, 39
Barb. (N. Y.) 417. See §§ 155, 156.
The fact that a husband fur-
nished support and maintenance is
not part performance, for such is
his duty. — Rowell t. Barber, 142
Wis. 304, 27 L. R. A. (N. S.) 1140.
125 N. W. 937.
The requirement of the statute
that contracts not to be performed
within one year must be in writ-
ing does not affect such agree-
ments, since they may be per-
formed within that time. See
§151.
38 Caton V. Caton, L. R. 1 Ch.
App. 137; Bradley v. Saddler, 54
Ga. 681; Richardson v. Richard-
son, 148 111. 563, 26 L. R. A. 305,
36 N. E. 608; Manning v. Riley,
n Com. on Wills— 6
52 N. J. Eq. 39, 27 Atl. 810; Brown
v. Conger, 8 Hun (N. Y.) 625;
Rowell V. Barber, 142 Wis. 304,
27 L. R. A. (N. S.) 1140, 125 N. W.
937.
39 Trevor v. Trevor, 1 P. Wms.
622; Ardis v. Printup, 39 Ga. 648;
Kennedy v. Kennedy, 150 Ind. 636,
50 N. B. 756; Ditson v. Ditson,
85 Iowa 276, 52 N. W. 203; Gorin
V. Gordon, 38 Miss. 205; Steven-
son v. Renardet, 83 Miss. 392, 35
So. 576.
40 Ward v. Thompson, 6 Gill &
J. (Md.) 349; Charles v. Charles,
8 Gratt. (Va.) 486, 56 Am. Dec.
155.
Homestead rights may be cut
off. — ^Weis V. Bach, 146 Iowa 320,
125 N. W. 211.
41 Caldwell v. Fellows, L. R. 9
Eq. 410; In re Turcan, 40 Ch. Div.
5; Neves v. Scott, 9 How. (50
946
COMMENTARIES ON THE LAW OF WILLS.
contingent and future interests.*^ If so intended, the con-
tract may cover property acquired after coverture has
ceased f^ but in such cases the intent must be clearly ex-
pressed.** By express terms it may bar the right of each
contracting party to inherit from the other.*^ There is
a conflict of authority, however, as to dower rights. While
unquestionably such rights may be released through an
antenuptial agreement,*® yet some jurisdictions hold that
marriage alone is not a sufficient consideration, and that
U. S.) 196, 13 L. Ed. 102; Borland
V. Welcli, 162 N. Y. 104, 56 N. E.
556.
42 Dickinson v. Dillwyn, L. R. 8
Eq. 546; In re Ware, 45 Ch. Dir.
269; Holt v. Wilson, 75 Ala. 58;
Wilson V. Holt, 83 Ala. 528, 3 Am.
St. Rep. 768, 3 So. 321; Caulk v.
Fox, 13 Fla. 148.
Antenuptial agreement whereby
woman released all that she
should "receive of the estate" of
her husband, held not to preclude
her from receiving the widow's
allowance for support for one
year. — ^In re Miller's Estate, 143
Iowa 120, 121 N. W. 700.
But it was held that receiving
proceeds of life insurance in full
satisfaction of all claims against
her husband's estate waived
w i d o w's allowance. — Bright v.
Chapman, 105 Me. 62, 72 Atl. 750.
See, also. In re Whitney's Estate,
171 Cal. 750, 154 Pac. 855.
43 Mckinson v. Dillwyn, L. R.
8 Bq. 546.
44Reid V. Kenrich, 24 L. J. Ch.
503; In re Edwards, L. R. 9 Ch.
App. 97; Borland v. Welch, 162
N. Y. 104, 56 N. E. 556.
45 Estate of Cutting, 174 Cal.
104, 161 Pac. 1137; McNutt v. Mc-
Nutt, 116 Ind. 545, 2 L. R. A. 372,
19 N. E. 115; Eberhart v. Rath,
89 Kan. 329, Ann. Cas. 1915A, 268,
131 Pac. 604; Deller v. Deller, 141
Wis. 255, 25 L. R. A. (N. S.) 751,
124 N. W. 278.
Although a woman agreed to
waive her rights as heir in con-
sideration of her husband doing
certain things, his failure to do so
releases her, and she may claim
as heir. — In re Warner's Estate,
158 Cal. 441, 111 Pac. 352.
46 Bryan v. Bryan, 62 Ark. 79,
34 S. W. 260; Andrews v. An-
drews, 8 Conn. 79 ; Christy v. Mar-
mon, 163 111. 225, 45 N. E. 150;
Colbert v. Rings, 231 III. 404, 83
N. E. 274; Fisher v. Koontz, 110
Iowa 498, 80 N. W. 551; Nesmith
V. Piatt, 137 Iowa 292, 114 N. W.
1053; Forwood v. Forwood, 86 Ky.
114, 5 S. W. 361; Naill v. Maurer,
25 Md. 532; Tarbell v. Tarbell,
10 Allen (Mass.) 278; Rieger v.
Schaible, 81 Neb. 33, 16 Ann. Cas.
700, 17 L. R. A. (N. S.) 866, 115
N. W. 560; Grogan v. Garrison, 27
HUSBAND, WIFE AND CHILDREN.
947
the contract must be supported by some valuable consid-
eration.*''
§ 628. Postnuptial Agreements.
A liusband and wife may settle property rights be-
tween themselves by an agreement made after mar-
riage as well as before; but a postnuptial agreement
must be based on a valid consideration.** Marriage,
being past, will not support the contract except it be the
consummation of a valid and binding agreement entered
into before marriage.*^ The scope and effect of such post-
nuptial agreements, however, are the same as with those
made before marriage.®" The husband and wife may re-
lease to the other all interest in his or her property, pres-
ent or prospective;®^ and this although they are living
apart.®^
Ohio St. 50; Findley's Exrs. ' v.
Findley, 11 Gratt. (Va.) 434.
See, also, Logan v. Whitley, 129
App. Div. 666, 114 N. Y. Supp. 255,
a case where the husband mur-
dered his wife and then committed
suicide. Contract held enforce-
able.
47 Estate of Pulling, 93 Mich.
274, 52 N. W. 1116; Graham v. Gra-
ham, 67 Hun (N. Y.) 329, 22 N. Y.
Supp. 299; Hinkle v. Hinkle, 34
W. Va. 142, 11 S. B. 993.
48 Lanoy v. Athol, 2 Atk. 444,
448; Lloyd v. Fulton, 91 U. S. 479,
23 L. Ed. 263; Clow v. Brown, 37
Ind. App. 172, 72 N. E. 534; Egger
V. Egger, 225 Mo. 116, 135 Am. St.
Rep. 566, 123 S. W. 928.
The burden of proof is on the
party seeking to uphold the agree-
ment. Seventy-five dollars per
month as support for wife after
husband's death, his estate being
worth over $300,000.00, was not
sufficient consideration for a
waiver of all rights. — Egger v.
Egger, 225 Mo. 116, 135 Am. St.
Rep. 566, 123 S. W. 928.
49 Lockwood V. Nelson, 16 Ala.
294; Kinnard v. Daniel, 13 B. Mon.
(52 Ky.) 496; Sanders v. Miller,
79 Ky. 517, 42 Am. Rep. 237.
60 See, ante, §§ 625-627.
As to rights of married women
to will property, see §§ 301-309.
Bi Perkins v. Sunset Tel. & T.
Co., 155 Cal. 712, 103 Pac. 190.
52 Stokes V. Stokes, 240 111. 330,
88 N. E. 829.
948 COMMENTARIES ON THE LAW OP WILLS.
§ 629. Agreements Between Husband and Wife as Limitations
on Testamentary Power.
A valid agreement between a husband and wife, whether
entered into before or after their marriage, may either
extend or limit the testamentary power of either. Thus
if one has waived all rights in the property of the other,
acquired by reason of the marital relationship, the other
may make a testamentary disposition of his or her prop-
erty as if unmarried. If, however, the property of one is
encumbered with a trust or is to be disposed of in a par-
ticular manner according to the terms of a valid agree-
ment, a limitation is thereby placed upon the power of
testamentary disposition. This limitation, however, does
not preclude the maMng of a wilP* any more than an
agreement not to revoke a will can prevent its revoca-
tion.** However, equity steps in to enforce the agreement
by charging the property with a trust.'^ The right to spe-
cific performance is the same as in cases of contracts gen-
erally,^* and, where not allowed, an action for damages for
breach of contract will be sustained.*'' The right to en-
force the contract extends not only to the parties and
their representatives, but to all those within the mar-
riage consideration.** In fact, although collateral heirs
53 Rice V. Rice, 53 Mich. 432, Children bom to the contract-
19 N. W. 132. Ing parties prior to marriage, but
64 See §§ 80-84. thereafter legiUmatized by mar-
es See §§ 146-149. riage, are within the marriage
B6 See §§147, 148, 153, 154. consideration. — Herring v. Wick-
Bright V. Chapman, 105 Me. 62, %am, 29 Gratt (Va.) 628, 26 Am.
72 Atl. 750. Rep. 405.
57 Peck V. Vandemark, 99 N. Y. Children by a former marriage
29, 1 N. E. 41. are held included within the mar-
58 Trevor v. Trevor, 1 P. Wma. riage consideration.— Gale v. Gale,
622; Vason v. Bell, 53 Ga. 416; 6 Ch. Dlv. 144; Michael v. Morey,
Beardsley v. Hotchkiss, 30 Hun 26 Md. 239, 90 Am. Deo. 106.
(N. Y.) 605.
HUSBAND, WIFE AND CHILDREN. 949
are generally considered as volunteers and unable to en-
force the contract, yet if from the circumstances under
which the marriage articles were entered into by the par-
ties, or as collected from the face of the instrument itself,
it appears to have been intended that the collateral rela-
tives, in a given event, should take the estate, and a
proper limitation to that effect is contained in them, a
court will enforce the trust for their benefit.^®
§ 630. Rights of Pretermitted Cliildren Generally.
In many of the states of the Union there are statutory
provisions, the general purport of which is that if the
testator omits to provide in his will for any of his chil-
dren or the issue of a deceased child, or fails to mention
them so as to show an intention not to provide for them,
they are entitled to take the same estate which they would
have received had there been no will.*" This does not
include an estate over which the parent had only the
power of appointment, it not being subject to the rights
of the children.®^
The statutes vary, in some jurisdictions not extending
to children who have been provided for by the testator
during his lifetime, nor to those who have had an equal
portion of the estate by way of advancements. As to evi-
dence admissible to prove an intention to omit a child, the
decisions are in conflict. The statutes, in all cases, should
be consulted.
59 Neves v. Scott, 9 How. (50 60 Crossett-Lumber Co. v. Mies,
XT. S.) 196, 210, 13 L. Ed. 102; Mc- 104 Ark. 600, 149 S. W. 908; Wat-
Nutt V. McNutt, 116 Ind. 545, 558, kins v. Watklns, 88 Miss. 148, 40
2 L. R. A. 372, 19 N. E. 115; Lor- So. 1001; Yung v. Blake, 163 App.
lag V. Eliot, 16 Gray (Mass.) 568, Div. 501, 148 N. Y. Supp. 557.
573 ; Cole v. American Baptist ei Sewall v. Wilmer, 132 Mass.
Home Mission, 64 N. H. 445, 451, 131.
14 Atl. 73.
950 COMMENTARIES ON THE LAW OF WILLS.
§ 631. After-Born and Posthumous Children Defined.
The term "after-born" children refers to those born
after the execution of the will of a parent; "posthumous"
children comprise those born alive after the father's
death.^- Generally, under the American statutes for pur-
poses of descent and distribution, posthumous children
are considered as living at the death of the father, from
which it follows that a child born after his death takes
like any child born after the making of the will of a
parent. They must, however, be capable of inheriting at
the moment of birth.*^ The birth must also occur within
such time as a child might naturally be born after the
demise of the father."* In some jurisdictions the period
is limited by statute to within ten months."®
§ 632. Rights of After-Born and Posthumous Children.
The rule as to the rights of children unprovided for
and unmentioned in the will of a parent taking such por-
tion of the estate as if the parent had died intestate, is
substantially the same under the state statutes whether
62 BislLop's Heirs t. Hampton, 877; Pearson v. Carlton, 18 S. C.
11 Ala. 254; Morrow v. Scott, 7 47.
Ga. 535; Marsellis v. Thalhimer, The birth of a posthumous child
2 Paige (N. Y.) 35, 21 Am. Dec. 66. does not destroy a devise in trust
83 Stimson's Am. St. Law, to the executor with power of
§i 1412 n. a, 1413, 2621, 2844, 3023, sale.— Van Wickle v. Van Wickle,
3135, 3136. See, also, Knotts v. 59 N. J. Eq. 317, 44 Atl. 877.
Stearns, 91 U. S. 638, 23 L. Ed. 64 Harper v. Archer, 4 Smedes
252; Bishop's Heirs v. Hampton, & M. (Miss.) 99, 43 Am. Dec. 472;
11 Ala. 254; Morrow v. Scott, 7 Marsellis v. Thalhimer, 2 Paige
Ga. 535; Catholic Mut. Ben. Asso- (N. Y.) 35, 21 Am. Dec. 66.
elation v. Firnane, 50 Mich. 82, 65 Massle v. Hiatt's Admr., 82
14 N. W. 707; Harper v. Archer, Ky. 314; Rutherford v. Green, 37
4 Smedes & M. (Miss.) 99, 43 Am. N. C. 121; Melton v. Davidson, 86
Dec. 472; Van Wickle v. Van Tenn. 129, 5 S. W. 530.
Wickle, 59 N. J. Eq. 317, 44 Atl.
HUSBAND, WIFE AND CHILDREN.
951
siich children were in existence at the time the will was
executed, or horn thereafter in the testator's lifetime, or
born both after the will and the death of the testator.*^
The right, however, of a posthumous child, unprovided
for in the will, to share in the inheritance, exists at com-
mon law, independent of express statutory enactment.®''
An after-born or posthumous child provided for in the
will necessarily takes thereunder, and does not take a
distributive share as though his parent had died intes-
tate.®^ A will which expressly excludes after-born chil-
66 Watkins v. Watkins, 88 Miss.
148, 40 So. 1001; Walker v. Hy-
land, 70 N. J. L. 69, 56 Atl. 268;
Ensley v. Ensley, 105 Tenn. 107,
58 S. W. 288.
In some jurisdictions preter-
mitted children are those unpro-
vided for by any settlement and
neither provided for nor men-
tioned in nor expressly excluded
by the will. — ^Watkins v. Watkins,
8S Miss. 148, 40 So. 1001; Obecny
y. Goetz, 116 App. Div. 807, 102
N. T. Supp. 232; Udell v. Stearns,
125 App. Div. 196, 109 N. Y. Supp.
407.
In Virginia, under a statute pro-
viding that if any person die leav-
ing a child . . and leaving
a will made when such person had
no child living, wherein any child
he might have is not provided for
or mentioned, such will, except so
far as it provide? for the payment
of the debts of the testator, shall
be construed as if the devises
and bequests therein had been
limited to take effect in the event
that the child shall die under the
age of twenty-one years unmarried
and without issue (Code 1904,
§2527), the court construed the
intent and meaning to be that in
case of a will made before there
is any child in being, as to a pre-
termitted child afterward bom to
the testator, the will can not go
into operation unless the child
dies under twenty-one; in conse-
quence of which all the provisions
of the will, except those relating
to the payment of the testator's
debts or to the appointment of an
executor (neither of which would
affect the child's rights), become
inoperative during the minority of
the pretermitted child, and finally
void when he arrives at the age
of twenty-one or marries. If, how-
ever, he dies under the age of
twenty-one years, all the provi-
sions of the will become operative
and effectual. — Wood v. Tredway,
111 Va. 526, 69 S. E. 445.
67 Clarke v. Blake, 2 Ves. Jun.
673; Pearson v. Carlton, 18 S. C.
47.
6 8 Minot V. Minot, 17 App. Div.
521, 45 N. Y. Supp. 554.
A devise to two afterborn chil-
952
COMMENTARIES ON THE LAW OF WILLS.
dren from sharing in the estate of the testator makes a
provision for them within the general meaning of the
statute requiring provision to be made for such children
so as to prevent them from inheriting.** The intention to
exclude, however, must be clear J**
D.
dren of a remainder In his real
estate upon tie majority of the
younger constitutes a provision
for them -within the meaning of
§ 2286 R. S. 1878.— In re Donges'
Estate, 103 Wis. 497, 74 Am. St.
Rep. 885, 79 N. W. 786.
69 Thomason v. Julian, 133 N. C.
309, 45 S. E. 636.
Where the will clearly indicates
that the testator's afterbom chil-
dren were in his mind when the
will was made and he made such
provision for them as he thought
proper, they are not pretermitted
as under Ky. Stats., § 4848, only
"such afterbom children as are
not provided for by any settle-
ment and neither provided for nor
expressly excluded by the will are
pretermitted." — Porter v. Porter's
Exr., 120 Ky. 302, 27 Ky. Law Rep.
699, 86 S. W. 546.
Contra: German Mutual Ins. Co.
V. Lushey, 66 Ohio St. 233, 64
N. E. 120.
Where a will contains a clause
disinheriting an unborn child, su«h
clause does not constitute a pro-
"vision for the afterborn child
within the meaning of § 5961,
R. S., and the intention of the
testator does not control, inas-
much as It Is contrary to law. —
German Mutual Ins. Co. v. Lushey,
20 Ohio Cir. Ct. R. 198, 11 O. C.
52.
70 Where the will contains a pro-
vision, that all of the testator's
property shall go to his wife, this
affords no extrinsic evidence from
which an intention to omit pro-
vision for afterbom children may
be inferred. — Carpenter v. Snow,
117 Mich. 489, 72 Am. St. Rep. 576,
41 L. R. A. 820, 76 N. W. 78.
A child bom after the execution
of a will by his mother and
omitted therefrom and not pro-
vided for by settlement, succeeds
to a portion of his mother's estate
under the statute, although an in-
tention to disinherit may be found
from the fact that the mother,
being pregnant, executed the will
a few days before her delivery. —
McCrum v. McCrum, 141 App. Div.
83, 125 N. Y. Supp. 717.
A testator by codicil made a be-
quest to a son bom after making
his will, and in which instrument,
after reciting "in the event of the
death of myself, wife, and child or
children at one and the same
time," etc., he made changes in
certain bequests. This was the
only mention in the will or codicil
of "child" or "children." Subse-
quently two daughters were bom,
who survived the testator, and it
HUSBAND, WIPE AND CHILDREN. 953
§ 633. The Term "Children" Includes After-Bom Children.
A devise may be made to after-bom children, and tlie
phrase "our children" in a will embraces an after-born
child and he is included with the children living at the
date of the will in sharing the benefits of the provisions
made for the children.''^ And likewise the term "grand-
children" has been held to include a posthumous grand-
child.''2
§ 634. Object of Statutes Providing for Children Omitted Prom
Will.
The object of the statutes granting rights to preter-
mitted children is to guard against the consequences of
a parent's forgetfulness whereby some of his children
may be provided for at the expense of others.'^* The fail-
ure to allude to any of his children is evidence that they
was held that they succeeded
under the statute to the same por-
tion of the estate as they would
have received in case of Intestacy.
— Tavshanjian v. Abbott, 200 N. Y.
374, 93 N. E. 978, affirming 130
App. Div. 863, 115 N. Y. Supp. 938.
71 Kidder's Exrs. v. Kidder,
(N. J. Eq.) 56 Atl. 154.
To the same effect: Burdet v.
Hopegood, 1 P. Wms. 486; Clarke
V. Blake, 2 Ves. Jun. 673; Branton
V. Branton, 23 Ark. 569, 580;
Byrnes v. StllweU, 103 N. Y. 453,
57 Am. Rep. 760, 9 N. B. 241;
Barker v. Pearce, 30 Pa. St. 173,
72 Am. Dec. 691.
Contra: Armistead v. Danger-
field, 3 Munf. (Va.) 20, 5 Am. Dec.
Devisee, 1 B. Mon. (40 Ky.) 266,
268.
72 Smart v. King, Meigs (19
Tenn.) 149, 33 Am. Dec. 137.
Under the Arkansas statute
(Kirby's Dig., §8020), the great
granddaughter of the testator can
not recover when it is not shown
that she was living at the time
the will was made. — King v.
Byrne, 92 Ark. 88, 122 S. W. 96.
73 Payne v. Payne, 18 Cal. 291;
Callaghan's Estate, 119 Cal. 571,
39 L. R. A. 689, 51 Pac. 860; Porter
V. Porter's Exr., 120 Ky. 302, 27
Ky. Law Rep. 699, 86 S. W. 546;
Wilder v. Goss, 14 Mass. 357; Mc-
Courtney v. Mathes, 47 Mo. 533;
Gerrish v. Gerrish, 8 Ore. 351, 34
501; Shelby's Exrs. v. Shelby's Am. Rep. 585.
954
COMMENTARIES ON THE LAW OF WILLS.
were so forgotten.''* There is no intent, by such statutes,
in any way to limit the disposing power of a testator
pr to compel him to make any substantial provision for
Ids children ;''° but the object is to give to the pretermitted
'jhild, presumably forgotten, such share as he would have
received had there been no will.'''' The right of a testator
to dispose of his property even to the exclusion of his
children can not be denied in the absence of a statute for-
bidding it,'''' or in the absence of a valid contract to will
his property to a child.''*
Such statutes are for the purpose of regulating suc-
cession to the property of decedents in all cases of wills
Avhicli fail to mention or provide for the children of the
testator, whether the will was made before or after the
passage of the act. It is therefore the law in force at the
time of the death of the testator which prevails.''^
74 McCourtney v. Mathes, 47 Mo. If the language of the will is
533. clear and shows there has been
75 Callaghan's Estate, 119 Cal. no oversight or omission and that
571, 39 L. R. A. 689, 51 Pac. 860;
Smith V. Steen, 20 N. M. 436, 150
Pac. 927.
7(1 Rowe V. Allison, 87 Ark. 206,
112 S. W. 395.
7 7 Rhoads V. Rhoads, 43 111. 239;
Aldington v. Wilson, 5 Ind. 137,
61 Am. Dec. 81; Rabb v. Graham,
43 Ind. 1; Ackerman v. Fichter,
179 Ind. 392, Ann. Cas. 1915D, 1117,
46 L. R. A. (N. S.) 221, 101 N. E.
493; Matter of Goldthorp's Estate,
115 Iowa 430, 88 N. W. 944; Oden-
breit v. TJtheim, 131 Minn. 56,
L. R. A. 1916D, 421, 154 N. W.
741; Seguine v. Seguine, 42 N. Y.
(3 Keyes) 663, 4 Abb. Dec. 191,
35 How. Pr. (N. Y.) 336; Linney
V. Peloquin, 35 Tex. 29.
the testator has chosen to dis-
tribute his estate unequally
among his children or even to
exclude some of them entirely, it
is not the policy of the law to
interfere with his right to do so. —
Porter v. Porter's Exr., 120 Ky.
302, 27 Ky. Law Rep. 699, 86 S. W.
546.
78 0denbreit v. Utheim, 131
Minn. 56, L. R. A. 1916D, 421, 154
N. W. 741.
See vol. 1, ch. 8, Contracts to
Make Wills.
79 Obecny v. Goetz, 134 App.
Div. 166, 118 N. Y. Supp. 832.
See § 276 on same subject
HUSBAND, WIFE AND CHILDREN.
955
§ 635. Intent to Omit Children From Will : How Expressed.
In many jurisdictions the intent to exclude the child
must be expressed in the will.^" In others the fact of the
omission raises a prima facie presumption that there was
no intentional omission, but such presumption is rebutta-
ble by extrinsic proof. ^^ In some states the burden of
proof is upon the child to show that the omission was by
accident or mistake.^^ In Kansas, if the testator at the
time of executing the will has a child who is absent and
reported to be dead, and omits to provide for him in his
will, the child is entitled to the same interest that he
would have received in case of intestacy.^^ In Kentucky
there are also provisions in favor of children and grand-
children supposed by the testator to be dead or whom the
testator did not know were living; if unprovided for
80 It was the intent of the legis-
lature to declare intestacy as to
unmentioned children unless the
testator expressed a contrary In-
tention in his will, and such inten-
tion may be expressed by provid-
ing for them as a class without
naming them separately or by
naming them without providing
for them. — Brown v. Nelms, 86
Ark. 368, 112 S. W. 373.
The will must show on its face
and must indicate directly or by
implication equally as strong that
the testator had the omitted child
in mind and, having had him in
mind, omitted to make mention of
him in order to cut him off from
taking under the will. — Estate of
Stevens, 83 Cal. 322, 329, 17 Am.
St. Rep. 252, 23 Pac. 379; Rhoton
V. Blevin, 99 Cal. 645, 647, 34 Pac.
513.
Revisal 1905, § 3145, applies
when the omission is from inad-
vertence or mistake, and unless a
will in express terms shows the
omission is intentional the child
is entitled to share in the estate. —
Planner v. Planner, 160 N. C. 126,
75 S. E. 936.
Compare: Thomason v. Julian,
133 N. C. 309, 45 S. E. 636.
81 Bancroft v. Ives, 3 Gray
(Mass.) 367; Peters v. Siders, 126
Mass. 135, 30 Am. Rep. 671;
Meyers v. Watson, 234 Mo. 286,
136 S. W. 236; Schultz v. Schultz,
19 N. D. 688, 125 N. W. 555; Par-
sons V. Balson, 129 Wis. 311, 109
N. W. 136.
82 King V. Byrne, 92 Ark. 88, 122
S. W. 96.
83 Dassler's Gen. Stats. Kan.,
1909, § 9816.
956 COMMENTARIES ON THE LAW OP WILLS.
they take as in ease of intestacy, but the presumption that
the pretermission was the result of a mistake may be re-
butted."
§ 636. Presumption That Omission of Children Was Uninten-
tional.
Where a testator has omitted to provide for or men-
tion any of his children by his last will, the general pre-
sumption is that the omission was unintentional. This
presumption, however, may be rebutted by the contents
of the entire will or any part thereof which indicates that
the children were not forgotten. A will incorporating
within itself by reference the will of the testatrix's hus-
band in which her children were named, is a sufficient
"naming and providing for" within the meaning of the
statute requiring provision for or mention of children.*^
But the mention of a child unprovided for should be more
than a mere meaningless reference, it should evince an
intent on the part of the testator that the child in ques-
tion should take no benefit under the will.*^ Mention of a
child deceased at the time of the making of the will is not
a mention of the issue of such child f nor is a reference
84 Russell's stats., Kentucky, Civ. Code, § 3262, does not apply
1909, § 3965. to a case in which it appears that
85 Gerrish v. Gerrish, 8 Ore. 351, the testator knew that a given
354, 34 Am. Rep. 585. See, also, persoa lived and claimed to he his
Hockensmith v. Slusher, 26 Mo. nearest kin, and had full time
237. and opportunity before executing '
86 Pearce v. Carrington, (Tex. the vrill to ascertain the truth or
Civ. App.) 124 S. W. 469. falsity of the claim to relation-
A devise to Frederick William ship. — Young v. Mallory, 110 Ga.
was held to he intended for a son, 10, 35 S. E. 278.
William Frederick, and therefore, 87 Where the will named a child
mentioning him, was valid as to who was dead at the time, but
him. — Duensing v. Duensing, 112 omitted to mention the names of
Ark. 362, 165 S. W. 956. the dead child's children who
HUSBAND, WIFE AND CHILDREN.
957
by the testator to Ms heirs equivalent to mentioning his
children.*^
§637. Parol Evidence as to Intention of Testator to Omit
Child From Will: Conflict of Authority.
There is a contrariety of opinion in the decisions of the
courts as to whether extrinsic circumstances may be con-
sidered in determining the testator's intention to leave
unprovided for a child of whom no mention was made in
his will. The better opinion, supported by the weight of
authority, would seem to be that circumstances extrinsic
to the will may be shown and taken into consideration,^^
were living at tlie time of tlie ex-
ecution of the will, the testator
died Intestate as to those chil-
dren, so as to entitle them to a
part of the estate from the lega-
tees named In the will. — Gray v.
Parks, 94 Ark. 39, 125 S. W. 1023.
The fact that grandchildren
were omitted from the will of
their grandfather, in which their
mother, daughter-in-law of the tes-
tator, was mentioned, does not
show that the omission was in-
tentional.— Estate of Salmon, 107
Cal. 614, 617, 48 Am. St. Rep. 164,
40 Pac. 1030.
The fact that a legacy was left
to a child that was dead and
which therefore lapses, is not ma^
terial upon the question of omis-
sion to provide for grandchildren.
— Estate of Ross, 140 Cal. 282, 291,
73 Pac. 976.
88 The word "heirs" used In a
will Is not equivalent to "chil-
dren," and where the testator left
his estate to his wife, "to have
and to hold the same during her
natural life or to sell and convey
for the benefit of herself and her
heirs," the testator died intestate
so far as his children were con-
cerned. — Neal V. Davis, 53 Ore.
423, 99 Pac. 69; rehearing denied
in 101 Pac. 212.
89 Sutton V. Hancock, 115 Ga.
857, 42 S. B. 214; Hawhe v. Chi-
cago & W. I. R. Co., 165 111. 561,
46 N. E. 240; Peet v. Peet, 229 111.
341, 11 Ann. Cas. 492, 13 L. R. A.
(N. S.) 780, 82 N. E. 376; Estate
of Donges, 103 Wis. 497, 74 Am.
St. Rep. 885, 79 N. W. 786.
Where the object of the evi-
dence is to place before the court
the circumstances attending the
execution of the will in support of
and in aid of the intention of the
testator as declared in the will,
the court In Its discretion has the
right to hear such evidence. —
Hawhe v. Chicago & W. I. R. Co.,
165 111. 561, 46 N. E. 240; Peet v.
Peet, 229 111. 341, 11 Ann. Cas. 492,
13 L. R. A. (N. S.) 780, 82 N. E.
376.
958
COMMENTARIES ON THE LAW OP WILLS.
although nothing can be received to add anything to a will
plain and certain upon its face.®"
There is, however, authority to the effect that parol evi-
dence is not admissible, and this rule has been applied
where the court frankly acknowledged that the applica-
tion of the rule would defeat the intention of the testa-
tor.*i The statements of a testator can not be received to
prove what is intended by the written words of the will.®^
§ 638. The Same Subject.
The question of the testator's intent in respect to the
omission to provide for or mention his children or the
issue of any child in his wiU, is one of fact. Where ex-
trinsic evidence is admitted to determine the question of
intention, it should be submitted to the jury on all the
proof.^^ Parol evidence, in such jurisdictions, is held ad-
90 Sandon v. Sandon, 123 Wis.
G03, 101 N. W. 1089.
91 Chicago, B. & Q. R. Co. v.
Wasserman, 22 Fed. 872.
It is not error to exclude evi-
dence offered to show a parol dis-
inheritance of a child born after
the making of the will. — Burns v,
Allen, 93 Tenn. 149, 23 S. W. 111.
Where a part of the will had
been erased by drawing a line
through it, and mention was made
for an unborn child only in the
erased part, the mere fact of
erasure is no evidence that the
testator intended to disinherit
such child. Evidence of what the
testator said at the time of erasure
can not be received to prove an
intention to disinherit. — Lurle v.
Radnitzer, 166 111. 609, 57 Am. St.
Rep. 157, 46 N. E. 1116.
92 Peet V. Peet, 229 111. 341, 11
Ann. Cas. 492, 13 L. R. A. (N. S.)
780, 82 N. E. 376.
See § 50.
While evidence as to the sur-
rounding circumstances is often
proper and sometimes indispen-
sable to an intelligent construc-
tion of 'the language used by en-
abling the court to stand in the
testator's place, still this would
not authorize the admission of
evidence as to what the testator
said his intention was. The in-
tention must be derived from the
will itself. — Lurie v. Radnitzer,
166 111. 609, 57 Am. St. Rep. 157,
46 N. E. 1116.
93 Woodvine v. Dean, 194 Mass.
40, 79 N. E. 882; Carpenter v.
Snow, 117 Mich. 489, 72 Am. St.
Rep. 576, 41 L. R. A. 820, 76 N. W.
78.
HUSBAND, WIFE AND CHILDREN.
959
missible to prove intent to omit a child from a will for
the reason that such evidence is not offered to control or
change the terms of a written instrument, since the party
omitted claims under the statute and not under the will.^*
But where the question must be determined by the terms
of the document, it is a matter of construction, and parol
declarations of the testator, although contemporaneous
with the execution of the will and showing an intentional
failure to make provision for his children, are not admis-
sible.*^
94 Wilson V. Fosket, 6 Mete. (47
Mass.) 400, 39 Am. Dec 736.
Parol evidence is admissible to
show whether or not a child was
unintentionally omitted from a
will. See Lobb v. Lobb, 21 Ont.
Law R. 262; affirmed in 22 Ont.
Law R. 15; Lorings v. Marsh, 6
Wall. (73 U. S.) 337, 18 L. Ed.
802; Lorieux v. Keller, 5 Iowa 196,
68 Am. Dec. 696; Whittemore v.
Russell, 80 Me. 297, 6 Am. St. Rep.
200, 14 Atl. 197; Wilson v. Fosket,
6 Mete. (47 Mass.) 400, 39 Am.
Dec. 736; Buckley v. Gerard, 123
Mass. 8; Goff v. Britton, 182 Mass.
293, 65 N. E. 379; Matter of Steb-
bins, 94 Mich. 304, 34 Am. St. Rep.
345, 54 N. W. 159; Carpenter v.
Snow, 117 Mich. 489, 72 Am. St.
Rep. 576, 41 L. R. A. 820, 76 N. W.
78; Bachinski v. Bachinski's Es-
tate, 152 Mich. 693, 125 Am. St.
Rep. 427, 116 N. W. 556; Whitby
V. Motz, 125 Minn. 40, 51 L. R. A.
(N. S.) 645, 145 N. W. 623; Snyder
V. Toler, 179 Mo. App. 376, 166
S. W. 1059; Peterson's Estate, 49
Mont. 96, Ann. Cas. 1916A, 716,
140 Pae. 237; Brown v. Brown,
71 Neb. 200, 8 Ann. Cas. 632, 115
Am. St. Rep. 568, 98 N. W. 718;
McMillen's Estate, 12 N. M. 31,
71 Pao. 1083; Hedderich v. Hed-
derich, 18 N. D. 488, 499, 123 N. W.
276; Schultz v. Sehultz, 19 N. D.
688, 125 N. W. 555; Kuster v. Yeo-
man, 32 Ohio C. C. R. 476; O'Con-
nor's Estate, 21 R. I. 465, 79 Am.
St. Rep. 814, 44 Atl. 591; Geer v.
Winds' Exrs., 4 Desaus. (S. C.) 85;
Atwood's Estate, 14 Utah 1, 60
Am. St. Rep. 878, 45 Pac. 1036;
Newman v. Waterman, 63 Wis.
612, 53 Am. Rep. 310, 23 N. W.
696; Moon v. Evans' Estate, 69
Wis. 667, 35 N. W. 20.
95 Estate of Stevens, 83 Cal. 322,
■328, 17 Am. St. Rep. 252, 23 Pac.
379. See, also, Pounds v. Dale, 48
Mo. 270; Chace v. Chace, 6 R. I.
407, 78 Am. Dec. 446.
Parol evidence inadmissible to
show a child to have been inten-
tionally omitted from the will.
See Bradley v. Bradley, 24 Mo.
311; Hoekensmith v. Slusher, 26
Mo. 237; Pounds v. Dale, 48 Mo.
960 COMMENTARIES ON THE LAW OF WILLS.
§639. The Same Subject: Reason for Conflicting Decisions. '
The jurisdictions permitting evidence dehors the will
found their decisions on statutes which declare that when
any testator omits to provide in his wiU for any of his
children, "unless it appears that such omission was in-
tentional, ' ' they must have the same share in the estate
as if he had died intestate. The opposite rule is adopted
in those states which make it mandatory for the child to
take as though the testator had died intestate, the only
question being whether or not the child is provided for in
the will, not as to whether he was omitted intentionally or
unintentionally. This explains the seeming contrariety of
holdings of the different courts, and California is prac-
tically the only state which construes the same statute
in a different manner from those states holding that parol
evidence is admissible.®®
§ 640. Remedies of Pretermitted Heirs.
The unexplained omission of children in the wiU does
not necessarily invalidate the will although it may be
ineffectual as to such persons.®'^ A pretermitted heir, how-
270; Gage v. Gage, 29 N. H. 533; in 133 V. S. 216, 33 L. Ed. 596,
Chace v. Chace, 6 R. I. 407, 78 Am. 10 Sup. Ct. 253. The United States
Dec. 446; Bums v. Allen, 93 Tenn. Supreme Court took occasion to
149, 23 S. W. Ill ; Bower v. Bower, severely criticise the California
5 Wash. 225, 31 Pac. 598; Hill v. leading case.
Hill, 7 Wash. 409, 35 Pac. 360; The law as laid down in Matter
Morrison v. Morrison, 25 Wash, of Garraud Is followed, hut ad-
466, 65 Pac. 779. versely criticised, In Estate of
96 Matter of Garraud's Estate, 35 Stevens, 83 Cal. 322, 17 Am. St.
Cal. 336. Rep. 252, 23 Pac. 379.
Upon the same statute the Utah 97 Doane v. Lake, 32 Me. 268,
territorial court reached the oppo- 52 Am. Dec. 654; Lowery v.
site conclusion In the case of Cou- Hawker, 22 N. D. 318, 37 L. R. A.
lam V. Doull, 4 Utah 267, 9 Pac. (N. S.) 1143, 133 N. W. 918.
568, and this opinion was affirmed
HUSBAND, WIFE AND CHILDREN.
961
ever, has certain rights given him under the statutes, gen-
erally that he shall take the same share of the estate
as if the testator had died intestate. But his remedy to
enforce the right seems to be quite different in the vari-
ous jurisdictions. In some the remedy is to appear in the
proceeding and demand a distribution of the estate f^ to
move the court to proceed with the administration of the
estate and to set over to him his share the same as if
the testator had died intestate i'*" or to institute any
proper action,^ such as an action in partition,^ writ of
entry,* or ejectment.* A bill in equity may be maintained
to establish his rights^ or they may be asserted in an
action to quiet title.® Such omitted child may also recover
98 Lowery v. Hawker, 22 N. D.
318, 37 L. R. A. (N. S.) 1143, 133
N. W. 918.
99 Barker's Estate, 5 Wast. 390,
31 Pac. 976.
1 Newman v. Waterman, 63 Wis.
612, 53 Am. Rep. 310, 23 N. W. 696,
holding, however, that where the
omitted child was of full age and
had appeared in the proceedings
establishing the will, he could not
recover land that had been de-
vised.
Time for commencing action —
The statute permitting a preter-
mitted child to "recover the por-
tion of the estate to which he
would be entitled from the dev-
isees and legatees in proportion
to and out of the part devised and
bequeathed to them by such will,"
does not mean that the action can
not be brought until after the es-
tate is distributed, or that the
right of action does not accrue
II Com. on Wills— 7
until after distribution.— Bunce v.
Bunce, 27 Abb. N. C. 61, 20 N. Y.
Civ. Pro. R. 332, 14 N. Y. Supp.
659.
2 Breidensteln v. Bertram, 198
Mo. 328, 95 S. W. 828; Gage v.
Gage, 29 N. H. 533; Udell v.
Stearns, 125 App. Div. 196, 109
N. Y. Supp. 407.
Afterborn children omitted from
the will may maintain partition
against the grantee of the father
who took under the will.- — Obecny
V. Goetz, 116 App. Div. 807, 102
N. Y. Supp. 232.
3 Gage V. Gage, 29 N. H. 533.
4 McCracken v. McCracken, 67
Mo. 590; Cox v. Cox, 101 Mo. 168,
13 S. W. 1055; Smith v. Robert- ^
son, 89 N. Y. 555.
5 Branton v. Branton, 23 Ark.
569; George v. Robb, 4 Ind. Terr.
61, 64 S. W. 615.
eRowe V. Allison, 87 Ark. 206,
112 S. W. 395.
962
COMMENTAEIES ON THE I^W OP WILLS.
from eacli devisee the portion which the devisee is bound
to contribute without making other devisees parties to the
suit.'' He can not, however, claim his share from each
devisee, but is only entitled to contribution sufficient to
give him that portion to which he would have been en-
titled if there had been no will.*
An omitted child can not appear and contest the probat-
ing of the will on the ground of the omission, as his rights
are independent of the will and are unaffected by it.'
Neither has he the right to have the will set aside,^" al-
though there are cases holding that the probate may be
revoked and the will set aside.^^
7 Haskins v. SpUler, 1 Dana (31
Ky.) 170.
The sliare wMcli a child omitted
from the will would have received
by inheritance must bo made up
by abatement of the legacies and
devises, the validity of the will
and its admission to probate not
being affected by the omission. —
Doane v. Lake, 32 Me. 268, 52 Am.
Dec 654.
The share of an afterborn child
provided for by Gen. Stats.,
p. 3760, par. 19, so far as the ascer-
tainment thereof is concerned, is
subject to the widow's dower in
real estate and to her share as a
distributee of the personal estate.
—In re Miner, 65 N. J. Eq. 116,
55 Atl. 1102.
In ascertaining the share to
which a pretermitted child is en-
titled, the amount or value of spe-
cial or specific devises and lega-
cies must be taken into account,
and each devisee or legatee must
contribute in the proportion that
his devise or legacy bears to the
entire estate. Dower, homestead,
and a year's support will not be
excluded from the distributed
fund where the widow has waived
those rights. — Ensley v. Ensley,
105 Tenn. 107, 58 S. W. 288.
8 Smith V. Steen, 20 N. M. 436,
150 Pac. 927.
9 Mclntire v. Mclntire, 64 N. H.
609, 15 Atl. 218; Lowery v.
Hawker, 22 N. D. 318, 37 L. R. A.
(N. S.) 1143, 133 N. W. 918.
10 Branton v. Branton, 23 Ark.
569; Schneider v. Koester, 54 Mo.
500; Cox V. Cox, 101 Mo. 168, 13
S. W. 1055; Barker's Estate, 5
Wash. 390, 31 Pac. 976.
11 Hughes V. Hughes, 37 Ind.
183; Morse v. Morse, 42 Ind. 365;
Myers v. Barrow, 3 Ohio Cir. Ct.
R. 91, 2 Ohio C. D. 52.
HUSB.USTD, WIFE AND CHILDREN. 963
§ 641. Rights of Adopted Children.
Inasmuch as a child born in lawful wedlock may be dis-
inherited, it follows that an adopted child may also be
disinherited, because he can never have greater rights
than direct issue ;^^ and where the parent can not cut off
his issue, neither can he cut off the adopted child, their
rights being the same.^* The failure to mention an
adopted child in the wiU gives to such child the same
rights as if he or she were the offspring of the testator.^*
§ 642. Rights of Illegitimate Children.
The term "children" referred to in the statutes re-
garding pretermitted and after-born children relates to
their status and right to inherit, not to their origin nor
the legality of the relations which existed between those
of whom they were begotten. ^° Thus generally the term
includes only legitimate children.^* The common law
rule was that an illegitimate child could not be an heir
nor have heirs except of his own body." In the United
States this rule has been greatly modified by statute, an
illegitimate child in several states inheriting from and
12 The property rights of an n Thomas v. Maloney, 142 Mo.
adopted child are the same as App. 193, 126 S. W. 522; Sandon
those of a natural child. — Oden- v. Sandon, 123 Wis. 603, 101 N. W.
hreit v. TJtheim, 131 Minn. 56, 1089.
L. R. A. 1916D, 421, 154 N. W. 741; 15 Warden's Estate, 57 Cal. 484.
Horton v. Troll, 183 Mo. App. 677, 16 Kent v. Bai-ker, 2 Gray
167 S. W. 1081; Steele v. Steele, (Mass.) 535; King v. Thissell, 222
161 Mo. 566, 61 S. W. 815; Logan Mass. 140, 109 N. E. 880; Maus-
V. Lennix, 40 Tex. Civ. App. 62, field v. Neff, 43 Utah 258, 134 Pac.
88 S. W. 364; Clark v. West, 96 1160.
Tex. 437, 73 S. W. 797; Master- 17 In re Don's Estate, 3 Jur.
son V. Harris, (Tex.) 174 S. W. N. S. 1192, 4 Drew 190; Stoltz v.
570. Doering, 112 111. 234; Cooley v.
isHosser's Succession, 37 La. Dewey, 4 Pick. (Mass.) 93, 16 Am.
Ann. 839. Dec. 326.
964
COMMENTARIES ON THE LAW OF WILLS.
through the mother ;^* although in some jurisdictions the
inheritance does not extend to the estates of the mother 's
ancestors or collateral relations.^® In a few instances the
illegitimate may inherit from the father if recognized in
the manner prescribed by statute.^" Such statutes, being
in derogation of the common law, are generally strictly
construed.^^ If the statute with reference to pretermitted
children uses the word "heirs" and "heirs" includes
' ' children, ' ' a pretermitted illegitimate child should take
under the estate of a parent from whom he may legally
inherit.^^ In California, where illegitimates inherit from
the mother, such a child not mentioned in the mother's
will takes as in the case of intestacy.^^ The conclusion in
Massachusetts, however, under the same circumstances,
is directly contrary.^* And it has been held that an ille-
gitimate child, the father of whom made his will after the
18 Stevenson v. Sullivant, 5
Wheat. (18 U. S.) 207, 5 L. Ed. 70
Gregley v. Jackson, 38 Ark. 487
Heath v. White, 5 Conn. 228
Bales V. Elder, 118 m. 436, 11
N. E. 421; Parks v. Klmes, 100
Ind. 148; Stover v. Boswell's
Heir, 3 Dana (33 Ky.) 232, 233;
Neel V. Hibard, 30 La. Ann. 808;
Hunt V. Hunt, 37 Me. 333; Moore
V. Moore, 169 Mo. 432, 58 L. R. A.
451, 69 S. W. 278; Burlington v.
Fosby, 6 Vt. 83, 27 Am. Dec. 535.
19 Flora V. Anderson, 75 Fed.
217; Williams v. Kimball, 35 Fla.
49, 48 Am. St. Rep. 238, 26 L. R. A.
746, 16 So. 783; Estate of Rees,
166 Pa. St. 498, 31 Atl. 254; Brown
V. Kerby, 9 Humph. (28 Tenn.)
460.
20 Van Horn v. Van Horn, 107
Iowa 247, 45 L. R. A. 93, 77 N. W.
846; Caldwell v. Miller, 44 Kan.
12, 23 Pac. 946; Matter of Gor-
kow's Estate, 20 Wash. 563, 56
Pac. 385.
21 Cope V. Cope, 137 tJ. S. 682,
34 L. Ed. 832, 11 Sup. Ct. 222;
Brewer v. Hamor, 83 Me. 251, 22
Atl. 161; Pratt v. Atwood, 108
Mass. 40.
22 Howell V. Tyler, 91 N. C. 207.
23 Estate of Wardell, 57 Cal.
484, 493. And see Estate of Gar-
raud, 35 Cal. 336; Estate of TJtz,
43 Cal. 200; Bush v. Lindsey, 44
Cal. 121; Heath v. White, 5 Conn.
228.
24 Kent V. Barker, 2 Gray
(Mass.) 535. See, also. King v.
Thlssell, 222 Mass 140, 109 N. E.
880.
HUSBAND, WIFE AND CHILDREN. 965
child's birth and before his marriage to the mother, could
not be considered as an after-born child.^^
§ 643. Forced Heirs : Law of Louisiana.
The power of the owner to dispose of his property by-
donations inter vivos or mortis causa is limited by the
number of his children living when he dies, hence called
forced heirs. When he leaves a daughter and the children
of two deceased daughters, the disposable portion is one-
third; the other two-thirds being the legitime of the
forced heirs.^®
The method of ascertaining the disposable portion is
to add to the property of the deceased left at his death
the value of all property he has disposed of by donations
inter vivos, deducting his debts, and the residue deter-
mines the disposable portion according to the number of
his children, and fixes also their legitimate share of the
estate as the forced heirs of the deceased.^^
§ 644. Nature of Ownership of Forced Heirs.
Whether forced heirship is ownership in its full sense,
of which the heir is seised of right, as applied to property
embracing the legitime in the hands of third persons to
whom the property has passed by the donations, nominal
sales, or similar acts of the deceased donor to the preju-
dice of his forced heirs, it is clear that by his death the
right of action is vested in them to reduce or set aside
such acts as impair their legitime, and to recover it from
third persons holding under transfers from the donee.^**
25 McCuUoch's Appeal, 113 Pa. 1506; Cox v. Von Ailefeldt, 50 La,
St. 247, 6 Atl. 253. Ann. 1266, 23 So. 959.
26 Rev. Civ. Code, arts. 1493, 28 Rev. Code, arts. 1493, 1495,
1495; Cox v. Von Ahlefeldt, 50 La. 1504, 1517; Code Napoleon, art.
Ann. 1266, 23 So. 959. 930, 2444; Cox v. Von Ahlefeldt,
27 Rev. Oiv. Code, arts. 1505, 50 La. Ann. 1266, 23 So. 959.
966 COMMEaSTTAEIES ON THE LAW OF WILLS.
This right of action of the forced heir passes to his heirs
and assigns.*'
The suit of the forced heir is not a revocatory action,
but one of reduction or revendication to preserve or re-
cover the legitime, of which he can not be deprived by the
donations or similar acts of the deceased donor, and to
which no alienation by the donees can convey title.^"
29 Rev. civ. Code, art. 1504; 3 Code Napoleon, art. 930; Croizet's
Boilleux Comm., sur art. 920, Code Heirs v. Gaudet, 6 Mart. O. S.
Napoleon; Tompkins v. Prentice, (La.) 524, 529; Lewis' Estate, 32
12 La. Ann. 465; Cox v. Von Able- La. Ann. 385; Cox v. Von Ahle-
feldt, 50 La. Ann. 1266, 23 So. 959. feldt, 50 La. Ann. 1266, 23 So. 959.
30 Rev. Civ. Code, art 1517;
CHAPTER XXIV.
CLASSIFICATION OF LEGACIES AND DEVISES.
§ 645. Legacies classified.
§ 646. Intention of testator prevails : Specific legacies not fa-
vored.
§ 647. Greneral legacies defined.
§ 648. The same subject: Illustrations.
§ 649. Specific legacies defined.
§ 650. The same subject: As of the date of the will.
§ 651. The same subject : Descriptive words.
§ 652. Money may be specifically bequeathed.
§ 653. Stocks, bonds, and securities.
§ 654. Insurance policies.
§ 655. Proceeds from sales.
§ 656. Real estate.
§ 657. Distinction between specific and demonstrative legacies.
§ 658. Demonstrative legacies defined.
§ 659. The same subject : Illustrations.
§ 660. The same subject: Sources from which they may be di-
rected to be paid.
§ 661. Annuities defined.
§ 662. Annuity and gift of income distinguished.
§ 663. Time when annuities are payable.
§ 664. Duration of payment of annuities.
§ 665. Prom what source delinquent installments of an annuity
may be collected.
§ 666. Interest on delinquent payments of an annuity.
§ 667. Apportionment upon death of annuitant: When allowed.
§ 668. Residuary devises and legacies defined.
§ 669. The same subject : No particular form of words necessary.
§ 670. Who are residuary devisees or legatees.
§ 671. Residuary devises and legacies usually classed as general
§ 672. Position of the residuary clause.
(967)
968 COMMENTARIES ON THE LAW OP WILLS.
§ 673. Describing property in the residuary clause, effect of.
§ 674. Residuary clause, descriptive words: "Rest," "residue,"
and "remainder."
§ 675. The same subject: "Balance."
§ 676. The same subject: "Not otherwise disposed of."
§ 677. Residuary clause : Construction controlled by intention :
Expressions considered.
§ 678. As to real property acquired after the execution of the
will being covered by the residuary clause.
§ 679. What passes under residuary devises and bequests.
§ 680. The same subject : Presumptions.
§ 681. The same subject: Lapsed and void legacies.
§ 682. The words "cumulative" and "substitutional" as ap-
plied to legacies.
§ 683. Intention controls as to whether or not legacies are cumu-
lative or substitutional.
§ 684. Bequeathing a specific article twice.
§ 685. Two gifts, in the same will, to one person : When cumular
tive.
§ 686. Two gifts, in different instruments, to the same persons:
For same amount and same expressed reason, not
cumulative.
§ 687. The same subject: With different reasons expressed, or
for different amounts, are cumulative.
§ 688. The same subject : When given simpUciter, are cumula-
tive.
§ 689. Substituted or additional legacies : Subject to incidents
of first legacies.
§ 645. Legacies Classified.
The two main classes of legacies are general and spe-
cific, the distinguishing features being that the latter is
a gift of specified property distinguishable from the bal-
ance of the estate, while the former is a gift not subject
to identification, but to come out of the general assets
CLASSIFICATION OF LEGACIES AND DEVISES. 969
of the estate.^ There is another kind of legacy, how-
ever, termed demonstrative, which, although partaking
of the nature of both the general divisions, is often des-
ignated as a third class.^ Thus a demonstrative legacy
is a gift of money or other property charged on a par-
ticular fund in such a way as not to amount to a gift of
the corpus of the fund, or to evince an intent to relieve
the general estate from liability in case the fund fails.*
There are other forms of legacies, but which belong to
one or the other of the classes named, such as annuities,
and residuary, cumulative, and substitutional legacies.
Also gifts characterized by the interest conveyed, such
as vested or contingent, in fee, for life, or remainder.
The importance of determining the class to which a
legacy belongs lies in the fact that thereby, no contrary
intention appearing in the will, is fixed the question of
abatement, ademption or lapse.
§ 646. Intention of Testator Prevails : Specific Legacies Not
Favored.
In construing whether a legacy is general, specific or
demonstrative it must be remembered that the will of the
testator is the law of the court, and that the testator's
intention, so far as it is lawful, is his will. It is there-
1 In re Parson's Estate, 150 Iowa Chancellor that though various at-
230 129 N. W. 955. See § 31. tempts have been made at defini-
2 Kramer v. Kramer, 201 Fed. «°°s, there were objections to
248, 119 C. C. A. 482. "^"^^ "^ ^'^^'^' ^""^ " ^°">'^' ^
,. t ^ -r . think, serve no good purpose to
It was said by Meredith, C. J., in ,. ,_ ^. . ^x.
go through the cases for the pur-
Re Mackey, 6 Ont. Law Rep. 292: ^^^^ ^^ extracting from them such
"It is difficult to determine what definitions as have been given.-
a specific legacy is, or to state 3 Nusly v. Curtis, 36 Colo. 464,
the test for distinguishing such ng Am. St. Rep. 113, 10 Ann. Gas.
a legacy from a general bequest, 1134, 7 L. R. A. (N. S.) 592, 85
and it has been said by a Lord Pac. 846.
970
COMMENTARIES ON THE LAW OP WILLS.
fore the intention wMch must be ascertained.* If com-
patible with the language used, legacies will be construed
as general or demonstrative, but if the language is clear
and unequivocable and plainly evidences an intent to cre-
ate a specific legacy, the court must give effect to such
language and intent.^ Specific legacies are not favored
by the law and the courts are adverse to construing lega-
cies as specific except when the language of the testa-
ment makes such construction necessary.^ The reason
4 Macdonald v. Irvine, L. R. 8
Ch. Dlv. 101; Vickers v. Pound,
6 H. U Cas. 885, 28 L. J. Ch. 16;
Harper v. Bibb, 47 Ala. 547; Nusly
V. Curtis, 36 Colo. 464, 118 Am. St.
Rep. 113, 10 Ann. Cas. 1134, 7
L. R. A. (N. S.) 592, 85 Pac. 846;
School Dist. No. 1 v. International
Trust Co., 59 Colo. 486, 149 Pac.
620; Morton v. Murrell, 68 Ga.
141; Meily v. Knox, 191 111. App.
126; Evans v. Hunter, 86 Iowa
413, 41 Am. St. Rep. 503, 17
L. R. A. 308, 53 N. W. 277; Guthrie
V. Guthrie's Exr., 168 Ky. 805, 183
S. W. 221; Dryden v. Owings, 49
Md. 356; White v. Winchester, 6
Pick. (Mass.) 48; Metcalf v. First
Parish in Framingham, 128 Mass.
370; Hailey v. McLaurin's Estate,
112 Miss. 705, 73 So. 727; Asbury
V. Shain, 191 Mo. App. 667, 177
S. W. 666; Cramer v. Cramer, 35
Misc. Rep. 17, 71 N. Y. Sup 13. 60;
Matter of Delaney's Will, 133 App.
Div. 409, 117 N. Y. Supp. 838;
affirmed, 196 N. Y. 530, 89 N. B.
1098; Adair v. Adair, 11 N. D. 175,
90 N. W. 804; Lake v. Copeland,
82 Tex. 464, 17 S. W. 786; May v.
Sherrard's Legatees, 115 Va. 617,
Ann. Cas. 1915B, 1131, 79 S. E.
1026.
5 Nusly V. Curtis, 36 Colo. 464,
118 Am. St. Rep. 113, 10 Ann. Cas.
1134, 7 L. R. A. (N. S.) 592, 85
Pac. 846; Hailey v. McLaurin's
Estate, 112 Miss. 705, 73 So. 727;
Norris v. Thomson's Exrs., 15 N. J.
Eq. 493. 16JSr. J. Eq. 542; May v.
Sherrard's Legatees, 115 Va. 617,
Ann. Cas. 1915B, 1131, 79 S. E.
1026.
6 Innes v. Johnson, 4 Ves. Jun.
568; Simmons v. Vallance, 4 Bro.
C. C. 345; Davies v. Fowler, L. R.
76 Eq. 308; Kenaday v. Sinnott,
179 U. S. 606, 45 L. Ed. 339, 21 Sup.
Ct. 233; Harper v. Bibb, 47 Ala.
547; Nusly v. Curtis, 36 Colo. 464,
118 Am. St. Rep. 113, 10 Ann. Cas.
1134, 7 L. R. A. (N. S.) 592, 85 Pac.
846; Morton v. Murrell, 68 Ga.
141; Gardner v. McNeal, 117 Md.
27, Ann. Cas. 1914A, 119, 40
L. R. A. (N. S.) 553, 82 AU. 988;
Briggs V. Hosford, 22 Pick. (Mass.)
288; Humphrey v. Robinson, 52
Hun (N. Y.) 200, 5 N. Y. Supp.
164; Matter of Bergen, 56 Misc.
Rep. (N. Y.) 92, 106 N. Y. Supp.
1038; affirmed, Bergen v. Wyckoff
CLASSIFICATION OF LEGACIES AND DEVISES.
971
for this rule is that it is more reasonable to presume that
the testator intended the legatee to receive an absolute
benefit rather than a conditional one, namely, that the
testator must die possessed of property specifically be-
queathed. Those named as legatees in a will are naturally
those to whom the testator is bound by sentiments of
family, affection and duty, and such feelings once exist-
ing, are presumed to continue. Therefore, that the legacy
should be effective only in the event that the testator con-
tinues to possess the property until the time of his death,
rather than that the sentiments which prompted the gift
remain unchanged, requires a specific legacy to be ex-
pressed in language which clearly conveys that inten-
tion.''
(In re Snedecker), 125 App. Div.
929, 110 N. Y. Supp. 1146; Noon's
Estate, 49 Ore. 286, 88 Pac. 673,
90 Pac. 673; Blackstone v. Black-
stone, 3 Watts (Pa.) 335, 27 Am.
Dec. 359; Snyder's Estate, 217 Pa.
St. 71, 118 Am. St. Rep. 900, 10
Ann. Cas. 488, 11 L. R. A. (N. S.)
49, 66 Atl. 157; Dean v. Rounds,
18 R. I. 436, 27 Atl. 515, 28 AU.
802; Corbin v. Mills' Exrs.. 19
Gratt. (Va.) 438.
The rule that courts will lean to
construing a legacy general rather
than specific where there Is any
doubt, does not mean that the
court is to address itself to the
construction of a will with any
prepossession one way or the
other. — Sayer v. Sayer, 7 Hare
377.
"Courts have always leaned
strongly against construing a
legacy as specific when there is
any doubt, and such a rule of con-
struction is usually far more fa-
vorable to the legatee; for a spe-
cific legacy is liable to be adeemed,
and therefore entirely lost." — Es-
tate of Woodworth, 31 Cal. 595,
quoted in Noon's Estate, 49 Ore.
286, 293, 88 Pac. 673, 90 Pac. 673.
Pecuniary legacies will not be
construed as specific unless clearly
made so by the testator's lan-
guage, especially if such construc-
tion results in a partial intestacy.
— Vaiden v. Hawkins, 59 Miss. 406.
7 Kenaday v. Sinnott, 179 V. S.
606, 45 L. Ed. 339, 21 Sup. Ct. 233;
TifEt V. Porter, 8 N. Y. 516.
Inasmuch as the presumption is
that the testator intended a real
benefit to the legatee, the courts
consider legacies as general or
demonstrative rather than specific
where the language of the will
permits that construction. — Matter
972 COMMENTARIES ON THE LAW OF WILLS.
§647. Creneral Legacies Defined.
A legacy is said to be general when it is not answered
by any particular portion or article belonging to the
estate, the delivery of which will alone fulfill the intent
of the testator; and when it can be so answered, it is
said to be a specific thing belonging to the estate which
is by the legacy intended to be transferred in specie to
the legatee. If it is the intention to have it paid without
reference to the fund upon which it is primarily a charge,
it is general.* It is one which does not necessitate the
delivery of any particular article or the payment of
money out of any particular fund or portion of the
estate;^ it is payable out of the general assets, such as
a gift of money or other thing in quantity, and not in
any way separated or distinguished from other property
of a like kind.^**
§648. The Same Subject: Illustrations.
A general legacy or devise is one of quantity merely,^^
as, for example, a bequest of "all my personal estate, "^^
of Bouk's Estate, 80 Misc. Rep. Martin, In re, 25 R. I. 1, 54 Atl.
(N. Y.) 196, 141 N. Y. Supp. 922; 589.
Giddings v. Seward, 16 N. Y. 365. lo Nusly v. Curtis, 36 Colo. 464,
sKenaday v. Sinnott, 179 U. S. 118 Am. St. Rep. 113, 10 Ann. Gas.
606, 45 L. Ed. 339, 21 Sup. Ct. 233; 1134, 7 L. R. A. (N. S.) 592, 85
Smith V. McKltterlclc, 51 Iowa Pac. 846; School Dist. No. 1 v. In-
548, 551, 2 N. W. 390; Carpenter's ternatlonal Trust Co., 59 Colo. 486,
Estate, In re, 166 Iowa 48, 147 149 Pac. 620; Asbury v. Shain, 191
N. W. 175; Boston etc. Trust Co. v. Mo. App. 667, 177 S. W. 666.
Plummer, 142 Mass. 257, 8 N. E. ii Myers' Exrs. v. Myers, 33 Ala.
51; Matter of Fisher, 93 App. Div. 85; Gilmer's Legatees v. Gilmer's
186, 87 N. Y. Supp. 567; Crawford Exrs., 42 Ala. 9, 16.
V. McCarthy, 159 N. Y. 514, 54 i2Broadbent v. Barrow, 20 Ch.
N. E. 277. Div. 676; s. c, nom. Robertson v.
9 Matter of King, 122 App. Div. Broadbent, 8 App. Cas. 812.
(N. Y.) 354, 106 N. Y. Supp. 1073; A bequest of all of the testator's
CLASSIFICATION OP LEGACIES AND DEVISES.
973
or of "all my real and personal estate not hereinbefore
specifically devised."^* So, also, bequests, such as of a
hundred dollars;^* of a sum of money "to be kept in
gold and silver," and paid to the legatee on his arriving
at age;^* of a certain sum to be paid "in good notes" at
the option of the legatee ;^* of shares of stock in a bank,
with power to the executors to change the investment ;"
of a certain sum "or the value thereof in property";^*
of "one year's provisions,"^* have all been held to be
general legacies.
A gift of "$10,000 in such cash, stocks, notes or bonds"
as the testator may die possessed of, is a general leg-
w.
personal estate with certain
named exceptions. Is general. —
Kelly V. Richardson, 100 Ala. 584,
13 So. 785.
A hequest and devise of all the
testator's estate of every kind is
a general legacy. — Broadwell v.
Broadwell's Admr., 61 Ky. (4
Mete.) 290; In re Snyder's Estate,
217 Pa. St. 71, 118 Am. St. Rep.
900, 10 Ann. Cas. 488, 11 L. R. A.
(N. S.) 49,-66 Atl. 157.
13 Chamberlain v. Taylor, 105
N. T. 185, 630, 11 N. E. 625, 630.
A devise of "all my property
real and personal of every descrip-
tion," except certain specified por-
tions, "unto my wife during her
natural life," is a general legacy.
—Mayo V. Bland, 4 Md. Ch. 484.
14 McDowell V. Burton, 4 Bibb
(7 Ky.) 326.
Legacies to nephews and nieces
each of a specified sum, if the
testatrix possessed sulflcient per-
sonal property at her death, are
general legacies. — ^In re Corby's
Estate, 154 Mich. 353, 117 N.
906.
A bequest of "$20,000 or such
part thereof as I may receive from
S, for land hereafter to be sold
to him by me, situate in the city
of New Castle, Pennsylvania, less,
however, all costs and expenses
which I may incur," etc., was held
to be in the alternative, and was
general. — Ranney v. Byers, 242 Pa.
St. 450, 89 Atl. 570.
IB Mathis V. Mathis, 18 N. J. L. 59.
16 Perry v. Maxwell, 17 N. C.
488.
A direction that ten thousand
dollars be paid to a legatee in
cash, stocks, notes, or bonds
which the testator might leave at
his death, is not a specific legacy
of the stocks, but a general legacy
of ten thousand dollars. — Martin v.
Osborne, 85 Tenn. 420, 3 S. W. 647.
17 Ladd v. Ladd, 2 Cranch C. C.
505, Fed. Cas. No. 7972.
18 Fagan v. Jones, 22 N. C. 69.
10 Everitt v. Lane, 37 N. C. 548.
974 COMMENTAEIES ON THE LAW OP WILLS.
acy.^" Gifts to each of several legatees in general terms
of a certain amount of stock, without identifying any
particular shares or distinguishing those given from all
other stock of the same kind, are general.^^ A mere be-
quest of corporate stock without any attempt at definite
description is a general legacy, but where certain shares
are described or particular descriptive language is used
to refer to them, it will be treated as specific.^^ However,
where the contents of a safe deposit box, consisting of
stocks, bonds, mortgages, and insurance policies, were
bequeathed to eleven persons in such proportions as to
make it impossible to divide them as directed, the lega-
cies were held to be general.^*
§ 649. Specific Legacies Defined.
A specific legacy is a gift by will, of a specified part of
the testator 's estate, distinguished from all other prop-
erty of the same kind, and which may be satisfied only
by the delivery of the particular thing bequeathed, and
not by a corresponding value.^* It must be part only of
20 Martin y. Osborne, 85 Tenn. 21 In re Snyder's Estate, 217 Pa.
420, 3 S. W. 647. St. 71, 118 Am. St. Rep. 900, 10
A legacy of a certain amount of Ann. Cas. 488, 11 L. R. A. (N. S.)
money "out of the portion or 49, 66 Atl. 157.
share of my father's estate that 22 Matter of Bergen, 56 Misc.
may come to me," has been said Rep. 92, 106 N. T. Supp. 1038;
to be a general legacy and to fail affirmed, Bergen v. Wyckoff (In re
to the extent of the deficiency of Snedeoker), 125 App. Div. 929, 110
the fund specified. — Gelbach v. N. Y. Supp. 1146; Tlfft v. Porter,
Shively, 67 Md. 498, 10 Atl. 247. 8 N. Y. 516; Brundage v. Brun-
Annuities directed to he paid dage, 60 N. Y. 544; I>avis v. Cain's
out of a trust fund to he created Exr., 36 N. C. 304, 309.
out of the personal estate, are gen- 23 Matter of Fisher, 93 App. Div.
eral. — Turner v. Mather, 86 App. 186, 87 N. Y. Supp. 567.
Div. 172, 83 N. Y. Supp 1013; 24 Kramer v. Kramer, 201 Fed.
affirmed, 179 N. Y. 581, 72 N. E. 248, 119 C. C. A. 482; Kenaday v.
1152. Sinnott, 179 U. S. 606, 45 L. Ed.
CLASSIFICATION OF LEGACIES AND DEVISES. 975
the testator's estate, as distinguislied from the whole; it
must be a severed or distinguished part, and it can not
be the whole of the estate either in the meaning of all
of the testator's property or all of the general residue of
his property out of which legacies are given.^^ A legacy
is specific when it is of a particular specified thing which
may be separated from the general property of the estate,
such as a horse of a certain color, a certain piece of fur-
niture, or a quantity of chattels described collectively,
as a gift of aU the testator's pictures.-^
In making a specific bequest it is absolutely necessary
that the subject matter be designated^^ or identified;"*
that is, there must be a segregation of the particular
property from the mass of the estate, and a specific gift
of the separated portion.^^ To sustain the claim that a
bequest is specific, there must be established both the ex-
istence and identity of the property as stated in the will.^"
339, 21 Sup. Ct. 233; Gilmer's Pa. St. 71, 118 Am. St. Rep. 900,
Legatees v. Gilmer's Bxrs., 42 Ala. 10 Ann. Cas. 488, 11 L. R. A.
9, 16; Nusly v. Curtis, 36 Colo. (N. S.) 49, 66 Atl. 157; Dean v.
464, 118 Am. St. Rep. 113, 10 Ann. Rounds, 18 R. I. 436, 27 Atl. 515,
Cas. 1134, 7 L. R. A. (N. S.) 592, 28 Atl. 802; Martin, In re, 25 R. I.
85 Pac. 846; School Dist. No. 1 v. 1, 54 Atl. 589; In re Campbell's
International Trust Co., 59 Colo. Estate, 27 Utah 361, 75 Pac. 851.
486, 149 Pac. 620; Smith v. McKit- 25 Bothamley v. Sherson, L. R.
terlck, 51 Iowa 548, 2 N. W. 390; 20 Bq. 304.
Wilts V. Wilts, 151 Iowa 149, 130 ^^ j^^^^^ ^ g^^^^^ ^9^ ^^_ ^pp
N. W. 906; Broadwell v. Broad- gg^^ ^^^ g ^_ 666; Morriss v. Gar-
well, 61 Ky. (4 Mete.) 290; Hill ,^^^,^ ^^^^_ ^g ^^ 3^5^ ^^^
V. Harding, 92 Ky. 76, 17 S. W,
199, 437; Stilphen, Appeal of, 100
Me. 146, 4 Ann. Cas. 158, 60 AU.
888; Tomlinson v. Bury, 145 Mass.
346, 1 Am. St. Rep. 464, 14 N. E.
137; Kearns v. Kearns, 77 N. J.
Eq. 453. 140 Am. St. Rep. 575, 76 29 Mayo v. Bland, 4 Md. Ch. 484.
Atl. 1042; Starbuck v. Starbuck, so Barber v. Davidson, 73 111.
93 N. C. 183; Snyder's Estate, 217 App. 441.
27 United States Fidelity &
Guaranty Co. v. Douglas' Trustee,
134 Ky. 374, 20 Ann. Cas. 993, 120
S. W. 328.
28 Dryden v. Owings, 49 Md. 356.
976 COMMENTARIES ON THE LAW OF WILLS.
It must be pointed out and individualized so as to enable
it to be delivered to the legatee as a thing sui genens.
It must be labeled and marked for delivery,*^ and this
must be effected by the language of the "will f^ but it is
sufficient if the property bequeathed can be specified and
distinguished at the time of the testator's death,^*
§ 650. The Same Subject: As of the Date of the Will.
It has been said that a specific legacy must be construed
in the light of the situation existing at the time the will
was made.** Thus, where a legacy is specific, there is
the presumption that it could have been identified at the
time of the execution of the will, and the burden of
proof lies with the legatee to show that a legacy specific
in form is in fact general because of facts existing at
the date of the will. But a bequest of a specific sum out
of a particular fund will be considered a general legacy
if the fund was not then in such form as to be identified
and traced.*^ It seems settled, however, that a testator
may make a specific gift of property which he intends
to acquire and which he owns at his deg,th.*®
31 Innes v. Johnson, 4 Ves. Jun. In re Campbell's Estate, 27 Utah
568; Harper v. Bibh, 47 Ala. 547; 361, 75 Pac. 851.
Palmer v. Palmer's Estate, 106 34 Matter of Delaney, 133 App.
Me. 25, 19 Ann. Cas. 1184, 75 Atl. ^"^- ^09, 117 N. Y. Supp. 838;
130; Johnson v. Goss, 128 Mass. affirmed, 196 N. T. 530, 89 N. E.
433; Noon's Estate, 49 Ore. 286, ^'^^^ ^^"^'^ °^ ^rann, 219 N. Y.
88 Pac. 673, 90 Pac. 673; In re 263, 114 N. E. 404.
Campbell's Estate, 27 Utah 361, 75 "" T'7 ."'JTo""' ''' ""''■
Div. (N. Y.) 767, 113 N. Y. Supp.
Pac. 851. g,^
32 Harper v. Bibb, 47 Ala. 547, ;« Fontaine v. Tyler, 9 Price 94;
553; In re Campbell's Estate, 27 Queen's College v. Sutton, 12 Sim.
Utah 361, 75 Pac. 851. 521 ; Gordon v. Duff, 28 Beav. 519.
33 Stephenson v. D o w s o n, 3 The common law English and
Beav. 342; Fidelity Ins. etc. Co.'s American rule as to the time from
Appeal, 108 Pa. St. 492, 1 Atl. 233; which a will speaks, sse §§ 235-239.
CLASSIFICATION OF LEGACIES AND DEVISES. 977
§651. The Same Subject: Descriptive Words.
Any words which clearly manifest an intention on the
part of the testator to give a specific thing constituting
part of his estate, as distinguished from all other things
of the same kind, and which it appears he did not use
to designate quantity, or to describe the special charac-
ter of the thing he wanted to give, will make the legacy
specific.^'' Thus legacies are specific where the subject
matter has been described as, in the case of a gift to a
wife of "the whole of the property she brought me";**
"my East Haddam bank stock";** a balance due upon a
settlement;*" all the money due on a bond against cer-
tain persons;*^ a certain sum "in notes to be taken out
of my notes as soon after my death as it can be done" ;*2
"one carriage," where the testator had but one;** a cer-
tain number of horses and oxen to be "of her choice";**
the money which shall be received under the decree in a
certain suit;*® five hundred dollars in personal property
"such as she may select";*® "all my property, house and
lot, and store, and all my personal property therein."*^
37 Moore's Exr. v. Moore, 50 46 Wallace v. Wallace, 23 N. H.
N. J. Bq. 554, 25 Atl. 403. 149.
38 Warren v. Wigfall, 3 Desaus. 47 Lynch's Estate, 13 Phila. (Pa.)
(S. C.) 47. See, also, Pell v. Ball, 322.
Speers' Bq. (S. C.) 48. A gift of "all my stock-in-trade
39 Bralnerd v. Cowdrey, 16 of •wines and spirituous liquors
Conn. 1. ■which I shall be possessed of at
40 Ellis V. Walker, Amb. 309. the time of my death," is specific.
41 Stout V. Hart, 7 N. J. L. 414. — Stewart v. Denton, 4 Doug.
42 Perry v. Maxwell, 17 N. C. (Eng.) 219.
488. Bequests of all wheat of which
43 Everitt v. Lane, 37 N. C. 548. the testator was the owner, stored
44 Everitt V. Lane, 37 N. C. 548. on his lands, and one-half of all
45 Chase t. Lockerman, 11 Grill grain that might be raised on such
& J. (Md.) 185, 35 Am. Dec. 277; lands during a specified year, are
Every gift of land: Wallace V. Wal- specific. — ^Rock v. Zimmermann,
lace, 23 N. H. 149. 25 S. D. 237, 126 N. W. 265.
II Com. on Wills— 8
978
COMMENTARIES ON THE LAW OF WILLS.
§ 652. Money May Be Specifically Bequeathed.
Money may be the subject of a specific bequest, as in
the case of a gift of a sum of money in a bag, or a certain
amount deposited in a designated place or with a partic-
ular person.*^ Thus, a testator may, if he sees fit, be-
Swa-
48Pulsford V. Hunter, 3 Bro.
C. C. 416; Lawsonv. Stitcli, 1 Atk.
507.
A direction to the executors "to
proceed to obtain the sum of five
thousand dollars from" the testa-
trix's share of the estate of her
deceased father "and place it In
the care of the Methodist Episco-
pal Conference . . . said con-
ference being pledged never to use
said five thousand dollars except
as a part of an endowment fund
for a school for Methodist minis-
ters," constitutes a specific legacy.
—Estate of Goodfellow, 166 Cal.
409, 137 Pac. 12.
A bequest of "$2000 received
from the estate of my father," is
specific. — Smith v. McKitteriok, 51
Iowa 548, 551, 2 N. W. 390.
A bequest of moneys to be re-
ceived from a decree in chancery,
is specific. — Chase v. Lockerman,
11 Gill & J. (Md.) 185, 35 Am. Dec.
277, 280.
A gift of whatever sum the tes-
tator may have on deposit In a
banl* at the time of his death. Is
a specific legacy. — ^Barber v. Dar
vidson, 73 111. App. 441; Towle v.
Swasey, 106 Mass. 100.
"If there had been no deposit
at the time of the testator's death,
the son would have had no claim
upon the estate." — Towle v.
sey, 106 Mass. 100.
A gift of the money in several
banks at the time the will was
made, which should not be other-
wise disposed of, even though the
money was withdrawn from those
banks and deposited In another
bank, where it remained until the
testator's death, is a specific
legacy. — Prendergast v. Walsh, 58
N. J. Eq. 149, 42 AO. 1049.
Ten legacies to be paid "only
out of the moneys now deposited
in" three designated banks, are
specific. — BuUard v. Leach, 213
Mass. 117, 100 N. E. 57.
A bequest of the amount due on
a named mortgage, is specific. —
Matter of Bouk's Estate, 80 Misc.
Rep. (N. Y.) 196, 141 N. Y. Supp.
922.
A clause, "I direct my daughter,
out of the moneys belonging to
me on deposit in her name, to pay
my said son the sum of fifteen
hundred dollars," without any
general bequest to the son, consti-
tutes a specific and not a demon-
strative legacy. — Crawford v. Mc-
Carthy, 159 N. Y. 514, 54 N. E.
277, reversing 21 App. Div. 484,
47 N. Y. Supp. 436.
A bequest of money afterward
described by the testator as prop-
CLASSIFICATION OF LEGACIES AND DEVISES.
979
queath all of a particular fund in a purse or a bank,
which is separate from other funds, employing such lan-
guage as will show that he creates a specific legacy of
that particular fund, rather than a legacy of a definite
amount to be paid from a specific fund. He may un-
doubtedly so charge a money legacy upon a particular
fund as to make the legacy follow the fund.*^ But a leg-
acy of money is not rendered specific by directing it to
be expended for some particular use, as for rings,^" for
government securities,^^ or for lands.^^
§653. Stocks, Bonds, and Securities.
In case of a bequest generally of stocks, bonds, securi-
ties, or of a sum of money in stocks, bonds or securities,
erty "specifically disposed of," Is
a specific legacy. — Witherspoon v.
Watts, 18 S. C. 396.
49 Tennille v. Phelps, 49 Ga.
532; Hart v. Brown, 145 Ga. 140,
88 S. E. 670; Towle v. Swasey, 106
Mass. 100; Smith's Appeal, 103 Pa.
St. 559.
The courts are averse to con-
sidering legacies specific when
they may he fairly construed
otherwise. — ^Ellls v. Walker, Amh.
309.
A fund of twenty thousand dol-
lars, created In a certain manner
out of the estate, was directed to
be held by trustees to pay the
income to the testatrix's mother
during her life; then was be-
queathed to the testatrix's two
brothers, ten thousand dollars
each, "out of my estate after my
said mother's decease"; it was
then further provided that the in-
crease of the fund over twenty
thousand dollars should be applied
to certain other purposes. The
court decided that the bequests to
the brothers were specific, and
that as a part of the fund had
been stolen, they could not go upon
the estate to make them whole. —
Stevens v. Fisher, 144 Mass. 114,
10 N. E. 803.
Where a testatrix ordered the
sale of her real estate and, after
payment of debts and legacies
from the proceeds, the income of
the remainder to be paid to a cer-
tain legatee, it was held to be a
specific devise, and not subject to
contribute to the payment of pe-
cuniary legacies. — In re Wilson's
Estate, 15 Phila. (Pa.) 528.
50 Apreece v. Apreece, 1 Ves. &
B. 364.
51 Lawson v. Stitch, 1 Atk. 507.
52 Hinton v. Pinke, 1 P. Wms.
539.
980
COMMENTARIES ON THE LAW OP WILLS.
without further explanation and without more particu-
larly referring to or designating the corpus of the iden-
tical stocks, bonds or securities, the court will not
construe such a legacy to be specific,"* even though the
testator possessed the particular property referred to at
the time of the execution of his will.®* However, where
words are used with reference to the corpus of the fund
which qualify and distinguish it, such as "my" or
"standing in my name," they show an intent on the
53 Wilson V. Brownsmith, 9 Ves.
Jun. 180; In re Gillins, 1 L. R. Ch.
Div. 1909, 345, 100 L. T. N. S. 226;
Ladd V. Ladd, 2 Cranch C. C. 505,
14 Fed. Gas. No. 7972; Douglass
V. Douglass, 13 App. Gas. (D. C.)
21; Gilmer's Legatees v. Gilmer's
Exrs., 42 Ala. 9; Evans v. Hunter,
86 Iowa 413, 41 Am. St. Rep. 503,
17 L. R. A. 308, 53 N. W. 277;
Palmer v. Palmer's Estate, 106 Me.
25, 19 Ann. Cas. 1184, 75 Atl. 130;
Dryden v. Owings, 49 Md. 356;
Johnson v. Goss, 128 Mass. 433;
Matter of King, 122 App. Div.
(N. T.) 354, 106 N. Y. Supp. 1073;
Matter of Bergen, 56 Misc. Rep.
(N. Y.) 92, 106 N. Y. Supp. 1038;
McGulre v. Evans, 40 N. 0. 269;
Appeal of Sponsler, 107 Pa. St. 95;
Estate of Snyder, 217 Pa. St. 71,
118 Am. St. Rep. 900, 10 Ann. Cas.
488, 11 L. R. A. (N. S.) 49, 66 Atl.
157; Pearce v. Billings, 10 R. I.
102. ,
64 Dryden v. Owings, 49 Md.
356; Evans v. Hunter, 86 Iowa
413, 41 Am. St. Rep. 503, 17
L. R. A. 308, 53 N. W. 277; Matter
of Van Vliet, 5 Misc. Rep. (N. Y.)
169, 25 N. Y. Supp. 722; Davis v.
Cain's Exr., 36 N. C. 304, 309;
Appeal of Sponsler, 107 Pa. St. 95.
Contra: Jewell v. Appolonio, 75
N. H. 317, 74 Atl. 250.
"The fact that the testator has
at the making of his will of that
which is given a quantity equal
to or greater than the bequest, is
ground of an argument, and com-
bined with other circumstances,
may lead to the conclusion that a
specific legacy was intended, but
under the authorities, and the es-
tablished inclination of the courts
to regard legacies as general
rather than specific, it can not of
itself change the class of legacies
from general to specific." — Gil-
mer's Legatees v. Gilmer's Exrs.,
42 Ala. 9.
"The cases cited from other jur-
isdictions, holding as a matter of
law that legacies of stock to the
exact amount owned by the testa-
tor are general rather than spe-
cific are in conflict with the New
Hampshire rule." — Jewett v. Appo-
lonio, 75 N. H. 317, 74 Atl. 250.
CLASSIFICATION OF LEGACIES AND DEVISES. 981
part of the testator that a legacy of the particular stocks,
bonds or securities mentioned was intended to be speci-
fied."
§ 654. Insurance Policies.
A bequest of a specified insurance policy,^* or of a
policy amounting to a certain named sum,®'' or of the
amount of money which may become due under named
policies,®* must be deemed to be specific. A legacy of
"my life insurance" is specific,®' but a bequest of "the
sum of ten thousand dollars to be realized out of the
proceeds of such life insurance as may be in force on
my life at the time of my death, ' ' is demonstrative.*"*
§ 655. Proceeds From Sales.
Where the testator orders the sale of specified bonds,
mortgages, furniture, or other personal property, or the
sale of any designated real estate, and directs .that the
proceeds thereof be paid to certain persons, such bequests
are deemed to be specific.®^ If the beneficiaries named
55 In re M'Afee, 1 Ir. R. 124; 68 Nusly v. Curtis, 36 Colo. 464,
Gardner v. McNeal, 117 Md. 27, 118 Am. St. Rep. 113, 10 Ann. Gas.
Ann. Cas. 1914A, 119, 40 L. R. A. 1134, 7 L. R. A. (N. S.) 592, 85 Pac.
(N. S.) 553, 82 Atl. 988; Allen v. 846.
Allen, 76 N. J. Eq. 245, 139 Am. St. 59 Kearns v. Kearns, 77 N. J.
Rep. 758, 74 Atl. 274; Kearns v. Eq. 453, 140 Am. St. Rep. 575, 76
Kearns, 77 N. J. Eq. 453, 140 Am. Atl. 1042.
St. Rep. 575, 76 Atl. 1042; Mecum eo Kramer v. Kramer, 201 Fed.
V. Stoughton, 81 N, J. Eq. 319, 86 248, 119 C. C. A. 482.
Atl. 52. 61 Page v. Leapingwell, 18 Ves.
56 Barker v. Rayner, 5 Madd. Jun. 463 ; Kaiser v. Brandenburg,
208; affirmed 3 Bng. Ch. 126; Mat- 16 App. Cas. (D. C.) 310; Weed v.
ter of Gans' Estate, 60 Misc. Rep. Hoge, 85 Conn. 490, Ann. Cas.
(N. Y.) 282, 112 N. Y. Supp. 259; 1913C, 543, 83 Atl. 636; Hutchin-
In re Pniner, 222 Pa. St. 179, 40 son v. Fuller, 75 Ga. 88; Heslet v.
L. R. A. (N. S.) 561, 70 Atl. 1000. Heslet, 8 111. App. 22; Miller's Exr.
57 Piatt V. Moore, 1 Dem. (N. Y. v. Malone, 109 Ky. 133, 95 Am. St.
Surr.) 191. Rep. 338, 58 S. W. 708; Boston
982 COMMENTARIES ON THE LAW OP WILLS.
are to receive their legacies only out of the proceeds of
sale of specified property devised to a trustee, their
rights are limited to the proceeds from such a sale, and if
the property in question had been disposed of by the
testator prior to his death,, the bequests fail.*^
§ 656. Real Estate.
At common law all devises of real estate were regarded
as specific. This fact seems to have been the real reason
for placing lands devised after lands descended in the_
order of charging them with the debts of the estate. The
early common law rule, however, was that a testator,
could devise only such real property as he owned at
the time he executed his will."* This rule has long since
been changed, and a testator may make a testamentary
disposition of all real property owned by him at the time
of his death, although acquired subsequent to the execu-
tion of his will, if such is his intent."* The reason, there-
fore, for holding all devises of realty to be specific, no
longer exists;"^ and in the United States generally, de-
Safe Deposit & Trust Co. v. Plum- In particular or general terms,
mer, 142 Mass. 257, 8 N. E. 51; must of necessity be specific from
Gardner v. Printup, 2 Barb. (N. Y.) the circumstance that a man can
S3; Matter of Matthews, 122 App. devise only what he has at the
Div. (N. T.) 605, 107 N. Y. Supp. time of devising . . . but it is
301; Starbuck V. Starbuck, 93 N. C. quite different as to personal es-
1S3; Gilbreath v. Alban, 10 Ohio tate." — Howe v. Earl of Dart-
64; In re Black's Estate, 223 Pa. mouth, 7 Ves. Jun. 137, 147.
St. 382, 72 Atl. 631; In re Martin, 64 See §§229-234.
25 R. I. 1, 54 Atl. 589; Bailey v. 65 In re Sutton's Estate, (Del.)
Wagner, 2 Strobh. Eq. (S. C.) 1; 97 Atl. 624; Wilts v. Wilts, 151
Manlove v. Gaut, 2 Tenn. Ch. App. Iowa 149, 130 N. W. 906.
410. See § 288. In Estate of Woodworth, 31 Cal.
02 Meily V. Knox, 269 111. 463, 595, the court says: "A will made
110 N. E. 56. under this provision (referring to
63 See §§ 26-29, 229. the statute permitting the disposi-
"Other devises of land, whether tion of after-acquired property).
CLASSIFICATION OP LEGACIES AND DEVISES.
983
vises of lands acquired after the will was made, are not
regarded as specific.^® In England, however, although
the early decisions under the Statute of Wills of 1 Vic-
toria, ch. 26, which allowed after-acquired property to
pass by will, held to the contrary,"^ yet it is now well
settled by later English decisions that a residuary devise
of lands is as specific under the Wills Act as it was be-
fore.*^
A devise of real property owned by the testator at the
time of the making of his will may, of course, be spe-
cific as in the case of personal property;®® and even a
residuary clause may take on the same character when
Floyd, 29 S. C. 102, 7 S. E. 42;
by whlcli a party should devise all
lands of whicli he should die seized
or possessed, it is obvious, would
have none of the characteristics
before stated of a specific devise.
A party might sell and convey
land owned at the date of the will,
and with the proceeds purchase
others, and repeat the operation
continually, and those lands
owned at the moment he should
happen to die, would pass by the
will; would take the place of those
conveyed. Personal and real es-
tate would stand upon the same
footing in this respect; a devise
of all one's personal and all of
one's real estate would be equally
general, and operate precisely
alike. The grounds upon which a
devise of real estate was held al-
ways specific have ceased to
exist."
66 Kelly V. Richardson, 100 Ala.
6S4, 13 So. 785; Blaney v. Blaney,
1 Cush. (Mass.) 107; Famum v.
Bascom, 122 Mass. 282; Floyd v.
Lake v. Copeland, 82 Tex. 464, 17
S. W. 786.
Compare: A devise to testator's
wife during her life of the use and
income of the land and buildings
where he lived and a certain part
of the Davis farm, so-called, is spe-
cific. — Wallace v. Wallace, 23
N. H. 149.
67 Dady v. Hartridge, 1 Drew. &
Sm. 236; Rotheram v. Rotheram,
26 Beav. 465; Bethell v. Green, 34
Beav. 302.
68 Hensman v. Fryer, L. R. 3
Ch. App. 420; Gibbins v. Eyden,
L. R. 7 Eq. Gas. 371; Lancefield
V. Iggulden, L. R. 10 Ch. App. 136,
44 Li. J. Ch. 203; Pearman v.
Twiss, 2 Giff. 130, 29 L. J. Ch. 802.
69 Matter of De Bernal's Estate,
165 Cal. 223, Ann. Cas. 1914D, 28,
131 Pac. 375; In re Sutton's Es-
tate, (Del.) 97 Atl. 624; Wilts v.
Wilts, 151 Iowa 149, 130 N. W.
906; Wood v. Hammond, 16 R. I.
98, 17 Atl. 324, 18 Atl. 198.
984 COMMENTARIES ON THE LAW OF WILLS.
it is certain what property is to pass thereunder J" But
it has been held that even devises to the testator's chil-
dren of defined tracts of land may be general where the
real intent, as drawn from the will, shows that the de-
scriptions were inserted only as a suggestion as to the
manner of partitioning the estate.''^
§657. Distinction Between Specific and Demonstrative Lega-
cies.
The distinction between specific and demonstrative
legacies is well understood, but it is sometimes difficult
to determine to which class a particular gift belongs.
The cases present very nice distinctions.''^ The distinc-
tion involves not merely a technical question depending
for its solution solely upon the precise language of the
bequest, but a substantive inquiry respecting the inten-
tion of the testator as shown by the terms of the par-
ticular legacy examined in connection with all other pro-
visions of the will.'^ In determining whether a legacy is
specific or demonstrative, the question always is whether
it is a gift out of a specified fund or security, or a gift
of a specified sum with a specified fund as security.'*
In other words, if the reference to a particular fund in
connection with the legacy is made only for the purpose
TO For example, If a testator, 7i Gallagher v. Redmond, 64
owning tracts A, B, C, and D, Tex. 622.
T2 Wallace v. Wallace, 23 N. H.
149; Corbln v. Mills' Exrs., 19
Gratt. (Va.) 438.
should specifically devise A and B
to X and make a residuary devise
to Y, the gift so made of C and D
would be as specific as that of
A and B. for presumably the tes- " Stilphen, Appeal of, 100 Me.
tator had in mind what property ^^^' * ^""- Cas. 158, 60 Atl. 888.
he had and what would pass under T4 Georgia Infirmary v. Jones, 37
the residuary clause. — In re Sut- Fed. 750.
ton's Estate, (Del.) 97 Atl. 624.
CLASSIFICATION OF LEGACIES AND DEVISES. 985
of pointing out a convenient mode of payment, it is con-
sidered demonstrative, and the legatee may be paid out
of the general assets of the estate should the particular
fund fail. But where the gift is of the fund itself, in
whole or in part, or a gift so charged upon the object
made subject to it as to show an intent to burden that
object alone with its payment, it is specific.''*
§ 658. Demonstrative Legacies Defined.
Demonstrative legacies partake of the nature of both
specific and general legacies.'^* A legacy of a specified
quantity of money or other property is ordinarily called
a general legacy, but such legacy may partake of the na-
ture of a specific legacy when reference is made to a
particular fund for its payment, without, however, being
limited to such fund. Such a legacy is called demonstra-
tive.'^'' A demonstrative legacy may therefore be defined
as a bequest of a certain sum of money, stock, or the like,
payable out of a particular fund or security, partaking
75 Walls V. Stewart, 16 Pa. St. 54 N. J. Eq. 333, 35 Atl. 291; Craw-
275 281. for^ "'■• McCarthy, 159 N. Y. 514,
76 School Dlst. No. 1 V. Interna- 54 N. E. 277; Balliet's Appeal,
tional Trust Co., 59 Colo. 486, 149 1* Pa. St. 451; Armstrong's Ap-
Pac. 620; Harrison y. Denny, 113 P^al, 63 Pa. St. 312; Darden v.
Md. 509. 77 Atl. 837. '''^^'^- ' '"''^- ^'^ '^^''"■> ''''
„ _ Morriss T. Garland's Admr., 78 Va.
77 Kenaday v. Sinnott, 179 U. S. '
606, 45 L. Ed. 339, 21 Sup. Ct. 233; ^ demonstrative legacy has
Kelly V. Richardson, 100 Ala. 584, ^^^^ ^^^^^^ ^^ „^ I^^^^y j^ ^^^
13 So. 785; Roquet v. Eldridge, 118 mature of a general legacy with a
Ind. 147, 20 N. E. 733; Gelbach v. certain fund pointed out for its
Shively, 67 Md. 498, 10 Atl. 247; payment."— Kunkel v. Macgill, 56
Matthews v. Targarona, 104 Md. Md. 120; Gardner v. McNeal, 117
442, 10 Ann. Cas. 153, 65 Atl. 60; Md. 27, Ann. Cas. 1914A, 119, 40
Merriam V. Merriam, 80 Minn. 254, L. R. A. (N. S.) 553, 82 Atl. 988;
83 N. W. 162; Wallace v. Wallace, Giddings v. Seward, 16 N. Y. 365;
23 N. H. 149 : Johnson v. Conover. Appeal of Welch, 28 Pa. St. 363.
986 COMMENTAEIES ON THE LAW OF WILLS.
of the nature of a general legacy because of the amount
being specified, and partaking of the nature of a specific
legacy because of the pointing out of the fund from which
the payment is to be made. It differs from a specific
legacy, however, in that if the designated fund from
which payment is to be made should fail, to make up the
deficiency resort may be had to the general assets of the
estate.'^^
Although a demonstrative legacy is a bequest payable
out of a particular fund named or demonstrated in the
will itself,'^^ it is charged in such a way as not to amount
to a gift of the corpus of the fund, or to evince an intent
to relieve the general estate from a liability in case the
fund fails.®" In order, therefore, that a legacy be demon-
strative, two elements must appear: First, that the tes-
tator intended to make an unconditional gift in the na-
ture of a general legacy, and second, that the bequest
indicate the fund out of which it is payable.*^
7 8 Spinney v. Baton, 111 Me. 1, queat'ned. — Watrous v. Smith, 7
4G L. R. A. (N. S.) 535, 87 Atl. 378; Hun (N. Y.) 544; Methodist Bpis-
Crawford v. McCarthy, 159 N. Y. copal Church v. Hehard, 28 App.
514, 54 N. E. 277; Baptist Female Div. (N. Y.) 548, 51 N. Y. Supp.
University v. Borden, 132 N. 0. 546.
476, 44 S. E. 47, 1007. 79 Harper v. Bibb, 47 Ala. 547;
A. demonstrative legacy is so far Tanton v. Keller, 167 111. 129, 47
general that if the fund out of N. E. 376; Chester County Hos-
which It is to be paid proves in- pital v. Hayden, 83 Md. 104, 34
sufficient the legatee can proceed Atl. 877; Adair v. Adair, 11 N. 0.
against the general assets of the 175, 90 N. W. 804.
estate for the balance. — Matthews so Nusly v. Curtis, 36 Colo. 464,
V. Targarona, 104 Md. 442, 10 Ann. 118 Am. St. Rep. 113, 10 Ann. Cas.
Gas. 153, 65 Atl. 60. 1134, 7 L. R. A. (N. S.) 592, 85 Pac.
A legacy of money is demonstra- 846; School Dist. No. 1 v. Intema-
tive when the gift is so made as tional Trust Co., 59 Colo. 486, 149
to clearly show the testator's in- Pac. 620.
tention that the legatee shall cer- 8i Stilphen, Appeal of, 100 Me.
tainly receive the amount be- 1 16, 4 Ann. Cas. 158, 60 Atl. 888;
CLASSIFICATION OF LEGACIES AND DEVISES.
987
§ 659. The Same Subject: Illustrations.
A bequest of a certain sum of money "out of" or "to
be paid out of " a designated fund or note or bond, or a
bequest of stock "out of " a greater amount of like stock,
is called a demonstrative legacy. The particular fund is
pledged as a collateral security, but the legacy does not
depend for its value upon the sufficiency or existence of
the fund thus specifically dedicated for its security.*^ A
demonstrative legacy is so far general that if the fund
be called in or fail, the legatee will be permitted to re-
ceive an equal amount out of the general estate; and it
is so far specific that it will not be liable to abate with
general legacies upon a deficiency of assets. ^^ For exam-
Crawford v. McCarthy, 159 N. Y.
514, 54 N. E. 277.
82 Gilmer's Legatees v. Gilmer's
Exrs., 42 Ala. 9, 21; Smith v.
Lampton, 8 Dana (38 Ky.) 69;
Bouvier's Law Diet., "Legacy";
Williams' Exrs. (6tli Am. ed.) 360.
Where the testator, after mak-
ing a bequest of six hundred dol-
lars to each of four legatees,
wrote: "This amount is to be in
notes, such as the executrix of
my will may turn out to them,"
the court decided that these words
only indicated the fund out of
which payment was to be made,
and did not constitute specific
legacies of the notes, so that in
the event of the fund proving in-
adequate, the legacies should be
made up out of the other property
of the estate. — Frank v. Frank, 71
Iowa 646, 33 N. W. 153.
83 Coleman v. Coleman, 2 Ves.
Jun. 639; Chaworth v. Beech, 4
Ves. Jun. 555; Walton v. Walton,
7 Johns. Ch. (N. Y.) 258, 262,
11 Am. Dec. 456.
A demonstrative legacy is one
of a certain amount or quantity,
the particular fund or personal
property being pointed out from
which it is to be paid or taken.
It differs from a general legacy in
that it does not in the first in-
stance abate upon the insuflB-
ciency of the general assets, and
from a specific legacy in that
there is recourse for its payment
from the general estate in the
event of ademption. — Thompson
V. Stephens, 138 Ga. 205, 75 S. E.
136.
While a demonstrative legacy
partakes of the nature of a spe-
cific legacy by designating the
fund from which the payment is
to be made, there Is a vital dis-
tinction respecting the result in
case of the failure of the partiou-
988 COMMENTARIES ON THE LAW OF WILLS.
pie, it has been held that when a testator directs a cer-
tain amount to "be set apart out of " a designated prop-
erty, for each of his children as he attains majority, and
his widow to continue during her life to have the use of
the remainder or the income of the remainder after each
portion is successively set apart, the legacies to the chil-
dren are demonstrative and not specific, and if the fund
prove insufficient the shares must be made up from the
body of the estate.**
§ 660. The Same Subject: Sources From Which They May Be'
Directed to Be Paid.
The fact that a bequest is to a trustee is immaterial in
determining whether or not a legacy is demonstrative,
the other features of such a legacy being present.*® A
legacy may be demonstrative although the amount of
money bequeathed may be payable in notes or bonds at
the option of the executor named in the will.*® It may be
made payable out of proceeds to be derived from a pol-
icy of life insurance, and will be paid out of the general
assets of the estate if the insurance is not collected.*'^
It may be directed to be paid from the sale of an estate
lar fund mentioned. A specific 97 Misc. Rep. (N. Y.) 581, 161
legacy is adeemed or lost by the N. Y. Supp. 954.
extinguishment of the specific 86 Harper v. Bibb, 47 Ala. 547.
tiling or failure of the particular A bequest, "to T. I. I give one
fund bequeathed, while a demon- thousand doUars in the Union
strative legacy is still payable out Savings Bank," preceded by spe-
of the general assets if the fund "^° bequests and followed by a
bequest of "all I have invested in
specially mentioned fails. — Stil-
phen, Appeal of, 100 Me. 146, 4
Ann. Cas. 158, 60 Atl. 888.
. . . or in banks, not other-
wise disposed of," is a demonstra-
tive legacy. — Bowen v. Dorrance,
84 Bradford v. Brinley, 145 Mass. 12 R I 269
SI, 13 N. E. 1. 87 Byrne v. Hume, 86 Mich. 546,
86 Matter of Union Trust Co., 49 N. W. 576.
CLASSIFICATION OF LEGACIES AND DEVISES.
989
wliich the testator had contracted to purchase, and will
be satisfied out of the general assets if the contract can
not be applied.** A legacy of a certain amount, being
the proceeds of named property, is demonstrative.''^ A
bequest of a certain sum invested in stocks, the interest
being payable to the legatee for life,^" also a bequest
of a fixed amount to the widow, in lieu of dower, "which
may be invested in bank stock," naming two banks, "and
in bonds, "®^ are demonstrative.
§661. Annuities Defined.
The term "annuity" has been variously defined, but
the definitions, although differing in form, are substan-
tially alike in meaning.
"In general terms, an annuity is a yearly payment of
88 Fowler v. Willoughby, 2 Sim.
& S. 354, 4 L. J. Ch. 72.
A legacy to trustees to create,
out of proceeds from the sale of
testator's real and personal estate,
a fund of $25,000 to be paid to the
trustees of the Mississippi State
Charity Hospital, was not in-
tended by the testator to be a
specific legacy, but a demonstra-
tive legacy to be paid out of the
general assets of the estate of the
decedent, if necessary, and is not
adeemed because of the partial
failure of the particular fund from
which it is to come. — Hailey v.
McLaurin's Estate, 112 Miss. 705,
73 So. 727.
89 Harrison v. Denny, 113 Md.
509, 77 Atl. 837.
A gift to Infant children, coupled
with the direction, "and from the
money which I have in bank to
pay off the mortgages against my
said house and lot as soon after
my death as possible," is a demon-
strative legacy to the extent of
the money required for the pay-
ment of mortgages. — Matter of
Bedford, 67 Misc. Rep. (N. Y.) 38,
124 N. Y. Supp. 619.
90 Johnson v. Conover, 54 N. J.
Eq. 333, 35 Atl. 291.
Though a testator provide a
fund to furnish an income for his
widow, further providing that a
certain sum shall be paid each
year and that sufficient securities
shall be selected to secure it, the
selection of the securities in the
first instance does not make the
legacy specific. — Merriam v. Mer-
riam, 80 Minn. 254, 83 N. W. 162.
91 In re Hodgman's Estate, 140
N. Y. 421, 35 N. E. 660.
990
COMMENTARIES ON THE LAW OP WILLS.
a certain sum of money granted to another in fee, for
life or for years. "®^ An essential element of an annuity
is the certainty of the amount to be paid, and it is imma-
terial if the periods for the payments are yearly or are
distributed throughout the year.®^ It is a gift of a sum
certain, not the interest of a fixed or certain sum of
money.^* It may be given conditionally and the title may
be perfected by performance of the condition.^^ An annu-
ity may arise in different ways, but when created by will
it may be comprehended within the term "legacy,""® un-
92 Kearney v. Cruikshank, 117
N. Y. 95, 22 N. E. 580. See, also,
Coke Litt., 144 b; 2 Bl. Co. *40;
Peck V. Kinney, 143 Fed. 76, 74
C. C. A. 270, reversing 128 Fed.
313; Turrentine v. Perkins, 46
Ala. 631; Henry v. Henderson, 81
Miss. 743, 63 L. R. A. 616, 33 So.
960; Pearson v. Chace, 10 R. I.
455.
An annuity at common law was
a yearly sum charged on the per-
son of the grantor. Nothing else
was an annuity. When the annual
Ijayment was charged on land it
was a rent charge. — In re Kohler,
96 Misc. Rep. 433, 160 N. Y. Supp.
669. See, also, Routt v. Newman,
253 111. 185, 97 N. B. 208.
93 Peck V. Kinney, 74 0. C. A.
270, 143 Fed. 76. See, also. Hicks
V. Ross, L. R. 14 Eq. 141; Rad-
burn V. Jervis, 3 Beav. 450; Bates
V. Barry, 125 Mass. 83, 28 Am.
Rep. 207; Cummings v. Cum-
mings, 146 Mass. 501, 16 N. E. 401;
Ex parte McComb, 4 Bradf.
(N. Y.) 151; In re Pierce's Estate,
f,C Wis. 560, 14 N. W. 588.
94 Moore v. Downey, 83 N. J.
Eq. 428, 91 Atl. 116.
A bequest to trustees to pay the
testator's wife "annually in quar-
terly payments during her natural
life, an amount equal to one-half
the net income" from his estate,
which consisted of both realty and
personalty, is not an annuity. —
Moore v. Downey, 83 N. J. Eq. 428,
91 Atl. 116.
9 B In re Mayall, 29 Me. 474.
96 Heatherington v. Lewenberg,
61 Miss. 372.
A clause in a will directing a
devisee of lands to pay an an-
nuity for a period of years to a
person named therein constitutes
a legacy for the benefit of such a
person. — Matthews v. Studley, 17
App. Div. 303, 45 N. Y. Supp. 201;
affirmed in 161 N. Y. 633; Degraw
V. Clason, 11 Paige (N. Y.) 136.
Where an annuity is given by
will and charged by the testator
upon the real and personal estate,
it is an absolute legacy, the pay-
ment of which may be enforced in
equity by the legatee, and is not
CLASSIFICATION OF LEGACIES AND DEVISER. 991
less the provisions of the will show an intention to the
contrary. Thus, if it is to be paid in fixed installments for
a limited period, not to exceed the life of the beneficiary,
it can not be an absolute legacy for a certain amount
since the legatee may die, but is contingent upon his sur-
viving the date of the last payment.*''
It has long been the settled law of England that the
gift of an annuity must be regarded as a legacy of the
definite sum required to purchase the annuity.®* This
rule is followed in some of these United States, and has
its most frequent application in cases of bequests to be
laid out in the purchase of annuities.®*
§ 662. Annuity and Gift of Income Distingmshed.
The question sometimes arises as to whether a pro-
vision in a will shall be construed as a gift of income
dependent on the production of such income, or as a
technical annuity. The intention of the testator mainly
controls.^ This question of construction becomes impor-
tant because, if the provisions of the will be construed
as an annuity, the amount must be paid annually whether
the corpus of the fund be diminished or not, but if it be
a gift of income only, the corpus of the fund must be kept
intact.^ An annuity differs from a legacy of the income
a property held in trust for the N. Y. Supp. 27; Matter of Cole's
legatee. — Dixon v. Helena Society, Estate, 219 N. Y. 435, 114 N. E.
(Okla.) 166 Pac. 114. 785; In re Beck's Appeal, 46 Pa.
97 Bates v. Barry, 125 Mass. 83, St. 527.
28 Am. Rep. 207. i Gaskin v. Rogers, L. R. 2 Eq.
98 Barnes v. Rowley, 3 Ves. Jun. 284; Sibley v. Perry, 7 Ves. Jun.
305; Matter of Brunning, L. R. 522.
(1909) 1 Ch. 276. zWhitson v. V>^hitson, 53 N. Y.
99 Parker V. Cobe, 208 Mass. 260, 479; In re Von Keller's Estate,
21 Ann. Cas. 1100, 33 L. R. A. 28 Misc. Rep. 600, 59 N. Y. Supp.
(N. S.) 978, 94 N. E. 476; Reid v. 1079; affirmed in 47 App. Div. 625,
Brown, 54 Misc. Rep. 481, 106 62 N. Y. Supp. 1150 (wherein the
992
COMMENTARIES ON THE LAW OF WILLS.
from certain property to be paid to the beneficiary during
his life, since the latter consists only of the profit to be
earned, less the necessary expenses, and is uncertain in
amount, whereas with an annuity the sum is fixed and
unconditional. Where a testator gives a legatee the in-
come from certain property, although payable annually,
it is not an annuity, but an ordinary legacy of greater or
less amount according to the net earnings of the fund
from which it is to be satisfied.^
Where a trust is created for the payment of the in-
come to beneficiaries, they are entitled to the entire net
earnings from the fund set aside for that purpose, but
court construed the provision as a
gift of income) ; In re Koliler, 96
Misc. Rep. 433, 160 N. Y. Supp.
669; Homer v. Landis, 95 Md. 320,
52 Atl. 494 (wherein the provision
was construed as a gift of in-
come)^
3 Peck V. Kinney, 74 C. C. A.
270, 143 Fed. 76, reversing 128
Fed. 313; Booth v. Ammerman,
4 Bradf. (N. Y.) 129; Matter of
Gurnee, 84 Misc. Rep. (N. Y.) 324,
147 N. Y. Supp. 396; Whitson v.
Whitson, 53 N. Y. 479; Pearson
V. Chace, 10 R. I. 455.
Compare: In re Flickwir's Es-
tate, 136 Pa. St.- 374, 381, 20 Atl.
518; In re Ritter's Estate, 148 Pa.
St. 577, 24 Atl. 120.
Lord Eldon, in Gibson v. Bott,
7 Ves. Jun. 96, says: "If an an-
nuity is given, the first payment
is payable at the end of the year
from the death; but if a legacy is
given for life, with the remainder
over, no interest is due till the
end of two years. It is only the
interest of the legacy; and till the
legacy is payable there is no fund
t o produce interest." — Quoted
with approval in Bartlett v. Slater,
53 Conn. 102, 55 Am. Rep. 73, 22
Atl. 678.
Where the will directed that all
the testator's property be sold,
and the proceeds invested by the
executors and trustees, and that
one-third of the income therefrom
be paid to the testator's widow
during her life, semi-annually, the
remainder of the income to be
paid to the testator's children dur-
ing life in fixed portions, the In-
come of the widow during life is
to be regarded as interest and not
as an annuity, and such part of
the income as accrued after the
last payment until her death be-
longs to her estate. — Brombacher
V. Berking; 56 N. J. Bq. 251, 39
Atl. 134.
CLASSIFICATION OP LEGACIES AND DEVISES. 993
the trustees can not pay out any portion of the principal
fund unless especially authorized to do so by the will.
An annuity, however, is for a fixed amount, and even in
the absence of specific direction, the executors or trustees
may encroach on the corpus of the fund to make the pay-
ments.*
§ 663. Time When Annuities Are Payable.
Inasmuch as a will becomes effective immediately upon
the testator's death, in the absence of provisions to the
contrary, such event brings a general annuity into exist-
ence and the first installment thereof is payable within
one year thereafter, or according to the time within which
the installments regularly are to be paid.^ When, how-
ever, the annuity is a charge upon real estate, it has been
said that it does not commence until the devisee is en-
titled to the possession,® and this is especially true when
such an intent of the testator may be drawn from the
provisions of the will.'' When an annuity is charged by
the will on the yearly income of certain lands, and is to
continue for the life of the beneficiary, it is payable at
the end of each year.®
§ 664. Duration of Payment of Annuities.
The duration of an annuity must be determined by the
provisions of the will. The rule of construction is that
4 In re Kohler, 96 Misc. Rep. Cooke v. Meeker, 36 N. Y. 15;
433, 160 N. Y. Supp. 669. Curran v. Green, 18 R. I. 329, 27
sHawksworth v. Hawksworth, ■^*^- ^^^•
„_ „ - ^ -1, T, 1.4. r, fT ^ « Ager V. Pool, 3 Dyer 371 b,
27 Beav. 1: Gibson t. Bott, 7 Yes. " , j
73 Bng. Repr. 832; Hayes v. Whit-
"^"''- ^*- all, 13 N. J. Eq. 241.
Simmons v. Hubbard, 50 Conn. ^ jj^^y^g ^_ whitall, 13 N. J. Eq.
574; Wiggin v. Swett, 6 Mete. (47 241.
Mass.) 194, 39 Am. Dec. 716; Sar- 8 Henry v. Henderson, 81 Miss,
gent V. Sargent, 103 Mass. 297; 743, 63 L. R. A. 616, 33 So. 960.
n Com. on Wills — 9
994
COMMENTARIES ON THE LAW OF WILLS.
the intent of tlie testator must prevail, and the primary
object of the court is to ascertain from the provisions of
the will the length of time that the testator intended the
annuity should be paid.** When given without specifying
its duration in any manner, and no contrary intent ap-
Ijears from the provisions of the will, the annuity will be
presumed to be for life.^*
§ 665. From What Source Delinquent installments of an An-
nuity May Be Collected.
Where an annuity may be paid out of the corpus of a
fund, in the absence of a failure of such fund no reason
would exist for non-payment of the installment when due.
An annuity may be charged upon the corpus of a fund,
or it may be charged to the income from such fund, being
a fixed amount to be paid at regular periods from such
source. If any payments fall in arrears, such back pay-
Where tbe residue of the estate
■was devised to M on the condi-
tion and subject to the charge of
paying to the mother an income
of $200 "during her life," to each
of the daughters a certain income
"so long as both they and their
said mother shall all live," and it
9 Davis V. People, 111 111. App.
207; Houghteling v. Stockbridge,
136 Mich. 544, 99 N. W. 759; Cleve-
land V. Cleveland, 89 Tex. 445,
35 S. W. 145.
Where in the first part of the
will certain annuities are given
to named persons for life, but are
not made a charge on the real
estate, and from subsequent
clauses in the will it is clear that
the testator intended his entire es-
tate should be closed at the expira-
tion of ten years from his death,
and the property then be con-
veyed to the beneficiaries, there
is a clear repugnancy between
such provisions, and both can not
stand. It was held that such an-
nuities ceased at the end of ten
years. — ■ Armstrong v. Crape, 72
Iowa 604, 34 N. W. 437.
was further provided that "upon
the death of either" of the daugh-
ters, a larger annuity should be
paid to the survivor "during the
life of their said mother," the
duration of the annuities be-
queathed to the daughters was
held limited to the period of the
life of the mother. — Towle v.
Delano, 144 Mass. 95, 10 N. E. 769.
9a Yates V. Maddan, 3 Macn. &
G. 532; Lett v. Randall, 2 De. G.,
F. & J. 388; Kerr v. Middlesex
Hospital, 2 De G., M. & G. 576.
CLASSIFICATION OF LEGACIES AND DEVISES. 995
ments may be enforced against the corpus of the fund
■when the annuity has been charged upon it.^" When the
annuity is payable only out of the income of certain prop-
erty with a gift over of such property, the corpus itself
is not liable for delinquent payments ;^^ but if the entire
income of the corpus is made subject to the payment of
the annuity, and any limitation over is to be effective
only after such payment, the corpus is liable upon the
failure of payment.^^ Even though the corpus may not be
liable, any arrearage must be paid out of subsequent ac-
cumulations of the income unless the will expresses a
plain intent to the contrary.^^
§ 666. Interest on Delinquent Payments of an Annuity.
Whether or not interest should be allowed on delin-
quent payments of an annuity, the authorities are in con-
flict, the trend of English decisions being unfavorable,^*
American decisions favorable,^^ to such allowance. A gift
of the income from a certain fund is not an annuity, and
interest thereon would not begin to run until one year
after the death of the testator.^"
10 Picard v. MitcheU, 14 Beav. is Bonliam v. Bonham, 38 N. J.
103; Byam v. Sutton, 19 Beav. Eq. 419; Cooke v. Meeker, 36 N. Y.
556; In re Tucker, (1893) 2 Cli. 15; Brotzman's Estate, 133 Pa.
323; Merritt v. Merritt, 43 N. J. St. 478, 19 Atl. 564; Stephenson v.
Eq. 11, 10 Atl. 835. Axson, Bailey Eq. (S. C.) 274.
11 Baker v. Bakei*, 6 H. L. Cas. Compare: Irby v., McCrae, 4
616; Miller v. Huddlestone, 17 Desaus. (S. C.) 422.
Sim. 71; In re Mason, 8 Ch. Dlv. Where the annuity was only to
411. continue five years under the
12 Playfair v. Cooper, 17 Beav. terms of the will, and the annual
187; Phillips v. Gutteridge, 4 DeG. payments had not been made, the
& J. 531. annuitant was entitled to interest
13 Reed's Estate, 236 Pa. St. 572, on each annual payment from the
Ann. Cas. 1914A, 208, 85 Atl. 15. time it became due and payable. —
14 Booth V. Coulton, 30 L. J. Ch. Willcox v. Willcox, 106 Va. 626,
378; In re Hiscoe, 71 L. J. Ch. 347; 56 S. B. 588.
Torre v. Browne, 5 H. L. Cas. 555. i6 Estate of Brown, 143 Cal. 450,
996 COMMENTARIES ON THE LAW OF WILLS.
§667. Apportionment Upon Death of Annuitant: When Al-
lowed.
The common law rule was that if an annuitant died be-
fore any payment became due, the annuity was not appor-
tionable and the executor or administrator of the de-
ceased annuitant was not entitled to receive any of the
payment." In England this rule has been abrogated by
the statute of 4 Wm. IV, ch. 22, which enacts in effect
that all rents, annuities, and other payments due at a
fixed period, shall be apportioned so that on the death of
the person interested therein his executor shall be en-
titled to his proportion of such payments. Where no such
statute exists in these United States, the common law rule
prevails except as modified by certain exceptions, as, for
example, where the annuity is given in lieu of dower, ^* or
for the separate maintenance of a married woman,^^ or
for the support of the children of the testator.^"
77 Pac. 160; Bartlett v. Slater, 53 26; Bliglit v. Blight, 51 Pa. St.
Conn. 102, 55 Am. Rep. 73, 22 Atl. 420.
678 ; Booth v. Ammerman, 4 Bradf. The exceptions, where the an-
(N. Y.) 129. nuity was given by a parent to
17 Famam v. Farnam, 83 Conn, an infant child, or by a husband
369, 77 Atl. 70; Wiggin v. Swett, to his wife living separate and
6 Mete. (Mass.) 194, 39 Am. Dec. apart from him, were founded on
716; Henry v. Henderson, 81 Miss, reasons of necessity, and the pre-
743, 63 L. R. A. 616, 33 So. 960; sumption is that such annuities
Moore v. Downey, 83 N. J. Eq. are intended for maintenance, and
428, 91 Atl. 116; Stewart v. are given in view of the obliga-
Swaim, 13 Phila. (Pa.) 185. tion of the parent to support his
IS Mower v. Sanford, 76 Conn, infant children, and of a husband
504, 100 Am. St. Rep. 1008, 63 to maintain his wife. — Henry v.
L. R. A. 625, 57 Atl. 119; Blight v. Henderson, 81 Miss. 743, 63
Blight, 51 Pa. St. 420; Rhode L. R. A. 616, 33 So. 960; Kearney
Island Hospital Trust Co. v. Har- v. Cruikshank, 117 N. Y. 95, 22
ris, 20 R. I. 160, 162, 37 Atl. 701. N. E. 580.
19 In re Lackawanna Iron & 20 Howel v. Hanforth, 2 W. Bl.
Coal Cc's Petition, 37 N. J. Eq. 1016; Dexter v. Phillips, 121 Mass.
CLASSIFICATION OF LEGACIES AND DEVISES. 997
§ 668. Residuary Devises and Legacies Defined.
To the three general classes of legacies, general, spe-
cific, and demonstrative, there is often added a fourth,
namely, residuary. A residuary devise or bequest is one
vs^hich embraces all the testator's real or personal prop-
erty not otherwise disposed of by the vdll of the testator ;
it covers the residue of the estate, and not a fixed amount
nor a particular article.^^ A provision of the will that
certain specified legacies are to be paid out of the residue
of the estate after certain other legacies have been satis-
fied, does not make such legacies residuary.^^ It must be
of the residue only; a devise of the whole of an estate
can not be construed as a residuary devise, but it might
weU be that the residuary clause embraces nearly the
whole of the estate and virtually might amount to the
same thing.^^ The residue must not be limited, thus a
devise of "the residue of my lands in Sampson County,"
is not residuary, but specific.^*
§669. The Same Subject: No Particular Form of Words Nec-
essary.
A residuary devise or bequest requires no particular
form of words, any expression is sufficient if from it
the testator's intention may be gathered that a desig-
178, 180, 23 Am. Rep. 261; Chase Cal. 521, 53 Am. St. Rep. 224, 44
V. Darby, 110 Mich. 314, 64 Am. St. Pac. 808.
Rep. 347, 68 N. W. 159. 23 Jewett v. Jewett, 21 Ohio Cir.
21 Kerr v. Dougherty, 79 N. T. Ct. Rep. 278, 12 Ohio C. D. 131.
327; Patterson v. Devlin, McMul- A bequest by the testator of all
lan's Eq. (S. C.) 459. surplus money possessed by him
As to "devise," strictly speak- at his death, does not make the
Ing, having reference to realty, beneficiary a residuary legatee. —
and "legacy" to personalty, see Paup v. Sylvester, 22 Iowa 371.
J 31_ 24 Morisey v. Brown, 144 N. C.
22 In re Williams' Estate, 112 154, 56 S. E. 704.
998 COMMENTARIES ON THE LAW OF WILLS.
nated person shall take the surplus of his estate.*® Such
words as "rest," "residue," "remainder," are not indis-
pensable.*® It is a well settled rule that a testator who
makes a will intends thereby to dispose of his entire
estate, and even partial intestacy is not favored.-'^ There-
fore any words evincing a clear intent tp dispose of the
residue of the estate, are sufficient; and to prevent even
partial intestacy, the presumption of law favors the re-
siduary legatee except as to those beneficiaries particu-
larly mentioned.**
§ 670. Who Are Residuary Devisees or Legatees.
Strictly speaking, the terms "devise" and "devisee"
are used in connection with real property, while "be-
quest," "legacy" and "legatee" are used with reference
to personalty. The context of the will, however, may show
that the expressions have been inartfully employed, and
a residuary legatee has been held to take the residue of
both the real and personal property of the estate.*^ The
residue of the estate may go to a sole beneficiary, in which
instance he would be appropriately called the residuary
devisee and legatee; or the residue of the realty may be
devised to one, while the residue of the personalty may
2 5 Estate of Upliam, 127 Cal. 90, As to passing property acquired
59 Pac. 315; Morton v. Woodbury, after the execution of the will,
153 N. Y. 243, 47 N. E. 283; Prison gee §§ 233, 234.
Association v. Russell's Admr.,
103 Va. 563, 567, 49 S. E. 966; Jor-
dan's Admr. v. Richmond Home,
106 Va. 710, 56 S. E. 730.
26 In re Striewig's -Estate, 169 ^- ^lake, 45 N. J. Eq. 248. 17 Atl.
Pa. St. 61, 32 Atl. 83; Jordan's 812; Prison Association v. Rus-
Admr. y. Richmond Home, 106 Va. cell's Admr., 103 Va. 563. 49 S. E.
710, 56 S. B. 730. 966.
27 Estate of Tompkins, 154 N. Y. 29 See § 31.
634, 49 N. E. 135. See § 232.
28 Booth V. Booth, 4 Ves. Jun.
399, 407; Dulany v. Middleton, 72
Md. 67, 76, 19 Atl. 146; Sandford
CLASSIFICATION OF LEGACIES AND DEVISES. 999
pass to anotlier, there would then be a residuary devisee
and a residuary legatee. A residuary devisee or legatee
is one to whom the residuum of the personal or real prop-
erty of the estate is left by will ; the residue of the estate
being what remains after all devises and bequests, and
the claims, losses, charges and expenses, have been satis-
fied.^"
To constitute a residuary devisee or legatee, there
must appear from some provision of the will, in terms or
by a true construction thereof, that the testator intended
to pass to such beneficiary the residue of his real or per-
sonal estate.^^ Where the persons who are to take the
residuary estate are described, not by their names, but as
"the several legatees and devisees hereinbefore named,"
there must be included all who were named, whether as
unconditional or only as possible or contingent legatees or
devisees.^^
§ 671. Residuary Devises and Legacies Usually Classed as Gen-
eral.
Residuary legacies are classed as general.^^ Residuary
devises have sometimes been classed differently from re-
siduary legacies. In England a devise of all the remain-
der of the real estate of the testator is specific.^* This
30 Matter of Goggin's Estate, 43 the testator intended to give his
Misc. Rep. (N. Y.) 233, 88 N. Y. residuary estate, and so long as
Supp. 557; Probate Court v. Mat- they stand the court must give
thews, 6 Vt. 269. them full effect, no matter how-
si Henning v. Varner, 34 Md. absurd or unreasonable such in-
102. tention may appear to others
32 Marshall's Exrs. v. Hadley, 50 to be."
N. J. Bq. 547, 25 Atl. 325, wherein 33 Estate of Painter, 150 Cal.
the court says: "The words 'here- 498, 11 Ann. Cas. 760, 89 Pac. 98,
inbefore named' constitute an es- si Lancefield v. Iggulden, L. R.
sential and vital part of the de- 10 Ch. App. 136; Gibbins v. Eyd.en,
scription of the persons to whom L. R. 7 Bq. 371; Phillips v. Low,
1000
COMMENTARIES ON THE LAW OP WILLS.
rule is followed in some of the American states*^ provided
that no realty acquired after the making of the will is in-
cluded therein,^® unless such after-acquired property is so
described as to admit of its identification.^'' However, the
weight of American authority is that a devise of the resi-
due or remainder of the real property is general.^^
There is a marked distinction between the purposes
shown by a specific devise of real estate, and a devise by
way of residue ; the first shows that the testator intends
the devisee shall have a thing certain, the other that the
devisee shall have something which is unknown or which
can not be described with certainty.^®
(1892) 1 Ch. 47; Crombie v.
Cooper, 22 Grant Ch. (U. C.) 267,
24 Grant Ch. (U. C.) 470.
35 Henderson v. Green, 34 Iowa
437, 11 Am. Rep. 149; Rice v. Rice,
(Iowa) 119 N. W. 714.
Where, out of 135 acres of
land belonging to the testator, he
gave 20 acres to an adopted
daughter and 30 acres to a nephew,
and gave "the balance" of all his
property to his wife, the gift to
his wife was equivalent to a spe-
cific devise of the 85 acres re-
maining.— Estate of Pittman, 182
Pa. St. 355, 38 Atl. 133.
36 Kelly V. Richardson, 100 Ala.
584, 13 So. 785; Wallace v. Wal-
lace, 23 N. H. 149; Estate of Pitt-
man, 182 Pa. St. 355, 38 Atl. 133;
Floyd V. Floyd, 29 S. C. 102, 7
S. B. 42.
37 Kelly V. Richardson, 100 Ala.
584, 13 So. 785.
Where a testator gave the "rest
and residue" of his property in
trust to executors, except certain
legacies, to manage and control
for the benefit of his infant daugh-
ter until she reached the age of
twenty-one, when he directed it
to be delivered to her, there is an
express devise to her of his real
estate and she does not talse as a
mere residuary legatee. — Maybury
V. Grady, 67 Ala. 147.
38 Estate of Woodworth, 31 Gal.
595; Estate of Painter, 150 Cal.
498, 11 Ann. Cas. 760, 89 Pac. 98;
Reid V. Corrigan, 143 111. 402, 32
N. E. 387, reversing Corrigan v.
Reid, 40 111. App. 404; Darnall v.
Adams, 13 B. Mon. (52 Ky.) 273;
Bradford v. Haynes, 20 Me. 105;
Blaney v. Blaney, 1 Cush. (Mass.)
107; Farnum v. Bascom, 122 Mass.
282; Anderson's Exrs. v. Ander-
son, 31 N. J. Eq. 560.
39 Anderson's Exrs. v. Ander-
son, 31 N. J. Eq. 560.
CLASSIFICATION OF LEGACIES AND DEVISES, lOOl
§ 672. Position of the Residuary Clause.
The residuary clause usually follows all other devises
or bequests, but the mere fact that it may precede par-
ticular devises or bequests does not rob it of its character
as such. The position of the residuary clause may aid the
court in arriving at the intention of the testator, but the
intention of the testator prevails irrespective of the por-
tion of the will where a residuary clause may be in-
serted.***
§ 673. Describing Property in the Residuary Clause, Effect Of.
It is unusual that a testator should attempt to create
a specific bequest by language employed in the residuary
clause, but the testator's intention must control, and
where it is clear that he so intended, the provision must
be given effect.*^ The general rule is that the enumera-
tion of specific articles in the residuary clause will not
make a residuary legacy specific as to such property.
Where, however, the language used indicates an intention
to make two distinct gifts, one of specific property and
the other of the residue, the specific legacy is not ren-
dered general by the fact that there is a gift of the
40 Dobson V. Bowness, L. R. 5 4i Fielding v. Preston, 1 De Gex
Eq. 404, 408; Wyman v. Wood- & Jones 438; Pickup v. Atkinson,
bury, -86 Hun (N. Y.) 277, 33 N. Y. 4 Hare 624; Estate of Painter, 150
Supp. 217; affirmed, Morton v. Cal. 498, 11 Ann. Cas. 760, 89 Pac.
Woodbury, 153 N. Y. 243, 47 N. E. 98; England v. Vestry of Prince
283; In re Dickson's Estate, 7 Pa. George's Parish, 53 Md. 466; In re
Dist. Bep. 699; Prison Association Kemp's Estate, 169 Mich. 578,
V. Russell's Admr., 103 Va. 563, Ann. Cas. 1913D, 1042, 135 N. W.
49 S. E. 966. 270; Le Rougetel v. Mann, 63
A residuary legacy may be In N. H. 472, 3 Atl. 746; Bailey v.
the form of a bequest of the en- Wagner, 2 Strobh. Eq. (S. C.) 1;
tire estate of the testator subject Fite v. Beasley. 12 Lea (Tenn.)
to "the bequests hereafter made." 328; Stehn v. Hayssen, 124 Wis.
—Drake v. EUman, 80 Ky. 434. 583, 102 N. W. 1074.
1002
COMMENTARIES ON THE LAW OP "WILLS.
residue to the same person.*^ And the gift will be held
specific if the property is so described as to distinguish
it from the residue, as by the use of such words as "to-
gether with," "as well as," "also," and "including."*^
§674. Residuary Clause, Descriptive Words: "Rest," "Resi-
due," and "Remainder."
The words "rest" and "residue" are sufficiently com-
prehensive to include any interest in the estate of the
testator not previously disposed of,** such words, in the
absence of language showing a contrary intent, are con-
strued to include all the estate remaining after the pay-
ment of charges, debts, and particularly legacies, includ-
ing statutory allowances for maintenance of the widow,
and the like.*^ They naturally embrace all property of
42 Estate of Painter, 150 Cal.
498, 11 Ann. Cas. 760, 89 Pac, 98.
Where the testator directed that
"out of the residue of my estate
then remaining," the sum of
$30,000 should be set aside as a
separate trust, the income of
which -was to be applied in a cer-
tain way, and disposed of the
corpus of the fund on the death
of the beneficiaries. It was held
the $30,000 legacy In trust was not
a true residuary legacy, the con-
struction being that "out of the
residue" does not make a bequest
residuary where later in the will
there is a real residuary clause. —
Matter of Union Trust Co., 97
Misc. Rep. (N. Y.) 581, 161 N, Y.
Supp. 954.
43 Estate of Painter, 150 Cal.
498, 11 Ann. Cas. 760, 89 Pac. 98;
Weed V. Hoge, 85 Conn. 490, Ann.
Cas. 1913C, 543, 83 Atl. 636; Es-
tate of Corby, 154 Mich. 353, 117
N. W. 906; Estate of Kemp, 169
Mich. 578, Ann. Cas. 1913D, 1042,
135 N. W. 270.
44 Holmes v. Mackenzie, 118 Md.
210, 84 Atl. 340.
45 SmuUin v. Wharton, 86 Neb.
553, 125 N. W. 1112.
The words "rest, residue and re-
mainder of my estate" have been
construed to embrace what is left
of the testator's estate after fore-
going provisions of the will have
been complied with. — Slade v. Tal-
bot, 182 Mass. 256, 94 Am. St. Rep.
653, 65 N. B. 374.
CLASSIFICATION OF LEGACIES AND DEVISES. 1003
every description,*® including any void or lapsed lega-
cies.*''
The expression, "the said residue and remainder," has
been construed to mean the same as the word "remain-
der" in the sense of "balance of," "what is left," or
"what may remain."** The word "remainder" in devis-
ing "one undivided quarter part of the said remainder
of my estate," is not to be construed in its technical
sense, but as referring to all the remaining estate after
the payment of debts, funeral charges, expenses, and the
like.*® Where the bequest is of "whatever remains of
money, ' ' it carries the general residuary personal estate,^"
as does also a bequest of "all the money that remains
after paying my former bequests, debts, and funeral ex-
penses, "^^ and also a bequest of all money that remains
after all debts are paid.^^
§675. The Same Subject: "Balance."
The intention to dispose of the residue of the estate
may be evidenced by the word " balance. "^^ The word
"balance" may be used as the equivalent of "rest and
46 Bragaw v. BoUes, 51 N. J. Eq. The phrase "estate remaining"
84, 25 Atl. 947. has been held to cover what was
47 Farrell v. Farrell, 12 Ont. left after special directions had
Law Rep. 580; Hulin v. Squires, been executed, its technical sense
63 Hun (N. Y.) 352, 18 N. Y. Supp. being disregarded. — Chase v. Cart-
309; affirmed, 141 N. Y. 560, 36 right, 53 Ark. 358, 22 Am. St. Rep.
N. E. 343. 207, 14 S. W. 90.
As to real property acquired so r)owson v. Gaskoin, 2 Keen
after the making of the will, see 14, 1 Jur. 669.
§§ 229-234. 51 In re Bailey, 2 Ont. Week.
48 Potts V. Breneman, 182 Pa. Rep. 888.
St. 295, 37 Atl. 1002. 52 Paul v. Ball, 31 Tex. 10.
49 Angell V. Angell, 28 R. I. 592, 63 Lynch v. Spicer, 53 "W. Va.
68 Atl. 583, 426, 44 S. E. 255.
1004 COMMENTARIES ON THE LAW OF WILLS.
residue,"^* " remainder, "^^ "residue,"^® or what remains
or is left over.^^ Where a testator's will directed the
conversion of real estate and "the balance of my estate
(after payment of a specified legacy) to be equally di-
vided among my heirs, ' ' the court held that by the expres-
sion, "the balance of my estate," the testator meant his
entire estate including the proceeds from the conversion
of the real property.®*
§ 676. The Same Subject: "Not Otherwise Disposed Of."
It can not be said that the words "not otherwise dis-
posed of, ' ' render a residuary devise specific in its terms.
Such words express no other intention than that which is
necessarily implied in every residuary devise or bequest.
If, after disposing of a part of his estate, the testator
devises and bequeaths all the residue without any allusion
to previous dispositions in his will, it is clearly his in-
tention that the residuary clause shall operate on his
estate not otherwise disposed of by his will.®*
r.4 In re Thompson's Estate, 237 58 Welsh v. Crater, 32 N. J. Eq.
Pa. St. 165, 85 Atl. 104. 177.
"All the balance of my prop- 59 Cunningham's Devisees v.
erty" is equivalent to saying the Cunningham's Heirs, 18 B. Mon.
"lest and residue of my property." (Ky.) 19, 22, 68 Am. Dec. 718.
— Cambridge v. Rous, 8 Ves. Jun. A bequest of "any money not
12; Fite v. Beasley, 12 Lea mentioned in the aforesaid be-
(Tenn.) 328. quests, that may be in my posses-
55 Lopez V. Lopez, 23 S. C. 258. sion at my death, after the
56 Brooks V. Brooks, 65 111. App. payment of my debts, funeral and
326; Davis v. Hutchings, 15 Ohio testamentary expenses," includes
Cir. Ct. Rep. 174, 8 O. C. D. 52; the whole residuary personal es-
Hulin V. Squires, 63 Hun (N. Y.) tate, even where it Is followed by
352, 18 N. y. Supp. 309; affirmed specific gifts of books, plate, fur-
in 141 N. Y. 560, 36 N. E. 343. niture, etc.— In re Egan, (1899)
57 Brohm v. Berner, (N. J. Eq.) 1 Ch. 688.
77 Atl. 517.
CLASSIFICATION OF LEGACIES AND DEVISES. 1005
§ 677. Residuary Clause : Construction Controlled by Inten-
tion: Expressions Considered.
The word "residue," or the like, is not conclusive.'"*
It is a rule of construction that where words general
in their nature follow those of a special or particular char-
acter, the general words are linaited by the particular
words unless a contrary intent appears from the whole
of the instrument. In construing a wiU, however, the ten-
dency is to give to language not technical its ordinary and
grammatical meaning, but not to allow grammatical con-
struction to defeat the intention of the testator.**^ The in-
tention is to be drawn from the language of the instru-
ment. Where a testator uses the word "devise" and says
"all the rest and residue of my property, personal or
mixed, wheresoever situated," the words "personal or
mixed" will be held to qualify and define the kind of prop-
erty intended to be disposed of, and no broader scope will
be given to them than the usual technical meaning con-
veys.®^ And a bequest of all the "rest, residue and re-
mainder of the moneys belonging to my estate at the time
of my decease" includes only cash.®*
The word "money" has been held to include real prop-
erty. Thus where a will inartfuUy drawn, in which the
word "devise" was technically misused, stated that the
60 In re Pittman's Estate, 182 Eq. 776, 90 Am. St. Rep. 480, 48
Pa. St. 355, 38 AU. 133. Atl. 586. See, also. White v. Kauff-
A bequest of $30,000 "out of man, 66 Md. 89, 5 Atl. 865.
the residue of my estate tlien re- A bequest of "all the rest, resi-
malning" to be set aside as a due and remainder of my personal
separate trust, was held not to estate" is a specific legacy of only
make the bequest residuary. — the personal estate, and does not
Matter of Union Trust Co., 97 include the real estate. — ^Estate ot
Misc. Rep. (N. Y.) 581, 161 N. Y. Alabone, 75 N. J. Eq. 527, 72 Atl.
Supp. 954. 427.
61 See § 50. <53 Mann v. Mann, 14 Johns.
62 Miller V. Worrall, 62 N. J. (N. Y.) 1, 7 Am. Dec. 416.
1006 COMMENTARIES ON THE LAW OP WILLS.
purpose of the testator was to dispose of his entire estate,
real, personal and mixed, of which he might die seised,
a bequest of "the balance of all my money" was held to
have been intended to include the residue of the estate,
both real and personal.** But the general rule is that an
introductory clause in a wiU, although expressing the
testator's intention to dispose of his entire estate, does
not relieve him from the necessity of making such an
actual disposition, and such introductory clause can not
enlarge a disposition expressed in clear and unambiguous
terms.*®
§678. As to Real Property Acquired After the Execution of
the Will Being Covered by the Residuary Clause.
At common law a devise of real property was viewed
as a conveyance, and lands acquired by the testator after
the execution of his "Viill did not pass thereunder, irre-
spective of a residuary devise.** This was subsequently
changed by statute in England,*'^ and the general riile in
the United States is that a testator may dispose of all
the property, real or personal, he may possess at the time
64 Estate of Miller, 48 Cal. 165, Real estate held not to pass
22 Am. Rep. 422. under a clause disposing of "all
Where a testator, being pos- my estate, personal or mixed,"
sessed of both real and personal although the will contained an in-
estate, does not confine himself to troductory clause showing an In-
the disposition of his personal es- tention to dispose of "such estate
tate, and names a designated per- as it has pleased God to entrust
son as his "residuary lega,tee," with me." — Spurrier v. Hobbs, 68
not only the personal but the real W. Va. 729, Ann. Cas. 1912B, 342,
estate of the testator will pass 70 S. B. 760.
to such residuary legatee. — Dann 66 See §§ 26-29.
V. Canfield, 197 Mass. 591, 14 Ann. 67 The statute of 1 Vict, ch. 26,
Cas. 794, 84 N. E. 117. allowed devises of after-acquired
85 Spurrier v. Hobbs, 68 W. Va. real property. See §§ 30, 229.
729, Ann. Cas, 1912B, 342, 70 S. E.
760.
CLASSIFICATION OF LEGACIES AND DEVISES. 1007
of his death, no matter when acquired.®* It is, however,
the intention of the testator which controls,®® affected in
some jurisdictions by statute.'"'
§ 679. What Passes Under Residuary Devises and Bequests.
The residuary clause in a will necessarily furnishes the
most important evidence of the intention of the testator
on the question of marshalling assets, because it disposes
of the surplus remaining after satisf jang the other pro-
visions of the will. It is natural to presume that the tes-
tator intended to charge upon the residuary bequests all
the deficiencies in paying debts and legacies. The intent
is not expressed, but may be presumed because in giving
the surplus he gives only what remains after his special
benefactions and the lawful demands against his estate
are satisfied. '"^ It is only what remains after all the debts
and paramount claims of the estate are satisfied, that
passes to the residuary legatee, and he can not call upon
either general or specific legacies or devises to abate in
his favor even if the residue be exhausted. '"^
§ 680. The Same Subject: Presumptions.
The presumption of law is always against partial in-
testacy, and a construction avoiding such a condition
will be favored whenever possible.'"^ This presumption,
68 Early and present rule In the 72 Martin, In re, 25 R. I. 1, 54
United States as to after-acqiilred Atl. 589.
real property passing under a gen- 73 In re Blake's Estate, 157 Cal.
eral residuary clause. See §§ 230- 448, 108 Pac. 287; Skinner v.
234. Spann, 175 Ind. 672, 93 N. E. 1061,
As to the date from which, a 95 N. E. 243; Wagner v. Wagner,
will speaks, see §§ 235-239. 244 111. 101, 18 Ann. Cas. 490, 91
69 See §§232, 233. N. E. 66; Northern Trust Co. v.
70 See § 234. ' Wheaton, 249 111. 606, 34 L. R. A.
71 Estate of Plttman, 182 Pa. (N. S.) 1150, 94 N. E. 980; Jones
St. 355, 38 Atl. 133. v. Gane, 205 Mass. 37, 91 N. E.
1008 .COMMENTAEIES ON THE LAW OP WILLS.
however, is not controlling; it is only a rule of construc-
tion to aid interpretation, and is subject to the cardinal
rule reqiuring that the will be construed according to the
intention of the testator. If the language of the will is
such as to show that the testator did not intend to dis-
pose of all of his property, such intention must prevail.'^*
Any property which does not pass under the residuary
clause and is not otherwise disposed of, stands as if the
testator had died intestate as to it and it will be dis-
tributed to those entitled thereto under the rules of suc-
cession. Such result will not be avoided by a provision of
the will excluding the heirs from participation in the
estate. '^^
§ 681. The Same Subject: Lapsed and Void Legacies.
The general rule is that where a residuary devise or be-
quest is not limited by any expressions of the testator
restricting its scope, or where the title to pass is not lim-
ited in extent by special provisions expressed in the will,
the residuary devisees and legatees take not only that not
otherwise disposed of, but dispositions which have failed
because of lapse, invalidity, or other accident, will become
a part of the residue and be distributed as such.''* In
order to prevent lapsed or void legacies from passing
129; In re Hoffman's Will, 67 75 Walters v. Neafus, 136 Ky.
Misc. Rep. 334, 124 N. Y. Supp. 756, 125 S. W. 167; Durham's
6S0. Admr. v. Clay, 142 Ky. 96, 134
See §§232, 233. S. W. 153; In re Trumble's Will,
74 In re Blake's Estate, 157 Cal. 137 App. Div. 483, 122 N. Y. Supp.
448, 108 Pac. 287; Walters v. Nea- 763.
fus, 136 Ky. 756, 125 S. W. 167; 76 Estate of Upham, 127 Cal. 90,
Jones V. Oane, 205 Mass. 37, 91 59 Pac. 315; Matter of Bouk's Es-
N. E. 129; Woodruff y. White, 78 tate, 80 Misc. Rep. (N. Y.) 196,
N. J. Eq. 410, 79 Atl. 304; In re 141 N. Y. Supp. 922; Riker v. Corn-
Thompson's Estate, 229 Pa. St. well, 113 N. Y. 115, 20 N. E. 602;
542, 79 Atl. 173. Morton v. Woodbury, 153 N. Y.
CLASSIFICATION OF LEGACIES AND DE\ISES.
1009
under the residuary clause, the rule requires the use of
words clearly limiting the gift of the residue and showing
by the terms expressed an intention to exclude therefrom
such portions of the estate as may fail to pass under pre-
vious clauses of the wilU'^ But in order to entitle the
legatee to a lapsed or void legacy, he must be the general
residuary legatee, not partially only.''*
243, 47 N. E. 283; Fite v. Beasley,
12 Lea (Tenn.) 328; Harrington v.
Pier, 105 Wis. 485, 76 Am. St. Rep.
924, 50 L. R. A. 307, 82 N. W. 345.
"A residuary bequest of per-
sonal estate carries not only
everything not disposed of, but
everything that in the event turns
out not to be disposed of; not in
consequence of any direct and ex-
pressed intention; for it may be
argued in all cases that particular
legacies are separated from the
residue, and that the testator does
not mean that the residuary lega-
tee should take what is given
from him; no, for he does not
contemplate the case; the resid-
uary legatee is to take only what
is left, but that does not prevent
the right of the residuary legatee.
A presumption arises for the re-
siduary legatee against every one
except the particular legatee. The
testator is supposed to give it
away from the residuary legatee
only for the sake of the particular
legatee." — Cambridge v. Rous, 8
Ves. Jun. 12, 25.
"The result is that everything
which is ill-given falls into the
residue." — Reynolds v. Kortright,
IS Beav. 41.7, 427.
n Com. on Wills— 10
A bequest of the residue, after
payment of debts and legacies, is
broad enough to allow the resid-
uary legatee to take a lapsed
legacy. — King v. WoodhuU, 3 Edw.
Ch. (N. Y.) 79.
Where the will contained a gen-
eral residuary clause disposing of
■'all the rest, residue, and re-
mainder of the testator's estate,
"both real and personal," four-
fifths thereof being given to
named beneficiaries and one-fifth
in trust for the benefit of his wife
during her life, two lapsed lega-
cies must be counted as part of
the residue, and one-fifth added
thereto for the benefit of the
widow. — Matter of Benson, 96
N. Y. 499, 48 Am. Rep. 646.
A lapsed legacy is more readily
included in a residuary clause
than one that is void as being
against public policy. — Allison v.
Allison, 56 N. C. 236.
77 Clarke v. Andover, 207 Mass.
91, 92 N. E. 1013; King v. Wood-
hull, 3 Edw. Ch. (N. Y.) 79; In re
Hoffman's Will, 140 App. Div. 121,
124 N. Y. Supp. 1089; Fite v.
Beasley, 12 Lea (Tenn.) 328.
TsHulin V. Squires, 63 Hun
(N. Y.) 352, IS N. Y. Supp. 309;
1010 COMMENTARIES ON THE LAW OF WILLS.
§ 682. The Words "Cumulative" and "Substitutional" as Ap-
plied to Legacies.
A testator may make two bequests to one person, either
by a single testament, or by will and a codicil. If the bene-
ficiary takes under botb bequests, the legacies are cumu-
lative; if he takes under the latter only, such legacy is
substitutional, being substituted in place of the former.
The two gifts may be of the same specific property; they
may be of quantity only, but equal in amount; they
may be of quantity but of unequal amounts ; they may be
given simpliciter, or they may be qualified or the motive
for the gifts may be expressed ; and they may be contained
in one or in two testamentary instruments.''*
The term ' ' substitutional ' ' is sometimes further applied
to the case where two separate gifts, first by will and
later by codicil, are made of the same specific property to
two different persons, this being a substitution of the leg-
atee rather than of the legacy. The term has also been
applied to the case where the language of the bequest
is in the alternative, as to "A or his children," the chil-
dren being added for the express purpose of preventing
the legacy from lapsing.*"
§ 683. Intention Controls as to Whether or Not Legacies Are
Cumulative or Substitutional.
Whether legacies are cumulative, the second being in
addition to the first, or whether they are substitutional,
the latter being substituted for or taking the place of
the prior, is a matter of construction to determine the
affirmed in 141 N. Y. 560, 36 N. E. & K. 69; Robb v. Belt, 12 B. Mon.
343. (51 Ky.) 643; Kimball v. Story,
79 Hooley v. Hatton, cited in 108 Mass. 382; Finlason t. Tat-
1 Bro. G. C. 390. look, U R. 9 Eq. 258.
80 Glttings V. McDermott, 2 Myl.
CLASSIFICATION OF LEGACIES AND DEVISES.
1011
intention of tlie testator.^' The intent may be clearly
expressed, as where the testator, in making the second
bequest, states that it is "in full" or "in lieu" of,®* or
to take the place of, a prior legacy,*^ or that the latter
legacy is a sufficient provision for the beneficiary.®* Or
the language employed may show an intention to make
the legacies cumulative, as by using such a word as
"further," or "additional."*® If the provisions of the
SI Ridges V. Morrison, 1 Bro.
C. C. 389; Lobley v. Stocks, 19
Beav. 392; Rexford v. Bacon, 195
111. 70, 81, 62 N. E. 936; Orrick v.
Boehm, 49 Md. 72; Sondheim v.
Fechenbach, 137 Mich. 384, 100
N. W. 586.
82 Creveling's Exrs. v. Jones, 21
N. J. L. 573; Graves v. Mitcliell,
90 Wis. 306, 63 N. W. 271.
If by his will a testator has
given two legacies to one person,
and by codicil gives a legacy in
lieu of one of the former only,
the other not mentioned will
stand.— Hard v. Ashley, 117 N. Y.
606, 23 N. E. 177.
83 In re Armstrong, L. R. 31 Ir.
154.
84 Robley V. Robley, 2 Beav. 95.
85 Burkinshaw v. Hodge, 22
W. R. 484; Mason's Exrs. v. Trus-
tees of Methodist Episcopal
Church, 27 N. J. Eq. 47.
Wbere a testamentary instru-
ment states with reference to cer-
tain legacies that they are "in
addition" to former legacies given
by will, it is an argument In favor
of holding other legacies not so
referred to, as substitutional, but
it is not conclusive. — Mackenzie v.
Mackenzie, 2 Russ. 262, 272; Bar-
clay V. Wainwright, 3 Ves. Jun.
462.
In a Pennsylvania case, the tes-
tator provided: "I also give and
bequeath to her, the said Alico,
fifteen shares of second preferred
Cumberland Valley Railroad stock,
and one second mortgage five-hun-
dred-dollar bond (No. 1) of said
railroad company." Afterward in
a codicil he directed: "I further
give to my cousin, Alice Rheem,
in addition to what I have given
her by my will, fifteen shares of
Cumberland Valley Railroad stock,
preferred, one Cumberland Valley
Railroad eight-per-cent bond, and
thirty shares of Carlisle Deposit
Bank stock." The court held that
Alice should take thirty shares of
the railroad stock. It appeared in
evidence that the codicil was writ-
ten by counsel at the testator's
dictation, and that at the time of
writing it, the will was not read
nor examined. It also appeared
that the testator owned but fif-
teen shares of the stock of said
railroad. But the court, while ad-
mitting the force of the doubts
arising from this evidence, de-
1012 COMMENTARIES ON THE LAW OF WILLS.
instruments sh.ow that an accumnlation of legacies was
intended, such must be the holding.** Evidence of parol
declarations of the testator, not part of the res gestce, are
inadmissible to show whether legacies are cumulative or
substitutional.*''
§ 684. Bequeathing a Specific Article Twice.
Where specific legacies of a designated piece of prop-
erty are made, in one instrument, to two different per-
sons, no qualification or condition being attached to
either bequest, the beneficiaries may taie jointly or in
common; but if such legacies are contained in two sep-
arate testamentary instruments, the latter is a revoca-
tion of the former, the legatee in the last testament being
substituted for the other.** Where the same corpus is
twice bequeathed simpliciter to the same person, since it
clared them "not substantial Meyrick, 1 Bro. C. C. 30; Westcott
enough to revise a plainly written v. Cady, 5 Johns. Ch. (N. Y.) 334,
will." — Sponsler's Appeal, 107 Pa. 9 Am. Dec. 306.
St. 95. The opinion cites no cases. 86 Crowder v. Clowes, 2 Ves.
Counsel for appellant argued that Jun. 449; Yockney v. Hansard, 3
inasmuch as the legatee Alice was Hare 620; Blakeslee v. Pardee, 76
the chief object of the testator's Conn. 263, 56 Atl. 503; Orrick v.
bounty, and that as he had be- Boehm, 49 Md. 72; Coane v. Har-
queathed her other property and ned, 51 N. J. Bq. 554, 26 Atl. 810;
chattels, it was probable that he Barnes v. Hanks' Admr., 55 Vt.
had forgotten the details of what 317.
he had given her, and that in giv- 87 Guy v. Sharp, 1 Myl. & K.
ing the bank stock he repeated 589; Wilson v. O'Leary, L. R. 7
the bequest of the railroad stock Ch. App. 448.
without intending to double the ss Barlow v. Coffin, 24 How. Pr.
legacy, citing: Heming v. Clutter- (N. Y.) 54.
buck, 1 Bligh N. S. 479; Moggridge As to revocation of one will by
V. Thackwell, 1 Ves. Jun. 464, 472; a later inconsistent will, see § 526.
Allen V. Callow, 3 Ves. Jun. 289; As to wills, partially inconsist-
Lee V. Pain, 4 Hare 201; Fraser v. ent, being construed together, see
Byng, 1 Russ. & M. 90; Garth v. §§ 527, 528.
CLASSIFICATION OF LEGACIES AND DEVISES.
1013
can fully pass but once, accumulation of the legacies is
impossible.**
§685. Two Gifts, in the Same WiU, to One Person: When
Cumulative.
Where two gifts of different articles or of different
amounts are given to one person in a single testamentary-
instrument, without qualification, explanation or state-
ment of motive, both gifts are effective.®" But if such
gifts are for the same amount and are given simpliciter,
only one will takes effect. The presumption is of an
inadvertent repetition, and an immaterial difference in
the manner in which the legacies are conferred will not
be evidence that the testator intended them to be cumu-
lative."
89 Hooley V. Hatton, cited In 1
Bro. C. C. 390, 28 Bng. Repr. 1196;
Ridges V. Morrison, 1 Bro. C. C.
389, 28 Eng. Repr. 1195; Suisse v.
Lowther, 2 Hare 424, 67 Eng. Repr.
175; Matter of Donner's Exrs., 65
N. J. Eq. 691, 55 Atl. 1104; Dewitt
V. Yates, 10 Johns. (N. Y.) 156,
6 Am. Dec. 326; Donner's Case, 65
N. J. Eq. 691, 55 Atl. 1104; Law-
rence V. Barber, 116 Wis. 294, 93
N. W. 30.
90 Curry v. Pile, 2 Bro. C. C.
225; Yockney v. Hansard, 3 Hare
620, 67 Eng. Repr. 527; Brennan
V. Moran, 16 Ir. Ch. 126; Chambers
V. Chambers, 41 La. Ann. 443, 6
So. 659; Gordon v. Smith, 103 Md.
315, 63 Atl. 479; Bartlett r. Houd-
lette, 147 Mass. 25, 16 N. B. 740;
Jones V. Creveling's Exrs., 19
N. J. L. 127; Southgate v. Conti-
nental Trust Co., 36 Misc. (N. Y.)
415, 73 N. Y. Supp. 718; modified
in 74 App. Div. 150, 73 N. Y. Supp.
718, 77 N. Y. Supp. 687; Edwards
V. Rainier's Exrs., 17 Ohio. St. 597.
Where the assets are insufficient
to pay both legacies and all the
other gifts contained in the will
and codicil, the second legacy to
one person may be regarded as
substituted for the first. — Sond-
helm V. Fechenbach, 137 Mich. 384,
100 N. W. 586.
91 Greenwood v. Greenwood,
cited in 1 Bro. C. C. 31; Holford
V. Wood, 4 Ves. Jun. 76; Early v.
Middleton, 14 Beav. 453; Waters
V. Hatch, 181 Mo. 262, 79 S. W.
916 ; In re Powell's Estate, 138 Pa.
St. 322, 22 Atl. 92.
1014 COMMENTABIES ON THE LAW OF WILLS.
§ 686. Two Gifts, in Different Instruments, to the Same Per-
sons: For Same Amount and Same Expressed Rea-
son, Not Cumulative.
"Where, in each of two testamentary instruments, a leg-
acy be given to the same person, and the motive of the
gifts is expressed, and in both instruments the same mo-
tive is stated and the same sum is given, the court con-
siders these two coincidences as raising a presumption
tliat the testator did not, by the second instrument, mean
a second gift, but only a repetition of the former gift."^
§ 687. The Same Subject : With Different Reasons Expressed,
or for Different Amounts, Are Cumulative.
Although the same quantity or sum be given to one
person by two separate testamentary instruments, if in
either instrument no motive or reason for the gift is
expressed, or if a different or additional cause be assigned
in the later testament, or if there be any expressions in
the documents to show that the testator intended both
gifts to stand, the court will favor accumulation of the
legacies.** And although the same motive for each gift
be expressed in each instrument, yet if the amounts given
be different, the legacies are cumulative.** That the leg-
acies are for different amounts, or that they are stated
92 Hurst V. Beach, 5 Madd. 351, Yates, 10 Johns. (N. Y.) 156, 6 Am.
358; Hooley v. Hatton, cited in Dec. 326; Matter of Moore, 131
1 Bro. C. C. 390, 28 Eng. Repr. App. Div. 213, 115 N. Y. Supp. 684;
1196; Ridges v. Morrison, 1 Bro. Powell's Estate, 138 Pa. St. 322, 22
C. C. 389, 28 Eng. Repr. 1195; Atl. 92.
Garth v. Meyrick, 1 Bro. C. C. 30, 93 Hurst v. Beach, 5 Madd. 351,
28 Eng. Repr. 966; Suisse v. Low- 358; Suisse v. Lowther, 2 Hare
ther, 2 Hare 424, 67 Eng. Repr. 424; Ridges v. Morrison, 1 Bro.
175; Thompson v. Betts, 74 Conn. C. C. 389.
576, 92 Am. St. Rep. 235, 51 Atl. 04 Hurst v. Beach, 5 Madd. 351,
564 ; Waters v. Hatch, 181 Mo. 262, .358 ; Wilson v. O'Leary, L. R. 12
79 S. W. 916; Creveling's Exrs. v; Eg. 525.
Jones, 21 N. J. L. 573; Dewltt v.
CLASSIFICATION OF LEGACIES AND DEVISES.
1015
in separate instruments or in different sections of the
same will, or that they are to be paid at different times^'
or out of different funds,^* are matters tending forcibly
to show that the legacies were intended to be cumula-
tive. Such facts, however, must appear on the face of
the testamentary instruments so that the intention of the
testator can be drawn from what he himself has set
forth.«^
§ 688. The Same Subject: When Given Simpliciter, Are Cumu-
lative.
Where two legacies of quantity merely are given to
one person by two separate testamentary instruments of
the same testator, such as by will and by codicil, without
SBWray v. Field, 2 Russ. 257,
261; In re Mcintosh's Estate, 158
Pa. St. 528, 27 Atl. 1044, 1047, 1048.
If one legacy Is vested and'the
other contingent, accumulation
will be presumed. — Hodges v. Pea-
cock, 3 Ves. Jun. 735; Van Rhee-
nen v. Veenstra, 47 Iowa 685.
Several of the principles upon
which legacies will be held cumu-
lative are stated in the following
case: One of the items in a will
bequeathed "to my nephews,
W. H. T. and B. T., and to the
survivor, the sum of three thou-
sand dollars each, the share of
the one dying first to go to the
survivor." In a codicil the testa-
tor wrote: "I also give to W. H. T.
the sum of two thousand dollars,
in trust for the benefit of B. T.,
my nephew, to be used in his dis-
cretion for the necessities of said
B., and if not all used for this pur-
pose, to go to the residuary lega-
tees named in said will." No re-
siduary legatees were named. The
court held that the legacies to
B. T. were cumulative. "They
differ in amount; are given in dif-
ferent instruments, the first di-
rectly, the last through the inter-
vention of a trustee. The former,
in one event, is increased twofold
and absolute; the latter is for life
only. In one the remainder is con-
tingent, and goes to his brother,
while in the other it is vested in
the heirs at law, there being no
residuary legatees in the will." —
TJtley V. Titcomb, 63 N. H. 129.
96 Kirtpatrick v. Bedford, 4 App.
Cas. 96; Farnam v. Farnam, 53
Conn. 261, 2 Atl. 325, 5 Atl. 682;
Power V. Cassidy, 79 N. Y. 602, 35
Am. Rep. 550; Biedler v. Biedler,
87 Va. 300, 12 S. E. 753.
97 Creveling's Exrs. v. Jones, 21
N. J. L. 573.
1016 COMMENTARIES ON THE LAW OF WILLS.
qualification or expression of motive, the legatee is en-
titled to take both, the later legacy being cumulative.
It is a matter of indifference whether the second legacy
is of the same amount, or greater, or less than the first.
The court considers that he who has twice given a legacy
simpliciter must prima facie have intended two gifts.**
If this be contested, it is incumbent upon the contesting
party to produce evidence to the contrary.®®
§689. Substituted or Additional Legacies: Subject to Inci-
dents of First Legacies.
One legacy substituted in place of a former, or a leg-
acy given in addition to a previous one, is generally
subject to the same incidents and conditions as the orig-
inal legacy and payable but of the same funds, and this
rule applies irrespective of the advantage or disadvan-
tage accruing to the legatee.^ For example, an additional
98 Hurst V. Beach, 5 Madd. 351, rison's Estate, 196 Pa. St 576, 46
358; Hooley v. Hatton, cited in Atl. 888; Noel's Admr. v. Noel's
1 Bro. C. C. 390, 28 Eng. Repr. Admr., 86 Va. 109, 9 S. E. 584.
1196; Suisse v. Lowther, 2 Hare Where the mere bounty of the
424, 67 Eng. Repr. 175; Roch v. testator is the only apparent mo-
Callen, 6 Hare 531, 67 Eng. Repr. tive for the bequest, and no other
1274; Benyon v. Benyon, 17 Ves. is expressed, the rule is that the
Jun. 34; In re Ladd's Estate, 94 legatee shall take in addition. —
Cal. 670, 30 Pac. 99; Hollister v. Suisse v. Lowther, 2 Hare 424, 67
Shaw, 46 Conn. 248; Blakeslee v. Eng. Repr. 175.
Pardee, 76 Conn. 263, 56 Atl. 503; 9S Ridges v. Morrison, 1 Bro.
Bedford v. Bedford's Admr., 99 Ky. C. C. 389, 28 Eng. Repr. 1195;
273, 35 S. W. 926; Hoffman v. Hooley v. Hatton, cited in 1 Bro.
Cromwell, 6 Gill & J. (Md.) 144; C. C. 390, 2 Dick. 461, 21 Eng.
Westgate v. Farris, 189 Mass. 587, Repr. 349; Dickinson t. Overton,
76 N. B. 223; Utley v. Tltcomb, 63 57 N. J. Eq. 26, 41 Atl. 949; Dewitt
N. H. 129; Dickinson v. Overton, v. Yates, 10 Johns. (N. Y.) 156,
57 N. J. Eq. 26, 41 Atl. 949; Don- 6 Am. Dec. 326.
ner's Case, 65 N. J. Eq. 691, 55 i Duncan v. Duncan, 27 Beav.
Atl. 1104; Appeal of Manifold, 126 392, 54 Eng. Repr. 154; Shaftes-
Pa. St. 508, 19 Atl. 42; In re Har- bury v. Marlborough, 7 Sim. 237,
CLASSIFICATIOJSr OP LEGACIES AND DEVISES.
1017
bequest to the same legatee in a codicil is subject to a
clause of survivorship expressed in the legacy in the
will to which it is cumulative ;2 and a gift by codicil to
charity "in place and stead of" another legacy given in
58 Eng. Repr. 827; Estate of La-
veaga, 119 Gal. 651, 51 Pac. 1074;
Carpenter's Estate, In re, 166 Iowa
4S, 147 N. W. 175; Hollyday v.
HoUyday, 74 Md. 458, 22 Atl. 136;
Pike V. Walley, 15 Gray (Mass.)
345; Snow v. Foley, 119 Mass. 102,
103.
"When the thing bequeathed by
codicil is given as a mere substi-
tution for that which Is be-
queathed by the will, it Is to be
taken with all its Incidents," said
the vice-chancellor, in Earl of
Shaftesbury v. Duke of Marlbo-
rough, 7 Sim. 237.
A testator gave several legacies
which he directed to be raised out
of his real estate, one being for
£1000 to a hospital, which was
void by the statute of mortmain.
By codicil he revoked this legacy
and instead thereof gave £500 to
another hospital, without mention-
ing any source from which it was
to be paid. The court held that
as the codicil did not purport to
change the fund designated in the
will for the payment of the lega-
cies. It was void equally with the
original legacy. — ^Leacroft v. May-
nard, 3 Bro. C. C. 233.
A testator gave an annuity of
£300 to each of two grand-daugh-
ters, to be paid to them and to
their children, directing these
sums to be paid to said children
in such manner as the grand-
daughters might by deed or will
appoint, and, in default of appoint-
ment, equally among the children.
By a codicil he revoked the an-
nuities and in lieu thereof gave
others of £150, payable and
charged in the same manner as
the original ones. The children
of the grand-daughters were not
mentioned in the codicil. It was
held that there was a substitution
of the smaller for the larger an-
nuities, affecting not only the
granddaughters, but their children
as well. — In re Freme's Contract,
(1895) 2 Ch. 778.
A testator devised certain par-
cels of land to his grandson with
a limitation over to his daughters.
He later sold the land, and by
codicil bequeathed to his grand-
son in lieu of the land a bond
and mortgage taken for the pur-
chase money, but without any lim-
itation over to the daughters. The
bond and mortgage were held to
have been given as a substitute
for the land, and the executors of
the grandson had to account to
the daughters. — Condict's Exrs. v.
King, 13 N. J. Bq. 375.
2 Thompson's Admr. v. Church-
ill's Estate, 60 Vt. 371, 14 Atl. 699.
1018 COMMENTARIES ON THE LAW OF WILLS.
the will, is governed as to the time of payment by the di-
rections in the will.*
The above rule is established for the purpose of carry-
ing into effect the intention of the testator, and is em-
ployed for that purpose in connection with the other
rules of construction.* Unless it appears from the lan-
guage used in the codicil, or from the application of the
recognized rules of construction with reference to wills,
that the testator intended by the codicil to make a sub-
stantive and independent gift, the rule is to be applied.
The limitations and conditions which the testator causes
to attach to the original bequest are presumed to be in-
tended by him to follow it, irrespective of any change
in amount or of the person to whom it is given.^ It is,
however, prima facie only, and is not to be applied to a
case in which the court is convinced, on examination of
the whole will, including codicil, that its application
would not affect but would thwart the testator's inten-
tion. In such case the rule must yield to the intention,
not the intention to the rule.®
3 Whelen's Estate, 175 Pa. St. A testator by his will gave each
23, 34 Atl. 329. of his children $7000, to be paid
4 Estate of Laveaga, 119 Cal. to each child upon attaining the
651, 51 Pac. 1074; Carpenter's Es- age of twenty-one, with interest on
tate, in re, 166 Iowa 48, 147 N. W. such sums to be paid each child,
175; Pike v. Walley, 15 Gray interest to commence at the time
(Mass.) 345. Of the first payment. Later, by
5 Estate of Laveaga, 119 Cal. 651, codicil, he gave each child "in ad-
51 Pac. 1074. dition to the amount already given
fl The term "foregoing legacy" by said will," the extra sum of
used in the residuary clause of a ' $3000, to be paid to each when the
v/ill was held to refer to the lega- youngest should be twelve years
cies in the previous part of the of age. It was held the legacies
will, and not to Include additional given by the codicils did not bear
legacies to some of the same lega- interest. — Pike v, Walley, 15 Gray
tees made by codicil. — Sias v. (Mass.) 345.
Chase, 207 Mass. 372, 93 N. E. 802.
CHAPTER XXV.
ABATEMENT OF LEGACIES.
§ 690. Abatement defined : Order in wMch legacies abate.
§ 691. Effect of testamentary directions.
§ 692. Residuary legacies, abatement of.
§ 693. General legacies, abatement of.
§ 694. Annuities, abatement of.
§ 695. Specific legacies and devises, abatement of.
§ 696. Demonstrative legacies, abatement of.
§ 697. Legacies given for a valuable consideration.
§ 698. Legacy to widow in lieu of dower.
§ 699. The same subject : The will may provide that such lega-
cies abate.
§ 700. Legacy or devise in exercise of a power of appointment.
§ 701. Additional legacies given by codicil.
§ 702. Order in which legacies are stated is immaterial.
§ 703. Time of payment generally immaterial.
§ 704. Relationship of legatee to testator generally immaterial.
§ 705. Devastavit by executor.
§ 706. To make up share of a pretermitted heir.
§ 707. Burden of proof.
§ 690. Abatement Defined : Order in Which Legacies Abate.
Abatement is the reduction of a legacy occasioned by
reason of the insufficiency of the assets of the estate of
the testator to pay his debts and the legacies given by his
will.i
A legacy adeemed by delivery of the property .to the
legatee during the lifetime of the testator, is not subject
1 Bouvier Law Diet., subj. Abate- Abatement has also been de-
ment; In re Neistrath's Estate, 66 fined as the obligation of specific
Cal. 330, 5 Pac. 507. legatees to part with the whole
( 1019 )
1020 COMMENTARIES ON THE LAW OF WILLS.
to abatement. It does not pass under the will, but stands
upon the footing of a gift during life.^
The order in which legacies abate may be controlled
by direction of the testator expressed in his will, and is
sometimes governed by statute; otherwise the general
rule is that residuary legacies first abate, then general,
then specific and demonstrative. Where residuary lega-
cies or devises are held to be specific, then they abate with
specific legacies.^ And demonstrative legacies may be-
come general upon a failure of the fund out of which-
they were to be paid, and abate accordingly. Where gifts
belong to the same class and nothing to the contrary ap-'
pears in the will, they are entitled to no preference, as
among themselves, but abate proportionately.* Each
class must be exhausted in the order of preference before
resort is had to the next class.
§ 691. Effect of Testamentary Directions.
In the absence of clear proof to the contrary, the tes-
tator must be deemed to have acted on the belief that his
estate would be sufficient to answer the purposes to which
it is devoted. If the chances of deficiency are anticipated
and provided for by the terms of the will, then the direc-
tions of the testator must govern, and the loss must be
or a portion of their legacies, al- 2 Clayton v. Akin, 38 Ga. 320,
though, the subjects devised to 95 Am. Dec. 393.
them remained and were not 3 Jackson t. Pease, Li. R. 19 Eq.
adeemed at the testator's death. — 96; Clark v. Clark, 34 L. J. Ch.
Roper on Legacies, p. 356. 477; Lancefield v. Iggulden, L. R.
In many states the order in 10 Ch. 136.
which legacies abate is regulated 4 Matter of Dougherty, 64 Misc.
by statute.— Cal. Civ. Code, §§ 1359- Rep. (N. Y.) 230, 118 N. Y. Supp.
1362; Atwood v. Frost, 59 Mich. 1081.
409, 26 N. W. 655; In re Spencer,
16 R. I. 25, 12 Atl. 124.
ABATEMENT OP LEGACIES. 1021
borne by those designated by the testator to bear such
loss.^ Thus, where the testator expressly directs that in
case his estate shall prove insufficient to pay all legacies,
then all shall abate pro rata, such directions must pre-
vail;'' and where he provides that the legacies shall not
abate equally, but some shall have preference over others,
such directions must be followed.^
A testator may, by special directions in his will, exempt
any legacy from abatement although other legacies suffer
added loss thereby; yet in the absence of a showing that
such was intended by the testator, there arises the pre-
sumption of intended equality among legacies of a class.*
Where the testator simply directs that several pecuniary
legacies shall be paid out of his estate, the presumption
is that he intended all legacies to be paid equally. This
presumption of equality will not be overcome by any
ambiguous expressions in the will, but must prevail in the
absence of unequivocal evidence of the testator's inten-
tion to give a preference.®
§ 692. Residuary Legacies, Abatement Of.
Where there exists an insufficiency of assets to pay the
debts and expenses of the estate and the legacies given by
5 Emery v. Batchelder, 78 Me. nated legacy, protects the latter
233, 3 Atl. 733; Addition v. Smith, from abatement, but does not
83 Me. 551, 22 Atl. 470; Towle v. affect the usual order of abate-
Swasey, 106 Mass. 100. ment as to the other legacies, gen-
6 Bancroft v. Bancroft, 104 Mass. eral legacies first and then spe-
226. cific. — Heath v. McLaughlin, 115
7 Shethar v. Sherman, 65 How. N. C. 398, 20 S. B. 519.
Pr. (N. T.) 9. 9 Emery v. Batchelder, 78 Me.
8 Pennsylvania University's Ap- 233, 3 Atl. 733; Addition v. Smith,
peal, 97 Pa. St. 187. 83 Me. 551, 22 Atl. 470; Shepherd
A provision in a will that all v. Guernsey, 9 Paige Ch. (N. Y.)
legacies shall abate before a desig- 357.
1022
COMMENTARIES ON THE LAW OP WILLS.
will, and there is nothing in the wiU to indicate that one
legacy shall be paid before another, a residuary legacy
will abate, not only before specific and demonstrative
legacies, but also before general legacies. A residuary
legatee takes only what remains after the debts and ex-
penses and other legacies have been satisfied ; and if the
residue be exhausted, he can not call upon the other leg-
atees to contribute to his loss.^"* This rule proceeds upon
the principle that until both debts and legacies are sat-
isfied, there is no residue.^^ The reason for subjecting a
residuary legacy to the payment of debts in the first in-
stance is that in most wills there is an express provision
for the payment of debts and, until that is done, the sub-
ject of the legacy is not ascertained. And where there is
10 Fonnereau v. Poyntz, 1 Bro.
C. C. 472; Croly v. Weld, 3 De Gex,
M. & G. 993; Purse v. Snaplin,
1 Atk. 415; Page v. Leapingwell,
18 Ves. Jun. 463; Baker, v. Farmer,
L. R. 3 Ch. 537, 16 W. R. 923; In
re Bawden, (1894) 1 Ch. 693;
Lewis T. Sedgwick, 223 111. 213,
79 N. B. 14; In re Newcomb's Will,
98 Iowa 175, 67 N. W. 587; Louis-
ville Presb. Theol. Seminary v.
Fidelity Trust etc. Co., 113 Ky.
336, 68 S. W. 427; Porter v. Howe,
173 Mass. 521, 54 N. E. 255; Lang-
stroth V. Golding, 41 N. J. Bq. 49,
3 Atl. 151; Thompson v. Thomp-
son, 3 Demarest (N. Y.) 409; Mat-
ter of Title Guarantee & Trust
Co., 195 N. Y. 339, 88 N. E. 375,
reversing 127 App. Div. 118, 111
N. Y. Supp. 169; Alsop v. Bowers,
.76 N. C. 168; Strohm's Appeal, 23
Pa. St. 351; In re Martin, Peti-
tioner, 25 R. L 1, 54 Atl. 589;
Lynch v. Spioer, 53 W. Va. 426,
44 S. B. 255.
The will provided a fund, the
income of which was to be paid
to a named person for life, and
upon his death to go to the resid-
uary legatees, naming them, as a
part of the residuum under the
residuary clause. The estate being
insufficient and the general lega-
cies having abated, including the
legacy of the fund, that legEcy
upon the death of the life tenant
goes to make up the other general
legacies until they have been paid
in full before the residuary lega-
tees get any part of it. — Louisville
P. T. Seminary v. Fidelity Trust
& S. V. Co., 113 Ky. 336, 68 S. W.
427.
11 Warren v. Morris, 4 Del. Ch.
289.
ABATEMENT OF LEGACIES. 1023
no express provision for the payment of debts, the courts
will supply it by implication.^^
§ 693. General Legacies, Abatement Of.
Where general legatees are volunteers, partaking of
the testator's bounty, and the assets of the estate are
sufficient to pay the debts and to satisfy the specific and
demonstrative legacies, but are insufficient to settle the
general legacies, in the absence of provisions to the con-
trary, the last named class abate proportionally.'^ If
the residue has been exhausted and the funds of the estate
are insufficient to pay all legacies, general legacies must
be exhausted before specific legacies may be called upon
to abate.^*
§ 694. Annuities, Abatement Of.
Annuities are also paid before anything passes to the
residuary legatee, no matter what may be the value of
12 Alsop V. Bowers, 76 N. C. 168. 62 N. E. 936; Humes v. Wood, 8
13 Barton v. Cooke, 5 Ves. Jun. Pick. (25 Mass.) 478; Corrigan v.
461; Emery v. Batchelder, 78 Me. Reid, 40 111. App. 404; Barton v.
233, 3 Atl. 733; Loring y. Thomp- Cooke, 5 Ves. Jun. 461; Wallace v.
son, 184 Mass. 103, 68 N. B. 45; Wallace, 23 N. H. 149; Bonham
Carpenter's Estate v. Wiley, 166 v. Bonham, 33 N. J. Eq. 476; Mat-
Iowa 48, 147 N. W. 175; Towle ter of Matthews, 122 App. Div. 605,
V. Swasey, 106 Mass. 100; Dun- 107 N. Y. Supp. 301; McGoldrick v.
can V. Township of Franklin, Bodkin, 140 App. Div. 196, 125
43 N. J. 143, 10 Atl. 546; In re N. Y. Supp. 101; Hamilton v. Ham-
Newman, 4 Demarest (N. Y.) 65; llton, 75 Misc. Rep. 21, 134 N. Y.
Matter of Merritt, 86 App. Div. Supp. 645; Heath v. McLaughlin,
179, 83 N. Y. Supp. 213; affirmed, 115 N. C. 398, 20 S. E. 519; Baptist
176 N. Y. 608, 68 N. B. 1119 ; He^th Female tJniversity v. Borden, 132
V. McLaughlin, 115 N. C. 398, 20 N. C. 476, 44 S. E. 47, 1007; Penn-
S. E. 519; Nlckerson v. Bragg, 21 sylvania University's Appeal, 97
R. I. 296, 43 Atl. 539. Pa. St. 187; Nickerson v. Bragg,
14Rexford v. Bacon, 195 111. 70, 21 R. I. 236, 43 Atl. 539.
1024
COMMENTARIES ON THE LAW OF WILLS.
the testator's estate.^'' Annuities charged on the personal
estate are classed as general legacies, and the rule as to
abatement is the same, neither having any preference.^®
If, however, the annuities are given as specific gifts
chargeable to and as an interest in real estate, they do
not abate with legacies charged against the estate gener-
ally, there being a deficiency of assets to pay both such
annuities and legaoies.^^
§ 695. Specific Legacies and Devises, Abatement Of.
Specific devises of realty and specific bequests of per-
sonalty abate only after the residuary and general lega-
cies have been exhausted ; they abate only for the purpose
of paying the debts and expenses of the estate, the abate-
ment being proportional.^^ A deficiency of assets to sat-
16 Croly V. Weld, 3 De G., M.
6 G. 993, 995; Arnold v. Arnold,
2 Myl. & K. 365, 374; In re Tootal's
Estate, 2 Ch. Div. 628; Porter v.
Howe, 173 Mass. 521, 54 N. E. 255.
16 Hunae v. Edwards, 3 Atk. 693;
Inness v. Mitchell, 1 Phill. Ch.
Cas. 710, 716; Emery v. Batch-
elder, 78 Me. 233, 3 Atl. 733; Penn-
sylvania University's Appeal, 97
Pa. St. 187.
Compare: Smith v. Fellows, 131
Mass.. 20.
The rule applies whether the
annuity is to commence at once
after the death of the testator, or
at a future date. — Inness v. Mitch-
ell, 2 Phill. Ch. Gas. 346.
17 Creed v. Creed, 11 CI. & F.
491; Portarlington v. Damer, 4
De G., J. & S. 161; Coore v. Todd,
7 De G., M. & G. 520; Towle v.
Swasey, 106 Mass. 100.
18 Hensman v. Fryer, L. R. 3
Ch. App. Cas. 420; Gervis v. Ger-
vis, 14 Sim. 654; Maybury v.
Grady, 67 Ala. 147; In re Wood-
worth's Estate, 31 Cal. 595; In re
Neistrath's Estate, 66 Cal. 330, 5
Pac. 507; In re De Bernal's Estate,
165 Cal. 223, Ann. Cas. 1914D, 26,
131 Pac. 375; Angus v. Noble, 73
Conn. 56, 46 AO. 278; In re Par-
son's Estate, 150 Iowa 230, 129
N. W. 955; Lewis v. Sedgwick,
223 111. 213, 79 N. E. 14; Chase v.
Lockerman, 11 Gill & J. (Md.)
185, 35 Am. Dec. 277; Nash v.
Smallwood, 6 Md. 394; Porter y.
Howe, 173 Mass. 521, 54 N. E.
255; Cooney v. Whitaker, 192
Mass. 596, 78 N. B. 751; Tuell v.
Hurley, 206 Mass. 65, 91 N. E.
1013; In re Corby's Estate, 154
Mich. 353, 117 N. W. 906; In re
Drew's Estate, 195 Mo. App. 628,
ABATEMENT OF LEGACIES.
1025
isfy the general legacies will not cause specific legacies
to abate unless such general legacies are made a special
charge upon the specific legacies or the personal estate
and there are no other assets from which they may be sat-
isfied;^® otherwise, specific legacies are not subject to
187 S. W. 788; Nowack v. Berger,
]33 Mo. 24, 34, 54 Am. St. Rep.
663, 31 L. R. A. 810, 34 S. W. 489;
Wallace v. Wallace, 23 N. H. 149;
Bonham v. Bonham, 33 N. J. Eq.
476; Hamilton v. Hamilton, 75
Misc. Rep. 21, 134 N. Y. Supp. 645;
Taylor v. Dodd, 58 N. Y. 335;
Glass V. Dunn, 17 Ohio St. 413;
Hallowell's Estate, 23 Pa. St. 223;
Armstrong's Appeal, 63 Pa. St.
312; Wood v. Hammond, 16 R. I.
98, 17 AU. 324, 18 Atl. 198;
M'Fadden v. Hefley, 28 S. C. 317, 13
Am. St. Rep. 675, 5 S. E. 812.
By making a legacy specific the
testator gives tlie strongest ex-
pression of an intention to exempt
It from deduction or abatement. —
In re Drew's Estate, 195 Mo. App.
628, 187 S. W. 788.
The reason that specific lega-
cies are preferred over residuary
legacies seems to be that if, when
the testator made the will and
specified the legacies, he knew
that he had not sufficient personal
property to pay them, he should
be deemed to have intended to
subject his residuary real estate
to the burden of payment, or
otherwise he must be deemed to
have made his will a mere trick
upon the legatees. — McGoldrlck v.
Bodkin, 140 App. Dlv. (N. Y.) 196,
125 N. Y. Supp. 101.
rr Com on Wills— 11
By the statute of 3 and 4
Wm, IV., ch. 104, in England, and
by statute in most of these United
States, the real property of the
estate of a decedent is liable for
his debts as well as the person-
alty, and therefore there seems no
reason why specific legatees,
whose legacies have been dis-
posed of in order to pay the debts
of the estate, can not call upon
specific devisees to contribute to
their loss. — Jackson v. Pease, L. R.
19 Eq. 96; Maybury v. Grady, 67
Ala. 147; In re Woodworth's Es-
tate, 31 Cal. 595, 616; Brant v.
Brant, 40 Mo. 266, 280; In re
Grim's Appeal, 89 Pa. St. 333.
But see, contra: Shreve's Exrs.
V. Shreve, 10 N. J. Eq. 385, 391;
Rogers v. Rogers, 1 Paige Ch.
(N. Y.) 188, 190; M'Fadden v.
Hefley, 28 S. G. 317, 13 Am. St.
Rep. 675, 5 S. E. 812; Elliott v.
Carter, 9 Gratt. (Va.) 541, 549.
If lands are not made subject
to simple debts, specific devises
will be preferred over specific
legacies. — Dugan v. HoUins, 11
Md. 41.
3 9 Sayer v. Sayer, Prec. Ch. 392;
Biddle v. Carraway, 6 Jones Eq.
(59 N. C.) 95; White v. Green, 1
Ired. Eq. (36 N. 0.) 45.
1026
COMMENTARIES ON THE LAW OP WILLS.
abatement although the general and residuary legacies
may be almost exhausted.*"
§ 696. Demonstrative Legacies, Abatement Of.
Where the fund out of which demonstrative legacies
are to be satisfied is sufficient for such purpose, specific
and demonstrative legacies are placed on the same foot-
ing with regard to abatement.*^ Demonstrative legacies
are preferred to general legacies in so far as they can be
20 Clifton V. Burt, 1 P. Wms.
678; Hayes v. Seaver, 7 Me. 237;
Stevens v. Pisher, 144 Mass. 114,
10 N. B. 803; Wallace v. Wallace,
23 N. H. 149; Lynch's Estate, 13
Phila (Pa.) 322; Wilson's Estate,
15 Phila. (Pa.) 528; Douglas v.
Baber, 15 Lea (Tenn.) 651.
A specific devise of land can not
be reduced by taking part of it to
satisfy the widow's dower. — Rice
V. Rice, (Iowa) 119 N. W. 714.
Sometimes under statutes, the
specific legatees take subject to
the widow's rights, and in that
case they will be compelled to
abate to pay the widow's share if
the estate is not sufficient for that
purpose without such abatement.
—Lewis V. Sedgwick, 223 111. 213,
79 N. B. 14.
A specific legacy will be pro-
tected as against a general legacy,
not only against debts but also the
expenses of administration in the
settlement of the estate, when it
appears that such was the inten-
tion of the testator. — ^In re Corby's
Estate, 154 Mich. 353, 117 N. W.
906.
When the assets are insufficient,
the deficiency must be borne
ratably by the legacies which are
not specific. — Hall v. Smith, 61
N. H. 144.
21 Dugan V. Hollins, 11 Md. 41;
O'Day V. O'Day, 193 Mo. 62, 4
L. R. A. (N. S.) 922, 91 S. W. 921;
Armstrong's Appeal, 63 Pa. St 312.
"While demonstrative legacies
do not abate until general legacies
are exhausted, they do abate with
specific legacies, after the general
ones are exhausted, in order to
pay debts." — ^Matthews v. Targa-
rona, 104 Md. 442, 10 Ann. Cas.
153, 65 Atl. 60.
Where all the legacies are
demonstrative, there is a pre-
sumption that the testator did not
intend to give one legacy a prefer-
ence over others in the absence of
any statement showing such inten-
tion, and therefore they will abate
proportionately in case of an in-
sufficiency of assets to pay them
all in full. — Estate of Apple, 66
Cal. 432, 6 Pac. 7; Matthews v.
Targarona, 104 Md. 442, 10. Ann.
Cas. 153, 65 Atl. 60; Alsop v.
Bowers, 76 N. C. 168.
ABATEMENT OF LEGACIES. 1027
paid out of the fund designated for that purpose ;*^ but
when that fund is exhausted and they remain unsatisfied,
as to the unpaid portion they lose their specific charac-
ter and stand as general legacies.^^ When demonstrative
legacies thus become general, they abate pro rata with
general legacies.^* If part of the demonstrative legacy be
paid out of the fund, only the balance is liable to abate
with the general legacies, if the general estate be not suf-
ficient to meet them all.^*
§ 697. Legacies Given for a Valuable Consideration.
An exception to the rule that aU the general legacies
abate proportionally where there is a deficiency of
assets, is made in the case of legacies bequeathed for a
valuable consideration ; for where a general legacy is sus-
tained by a valuable consideration, such as the relinquish-
ment of a debt, and the right to the claim constituting
the consideration subsists at the testator's death, the
legatee is entitled to the fuU payment of his legacy in
preference to the other general legatees who take merely
of the testator's bounty.^^ But money to pay the debts
22 Baptist Female University v. O'Day v. O'Day, 193 Mo. 62, 4
Borden, 132 N. C. 476, 44 S. E. 47, L. R. A. (N. S.) 922, 91 S. W. 921;
1007; Myers v. Myers, 88 Va. 131, Alsop v. Bowers, 76 N. C. 168;
13 S. B. 346; Dunford v. Jackson's Dunn's Exrs. v.Renick, 40 W. Va.
Exrs., (Va.) 22 S. E. 853. 349, 22 S. E. 66.
A legacy from a designated fund 24 MuUins v. Smith, 1 Drew. &
is not extinguished if the fund Is Sm. 204; Gelbach v. Shively, 67
replenished and is a continuous Md. 498, 501, 10 Atl. 247; Matter
existing fund. — Succession of of Warner, 39 Misc. Rep. (N. Y.)
Shaffer, 50 La. Ann. 601, 23 So. 432, 79 N. Y. Supp. 363.
739. 25 Sellon v. Watts, 7 Jur. N. S.
23 Mullins V. Smith, 1 Drew. & Dig. 134.
Sm. 204; Gelbach v. Shively, 67. 26 Burridge v. Bradyl, 1 P. Wms.
Md. 498, 10 Atl. 247; Hihler v. Hib- 127; Blower v. Morret, 2 Ves. Sen.
ler, 104 Mich. 274, 62 N. W. 361; 420; Norcott v. Gordon, 14 Sm.
1028
COMMENTARIES ON THE LAW OF WILLS.
258; DavenMU v. Fletcher, Amb.
244; Simmons v. Vallance, 4 Bro.
C. C. 345, 349; Clayton v. Akin,
38 Ga. 320, 95 Am. Dec. 393; Bu-
chanan V. Pue, 6 Gill (Md.) 112;
Towle V. Swasey, 106 Mass. 100;
McLean v. Robertson, 126 Mass.
537; Ellis v. Aldrlch, 70 N. H. 219,
47 Atl. 95 ; Duncan v. Township of
Franklin, 43 N. J. Bq. 143, 10 Atl.
546; Day v. Dey's Admr., 4 Green
C. E. (19 N. J. Eq.) 137; In re
Knecht's Appeal, 71 Pa. St. 333;
In re Gassman's Estate, 14 Phila.
(Pa.) 308; Brown v. Brown, 79 Va.
648.
Where a legacy was given to
one with whom the testator had
a current account upon condition
of his executing a release of all
demands against the estate, and
it did not appear whether any debt
was due him, it was held that he
could not be regarded as standing
in the light of a purchaser of his
legacy until it was made to appear
that some debt was due him. —
Davies v. Bush, 1 Younge 341.
"So legacies given to those cred-
itors with whom compromises had
been made, at less than the full
amount of their claims, are not
regarded as upon consideration."
— Coppin V. Coppin, 2 P. Wms. 291.
The debt must exist at the tes-
tator's death, but the fact that it
is unenforceable because of the
Statute of Limitations is immate-
rial. But a legacy from a mere
sense of moral obligation is not
given for a valuable consideration.
— Matthews v. Targarona, 104 Md.
442, 10 Ann. Cas. 153, 65 Atl. 60;
Duncan v. Township of Franklin,
43 N. J. Eq. 143, 10 Atl. 546.
The expression, "for his services
in assisting me at different times,"
does not in itself import an in-
debtedness for which payment
may be exacted, for the services
may have been rendered gratu-
itously and the legacy given in
grateful recognition thereof. —
Duncan v. Township of Franklin,
43 N. J. Bq. 143, 10 Atl. 546.
Where the will provided that
the beneficiary "shall continue to
live as housekeeper with" the hus-
band of testatrix, and she did so
until his death, the beneficiary can
not be regarded as a volunteer.
After full performance on her part
she has the right to demand pay-
ment in full, and it is immaterial
that her wages have been fully
paid by the husband. — Estate of
Gassman, 14 Phila. (Pa.) 308.
Where the legatee for many
years prior to the testator's death
had rendered services as house-
keeper and nurse, for which she
had received no fixed compensa-
tion, and for which the testator
had agreed to provide by his will,
and a legacy was made "to be in
full payment and discharge of
claims of every kind she may have
against my estate," and she had
never presented any claim, but
had elected to accept this provi-
sion of the will, she will be enti-
tled to be paid her legacy in full. —
Reynolds v. Reynolds, 27 R. I. 520,
63 Atl. 804.
The testator must have been in-
debted to the legatee at the time
ABATEMENT OF LEGACIES.
1029
of a friend,"^ legacies to an executor as a reward for
services, but not in lieu of commissions,^* or legacies for
a specific purpose suchi as the purchase of mourning
rings,^^ or to servants or to charity,^" have no pre-
eminence over other general legacies in regard to abate-
ment.
§ 698. Legacy to Widow in Lieu of Dower.
A legacy given by the testator to his wife in lieu of her
dower rights, if accepted, is a legacy for a valuable con-
sideration. A widow who relinquishes her dower and ac-
cepts, in the place thereof, a legacy or devise in her
favor, is regarded as a purchaser and not as a volun-
teer, and devises and legacies to others will first abate
to pay the debts of the estate.*^ The rule applies even
of the making of the will, and the
legatee must forego his debt for
the legacy. — ^Heyes v. Moerlein,
(Tex. Civ.) 94 S. W. 446; affirmed,
100 Tex. 245, 97 S. W. 1040.
27 Shirt V. Westby, 16 Ves. Jun.
393.
28 Attorney-General v. Robins,
2 P. Wms. 23; Read v. Strang-
ways, 14 Beav. 139; Duncan v.
Watts, 16 Beav. 204; Heron v.
Heron, 2 Atk. 171; Fretwell T.
Stacy, 2 Vem. 434; Waters v. Col-
lins, 3 Demarest (N. Y.) 374.
Compare: In re Harper's Ap-
peal, 111 Pa. St. 243, 247, 2 Atl.
861.
29 Apreece v. Apreece, 1 Ves. &
B. 364.
Where the assets are insufficient
to pay the general legacies in full,
a legacy in trust for the care of a
cemetery lot will be abated in
common with other general lega-
cies.— Ellis V. Aldrich, 70 N. H.
219, 47 Atl. 95.
30 Attorney-General v. Robins, 2
P. Wms. 23.
31 Heath v. Dendy, 1 Russ. 543;
Davenhill v. Fletcher, Amb. 244;
Maybury v. Grady, 67 Ala. 147;
Lord V. Lord, 23 Conn. 327; Se-
curity Co. V. Bryant, 52 Conn. 311,
52 Am. Rep. 599; Warren v Mor-
ris, 4 Del. Ch. 289; Clayton v.
Aikin, 38 Ga. 320, 95 Am. Dec. 393;
Corrigan v. Reid, 40 111. App. 404;
Addition v. Smith, 83 Me. 551, 22
Atl. 470; Hubbard v. Hubbard, 47
Mass. (6 Mete.) 50; Pope v. Pope,
209 Mass. 432, 95 N. E. 864; Mat-
ter of Gotzian, 34 Minn. 159, 57
Am. Rep. 43, 24 N. W. 920; Ellis
V. Aldrich, 70 N. H. 219, 47 Atl. 95;
Plum V. Smith, 70 N. J. Eq. 602,
62 Atl. 763; In re Dolan, 4 Redf.
1030
COMMENTARIES ON THE LAW OF WILLS.
though the value of the legacy greatly exceeds that of the
dower rights which are waived.*^ The transaction has
the force of a contract between the testator and his
widow ; consequently on a deficiency of assets to pay the
debts of the estate, her legacy in lieu of dower is only
liable for such deficiency as may remain after the other
assets have been exhausted.**
Where the will does not provide in terms that a legacy
or devise to the wife of the testator is in lieu of dower,
yet where there is a statutory regulation that ' ' every de-i
%dse or bequest by the husband or wife to the other shall
be holden to be in lieu of the rights which either has
(N. Y.) 511; Williamson v. Will-
iamson, 6 Paige Ch. (N. Y.) 298;
Dunning v. Dunning, 82 Hun
(N. Y.) 462, 31 N. Y. Supp. 719;
Matter of McKay, 5 Misc. Rep.
(N. Y.) 123, 25 N. Y. Supp. 725;
In re Kirk's Estate, 13 PMla. (Pa.)
276; Potter v. Brown, 11 R. I. 232;
Boykin v. Boykin, 21 S. C. 513;
Brown v. Brown, 79 Va. 648.
"It overtops all legacies, specific
as well as general. It is a right
superior even to the claims of
creditors, and when she accepts
the offer of exchange, tendered
her in the wUl, and gives up her
dower, she pays a valuable con-
sideration for the portion which
she accepts." — Clayton v. Aikin,
3S Ga. 320, 95 Am. Dec. 393.
A legacy given in lieu of dower
will not abate if at the time of
the making of the will the wife
had an inchoate right to any
dower out of the testator's estate.
—Plum v. Smith, 70 N. J. Bq. 602,
62 Atl. 763.
32 Davenhill v. Fletcher, Amb.
244; Warren v. Morris, 4 Del. Ch.
289; Ellis v. Aldrich, 70 N. H. 219,
47 Atl. 95; Brown v. Brown, 79 Va.
64S.
"A general legacy to a widow in
lieu of dower, accepted by her,
stands upon a different footing
from other general legacies
merely voluntary. It will be enti-
tled in payment of it to a prefer-
ence over such general legacies,
even when the amount of the be-
quest exceeds the value of her
dower, for in this matter the testa-
tor is the only and best judge of
the price at which he purchased
it." The widow is "a favored pur-
chaser for a fair consideration." —
Durham v. Rhodes, 23 Md. 233,
242, quoted with approval in Mat-
thews V. Targarona, 104 Md. 442,
10 Ann. Gas. 153, 65 Atl. 60.
33 Warren v. Morris, 4 Del. Ch.
289.
ABATEMENT OF LEGACIES. 1031
by law in the estate of the other, unless it shall appear
by the will that such was not the intention," and it clearly
appears that the devise or legacy was not intended to
be in addition to the widow's right of dower, the statute
may be read into the will. The widow may then elect
to take under the will, or may claim such rights as the
law gives her. If she accepts the legacy or devise, she is
as much a purchaser as though the statutory provisions
had been set forth at length in the testament.**
§699. The Same Subject: The WiU May Provide That Such
Legacies Abate.
A testator may charge a legacy or devise in lieu of
dower with the payment of his debts, and if the widow
accepts, the legacy or deArise is subject to abatement. The
intention to so charge the gift may be implied.^^ Thus,
if the testator expressly directs that all legacies shall
abate ratably in case of an insufiSciency of assets, and the
widow elects to accept a legacy under the will in lieu of
dower, such legacy has no preference over others of the
same class.**
§ 700. Legacy or Devise in Exercise of a Power of Appoint-
ment.
A legacy or devise made of the corpus of property
under a power of appointment exercised by will, is con-
34 Ellis V. Aldrich, 70 N. H. 219, titled to the whole of the sum
47 Atl. 95. given by the will in preference to
Where a wife accepts a provi- other legatees. — Pope v. Pope, 209
sion in her husband's will as a Mass. 432, 95 N. E. 864.
substitute for her dower, or where 35 Warren v. Morris, 4 Del. Ch.
the widow loses her dower by not 289.
waiving the provisions of the will, 36 Tlckel v. Quinn, 1 Demarest
even though the will does not spe- (N. Y.) 425; In re Kline's Appeal,
cifically provide that the gift is in 117 Pa. St. 139, 148, 11 Atl. 866.
lieu of dower, the widow is en-
1032 COMMENTARIES ON THE LAW OF WILLS.
sidered as coming from the donor of the power, the testa-
ment of the donee of the power being merely an instrumen-
tality whereby the beneficiary is designated.*'^ The com-
mon law rule is that if the donee of a power of appoint-
ment execute it by will in favor of a volunteer, and there
are insufficient assets in his estate to pay his debts, the
property appointed is subject to the claims of creditors.**
Although this is questioned, yet property over which a
testator has exercised a power of appointment should not
be subjected to the payments of his debts until his own
property has been first exhausted.*® If the power be exe-
cuted for a valuable consideration, the creditors of the
testator can not reach the property.*" If the appoint-
ment is made in favor of several and the property is in-
sufficient to satisfy the gifts, they abate proportionally ;*^
and if some are specific and the remainder residuary, the
latter abate first.*^
§ 701. Additional Legacies Given by Codicil.
Additional legacies given by a codicil, in the absence
of anything in the codicil indicating a contrary intent,
are subject to the same conditions as the original legacies
37 See § 280. Wales v. Bowdish, 61 Vt. 23, 4
38 Thompson v. Towne, 2 Vern. L. R. A. 819, 17 Atl. 1000.
319; In re Harvey (Godfrey v. Har- 39 White v. Massachusetts Inst,
ben), 13 Ch. Div. 216; Williams of Technology, 171 Mass. 84, 50
V. Lomas, 16 Beav. 1; In re Hodg- N. E. 512. See, also, Patterson v.
son, (1899) 1 Ch. 666; Brandies v. Lawrence, 83 Ga. 703, 7 L. R. A.
Cochrane, 112 U. S. 344, 28 L. Ed. 143, 10 S. E. 355.
760, 5 Sup. Ct. 194; Clapp V. Ingrar 4 o Hart v. Middlehurst, 3 Atk.
ham, 126 Mass. 200; Johnson v. 371, 377; Patterson v. Lawrence,
Gushing, 15 N. H. 298, 41 Am. Dec. 83 Ga. 703, 7 L. R. A. 143, 10 S. E.
694; Tallmadge v. Sill, 21 Barb. 355.
(N. Y.) 34, 51. 4iEales v. Drake, 1 Ch. Div.
Contra: Cutting v. Cutting, 86 217; De Lisle v. Hodges, 43 L. J.
N. Y. 522; Commonwealth v. Duf- Ch. 385.
field, 12 Pa. St. 277. See, also, 42 In re Currie, 57 L. J. Ch. 743.
ABATEMENT OF LEGACIES. 1033
given by the will,*^ and mil abate pro rata with them
"whenever there is any deficiency of assets.** This is es-
pecially true where in the codicil the testator directs that
"all the other legacies hereinbefore given by me shall
abate in proportion."*^
§ 702. Order in Which Legacies Are Stated Is Immaterial.
The order in which the various legacies appear in the
will, being designated as "first," "second," and the like,
does not evidence any design on the part of the testator
that the legacies shall be satisfied in full in the order
set forth in the will. Such designating words refer merely
to the successive order in which the bequests are made,
and do not import an intention to prefer one legacy over
another.*®
§ 703. Time of Payment Generally Immaterial.
Pecuniary legacies, as a general rule, abate proportion-
ally notwithstanding any direction in the will as to the
time of payment. In other words, though the payment
of a legacy is deferred to a future date, it ranks equally
with other legacies which are directed to be immediately
paid, and neither are entitled to priority.*'^ A testator,
43 Matter of Frankenheimer (In 46 In re Hardy (Wells v. Bor-
re Gans' Will), 130 App, Div. wick), 17 Ch. Div. 798; Johnson
(N. Y.) 454, 114 N. Y. Supp. 975; v. Child, 4 Hare 87, 67 Eng. Repr.
affirmed in 195 N. Y. 346, 133 Am. 572; Beeston v. Booth, 4 Madd.
St. Rep. 803, 88 N. E. 374. 161, 56 Eng. Repr. 667; Wells v.
See § 689. Berwick (In re Hardy), 50 L. J.
44 Washburn v. Sewall, 4 Mete. Ch. 241; Everett v. Carr, 59 Me.
(45 Mass.) 63; Pond v. Allen, 15 325; Matter of McKay, 5 Misc.
R. I. 171, 2 Atl. 302; Gallego's Rep. (N. Y.) 123, 25 N. Y. Supp.
Exrs. V. Attorney-General, 3 Leigh 725.
(Va.) 450, 24 Am. Dec. 650. 47 Blower v. Morret, 2 Ves. Sr.
45 Moore's Exr. v. Moore, 50 420; Inness v. Mitchell, 2 Phill.
N. J. Eq. 554, 25 Atl. 403. Ch. Cas. 346; Nicklsson v. Cockill,
1034
COMMENTARIES ON THE LAW OF WILLS.
hovever, in designating the time and purpose of the pay-
ment, may evidence a preference. A legacy to hi^ wife
which is intended by the testator to be paid to her before
the proceeds of his property should be invested (under
direction of the will) for her use, will not abate in favor
of legacies not payable until two years after the death of
the widow.*^
§704. Belationship of Legatee to Testator Generally Imma-
terial.
The mere fact that a legatee is closely bound to the tes-
tator by ties of blood or dependence, or the fact that
the legacy is for a worthy cause, gives no right of pref-
erence.*^ But by statute in some jurisdictions, legacies
to strangers abate before those of the same class to kin-
dred;^" and legacies for the support and maintenance
3 De G., J. & S. 622, 46 Eng. Repr.
778; Wood v. Hammond, 16 R. I.
98, 17 Atl. 324, 18 Atl. 198.
48 Dey V. Dey's Admr., 19 N. J-.
Eq. 137.
49 Pollard V. Pollard, 1 Allen
(Mass.) 490; Famum v. Bascom,
122 Mass. 282; Richardson v. Hall,
124 Mass. 228; Matter of Merritt,
86 App. Div. 179, 83 N. Y. Supp.
213; affirmed, 176 N. Y. 608, 68
N. E. 1119; Titus v. Titus, 26 N. J.
Eq. 111.
Compare: King v. Gridley, 46
Conn. 555; In re Chauncey, 119
N. Y. 77, 7 L. R. A. 361, 23 N. E.
448.
Bequest to a wife: McGlaughlin
V. McGlaughlin, 24 Pa. St. 20, 22;
Pennsylvania University's Appeal,
97 Pa. St. 187; Titus v. Titus, 26
N. J. Eq. 111.
Compare: Wells v. Berwick (In
re Hardy), 50 L. J. Oh. 241.
Bequests to children: Blower v.
Morret, 2 Ves. 420; Miller v. Hud-
dlestone, 3 M. & G. 513, 529; Bab-
bidge V. Vittum, 156 Mass. 38, 30
N. B. 77.
50 In California, by statute, the
property of the estate is resorted
to In the following order for the
payment of legacies: (1) Prop-
erty expressly appropriated for
such purpose; (2) property undis-
posed of by will; (3) property cov-
ered by residuary clause, and (4)
property not specifically devised
or bequeathed. Legacies to a hus-
band, widow, or kindred of any
class, are chargeable only after
legacies to persons not related to
the testator; and abatement takes
place in any class only as between
ABATBMEINT OP LEGACIES. 1035
of a widow or minors closely related to the testator are
preferred over legacies of the same class to strangers.^^
§ 705. Devastavit by Executor.
Where, at the death of the testator, siifBcient property
comes into the hands of the executor to pay all debts,
satisfy' all legacies and devises and leave a residue, it
has been held that if subsequent waste occurs by reason
of mismanagement by the executor, so that the residue
is diminished or exhausted, the residuary legatee can
not call upon the others to contribute, but must bear
the whole loss.^^ The contrary, however, has been held,
to the effect that such loss must be borne pro rata by all
beneficiaries under the will.^^ This, however, was denied
even as between general and specific legatees, although
both classes were equally innocent of wrong doing, and
the rule first stated was adhered to.^*
legacies of that class unless a dif- Compare: Dyose v. Dyose, 1
ferent intention be expressed in P. Wms. 305, criticised in Fon-
the will.— Cal. Civ. Code, §§ 1360- nereau v. Poyntz, 1 Bro. C. C. 472,
1362. 477.
51 In New York, legacies for the 53 Henry v. Griffls, 89 Iowa 543,
support and maintenance of a 56 N. W. 670.
widow and children unprovided 54 Farmers' Loan & Trust Co.
for elsewhere, and for the main- v. McCarthy, 128 App. Div. (N. Y.)
tenance and education of minors 621, 113 N. Y. Supp. 207, over-
closely related to the testator, al- ruling 56 Misc. Rep. 413, 107 N. Y.
though not his children, do not Supp. 928.
abate with general legacies. — Sco- Where legacies have once been
field v. Adams, 12 Hun (N. Y.) properly paid, it is said they can
366; Stewart v. Chambers, 2 not be required thereafter to con-
Sandf. Ch. (N. Y.) 382, 393; Bliven tribute to the general fund be-
V. Seymour, 88 N. Y. 469, 475. cause of devastavit by the execu-
62Willmott v. Jenkins, 1 Beav. tor. — Farmers' Loan & Trust Co.
401; Baker v. Farmer, L. R. 3 Ch. v. McCarthy, 128 App. Div. (N. Y.)
537; Page v. Leapingwell, 18 Ves. 621, 113 N. Y. Supp. 207.
Jun. 466.
1036 COMMENTARIES ON THE LAW OF WILLS.
§ 706. To Make Up Share of a Pretermitted Heir,
In most jurisdictions, by statute, pretermitted children,
and after-born and posthumous children unmentioned or
unprovided for by the testator in his will, take such part
of the estate as if the testator had died intestate. If there
be not sufficient estate undisposed of by will to satisfy
such claims, all legacies and devises abate ratably to raise
the necessary amount.^® The general rule is that all lega-
cies and devises are charged ratably, the value of the
interest of such omitted heir being fixed according to
the value of the testator's estate at the time of his death
after the payment of the debts and expenses.®*
§707. Burden of Proof.
The beneficiary who seeks preference and contends that
a legacy in his favor should not abate ratably with others
of the same class, has the burden of proof and he must
show affirmatively that such was the intention of the tes-
tator. The reason for the rule is that the testator is pre-
sumed, in the absence of clear provisions to the contrary,
to have considered his estate sufficient to pay all debts
r,B In re Ross' Estate, 140 Cal. the testator in relation to some
282, 73 Pac. 976; In re Smith's specific devise or bequest, or other
Estate, 145 Cal. 118, 78 Pac. 369; provision in the will, would
Ward V. Ward, 120 IlL ill, 11 N. E. thereby be defeated; in such case,
336; Bowen v. Hoxie, 137 Mass. such specific devise, legacy or pro-
527, 530. vision, may be exempted from
As to rights of pretermitted, such apportionment, and a differ-
after-bom, and posthumous chil- ent apportionment, consistent with
dren, see §§ 630-632. the intention of the testator, may
As to remedies of pretermitted be adopted."
heirs, see § 640. 50 In re Smith's Estate, 145 Cal.
The California statute. Civ. 118, 78 Pac. 369; Rockwell v.
Code, § 1308, requires contribution Geery, 4 Hun (N. Y.) 606; Sanford
from all legatees and devisees v. Sanford, 4 Hun (N. Y.) 753;
"unless the obvious intention of Johnson v. Chapman, 54 N. C. 130.
ABATEMENT OF LEGACIES.
1037
and legacies, and therefore not to have thought it nec-
essary to provide for a deficiency by giving a preference
to any of those upon whom he bestows his bounty.^''
B7 Emery v. Batchelder, 78 Me.
233, 3 Atl. 733; Matthews t. Tar-
garona, 104 Md. 442, 10 Ann. Cas.
153, 65 AU. 60.
The mere production of the will
by which a legacy was given in
these words, "I give and bequeath
H. B. D. for his services in assist-
ing me at different times, the sum
of two thousand dollars," and
which was executed more than six
years before the testatrix's death,
does not, without further evi-
dence, sustain this burden of
proof. — Duncan v. Township of
Franklin, 43 N. J. Eg. 143, 10 Atl.
546.
CHAPTEE XXVI.
ADEMPTION AND SATISFACTION OF LEGACIES AND DEVISES.
§ 708. Ademption defined.
§ 709. Ademption and satisfaction distinguished.
§ 710. The same subject.
§ 711. The same subject : The class of legacy to which each is
applicable.
§ 712. Effect of ademption.
§ 713. Adeemed or satisfied legacies not revived by republica-
tion or re-execution of will.
§ 714. As to evidence of the testator's intention.
§ 715. The same subject.
§ 716. Ademption by act of the testator : Delivery by testator
to legatee.
§ 717. Ademption by loss or destruction of property specifically
bequeathed.
§ 718. Ademption by alienation of property bequeathed.
§ 719. Ademption by change in form of property bequeathed.
§ 720. The same subject : Conversion after testator's death, or
while he is of unsound mind.
§ 721. Ademption by removal of property.
§ 722. Ademption by fulfillment of purpose for which legacy
was given.
§ 723. Satisfaction of general legacies.
§ 724. "Where legatee is a stranger : Presumptions.
§ 725. Legacy of a debt paid before testator's death.
§ 726. Legacy to debtor by creditor : No presumption that debt
is forgiven.
§ 727. The same subject : Parol evidence of intention.
§ 728. Legacy to creditor as satisfaction of debt : General rule.
§ 729. The same subject : Exceptions to general rule.
§730. The term "advancements" defined: Gifts and debts dis-
tinguished.
( 1038 )
ADEMPTION AND SATISFACTION. 1039
§ 731. Meaning of "in loco parentis."
§ 732. The same subject : Gift by parent to spouse of child.
§ 733. Legacy must precede advanced portion in point of time,
otherwise no deduction.
§ 734. Presumption as to advanced portions : General rule.
§735. The same subject: Slight differences between gift and
legacy.
§ 736. The same subject: Exceptions to general rule.
§ 737. Reason for presumption of satisfaction of legacy by ad-
vanced portions.
§ 738. Advancements, value thereof and interest thereon.
§ 739. Statutory regulations as to gifts and advancements.
§ 740. Evidence of testator 's intention : Statutory regulations
and provisions of the will.
§ 741. The same subject : Parol declarations and other evi-
dence.
§ 742. The same subject : Oral declarations : By whom, time
when made, and parties present.
§ 743. The same subject : Declarations against interest.
§ 744. A devise of real property fails if the testator has no in-
terest therein at his death.
§ 745. The same subject : Effect of re-acquiring ownership.
§ 746. The same subject : Effect of agreement to seU.
§ 747. The same subject : Effect of mortgage.
§ 748. The same subject : Realty directed to be converted into
money.
§ 708. Ademption Defined.
Ademption, properly, has reference only to legacies,
the term not being applicable to devises of real estate.'^
Swinburne says ademption is taking away a legacy which
was before bequeathed, which may be done by an express
1 Davys v. Boucher, 3 Y. & C. Ind. 511; In re Brown's Estate,
397; Marshall v. Ranch, 3 Del. 139 Iowa 219, 117 N. W. 260;
Ch. 239, 256; Weston v. Johnson, Fisher v. Keithley, 142 Mo. 244,
48 Ind. 1, 6; Swalls v. Swails, 98 64 Am. St. Rep. 560, 43 S. W. 650;
1040
COMMENTARIES ON THE LAW OF WILLS.
revocation thereof; or it may be done secretly and by
implication, as by giving away or voluntarily alienating
the thing bequeathed. He defines the translation of a
legacy as the bestowing of the same on another, which
is likewise an ademption; and therefore there may be
an ademption without a translation, but there can be
no translation mthout an ademption.^
Burnham v. Comfort, 108 N. T.
535, 2 Am. St. Rep. 462, 15 N. E.
710; Allen v. Allen, 13 S. C. 512,
36 Am. Rep. 716; Clark v. Jetton,
5 Sneed (37 Tenn.) 229, 236.
Compare: Hansbrough's Exrs.
V. Hooe, 12 L«igli (Va.) 316, 37
Am. Dec. 659.
Alderson, B., in Davys v. Bou-
cher, 3 Y. & C. 397, said that so
far as his researches had ex-
tended, he did not find any in-
stance of ademption having been
extended to devises of real estate.
The distinction has been uni-
formly made by the courts, not
because the equities were not the
same, but because of the safe-
guards which have ever been
thrown around transfers of real
estate. — Fisher v. Keithley, 142
Mo. 244, 64 Am. St. Rep. 560, 43
S. W. 650.
"We do not think the courts, at
this day, should take the initia-
tive in abrogating a rule which
has been so long and so univer-
sally approved." — ^Msher v. Keith-
ley, 142 Mo. 244, 64 Am. St. Rep.
560, 43 S. W. 650.
"A rule of law which has here-
tofore been sanctioned and relied
upon, which is in unison with the
spirit and with the sense of our
statute, which offers a safe rule of
property, is rather to be followed
than to be departed from for rea-
sons moving from the circum-
stances of a particular case." —
Burnham v. Comfort, 108 N. Y.
535, 541, 2 Am. St. Rep. 462, 15
N. B. 710.
In a Virginia case wherein a
devise of re a 1 property was
adeemed by a subsequent mar-
riage settlement, the prevailing
opinion said "that no case has oc-
curred in which the doctrine of
ademption of legacies has been
extended to devises of real estate.
This is true. But it is equally true
that there is no case, in Virginia
at least, deciding that the doc-
trine is inapplicable to such de-
vises."— ^Hansbrough v. Hooe, 12
Leigh (Va.) 316, 322, 37 Am. Dec.
659.
Regarding devises of real es-
tate, see, post, §§ 744-748.
As to revocation of a devise by
reason of a conveyance thereof, or
an agreement to convey, by the
testator, or an alteration of his
estate generally, see §§ 540-545.
2 Swinb. Wills, 522, 526.
ADEMPTION AND SATISFACTION. 1041
Ademption, strictly speaking, is applicable only to spe-
cific legacies, and where a specific article bequeathed does
not exist at the time of the testator's death, there is an
ademption of the legacy.* It has been defined as the ex-
tinction or withholding of a legacy in consequence of
some act of the testator.* Ademption, perhaps, may bet-
ter be said to be the extinction of a legacy, or the with-
drawal thereof by some act of the testator equivalent to
a revocation of the bequest or which indicates such an in-
tention." It may be accomplished in several ways, to
which we wiU hereafter refer.
§ 709. Ademption and Satisfaction Distinguished.
The words "ademption" and "satisfaction" are often
interchangeably used, but the highest authorities clearly
distinguish them.® Ademption may result from the ac-
cidental loss or destruction of some specific article be-
queathed, but generally speaking, ademption differs from
satisfaction in that it is accomplished solely by the act
of the testator, and in all cases without the necessity
of the consent of the legatee. A testator may make a
specific bequest of a designated article. His testament
is revocable. Subsequently he may transfer the thing be-
queathed either to the legatee named or to another. Since
s Tanton v. Keller, 167 111. 129, Iowa 219, 117 N. W. 260; Burnham
47 N. B. 376; Beck v. McGUUs, v. Comfort, 108 N. Y. 535, 2 Am.
9 Barb. (N. T.) 35. St. Rep. 462, 15 N. E. 710.
6 "I think that a full view of the
4Ellard v. Ferris, 91 Ohio St.
339, 110 N. E. 476.
B Kramer v. Kramer, 201 Fed.
cases and a consideration of the
doctrine on this subject do not
justify the observation that there
248, 250, 119 C. C. A. 482; Kena- . . j- * ...
i,ta, u^y,, xj.^ vy. vy. , exists uo distmctiou between
day V. Sinnott, 179 U. S. 606, 45 ademption and satisfaction. I ven-
L. Ed. 339, 21 Sup. Ct. 233; In re ture to think that the distinction
Goodfellow's Estate, 166 Cal. 409, is marked, and that it is recog-
137 Pac. 12; Estate of Brown, 139 nized in all the decided cases on
II Com. on Wills— 12
1042 COMMENTARIES ON THE LAW OF WILLS.
the testator has parted with the property, it can not pass
under his will, and the legacy is adeemed. Or after mak-
ing his will the testator may transfer other property to
the legatee and may, either by express words or by im-
plication of law, substitute the second gift for the one
contained in his will, which he has the power of altering.
The legacy is thereby adeemed, or taken out of the will.
The ademption is occasioned by the act of the testator
alone. But if the testator is under some prior financial
obligation to a particular person, and executes his will
with a bequest in favor of such person which is stated
to be in satisfaction of the obligation, the beneficiary
can elect whether or not he will take tmder the will. The
testator is not the sole arbiter. The term "ademption"'
could not be applied to such a case, "satisfaction" being
proper.'' Where a parent makes a general bequest in
favor of one of his children and later gives him money
by way of advancement, the presumption being against
double portions, the prior legacy may be satisfied in this
way. The will is not revoked, even partially, but the leg-
acy is taken out of the will by the act of the testator.
Such satisfaction of the legacy may to an extent be
deemed an ademption thereof, but it must not depend
upon the assent of the legatee.^ The doctrine of satisfac-
tion or ademption of legacies by advancements to the leg-
atee by the testator in his lifetime, is not applicable to
specific legacies.^
the subject." — Lord Romilly, In ther, 2 Hare 424; Pym v. Lockyer,
Lord Chichester v. Coventry, L. R. 5 Myl. & C. 29, 34.
2 H. L. Cas. 71, 90. As to satisfaction of a former
7 Lord Chichester v. Coventry, legacy by a later one, see cumu-
L. R. 2 H. L. Cas. 71; Lord Dur- lative and substitutional legacies,
ham V. Wharton, 3 CI. & Fin. 146; §§ 682-686.
In re Tussaud's Estate, L. R. 9 8 See citations In preceding note.
Ch. Div. 363, 380; Suisse v. Low- » Weston v. Johnson, 48 Ind. 1.
ADEMPTION AND SATISFACTION. 1043
§ 710. The Same Subject.
Satisfaction may be further distinguished from ademp-
tion, in this, it is a gift of property accompanied by
the intention, express or implied, that such gift is to be
taken as a substitute for or in satisfaction of some prior
obligation. Mr. Pomeroy makes four divisions, (1) sat-
isfaction of debts by legacies, (2) satisfaction of legacies
by subsequent legacies, (3) satisfaction of portions by
legacies, and (4) satisfaction of legacies by portions or
advancements.^" It is only the second and fourth classes
mentioned that could be confused with ademption, since
ademption has reference to the extinction of a legacy,
in whole or in part, not the satisfaction of a prior obli-
gation. With ademption, the legacy must precede the ob-
ligation of the testator or the acts by which it is extin-
guished. As to the second class named, the satisfaction
of legacies by subsequent legacies, the question is deter-
mined by the character of the second gift, whether cumu-
lative or substitutional.'^ As to the satisfaction of lega-
cies by portions or advancements, the testator must stand
in loco parentis to the beneficiary, the courts being un-
favorable to double portions and consider the later
gift as the satisfaction, pro tanto or in toto according to
the amount, of the obligation owed by the testator and
which he intended to pay, as evidenced by his will.^^
§ 711. The Sajne Subject: The Class of Legacy to Which Each
Is Applicable.
A general legacy may be satisfied, although not strictly
speaking adeemed. It depends on the intention of the
10 2 Pomeroy Eq. Juris. (3rd ed.), 12 Watson v. Lincoln, Ambl. 325;
§ 521. Pym V. Lockyer, 5 Myl. & C. 29,
11 See §§ 682-686, cumulative and 35; Wallace v. Du Bois, 65 Md.
substitutional legacies. 153, 4 Atl. 402.
1044
COMMENTAEIES ON THE LAW OF WILLS.
testator as inferred from Ms acts.^^ Ademption, strictly
speaking, is applicable only to specific legacies, and op-
erates independently of intention where the specific thing
bequeathed is not owned by the testator at the time
of his death. The doctrine of satisfaction rests wholly
upon the intention of the testator and may be applied
to the extinction of general or demonstrative legacies.
Satisfaction is of equitable origin, while ademption de-
pends npon a rule of law.^*
General residuary legacies may abate and become en-
tirely exhausted, but the doctrine of ademption does not
apply to bequests of such character.*^ Demonstrative leg-
acies become general upon the failure of the fund out of
which they were to be satisfied; and being then payable
out of the general assets of the estate, they are not sub-
ject to ademption."
13 In re Brown's Estate, 139
Iowa 219, 117 N. W. 260.
14 Kramer v. Kramer, 201 Fed.
248, 119 C. C. A. 482. See, also,
Kenaday v. Sinnott, 179 U. S. 606,
45 L. Ed. 339, 21 Sup. Ct. 233;
In re Bradley's Will, 73 Vt. 253,
50 Atl. 1072.
Liability to ademption is said to
be the most distinctive feature of
a specific legacy. — May v. Sher-
rard's Legatees, 115 Va. 617, Ann.
Gas. 1915B, 1131, 79 S. B. 1026.
As pointed out in Beck v. Mc-
Gillis, 9 Barb. (N. Y.) 35, "Ademp-
tion is only predicable of a specific
legacy. It takes place, as the term
imports, when the thing which is
the subject of the legacy is taken
awE.y, so that when the testator
dieis, though the will purports to
bestow the legacy, the thing
given Is not to be found to answer
the bequest. . . . Whether it
takes place or not is a conclusion
of law, and does not depend upon
the intention of the testator. . . .
Satisfaction, on the other hand, is
predicable, as well of a general as
of a speciflc legacy. It takes place
when the testator, in his lifetime,
becomes his own executor, and
gives to his legatee what he had
intended to give by his will. Thus
it may happen, in respect to a
specific legacy, that it has been
both adeemed and satisfied. . . .
And this (satisfaction), unlike
that of ademption, is purely a
question of intention."
1 5 Stirling v. Lydiard, 3 Atk.
199; Digby v. Legard, Dick. 500.
16 3 Pomeroy Eq. Jur., 3rd ed.,
§1131; 2 Williams' Exrs., 3d Am.
ademptiojST and satisfaction. 1045
§ 712. Effect of Ademption.
Ademption may result in the partial or total loss of
a legacy. It, however, affects no other provisions of the
will. The testamentary document still remains in full
force and effect as to its other provisions. If the ademp-
tion is total, the entire legacy is eliminated;^'' if only
pro tanto, the legacy is affected only to the extent of its
reduction, the remaining portions being effective.^*
§ 713. Adeemed or Satisfied Legacies Not Revived by Repub-
lication or Re-execution of Will.
The republication of a will merely brings it down to
the time of republication, as if it had been executed as of
that date. Re-execution of a will has no other effect than
that of republication.^* Where-personalty specifically be-
queathed has been lost, destroyed, removed or disposed
of so as to work an ademption thereof, or a legacy has
been satisfied, neither the re-execution^" nor the re-
Ed., *1132; Fowler v. Willoughby, 20 Tanton v. Keller, 167 111. 129,
2 Sim. & St. 354, 57 Eng. Repr. 47 N. E. 376; Estate of Younger-
381; Kramer v. Kramer, 201 Fed. man, 136 Iowa 488, 15 Ann. Gas.
248, 119 C. C. A. 482; Nusly v. 245, 114 N. W. 7; Paine v. Par-
Curtis, 36 Colo. 464, 118 Am. St. sons, 14 Pick. (31 Mass.) 318;
Rep. 113, 10 Ann. Cas. 1134, 7 Richards v. Humphreys, 15 Pick.
L. R. A. (N. S.) 592, 85 Pac. 846; (32 Mass.) 133; Louisville Trust
Enders v. Enders, 2 Barb. (N. T.) Co. v. Southern Baptist Theolog-
362; Spinney v. Baton, 111 Me. 1, ical Seminary, 148 Ky. 711, 147
46 L. R. A. (N. S.) 535, 87 Atl. S. W. 431; Langdon v. Astor's
378; Balliet's Appeal, 14 Pa. St Exrs., 16 N. Y. 9, 57.
451; Tipton v. Tipton, 1 Cold. (41 The Lord Chancellor, in Powys
Tenn.) 252. v. Mansfield, 3 Myl. & Cr. 359, at
17 Gregory v. Lansing, 115 Minn, page 375, says: "It is very true
73, 131 N. W. 1010. that a codicil republishing a will
18 New Albany Trust Co. v. makes the will speak as from its
Powell, 29 Ind. App. 494, 64 N. E. own date for the purpose of pass-
640. ing after-purchased lands, but not
19 See §§ 570, 571. for the purpose of reviving a
1046 COMMENTARIES ON THE LAW OF WILLS.
publication^^ of the testament will revive a legacy at such
time adeemed or satisfied. Though the legacy remain
in the will, yet it is of no more force or effect than any
adeemed or satisfied legacy.^*
§ 714. As to Evidence of the Testator's Intention.
As to whether the intention of the testator may be
shoAvn in determining whether or not a legacy is adeemed,
depends upon the manner in which such intention is ex-
pressed and upon the particular circumstances of the
case. In this connection the distinction between ademp-'
tion and satisfaction must be borne in mind. Satisfac-
tion of a legacy, as has been shown, depends largely upon
the intention of the testator, while an ademption, strictly
speaking, takes place irrespective of such intention.^* Bor-
der-line cases, such as whether or not a parent has sat-
isfied or caused the ademption of a previous legacy to
one of his children by advancements thereafter made,
are governed largely by intent.^* Whether or not a gen-
eral legacy in a will previously executed has been there-
after adeemed or satisfied by delivery of property to
the legatee by the testator during his lifetime, may de-
pend upon the express terms by which such transfer was
made or upon circumstances from which the law pre-
sumes that the testator intended the gift as a substitute
legacy revoked, adeemed, or sat- 23 See § 711.
isfied. The codicil can only act 24 The fact that a father had
upon the will as it existed at the made advancements to his son in
time; and at the time the legacy his lifetime may be considered in
revoked, adeemed, or satisfied arriving at the father's intentions
formed no part of it." in making his will, but for no
21 Tanton v. Keller, 167 111. 129, other purpose. — Estate of Low,
47 N. E. 376; Hayes v. Welling, Myrick's Prob. Rep. (CaL) 143,
38 R. I. 553, 96 Atl. 843. 151.
22 Howze V. Mallett, 4 Jones Eq.
(57 N. C.) 194.
ADEMPTION AND SATISFACTION.
1047
for the legacy .^^ But the question of determining the
character of a legacy, whether it is specific, demonstra-
tive or general, must not be confused with the question
of ademption. The character of a legacy is determined
by the intention of the testator subject to the general rule
that specific legacies are not favored. Such intention is a
question of fact to be determined by the jury.*®
§ 715. The Same Subject.
At common law, and in the absence of statute, extrinsic
evidence of the testator 's intention, either by his declara-
tions or by reason of the circumstances of the condition
of his property, is not admissible on the question of
ademption. The courts will not consider the matter of
intention further than appears from the will itself.*'' Thus
25 Clayton v. Akin, 38 Ga. 320,
95 Am. Dec 393.
Question as to whether legacies
left in a second will or codicil
were advancements to legatees to
whom testator had left legacies in
a prior will is one of interpreta-
tion, in order to ascertain real
intent of testator, and in arriving
at this intent court will, if neces-
sary, look at all parts of will and
construe the will and codicil to-
gether.— In re Estate Zeile, 74
Cal. 125, 136, 15 Pac. 455.
Where a testatrix, after declar-
ing in her will that she had pre-
viously loaned to each of the lega-
tees the sum of four thousand dol-
lars, expressly directs that her
estate shall have due credit there-
for and that these amounts shall
be respectively deducted from the
shares to which such legatees
would otherwise be entitled, such
clause must be construed to be
her intent that shares left to the
legatees should be diminished by
reason of these loans, notwith-
standing in a previous document,
to which the will makes no refer-
ence, she had released legatees
from payment of such loans. — In
re Tompkins' Estate, 132 Cal. 173,
177, 64 Pac. 268.
As to cumulative and substitu-
tional legacies, see §§ 682-689.
26 Walton V. Walton, 7 Johns.
Ch. (N. Y.) 258. See § 646.
27 Ford V. Ford, 23 N. H. 212,
wherein the court further says:
"Where shall the line be drawn?
If he possesses herds of cattle
when he makes his will, and be-
queaths them specifically, and
then disposes of them, and in the
course of his business transforms
1048 COMMENTARIES ON THE LAW OF WILLS.
where a testator bequeaths specific property by will, and
afterward parts with the title and possession thereof and
does not regain the same, and there is no provision in his
will for the contingency, the legacy is adeemed. Such
result can not be obviated by extrinsic evidence tending
to show that the testator did not so intend.^*
Ademption, strictly speaking, results as a conclusion of
law and does not depend upon the intention of the testa-
tor. When it has been determined that a specific, and not
a general, legacy has been given, ademption is entirely a
rule of law, and if the specific property bequeathed has
been extinguished, the legacy is adeemed.^'
The general rule may be affected by legislative enact-
ment. Where the statute declares that the conversion of
property by a testator shall not result in ademption, but
that the legatee shall have the value thereof unless a con-
trary intent appear from the provisions of the will or
from parol or other evidence, those claiming against the
legatee must show that the conversion was made with an
the proceeds of them into the 833; May v. Sherrard's Legatees,
shape of manufactories or ships, 115 Va. 617, Ann. Cas. 1915B, 1131,
would it be safe to admit evidence 79 S. E. 1026. See § 711.
that, although he had not altered Lord Thurlow, in Humphreys v.
his will, he still Intended that Humphreys, 2 Cox 184, says: "The
under the bequest of his cattle, the only rule to be adhered to is to
legatee should take his ships and see whether the subject of the
manufactories? And yet such specific bequest remained in spe-
might be the result. If we relied cie at the time of the testator's
on evidence of the testator's in- death, for, if It did not, then there
tention." must be an end to the bequest;
28 Lang V. Vaughan, 137 Ga. 671, and the idea of discussing what
Ann. Cas. 1913B, 52, 40 L. R. A. were the particular motives and
(N. S.) 542, 74 S. E. 270. Intentions of the testator in each
29 Stanley v. Potter, 2 Cox 180; case in destroying the object of
Beck V. McGillis, 9 Barb. (N. Y.) the bequest would be productive
35; Ametrano v. Downs, 62 App. of endless uncertainty and con-
Div. (N. Y.) 405, 70 N. Y. Surp. fusion." Quoted with approval in
ADEMPTION AND SATISFACTION. 1049
intention to adeem. In such a case it follows that parol
and other extrinsic evidence may be introduced to estab-
lish such contention.*" Where, however, there arises a pre-
sumption of an intention to adeem, such presumption may
be rebutted by evidence of a contrary intent.*^
§ 716. Ademption by Act of the Testator : Delivery by Tes-
tator to Legatee.
A total ademption by reason of acts of the testator oc-
curs in two cases only, as where in his lifetime the tes-
tator gives to the legatee the specific property thereto-
fore bequeathed to him, or where, prior to his death, the
testator so deals with the subject of the bequest as to
render impossible a passing of the property as directed
by his wiU.*2 Thus a legacy may be adeemed where the
testator, during his lifetime, delivers to the legatee prop-
erty specifically bequeathed to him.*'
Georgia Infirmary t. Jones, 37 the moment of the testator's
Fed. 750. death.
30 WicWifEe's Exrs. v. Preston, As to the date from ■which a
4 Mete. (Ky.) 178. -will speaks, see §§ 235-239.
The Statute of 1 Victoria, si White v. Winchester, 6 Pick,
ch. 26, § 23, reads: "That no con- (23 Mass.) 48; Wells v. Wells, 35
veyance or other act made or done Miss. 638 ; Stout v. Hart, 7 N. J. L.
subsequently to the execution of 414.
a will or relating to any real or 32 Connecticut Trust & Safe
personal estate therein comprised, Dep. Co. v. Chase, 75 Conn. 683,
except an act by which such will 55 Atl. 171.
shall be revoked as aforesaid, 33 Gilmer v. Gilmer, 42 Ala. 9;
shall prevent the operation of the Clayton v. Akin, 38 Ga. 320, 95
will with respect to such estate Am. Dec. 393; Gardner v. McNeal,
or interest in such real or per- 117 Md. 27, Ann. Cas. 1914A, 119,
sonal estate as the testator shall 40 L. R. A. (N. S.) 553, 82 Atl. 988.
have power to disjKise of by will A bequest to a son of a specific
at the time of his death." Sec- amount to be paid by deducting it
tion 24 of the same statute makes from the amount due from the son
all wills speak as if executed at to the testator, as evidenced by
1050 COMMENTARIES ON THE LAW OF WILLS.
The general rule of the common law is that the change
or destruction which constitutes ademption must occur
during the life of the testator f* and that if the value of
the thing devised or bequeathed be diminished after his
decease, the devisee or legatee will be entitled to be re-
imbursed from the estate. But the rule is different under
the Civil Code of Louisiana, which provides that ademp-
tion may occur by the perishing of the subject of gift
after the testator's death, if it be without the fault or act
of the heir.*^
§717. Ademption by Loss or Destruction of Property Spe-
ci&cally Bequeathed.
A specific legacy is adeemed when, in the lifetime of
the testator, the particular thing bequeathed is lost, de-
stroyed, disposed of, or is changed in substance or form
so that it does not, at the time the will goes into effect,
remain in specie to pass to the legatee. If a horse, for
instance, be specifically bequeathed and then die during
the testator's lifetime or be disposed of by him, the
legacy will be lost or adeemed because there will be noth-
ing on which the bequest can operate.^^ If a specific leg-
notes, is adeemed by the father's faction. — Stimson's Am. Stat. Law,
returning the notes to the son dur- § 2812.
ing his lifetime.— Davis v. Close, S4 Durrant v. Friend, 5 De Gex
104 Iowa 261, 73 N. W. 600. & S. 343; Ashburner v. Maeguire,
In the Virginias and Kentucky, 2 Bro. C. C. 108; Ford v. Ford,
a provision or advancement to any 23 N. H. (3 Fost.) 212; Walton v.
person is deemed a satisfaction, Walton, 7 Johns. Ch. (N. Y.) 258,
iu whole or in part, of a devise or 262.
bequest to the same person con- 35 La. Civ. Code, (1875) §§ 1700,
tained in a will made prior 1701.
thereto, If it would be so deemed 36 Georgia Infirmary v. Jones,
in case the beneficiary were a 37 Fed. 750; Ford v. Ford, 23 N. H.
child of the testator, or If it ap- 212; Walton v. Walton, 7 Johns,
pear from parol or other evidence Ch. (N. Y.) 258; Ametrano v.
to have been Intended as a satis- Downs, 62 App. Div. (N. Y.) 405,
ADEilPTIOiSr AND SATIS]?ACTION.
1051
acy does not exist at the death of the testator, it is
adeemed, and this rule prevails without regard to the
intention of the testator or the hardship of the particular
case. The thing given is gone and no court is at liberty
to substitute different property for that which the testa-
tor had himself given.*''
Where the loss or destruction is partial only, the rule
is partially applied. Thus, when the testator has made
a specific bequest of certain stock, and at his death only
a part thereof can be found, the ademption is pro tanto
only.**
70 N. T. Supp. 833; Starbuck v.
Starbuck, 93 N. C. 183; Ga Nun
V. Palmer, 159 App. Dlv. (N. Y.)
86, 144 N. Y. Supp. 457; In re Til-
linghast, 23 R. I. 121, 49 Atl. 634.
In an English case, where all
his interest in a certain estate
was given by a testator, and prior
to his death the estate was sold
and the proceeds were mingled
with other moneys on deposit at
his banker's, It was considered to
constitute an ademption of the be-
quest.— Manton v. Tabois, L. R. 30
Ch. Div. 92, distinguishing Moore
V. Moore, 29 Beav. 496, declining
to follow Clark v. Browne, 2 Smale
& G. 524.
37 Sleech v. Thorington, 2 Ves.
Sen. 561; Humphreys v. Hum-
phreys, 2 Cox 184; Beck v. Mc-
Gillis, 9 Barb. (N. Y.) 35; Hosea
V. Skinner, 32 Misc. Rep. (N. Y.)
653, 67 N. Y. Supp. 527; Snowden
V. Banks, 31 N. C. 373; Blackstone
T. Blackstone, 3 Watts (Pa.) 335,
27 Am. Dec. 359.
Another circumstance which
will result in the ademption of a
specific legacy is the partial or
total destruction either of Its sub-
stance or value, and In such a
case the legatee can not look to
the testator's estate to reimburse
him for the loss. Thus it has been
held that a legacy to be paid from
the sale of slaves is adeemed by
a proclamation of emancipation,
and that the legatee can not look
to the testator's land to make him
whole. — Hill v. Toms, 87 N. C. 492.
38Ashburner v. Macguire, 2 Bro.
C. C. 108; White v. Winchester, 6
Pick. (23 Mass.) 48.
If the object is only destroyed
in part, as if a house bequeathed
has been destroyed by fire, the
devise subsists for what remains,
that is, for the land on which the
house was situated. — La. Civ.
Code, (1875) §1643.
In the case of an alternate
legacy of two things, if one of
them perishes, the legacy subsists
as to that which remains. — La.
Civ. Code, (1875) §1702.
1052 COMMENTARIES ON THE LAW OP WILLS.
§ 718. Ademption by Alienation of Property Bequeathed.
The alienation by a testator of personal property there-
tofore specifically bequeathed is presumptive and even
strong proof of an intention on his part that such legacy
should adeem. The burden is on the legatee to show cir-
cumstances sufficient to rebut the presumption.*^ But if
it clearly appears that such was not the testator's inten-
tion— thus, in the case of a simulated transfer, so ac-
knowledged by the alleged vendee, the property having
been returned to the testator and being in esse at the time
of his death — a specific legacy of the property will not
adeem.*" However, when the specific bequest is not of
the property itself, but of the proceeds of its sale, an
ademption of the legacy will not result merely because
the testator sells the property in his lifetime.**
The disposition of but a portion of personalty spe-
cifically bequeathed will cause an ademption proportion-
ally only. Where a number of bank shares,*^ or several
slaves,** were specifically bequeathed, and a part there-
after sold, the ademption was pro tanto only.
Merely pledging or mortgaging goods specifically be-
39Worrill v. GiU, 46 Ga. 482; Am. Dec. 359; Scliriver v. Cobeau,
"White V. Winchester, 6 Pick. (23 4 Watts (Pa.) 130.
Mass.) 48. ** Bailey v. Wagner, 2 Strob.
40 Succession of Blakemore, 43 4- i. . .; .
„.^ ,. r, ir.,. Where a testatrix, about to
La. Ann. 845, 9 So. 496.
marry, conveyed property, pre-
41 McNaughton v. McNaughton, viously bequeathed, to trustees
34 N. Y. 201; Nooe v. Vannoy, 6 ^^v her own use for life, then over
Jones Eq. (59 N. C.) 185; Cham- to the same persons, who were
bers V. Kerns, 6 Jones Eq. (59 legatees under her will, the lega-
N. C.) 280; Warren v. Wigfall, cies were held adeemed to the
3 Desaus. (S. C.) 47. extent of the provisions made for
42 White V. Winchester, G Pick, the legatees in the settlement. —
(23 Mass.) 48; Blackstone v. Webb v. Jones, 36 N. J. Eq. 163,
Blackstone, 3 Watts (Pa.) 335, 27 168.
ADEMPTION AND SATISFACTION. 1053
queathed does not act as an ademption thereof, and the
legatee may call upon the executor to redeem them.**
§ 719. Ademption by Change in Form of Property Bequeathed.
Some early English decisions were to the effect that
any change in the form of personalty specifically be-
queathed would work an ademption.*^ However, it was
held that ademption was dependent on the presumed in-
tention of the testator, and therefore a change affected
by public authority or without the will of the testator
did not cause such a result.*® But the present English
rule seems to be that where a change has occurred in the
nature of personalty specifically bequeathed, even though
affected by virtue of an act of Parliament, ademption
will follow.*'^ An exception, however, is recognized as in
the case where shares in a company are converted into
another form by a vote of the company, the change being
in name rather than substance.*® Where the testator of
his own volition affects the change in the form of the
property, such as converting debentures into debenture
stock, a specific legacy of the former is adeemed.*®
In the United States the general rule is that slight or
immaterial changes in the form of personalty specifically
bequeathed, will not work an ademption.^" Thus the
transformation of state to national bank stock is not
44 Ashbumer v. Macguire, 2 Bro. 48 Oakes v. Oakes, 9 Hare 666.
C. C. 108. • 49 In re Lane, L. R. 14 Ch. Div.
45Ashburner v. Macguire, 2 856. See, also, Harrison v. Jack-
Bro. C. C. 108 ; Badrick t. Stevens, son, L. R. 7 Ch. Div. 339.
3 Bro. C. C. 431; Gardner v. Hat- so In re Fratim's Estate, 120
ton, 6 Sim. 93; Fryer v. Morris, Iowa 85, 94 N. W. 444; Brady v.
9 Ves. Jun. 360. Brady, 78 Md. 461, 28 Atl. 215;
46 Bronsdon v. Winter, Ambl. 57. Prendergast v. Walsh, 58 N. J.
47 In re Slater, L. R. (1907) 1 Eq. 149, 42 Atl. 1049.
Ch. 665.
1054 COMMENTARIES ON THE LAW OF WILLS.
such a change as will cause a legacy of the former to
fail."
§720. The Same Subject: Ck>nversion After Testator's Death,
or While He Is of Unsound Mind.
Where the change in the form of property specifically
devised is effected without the knowledge or consent of
the testator, as where the conversion takes place while
he is of unsound mind, ademption does not result.^^ The
conduct of an executor, after the death of the testator,
in substituting or exchanging stocks for bonds, can not
work an ademption;®* it must take place during the life
of the testator.®*
§ 721. Ademption by Removal of Property.
In order that a specific legacy may take effect, the sub-
ject matter thereof must, at the time of the testator's
death, correspond to the description given in the will.®®
Thus, if a bequest be made which is described as all that
the testator owns of a particular kind of property located
in a certain place, the removal of the property to another
81 Maynaxd v. Mechanics' Nat. an ademption where the intention
Bank, 1 Brewst. (Pa.) 483. of the testator was clearly indi-
Where the form of a fund has cated in the will,
been changed from a deposit in a 52 Jenkins v. Jones, L. R. 2 Eq.
bank to an investment in bonds, 323.
the fund has not ceased to exist, 63 In re Frahm's Estate, 120
but remains in an altered form, Iowa 85, 94 N. W. 444.
and such a change does not work 54 Maynard v. Mechanics' Nat.
an ademption of the legacy. — Bank, 1 Brewst. (Pa.) 483.
Cornwell v. Mt. Morris M. E. 55 Humphreys v. Humphreys, 2
Church, 73 W. Va. 96, 80 S. E. Cox 184; Hayes T. Hayes, 1 Keen
148. 97; Ashburner V. Macguire, 2 Bro.
In Kenaday v. Sinnott, 179 U. S. C. C. 108; White v. Winchester,
606, 45 L. Ed. 339, 21 Sup. Ct. Rep. 6 Pick. (23 Mass.) 48; Walton v.
233, it was held that a change Walton, 7 Johns. Ch. 258, 262.
from money into bonds was not
ADEMPTION AND SATISFACTION. 1055
place by Ms authority or consent will effect an ademp-
tion of the legacy,^* as in the case of the removal of fur-
niture on account of the expiration of the lease of a
house/'' But if the reference to the location of the spe-
cific property bequeathed be merely for the purpose of
identifying the goods and not to denote the extent or
measure of the legacy, the removal will not work an
ademption if the property may still be otherwise iden-
tified.'* And if the removal is for mere temporary pur-
poses, there is no ademption since it is the intention that
they are to be returned."®
§722. Ademption by FuMUment of Purpose for Which Leg-
acy Was Given,
If a testator who has given a legacy for a specified pur-
pose, himself after the execution of the will carries out
the purpose in his lifetime, he is presumed to have in-
66 Spencer v. Spencer, 21 Beav. to his sisters, and thereafter he
548; Heseltine v. Heseltine, 3 removed his furniture in Glouces-
Madd. Ch. 276; Colleton v. Garth, ter Square to another residence,
6 Sim. 19; Basan v. Brandon, 8 it did not pass to his sisters. —
Sim. 171; Shaftsbury v. Shafts- Blagrove v. Goore, 27 Beav. 138.
bury, 2 Vern. 747; Patton v. Pat- 68 Shaftsbury v. Shaftsbury, 2
ton, 2 Jones Eq. (55 N. C.) 494. Vern. 747; Norris v. Norris, 2
67 Colleton V. Garth, 6 Sim. 19. Coll. C. C. 719; Richards v. Hum-
Contra: When the removal is phreys, 15 Pick. (32 Mass.) 133.
on account of fire (Chapman v. A bequest of goods aboard ship
Hart, 1 Ves. Sen. 271) ; or when was held good and not adeemed,
on account of the testator's alter- although they were afterwards re-
nate residence in two houses, moved and were not on board at
Land v. Devaynes, 4 Bro. C. C. 537. the testator's death. — Chapman v.
Where the testator directed his Hart, 1 Ves. Sen. 271.
furniture in Gloucester Square to 59 Spencer v. Spencer, 21 Beav.
be applied in payment of his 548; Land v. Devaynes, 4 Bro.
debts, and later in the same will C. C. 537; Brooke T. Warwick,
gave all his furniture in England 2 De G. & S. 425.
1056 COMMENTARIES ON THE LAW OP WILLS.
tended to cancel the legacy, and it wiU be held adeemed.*"
For example, where a testator bequeathed money to pay
the debt on a chapel, and afterward paid the debt him-
self, although the sum was less than the bequest, the pay-
ment was considered an ademption of the legacy.^^ But
the purpose for which the legacy is given and the sub-
sequent advancement thereof must correspond exactly in
order to effect an ademption.®^ The conveyance to a per-
son of land previously devised to him is a satisfaction of
the devise;^* not so, however, if the conveyance is of a
different interest than the estate devised.®*
§ 723. Satisfaction of General Legacies.
The satisfaction of a general and the ademption of a
specific legacy depend upon different principles, the for-
mer on the act and intent of the testator, the latter re-
sulting irrespective of intent.^® A testator, during his
lifetime, has the power of disposing of his property or of
revoking testamentary dispositions. If specific property
bequeathed be not in esse or be not owned by the testator
at his death, the legacy is adeemed, motive on the part of
the testator being immaterial. But if he bequeaths a sum
of money generally and thereafter in his lifetime makes
a gift to the legatee expressly as "payment," "satisfac-
tion," "release" or "discharge" of the legacy, the leg-
acy will fail. Any such gift by the testator which can
60 Debeze v. Mann, 2 Bro. C. C. 63 Marshall v. Rench, 3 Del. Ch.
165, 166; Rose-well v. Bennett, 3 239.
A.tk. 77; Taylor v. Tolen, 38 N. J. 64 Clarke v. Berkeley, 2 Vern.
Eq. 91, 97. 720; Rider v. Wager, 2 P. Wms.
61 Taylor v. Tolen, 38 N. J. 328; Davys t. Boucher, 3 You. &
Eq. 91. Coll. 397; Marshall v. Rench, 3
62 Spinks T. Robins, 2 Atk. 491; Del. Ch. 239; Arthur v. Arthur, 10
Roome V. Roome, 3 Atk. 181; De- Barb. (N. Y.) 9, 20.
beze V. Mann, 2 Bro. C. C. 165. 65 See §§ 709-711.
ADEMPTION AND SATISFACTION.
1057
be shown by express proof to have been intended as a
substitute for the legacy, is a satisfaction of it.®® If a
chattel specifically bequeathed be thereafter delivered hj
the testator to the legatee, the legacy is both satisfied and
adeemed.®^
A general legacy is satisfied by a testator, during his
lifetime, making a gift to the legatee with the intent that
it shall be in satisfaction of or as a substitute for such
legacy.®^ The intent of the testator is the test, the as-
sent of the legatee not being necessary. Satisfaction does
not result because of any act of the legatee in receiving
the gift or releasing the legacy, but solely from the act of
the testator in substituting other property for that be-
queathed with the intent that it shall act as a payment
thereof.®^
66 Cowles V. Cowles, 56 Conn.
240, 13 Atl. 414; Richards v. Hum-
phreys, 15 Pick. (32 Mass.) 133.
6T Beck V. McGillis, 9 Barb.
(N. Y.) 35.
68 Hartopp V. Hartopp, 17 Ves.
Jun. 184; Powys v. Mansfield, 3
Myl. & C. 359; In re Scott, L. R.
(1903) 1 Ch. Div. 1; Kramer v.
Kramer, 201 Fed. 248, 119 C. C. A.
482; May v. May, 28 Ala. 141;
Davis V. Whittaker, 38 Ark. 435;
Cowles V. Cowles, 56 Conn. 240, 13
Atl. 414; Rogers v. French, 19 Ga.
316; Rice v. Rice, (Iowa) 119
N. W. 714; Ware v. People, 19 111.
App. 196; Daugherty v. Rogers,
119 Ind. 254, 3 L. R. A. 847, 20
N. E. 779; Swinebroad v. Bright,
110 Ky. 616, 62 S. W. 484; Rich-
ards V. Humphrey, 15 Pick. (32
Mass.) 133; In re Bresler, 155
Mich. 567, 119 N. W. 1104; Nor-
fleet V. Callicott, 90 Miss. 221, 43
So. 616; Garth v. Garth, (Mo.) 37
S. W. 901; Sims v. Sims,. 10 N. J.
Bq. 158; Langdon v. Astor, 16
N. Y. 9, 34; Grogan v. Ashe, 156
N, C. 286, 72 S. E. 372; Ellard v.
Ferris, 91 Ohio St. 339, 110 N. E.
476; In re Wright's Appeal, 89
Pa. St. 67; Clark v. Jetton, 5
Sneed (Tenn.) 229.
69 Cowles V. Cowles, 56 Conn.
240, 13 Atl. 414; Richards v. Hum-
phreys, 15 Pick. (23 Mass.) 133;
Ellard v. Ferris, 91 Ohio St. 339,
110 N. E. 476.
If a testator's estate be com-
pelled to pay a debt of a legatee
for whom the testator was surety,
the amount may be offset against
a general legacy. — Manning v.
Thruston, 59 Md. 218.
n Com. on ■#'ills— 13
1058 COMMENTARIES ON THE LAW OF WILLS.
§ 724, Where Legatee Is a Stranger : Presumptions.
Where a testator makes a gift to some person to whom
he does not stand in loco parentis, it is not necessarily
presumed that it is in payment or in satisfaction of a
bequest previously made to the doneeJ" If, however,
it clearly appears from extrinsic evidence that the testa-
tor intended to satisfy the legacy, or if the gift in terms
is made as a substitute for the legacy, the legatee takes
nothing by the bequest. If the benefit subsequently con-
ferred be the same as that bequeathed or so far identical
as to be ejusdem generis, it will be presumed that satis-
faction of the legacy was intended.''^ Such presumption,
however, may be rebutted by any evidence of the con-
duct and language of the testator by which it may be
demonstrated that the testator considered the legacy as
ci subsisting benefit.'^^
§ 725. Legacy of a Debt Paid Before Testator's Death.
If a specific bequest be made to a legatee of a debt that
is owing to the testator, and the debt be paid to the tes-
tator before his death, the legacy will be adeemed.''^
70 Powel V. Cleaver, 2 Bro. C. C. Allen v. Allen, 13 S. C. 512, 36 Am.
499; Fowkes v. Pascoe, L. R. 10 Rep. 718.
Ch. App. 343; Re Smythies, L. R. As to cumulative and substitu-
(1903) 1 Ch. Dlv. 259; Kramer v. tional legacies, see §§682-689.
Kramer, 201 Fed. 248, 119 C. C. A. 7iin re Youngerman's Estate,
482; Rogers V. French, 19 Ga. 316; 136 Iowa 488, 15 Ann. Cas. 245,
Swails V. Swails, 98 Ind. 511; Es- 114 N. W. 7.
tate of Youngerman, 136 Iowa 488, 72 Jones v. Mason, 5 Rand. (Va.)
15 Ann. Cas. 245, 114 N. W. 7; Wal- 577, 16 Am. Dec. 761.
lace V. DuBois, 65 Md. 153, 4 Atl. 73 Rider v. Wager, 2 P. Wms.
402; Carmichael v. Liathrop, 108 328; Badrick v. Stevens, 3 Bro.
Mich. 473, 32 L. R. A. 232, 66 C. C. 431; Barker v. Rayner, 5
N. W. 350; Grogan v. Ashe, 156 Madd. 208; Fryer v. Morris, 9 Ves.
N. C. 286, 72 S. E. 372; Todd's Jun. 360; Ford v. Ford, 23 N. H.
Estate, 237 Pa. 461, 85 Atl. 843; 212; Wyckoff v. Perrine, 37 N. J.
ADEMPTION AND SATISFACTION.
1059
Where a will bequeathed a certain bond and mortgage to
trustees to pay the interest to the beneficiary for life,
but before the testator died the bond and mortgage were
paid to him by the debtor, it was held that the legacy
being specific was thereby adeemed, although the money
paid to the testator remained on deposit at his bank.''*
The partial payment of a debt specifically devised is an
ademption pro tanto only.''® But a legacy forgiving a
debt is not adeemed by exchanging the original evidence
of the debt for the debtor's bond;''® nor does a mere
change in the form of an investment always defeat the
gift.'''' Where the change in the form of the property
Eq. 118; Walton v. Walton, 7
Johns. Ch. (N. Y.) 258, 262;
Smith's Appeal, 103 Pa. St. 559;
Tipton V. Tipton, 1 Cold. (41
Tenn.) 252.
Where a testatrix bequeathed
any and all sums that might there-
after be payable to her or her
estate from Insurance policies on
her husband's life, the collection
of the same by her during her
lifetime, and the mingling of the
funds with her other property,
worked an ademption of the
legacy. — ^Nusly v. Curtis, 36 Colo.
464, 118 Am. St. Rep. 113, 10 Ann.
Cas. 1134, 7 L. R. A. (N. S.) 592,
85 Pac. 846.
74 Abernethy v. Catlin, 2 Demar-
est (N. Y.) 341.
Where a debt or specific chattel
Is bequeathed, the specific legacy
is extinguished in the lifetime of
the testator, by the extinguish-
ment of the thing itself, as by the
payment of the debt, or by the
sale or conversion of the chattel.
But the ademption does not apply
to a pecuniary or demonstrative
legacy. — Walton v. Walton, 7
Johns. Ch. (N. Y.) 258.
76 Ashburner v. Macguire, 2
Bro. C. C. 108; Fryer v. Morris,
9 Ves. Jun. 360; Barker v. Rayner,
5 Madd. 208; Hoke v. Herman, 21
Pa. St. 301.
76 Irwin's Succession, 33 La.
Ann. 63.
77 Browne v. McGuire, 1 Beatt.
358; In re Johnstone, L. B, 14 Ch.
Div. 162, doubting Gale v. Gale, 21
Beav. 349; Walton v. Walton, 7
Johns. Ch. (N. Y.) 258, 265.
Under the Georgia Code, "if the
testator exchanges the property
bequeathed for other of the like
character, or merely changes the
investment of a fund bequeathed,
the law deems the intention to be,
to substitute the one for the other,
and the legacy shall not fail." —
Ga. Code, (1861) § 2432; Ga. Code,.
(1882) § 2464. See, also, Clark v.
Browne, 2 Smale & G. 524; Brons-
1060
COMMENTARIES ON THE LAW OF WILLS.
bequeathed is effected without the authority of the tes-
tator, there is no ademption/^ unless it be by operation
of law."
§726. Legacy to Debtor by Creditor: No Presumption That
Debt Is Forgiven.
A pecuniary legacy by a testator to one who at such
time is indebted to him does not raise a presumption that"
the testator intends to forgive the debt;®" and this is so
even though a legacy to another person is by the same
will made conditional upon the payment by the legatee
of a debt due from him to the testator equal in amount
don V. Winter, Amb. 57; Hambling
V. Lister, Amb. 401; Graves v.
Hugbes, 4 Madd. 381.
By statute, in Kentucky, tbe
conversion in whole or in part of
money or property, or the pro-
ceeds of property devised to one
of tbe testator's heirs, into other
property or thing, with or with-
out the consent of the testator,
will not be an ademption of the
legacy or devise, unless the testa-
tor so intended, but the devisee
shall have and receive the value
of such devise, unless a contrary
intention on the part of the testa-
tor appear from the will, or by
parol or other evidence; nor in
that state does the removal of
property devised operate as an
ademption, unless it appear that
such was the testator's intention.
— Stimson's Am. Stat. Law, § 2811,
citing Ky. Genl. Stats., (1873)
eh. 50, §§1, 3.
78 Shaftsbury v. Shaftsbury, 2
Vern. 747.
79 Partridge v. Partridge, Gas.
temp. Talb. 226.
Where stock in a certain rail-
road, specifically devised by a tes-
tator who afterwards became in-
sane, was sold under an order of
lunacy and the proceeds invested
in consols which were carried to
the credit of the lunatic on an ac-
count entitled, "proceeds of the
sal© of stock in the G. Railway
Company," the legacy was consid-
ered adeemed, and the consols fell
into the residue. — Freer v. Freer,
L. R. 22 Ch. Div. 622. See, also,
Jones v. Green, L. R. 5 Eq. 555;
In re Leeming, 3 Be Gex, F. &
J. 43.
80 Spath V. Ziegler, 48 La. Ann.
1168, 20 So. 663; Blackler v. Boott,
114 Mass. 24; Rickets v. Living-
ston, 2 Johns. Gas. (N. Y.) 97,
1 Am. Dec. 158; Clarke v. Bogar-
dus, 12 Wend. (N. Y.) 67; Sharp
V. Wightman, 205 Pa. St. 285, 54
Atl. 888.
ADEMPTION AND SATISFACTION. 1061
to that of the legacy.*^ No different presumption arises
whether the debt is incurred before or after the making
of the will, but the debt may be applied in payment of the
legacy.*^
A testator may in his will expressly forgive a debt and
give a legacy in addition thereto, but such intention must
be clear and unambiguous in order to warrant such con-
struction.®* Where the will declared that "all foregoing
legacies are intended and declared to be for the indi-
vidual estate of said legatees, exclusive of any indebted-
ness to me at this date or otherwise," the legatees were
not released from indebtedness due from them to the tes-
tator, but the language of the will was construed to mean
that their legacies should be paid them irrespective of
their debts which might be collected in the ordinary man-
ner.** The preservation by the testator of the uncanceled
evidence of the legatee's indebtedness is strong evidence
that it was not his intention to forgive the debt.*^ A leg-
si Blackler v. Boott, 114 Mass. of a trust created by the will for
24. the legatee's benefit. — Matter of
82 Brokaw v. Hudson, 27 N. J. Bogert, 41 Misc. Rep. 598, 85 N. Y.
Eq. 135. Supp. 291.
Compare: Bigelow v. Pierce, 179 83 Baldwin v. Sheldon, 48 Mich.
Mass. 331, 60 N. B. 611. 580, 12 N. W. 872; Rickets v. Liv-
A testator who has in his pos- ingston, 2 Johns. Gas. (N. Y.) 97,
session property of another, and 1 Am. Dec. 158; Sharp v. Wight-
to whom he makes a devise of a man, 205 Pa. St. 285, 54 Atl. 888.
specific sum,; may provide in his 84 Baldwin v. Sheldon, 48 Mich,
will that the sum may be reduced 580, 12 N. W. 872.
by the amount of the property 85 Leask v. Hoagland, 64 Misc.
thus held by him. — Henry v. Rep. 156, 118 N. Y. Supp. 1035.
Henry, 81 Ky. 342. When a note twenty-four years
Where a legatee owes more old was found among the papers
than the legacy, the executor of the testator, the presumption of
may retain the legacy and offset payment prevented its being
it against the debt, but he can not treated as an advancement. —
retain from the legatee the income White v. Moore, 23 S. C. 456.
1062 COMMENTARIES ON THE LAW OF WILLS.
acy by a creditor to the wife of a debtor is not a satis-
faction of a debt due to the testator.*®
§ 727. The Same Subject: Parol Evidence of Intention.
Parol evidence on an issue as to whether or not a leg-
acy was intended to forgive a debt from the legatee to
the testator, is generally admissible; it does not offend
against the rule forbidding the varying or altering of a
written instrument by oral testimony.*''
§728. Legacy to Creditor as Satisfaction of Debt: General
Rule.
The general rule, early established in equity, is that
where a testator, owing an ordinary debt, bequeaths to
a creditor money of equal or greater value than the debt,
the presumption, in the absence of any circumstances
showing a contrary intent, is that the legacy is intended
as a satisfaction of the debt, it being reasonably supposed
that such was the intention of the testator.** The rea-
86 Clarke v. Bogardus, 12 Wend, off the legacy and offered to pay
(N. Y.) 67. her the residue, which she refused,
87 Cuthbert v. Peacock, 2 Vern. the receipt and the declarations of
593; Pole v. Somers, 6 Ves. Jun. the testator were admissible to
309, 324; Wallace v. Pomfret, 11 show that the payment was in-
Ves. Jun. 542; Bromley v. Atwood, tended as an ademption pro tanto
79' Ark. 357, 96 S. W. 356; Henry of the legacy.— Richards v. Hum-
V. Henry, 81 Ky. 342; Gilliam v. phreys, 15 Pick. (Mass.) 133.
Brown, 43 Miss. 641; Williams v. 88 Atkinson v. Webb, 2 Vern.
Crary, 4 Wend. (N. Y.) 443; Zeig- 478; NichoUs v. Judson, 2 Atk.
ler V. Eckert, 6 Pa. St 13, 47 Am. 300; In re Horlock, L. R. (1895)
Dec. 428. 1 Ch. Div. 516; In re Rattenberry
In a case where the testator had (Ray v. Grant), L. R. (1906) 1 Ch.
bequeathed f500 to his sister, and Div. 667, 4 Ann. Cas. 457; Tomp-
later advanced her $466 to pur- son v. Wilson, 82 111. App. 29;
chase some land, for which sum Cloud v. Cllnkinbeard, 8 B. Mon.
he took a receipt, and he stated to (Ky.) 397, 48 Am. Dec. 397; Buck-
her that he was desirous of paying ner v. Martin, 158 Ky. 522, L. R. A.
ADEMPTION AND SATISFACTION.
1063
sonableness of the rule has been seriously questioned.*'
It is viewed with disfavor and slight circumstances are
deemed sufficient to take the case out of the general rule.""
The mere fact that a testator leaves a legacy to a creditor
^^dthout mentioning his indebtedness to him, should not
always create the presumption that the legacy was in-
tended to satisfy the debt. Indeed, it would seem more
probable that, if the testator intended the legacy as a
satisfaction of the debt, he would in some way have
referred to it in his will, and silence would create the
impression that satisfaction was not intended.®' The pre-
1915B, 1156, 165 S. W. 665; Strong
V. Williams, 12 Mass. 391, 70 Am.
Dec. 81; Allen v. Merwin, 121
Mass. 378; Gilliana v. Brown, 43
Miss. 641; Adams v. Adams, 55
N. J. Eq. 42, 35 Atl. 827; Reynolds
V. Robinson, 82 N. Y. 103, 37 Am.
Rep. 555 ; Horner v. McGaughy, 62
Pa. St. 189.
S9 "But, although the rule, as to
a legacy being an ademption of a
debt, is now well established in
equity, yet it is deemed to have so
little of a solid foundation, either
in general reasoning, or as a just
interpretation of the Intention of
the testator, that slight circum-
stances hav.e been laid hold of to
escape from it, and to create ex-
ceptions to it." — Story, Eq. Juris.,
§ 1122.
"This general rule, being based
upon artificial reasoning, has been
distinctly condemned by able
judges. It is not favored by courts
of equity; on the contrary, they
lean strongly against the presump-
tion, will apply it only In cases
which fall exactly within the rule,
and will never enlarge its opera-
tion. In consequence of this strong
leaning against the presumption,
it is well settled that courts of
equity will take hold of very slight
circumstances connected with any
particular case, and will regard
them as sufficient to remove the
case from the operation of the
general rule, and to prevent the
presumption of a satisfaction from
arising." — Pomeroy, Eq. Juris. (3rd
ed.), §§527,528.
90 Nlcholls v. Judson, 2 Atk. 300 ;
Thynne v. Glengall, 2 H. L. Gas.
131, 136; Edelen v. Dent, 2 GUI
& J. (Md.) 185; Strong v. Will-
iams, 12 Mass. 391, 70 Am. Dec.
81; Van Riper v. Van Riper, 2 N. J.
Eq. 1; Perry v. Maxwell, 17 N. C.
488; . Crouch v. Davis, 23 Graft.
(Va.) 62.
9iBuckner v. Martin, 158 Ky.
522, L. R. A. 1915B, 1156, 165 S. W.
665.
Mere proof that the payee of a
note left a legacy to the maker
1064 COMMENTAEIES ON THE LAW OF WILLS.
sumption, however, mentioned under the general rule is
equitable and not legal;®- and the general rule applies
only where no presumption to the contrary can be drawn
from the face of the will.**
Where the general rule applies, the legacy being consid-
ered as a satisfaction of the debt, the creditor has always
the right of election; he may accept the legacy, in which
event he waives his claim against the estate; or he may
stand on his debt, in which event he takes no benefit
under the bequest. The same situation would result in a
case where the testator in express terms gave the legacy
to the creditor in satisfaction of the debt.®*
§ 729. The Same Subject: Exceptions to General Rule.
There are many exceptions to the general rule stated
in the preceding section. If a legacy to a creditor is pay-
thereof is not proof of the extin- Under art. 1641, Rev. Civ. Code,
guishment of the debt pro tanto declaring that a legacy to a ser-
or otherwise. — ^Lynch v. Lyons, 131 vant shall not be deemed to be in
App. Div. 120, 115 N. Y. Supp. 227; compensation of his wages, a
affirmed in 197 N. Y. 595, 91 N. B. legacy of $100 to one whose
1116. wages for nursing and attendance
A provision in a will, "I desire amounted to $1500, for which ade-
that my present crop be appropri- quate compensation was to be
ated to the payment of the debt made by will, which was not done,
due J. T. S., as he has been kind was held not made in payment of
to me, and balance to my other wages, but as a gift. — Succession
creditors," is not a legacy to the of Palmer, 137 La. 190, 68 So. 405.
named creditor of an amount equal 92 Cloud v. Clinkinbeard, 8 B.
to his debt against the testator. Mon. (Ky.) 397, 48 Am. Dec. 397.
It is the expression of the desire 93 Van Riper v. Van Riper, 2
of the testator that in the payment N. J. Eq. 1.
of his debts from a specific fund, 94 Richardson v. Greese, 3 Atk.
the indebtedness of the named 65, 68; Shadbolt v. Vanderplank,
creditor shall first be extinguished. 29 Beav. 405; In re Fletcher, L. R.
— Thompson v. Stevens, 138 Ga. 38 Ch. Div. 373 ; Parker v. Cobum,
205, 75 S. E. 136. 10 Allen (92 Mass.) 82; Strong v.
ADEMPTION AND SATISFACTION.
1065
able at a different time from the debt as, for example,
where the debt is payable at the testator's death and the
legacy is payable at a specified time thereafter, satisfac-
tion of the debt is not presumed.®^ If the legacy is uncer-
tain and is made to depend upon a contingency, the pre-
sumption of satisfaction does not apply. "^ Nor does the
general rule prevail where the legacy is given for a dif-
ferent interest or is of a different nature from the debt.®^
For instance, a devise of land will not be presumed to be
in satisfaction of a money obligation, or vice versa.^^ If
the legacy given be less than the indebtedness, it will not
be regarded as a satisfaction thereof;"" nor will the gen-
Willlams, 12 Mass. 391, 7 Am. Dec.
SI ; Van Riper v. Van Riper, 2 N. J.
Eg. 1; Horner's Bxr. v. McGaughy,
62 Pa. St. 189.
95 Clark V. SeweU, 3 Atk. 96;
In re Rattenberry (Raj^ v. Grant),
L. R. (1906) 1 Ch. rttv. 667, 4 Ann.
Cas. 457; Fetrow v. Krause, 61 III.
App. 238; Cloud v. Clinkinbeard,
8 B. Mon. (Ky.) 397, 48 Am. Dec.
397; Buckner v. Martin, 158 Ky.
522, L. R. A. 1915B, 1156, 165 S. W.
C65; Bdelen v. Dent, 2 Gill & J.
(Md.) 185; Stone v. Pennock, 31
Mo. App. 544; Van Riper v. Van
Riper, 2 N. J. Eq. 1; Phillips v.
McCombs, 53 N. Y. 494; Perry v.
Maxwell, 17 N. C. 488 ; Baptist Fe-
male University v. Borden, 132
N. C. 476, 44 S. E. 47, 1007.
96 Tompson v. Wilson, 82 III.
App. 29; Cloud v. Clinkinbeard, 8
B. Mon. (Ky.) 397, 48 Am. Dec.
397; Buckner v. Martin, 158 Ky.
522, L. R. A. 1915B, 1156, 165 S. W.
665; Edelen v. Dent, 2 Gill & J.
(Md.) 185; Strong v. Williams, 12
Mass. 391, 7 Am. Dec. 81.
97 Richardson v. Elphinstone, 2
Ves. Jun. 463; Fetrow v. Krause,
61 111. App. 238; Huston v. Huston,
37 Iowa 668; Cloud v. Clinkin-
beard, 8 B. Mon. (Ky.) 397, 48 Am.
Dec. 397; Buckner v. Martin, 158
Ky. 522, L. R. A. 1915B, 1156, 165
S. W. 665; Waters v. Howard, 1
Md. Ch. 112; Strong v. Williams,
12 Mass. 391, 7 Am. Dec. 81.
9SBellasis v. Uthwatt, 1 Atk.
428; Van Riper v. Van Riper, 2
N. J. Eq. 1.
A devise of 40 per cent of real
property appraised at $750,000 to
the holder of the testator's note
for $35,000 does not discharge the
debt, because the devise is not
of the same nature as the debt.^
Bennett v. Piatt, 85 N. J. Eq. 436,
96 Atl. 482.
99 Gee V. Liddell, 35 Beav. 621;
Fetrow v. Krause, 61 111. App. 238 ;
Huston v. Huston, 37 Iowa 668;
1066
COMMENTAEIES ON THE LAW OP WILIiS.
eral rule as to satisfaction prevail when the debt is un-
liquidated,^ or is a trust debt,^ or was contracted after
the making of the will.'
Where there is an express direction in a testator's will
for the payment of his debts, the general rule as to sat-
isfaction can not prevail, for the testator has thereby
directed the payment of the debt as well as the payment
of the legacy.*
§730. The Term "Advancements" Defined: Gifts and Debts
Distinguished.
An advancement is the transfer of money or property
by the owner to another to whom he stands in loco
Mitchell V. Vest, 157 Iowa 336, 13S
N. W. 1054; Cloud v. Clinkintieard,
8 B. Mon. (Ky.) 397, 48 Am. Dec.
397; Buckner v. Martin, 158 Ky.
522, L. R. A. 1915B, 1156, 165 S. W.
665; Owings v. Owings, 1 Hair.
& G. (Md.) 484; Strong v. Will-
iams, 12 Mass. 391, 7 Am. Dec. 81;
Gilliam v. Brown, 43 Miss. 641;
Rusling T. Rusling, 42 N. J. Eq.
594, 8 Atl. 534; Reynolds v. Roljin-
son, 82 N. Y. 103, 37 Am. Rep. 555;
Harris t. Rhode Island Hospital
Trust Co., 10 R. I. 313; Pitts v.
Van Orden, (Tex. Civ. App.) 158
S. W. 1043; Newell v. Keith, 11
Vt. 214.
1 Van Riper v. Van Riper, 2 N. J.
Eq. 1; Horner v. McGaughy, 62
Pa. St. 189.
2 Cloud V. Clinkinbeard, 8 B.
Mon. (Ky.) 397, 48 Am. Dec. 397;
Buckner v. Martin, 158 Ky. 522,
L. R. A. 1915B, 1156, 165 S. W. 665;
Pitts V. Van Orden, (Tex. Civ.
App.) 158 S. W. 1043.
s Glover v. Patten, 165 XT. S. 394,
41 L. Ed. 760, 17 Sup. Ct. 411; Hels-
ler V. Sharp, 44 N. J. Eq. 167, 14
Atl. 624; Matter of Enos, 61 Misc.
Rep. (N. Y.) 594, 115 N. Y. Supp.
863; Williams v. Crary, 4 Wend.
(N. Y.) 443; Baptist Female Uni-
versity V. Borden, 132 N. C. 476,
44 S. E. 47, 1007; Sullivan v. LaU-
mer, 38 S. C. 158, 17 S. B. 701;
Crouch v. Davis, 23 Gratl. (Va.) 62.
4 Glover v. Hartcup, 34 Beav. 74;
Fetrow v. Krause, 61 111. App. 238 ;
Mitchell V. Vest, 157 Iowa 336, 136
N. W. 1054; Cloud v. Clinkinbeard,
8 B. Mon. (Ky.) 397, 48 Am. Dec.
397; Buckner v. MarUn, 158 Ky.
522, L. R. A. 1915B, 1156, 165 S. W.
665; Edelen v. Dent, 2 Gill & J.
(Md.) 185; Strong v. Williams, 12
Mass. 391, 7 Am. Dec. 81; Deich-
man v. Arndt, 49 N. J. Eq. 106, 22
Atl. 799; Bennett V. Piatt, 85 N. J
Eq. 436, 96 Atl. 482; Matter of
Cole, 85 Misc. Rep. (N. Y.) 630,
148 N. Y. Supp. 1099; Reynolds v.
ADEMPTION AND SATISFACTION. 1067
parentis,^ tlie transfer being made in anticipation of the
share which the donee would inherit from the donor's
estate in the event of his dying intestate, and intended
to be deducted therefrom.® Strictly speaking, the term
"advancement" is applicable only in the case of the
parent dying intestate, whereas ademption has to do with
legacies.'' The term is often used in decisions interchange-
ably with gifts, or advanced payments, a close scrutiny
of the context being necessary to ascertain the meaning
intended. An advancement differs from a gift since as to
the latter the donor need not stand in loco parentis to the
donee, nor is a gift necessarily charged against the in-
heritance of the donee as is the case with an advance-
ment. And although an advancement is charged against
the donee, yet it differs from a debt in that no repay-
ment can be enforced during the lifetime of the donor,
and after his death his estate makes collection only by
deducting the advancement from the inheritance of the
donee.*
Robinson, 82 N. Y. 103, 37 Am. St. 337; Rickenbacker v. Zimmer
Rep. 555; Baptist Female Univer- man, 10 S. C. 110, 30 Am. Rep. 37;.
sity V. Borden, 132 N. C. 476, 44 Cawthon t. Coppedge, 1 Swan
S. E. 47, 1007; Harris v. Rhode (Tenn.) 487.
Island Hospital Trust Co., 10 R. I. 7 Cawlfield v. Brown, 45 Ala. 552;
313. Davis v. Whittaker, 38 Ark. 435,
6 Kramer v. Kramer, 201 Fed. 449 ; Johnson v. Belden, 20 Conn.
248, 119 C. C. A. 482; Weston v. 322, 324; McCormick v. Hanks, 105
Johnson, 48 Ind. 1; Wallace t. Iowa 639, 75 N. W. 494; Turpin v.
DuBois, 65 Md. 153, 4 Atl. 402; Turpin, 88 Mo. 337, 340; Burnham
Carmichael v. Lathrop, 108 Mich. v. Comfort, 37 Hun (N. Y.) 216,
473, 32 L. R. A. 232, 66 N. W. 350. 220.
6 Bouvier's Law Diet. ; Black's In Georgia and Maryland it is
Law Diet. ; Dillman v. Cox, 23 Ind. only in cases of intestacy that the
440; Clark V. Willson, 27 Md. 693; doctrine of advancement applies. —
In re Lear's Estate (Tompkins v. Marshall v. Rench, 3 Del. Ch. 239;
Lear), 146 Mo. App. 642, 124 S. W. Wallace v. Owen, 71 Ga. 544.
592; In re Miller's Appeal, 31 Pa. sin re Hall, 14 Ont. 557; Her-
1068 COMMENTARIES ON THE LAW OF WILLS.
Although the term "advancements" may not be strictly
applicable with reference to the ademption of legacies,
yet the result is practically the same. Where a parent
makes a bequest in favor of his child, the law presumes
the legacy as a portion to which the child would there-
after become entitled out of the parent's estate. If such
parent thereafter transfers money or property to such
child, since the law does not favor double portions, such
gift will be presumed, under conditions hereinafter men-
tioned, as an advanced payment of the natural obliga
tion of parent to child.* The result is that the legacy
is satisfied or adeemed, in whole or in part, according to
the amount of the subsequent payments made by the tes-
tator to his child.^"
§ 731. Meaning of "In Loco Parentis."
The rule as to advancements applies only to those to
whom the donor stands in loco parentis. As to what con-
stitutes such relationship, the authorities are not entirely
harmonious. Primarily it has reference to the duty as-
sumed by one to make provision for another because of
a parental obligation so to do, such as the duty of a
father to make provision for his children.^^ If the child
kimer v. McGregor, 126 Ind. 247, v. Smith, 117 Fed. 707; May v.
254, 25 N. E. 145, 26 N. E. 44; May, 28 Ala. 141; Clayton v. Akin,
Pi-octor V. Newhall, 17 Mass. 81. 38 Ga. 320, 95 Am. Dec. 393; Hay-
9 Watson V. Lincoln, Ambl. 325; ward v. Loper, 147 111. 41, 51,
Pym V. Lockyer, 5 Myl. & C. 30, 35 N. E. 225; Davis v. Close, 104
35; Wallace V. DuBois, 65 Md. 153, Iowa 261, 73 N. W. 600; Wallace
4 Atl. 402. V. DuBois, 65 Md. 160, 4 Atl. 402;
10 Jenkins v. Powell, 2 Vern. Langdon v. Astor, 16 N. Y. 9; In
115; Hartop v. Whitmore, 1 re Turfler's Estate, 1 Misc. Rep.
P. Wms. 681; Trimmer v. Bayne, 58, 23 N. Y. Supp. 135; Williams
7 Ves. Jun. 508, 515; Grave v. Sal- v. Batchelor, 74 N. C. 557.
isbury, 1 Bro. C. C. 425; Sidney v. ii Ex parte Pye, 18 Ves. Jun.
Sidney, L. R. 17 Eq. 65; Wilson 140; Powys v. Mansfield, 3 Myl.
ADEMPTION AND SATISFACTION.
1069
be illegitimate, the common law rule is that the relation-
ship does not exist.^^ The relationship, however, has
been held applicable to a grandfather who assumed such
obligation;^'' but in South Carolina, ademption is not
presumed from advanced gifts to grandchildren." Under
a New York statute relating to advancements, the word
"children" has been held to embrace all an intestate's
descendants who were entitled to share in his estate.*^
Uncles have been included,^* also excluded.^^ The prin-
ciple of advancements can not be applied to gifts from a
husband to his wife,*^ but it has been extended to a case
of a moral obligation, other than parental, which was pre-
viously recognized in the donor 's will.^'
& C. 359; Bennett v. Bennett,
L. R. 10 Ch. Div. 474.
12 Ex parte Pyc, 18 Ves. Jun.
140; Smith v. Strong, 4 Bro. C. C.
493.
As to rights of illegitimate chil-
dren, see § 642.
13 Pym V. Lockyer, 5 Myl. &
C. 30.
i-tAUen V. Allen, 13 S. C. 512,
36 Am. Rep. 716.
In a South Carolina case, a testa-
trix gave property, during her life-
time, in unequal portions to her
three daughters and married son,
•fthich they received at a valuation
to be accounted for in the final
settlement of her estate. Her will
directed that her entire estate be
divided in equal shares to the
daughters and to her son, in trust
for the wife and children of the
latter. It was decided that the
trust estate to his wife and chil-
dren was distinct from the ad-
vancements to the son, and was
not to be charged with what he
had received over and above one-
fourth; but that as between the
daughters and the son's wife and
children, the former must each
account for what had come to
them over and above one-fourth of
the entire estate. — Kennedy v.
Badgett, 26 S. C. 591, 2 S. B. 574.
15 Beebe v. Estabrook, 79 N. Y.
246.
16 Powys V. Mansfield, 3 Myl. &
C. 359.
17 Dunham v. Averill, 45 Conn.
61, 87, 29 Am. Rep. 642; Gilchrist
V. Stevenson, 9 Barb. (N. Y.) 9, 16.
1 s In re Morgan (Le Coulteux de
Caumont v. Morgan) , 104 N. Y. 74,
9 N. E. 861.
19 Pollock V. Worrall, L. R. 28
Ch. Div. 552.
Where a testatrix bequeathed to
a niece of her deceased husband
five hundred pounds, "according
1070 COMMENTARIES ON THE LAW OF WILLS.
§732. The Same Subject: Gift by Parent to Spouse of Child.
The decisions are not harmonious on the question as
to whether or not a gift by a parent to the husband or
wife of his child shall be deemed an advance payment of
a legacy theretofore given such child. Thus, a gift to the
husband of a daughter upon the occasion of her mar-
riage, of the exact amount theretofore bequeathed such
daughter, without stating anything regarding a satisfac-
tion of the legacy, has been held not to work an ademp-
tion thereof. The fact that the testator subsequently said
the money had been advanced in lieu of the bequest, but
not in the presence of the daughter, did not alter the
rule.^" Gifts of money to the husband of a child prior
to the execution of his will which makes no mention
thereof, can not be charged to the child.^^ But in Mary-
land an advancement to a daughter's husband is an ad-
vancement to the daughter.^^ And it has been said that
whether or not such a legacy is satisfied depends on the
intention of the testator.^^
§ 733. Legacy Must Precede Advanced Portion in Point of
Time, Otherwise No Deduction.
The rule as to deducting advanced portions from leg-
acies given in a will is applicable only where the testa-
te the wish of my late beloved hus- 20 Ravenscroft v. Jones, 32 Beav.
band," and afterwards In her life- 669; Hart v. Johnson, 81 Ga. 734,
time paid three hundred pounds 8 S. E. 73.
to the niece, mailing an entry in 21 In re Lyon's Estate, 70 Iowa
her diary at the same time that 375, 30 N. W. 642.
the payment was a "legacy" from 22 Dilley v. Love, 61 Md. 603.
the legatee's "Uncle John,'' the Contra: Rains v. Hays, 6 Lea
court considered that an ademp- (Tenn.) 303, 40 Am. Rep. 39.
tion pro tanto was thereby 23 McClure v, Evans, 29 Beav.
effected.— Pollock v. Worrall, L. R. 422.
28 Ch. Div. 552.
ADEMPTION AND SATISFACTION,
1071
mentary gift precedes the advanced payment. There can
be no deduction unless the advanced payment is made sub-
sequent to the execution of the testator's will wherein a
legacy or devise is given to one to whom payment is there-
after made, except the will so direct, or there be an agree-
ment or imderstanding on the part of the beneficiary that
the prior payment shall be applied to reducing the leg-
acy.^* To apply a gift made before the execution of a will
in full or part satisfaction of a legacy therein necessarily
varies the terms of the legacy and the expressed inten-
tion of the testator.^^ The rule may be stated to be that a
legacy is not adeemed unless the legatee received the
money from the testator after the execution of the will
and, further, that such money was advanced as a portion
with the intention of satisfying the legacy.** Advances
made prior to the execution of the donor's will are not
24 Jaques v. Swasey, 153 Mass.
596, 12 L. R. A. 566, 27 N. E. 771;
Matter of Crawford, 113 N. Y. 560,
5 L. R. A. 71, 21 N. E. 692.
Where a testatrix, after declar-
ing in her will that she had pre-
viously loaned to each of the lega-
tees the sum of four thousand dol-
lars, expressly directed that her
estate should have due credit
therefor and that these amounts
should be deducted from the
shares of the legatees, it was held
that the shares given to the lega-
tees should be diminished by the
amount of said loans, notwith-
standing in a previous document
to which the will made no refer-
ence, the testatrix has released the
legatees from paying such loans. —
In re Tompkin's Estate, 132 Cal.
173, 64 Pac. 268.
This rule has been applied to a
single gift, even where advance-
ments were designated as such at
the time when made. — ^In re Cum-
ming's Estate, 120 Iowa 421, 94
N. W. 1117.
Where a testator directed that
advancements should be deducted
from the respective shares of his
children, and one of them had re- .
ceived from his father more than
the amount of his share, he was
required to repay the excess to
the estate. — Sayre v. Sayre, 32
N. J. Eq. 61.
25 Jaques v. Swasey, 153 Mass.
596, 12 L. R. A. 566, 27 N. E. 771.
26 Van Houten v. Post, 33 N. J.
Eq. 344.
1072
COMMENTARIES ON THE LAW OE WILiiS.
to be offset against legacies under a will making no men-
tion of them and directing an equal division of the resi-
due of the estate among the children of the testator.^'' So,
also, a legacy in one will, repeated in a subsequent one,
will take effect notwithstanding an advancement made
prior to the execution of the latter.^*
§ 734. Presumption as to Advanced Portions : General Rule.
Where a parent has given a legacy to a legitimate
child without stating the purpose for which it was given,
he is presumed by law to have intended it as a portion,
and so if before his decease he make other provision for
the child, it wUl be deemed to have been in lieu of the
legacy ; and the advanced portion and the legacy being for
the same purpose, the latter will be adeemed.^® Though
27 Brewton v. Brewton, 30 Ga.
416; In re Lyon, 70 Iowa 375, 378,
30 N. W. 642 ; Loring v. Blake, 106
Mass. 592; Richmond v. Vanhook,
3 Ired. Bq. (38 N. C.) 581; Snel-
grove V. Snelgrove, 4 Desaus. Eq.
(S. C.) 274. See, also, Upton v.
Prince, Cas. temp. Talb, (3rd
ed.) 71.
28 Clark V. Kingsley, 37 Hun
(N. Y.) 246.
See, however. Low v. Low, 77
Me. 37, where a son for a sum of
money released the payment of
legacies under an existing will "or
any other will."
29 Parnham v. Phillips, 2 Atk.
215; Ward v. Lant, Prec. Ch. 182
Scotton V. Scotton, 1 Strange 236
Watson V. Lincoln, Amb. 325
Grave v. Salisbury, 1 Bro. C. C.
425, 427; Jenkins v. Powell, 2
Vern. 115; Chichester v. Coventry,
L. R. 2 H. L. Cas. 71; In re Tus-
saud, L. R. 9 Ch. Div. 363; Clen-
dening v. Clymer, 17 Ind. 155;
Weston V. Johnson, 48 Ind. 1;
Roquet v. Eldridge, 118 Ind. 147,
20 N. B. 733; Wallace v. DuBois,
65 Md. 153, 4 Atl. 402; Richards v.
Humphreys, 15 Pick. (Mass.) 133;
Carmichael v. Lathrop, 108 Mich.
473, 32 L. R. A. 232, 66 N. W. 350;
Twining v. Powell, 2 Coll. Cas.
262; EUard v. Ferris, 91 Ohio St.
339, 110 N. E. 476; Johnson v.
Patterson, 13 Lea (Tenn.) 626;
Jones v. Mason, 5 Rand. (Va.)
577, 16 Am. Dec. 761; Moore v.
Hilton, 12 Leigh (Va.) 1.
The presumption arising from
the passing of money from the
parent to the child has been said
to be so slight and so easily over-
come, that the rule might be
stated to be that whether the
ADEMPTION AND SATISFACTION. 1073
the advanced portion be given to the child upon the oc-
casion of his or her marriage or other occasion calling
for it, the same presumption prevails.^" But the principle
applies only to the duty to make provision for the child.
Money expended by a father for the professional educa-
tion of his son,^^ or a conveyance from a father to his
son for an adequate consideration of value, can not be
presumed to be by way of advancement.^^
The rule in regard to ademption by an advance pay-
ment from one in loco parentis, is based upon the equi-
table presumption that the parent intends to make an
equal provision for his children, and not to give double
portions to any.^* Accordingly, if a contrary intention be
shown, the presumption falls, and the rule ceases to
apply. For example, where a father who had previously
conveyed land to a son in consideration of his releasing
all claims of inheritance, made a will in which he di-
money was intended to be a gift no presumption so to charge them
independent of the legacy, or the can be raised by the fact that the
payment of a debt, or a portion in advancements were unequal in
ademption of a legacy, must be amount. — McFall v. Sullivan, 17
decided by the circumstances and S. C. 504.
facts proved in each case. — Van so Schofield v. Heap, 27 Beav.
Houten v. Post, 33 N. J. Eq. 344, 93; Trimmer v. Bayne, 7 Ves. Jun.
347. 508, 6 Rev. Rep. 173; Phillips v.
Where a father conveys real es- Phillips, 34 Beav. 19 ; May v. May,
tate to a child for a nominal con- 28 Ala. 141; Paine v. Parsons, 14
sideration, the presumption is in Pick. (31 Mass.) 318; Hansbrough
favor of an advancement, but a v. Hooe, 12 Leigh (Va.) 316, 37
contrary intent may be shown. — Am. Dec. 659.
Harper v. Harper, 92 N. C. 300. 3i White v. Moore, 23 S. C. 456.
It is said that if a testator 32 Miller's Appeal, 107 Pa. St.
leaves his property to his children 221.
in equal shares, saying nothing 33 Bx parte Pye, 18 Ves. Jun.
that may be fairly construed to 140; Grave v. Salisbury, 1 Bro.
indicate an intention to charge C. C. 425, 427; Watson v. Lincoln,
their shares with advancements, Amb. 325.
II Com. on Wills— 14
1074 COMMENTARIES ON THE LAW OF WILLS.
rected that Ms son should share in his estate "with the
rest of my heirs, ' ' it was considered to revoke the prior
arrangement, and to entitle the son to take a portion
of the estate.** The word "advancement" as used in a
wiU in its general sense to denote gifts or loans to a
son, is not to be construed according to its strict tech-
nical meaning.*"
§ 735. The Same Subject: Slight Differences Between Gift and
Legacy.
Slight circumstances of difference between the advance-
ment and the portion bequeathed will not repel the pre-
sumption against double portions. A mere difference in
amoimt will not preclude the inference of intention to
adeem the legacy in whole or in part. If the amount of
the advance be equal to or greater than the legacy, the
latter will be wholly adeemed, but if less, then the ademp-
tion will be pro tanto only.** The presumption that an
advancement of a sum smaller than the legacy was an
ademption pro tanto only, has been held not to be over-
thrown by evidence that more than a year before the ad-
vancement was made the testatrix asked the legatee
34 Turner's Appeal, 52 Mich. 398, subsequent legacies left by the
18 N. W. 123. testator to the same legatees, but
35 Eisner v. Koehler, 1 Demarest that the testator meant by the
(N. Y.) 277; Wright's Appeal, 93 word "advancements" any money
Pa. St. 82; s. c, 89 Pa. St. 67. See, or property which he might give
also, Porter's Appeal, 94 Pa. St. to said legatees before his death.
332. — In re Zelle's Estate, 74 Cal. 125,
A clause in a ■will reading, "I 136, 15 Pac. 455.
hereby declare that any advance- 36 Hoskins v. Hosklns, Preo. Ch.
ments I may hereafter personally 263; Thellusson v. Woodford, 4
make to the before mentioned lega- Mad. 420 ; Clendening v. Clymer,
tees or to either of them shall be 17 Ind. 165; Benjamin v. Dlmmlck,
deemed partial satisfaction of said 4 Redf. (N. Y.) 7.
legacy," was held not to apply to
ADEMPTION AND SATISFACTION. 1075
Avhether she would prefer to have the smaller sum
"down" or a larger sum after the testatrix's death, and
that the legatee had replied that she would prefer the
smaller "down.""
§736. The Same Subject: Exceptions to General Rtile.
An exception to the presumption of ademption is made
in the case where the legacy and the gift are not the same
in kind.^® Thus, a devise of real estate is not to be
adeemed by a payment in money, without clear proof
that it was so intended;^* nor a legacy in money by a
share in a business.*" A second exception occurs when the
subsequent advancemient depends upon a contingency, and
the testamentary portion is certain.*^ A third exception
arises where the legacy or the advancement is not given
as a portion, but in lieu of property to which the child
is otherwise entitled.*^ A fourth exception is in a case
where the legacy to the child is absolute, and the gift is
for life only with the capital over to others than the
issue of the child.**
Fifthly, the doctrine of ademption of legacies by gifts
during the life of the testator is applicable principally to
general legacies of definite amounts of money, rather
than to specific or residuary legacies. As to residuary
37 Pollock V. Worrall, L. R. 28 4i Crompton v. Sale, 2 P. Wms.
Ch. Div. 552. 553; Spinks v. Robins, 2 Atk. 491,
38 Clendening V. Clymer, 17 Ind. 493; Powys v. Mansfield, 3 Myl.
155; Benjamin v. Dimmick, 4 Redf. & C. 359, 374, 375; Benjamin v.
(N. Y.) 7; Allen v. Allen, 13 S. C. Dimmick, 4 Redf. (N. Y.) 7.
512, 36 Am. Rep. 716. 42 Baugh v. Read, 1 Ves. Jun.
39 Allen V. Allen, 13 S. C. 512, 257.
36 Am. Rep. 716; Evans v. Beau- 43Alleyn v. Alleyn, 2 Ves. Sen.
mont, 4 Lea (72 Tenn.) 599. 38 ; Trimmer v. Bayne, 7 Ves. Jun.
40 Holmes v. Holmes, 1 Bro. 508, 516.
C. C. 555.
1076
COMMENTARIES ON THE LAW OP WILLS.
legacies it lias been said that they could neither be
adeemed nor satisfied since the amounts thereof are
always indeterminate and in some cases nothing may re-
main, and that, therefore, no presumption could arise
as to intended ademption or satisfaction.** But the
more correct rule is that the question of satisfaction or
ademption does not depend upon the indefinite character
of a residuary legacy, but is a matter of intention as in
other cases of ademption.**
§737. Reason for Presumption of Satisfaction of Legacy by
Advanced Portions.
The rule that advanced portions will cause the ademp-
tion of a prior legacy is applied on the same principle as
44 Watson V. Earl of Lincoln,
Ambl. 325, 327; Preemantle v.
Bankes, 5 Ves. Jun. 79, 85; Far-
nam v. Phillips, 2 Atk. 216; Smith
V. Strong, 4 Bro. C. C. 493. See,
also, Davis v. Whlttaker, 38 Ark.
435 ; Clendenlng v. Clymer, 17 Ind.
155, 159; Gray v. Bailey, 42 Ind.
349; Weston v. Johnson, 48 Ind. 1;
Langdon v. Astor, 16 N. Y. 9, 33;
Allen V. Allen, 13 S. C. 512, 36 Am.
Rep. 716.
45 Monteflore v. Guedalla, 6 Jur.
N. S. 329; Dawson v. Dawson,
L. R. 4 Eq. 504; Sims v. Sims,
10 N. J. Eq. (2 Stockt. Ch.) 158;
Van Houten v. Post, 32 N. J. Eq.
709, 712.
As to a bequest of the residue of
an estate being in satisfaction of
a portion, wholly or partially, ac-
cording to amount, see Lady
Thynne v. Earl of Glengall, 2 H. L.
Cas. 131.
1 Roper on Legacies 379, 380, is
authority for a sixth exception In
relation to devises of real estate.
In Davys v. Boucher, 3 You. & C.
397, it was said by Alderson, B.,
that as far as his researches had
extended, he had not found any In-
stance of this principle having
been extended to devises of real
estate. — Weston v. Johnson, 48
Ind. 1. While some authorities
would seem, to sustain this state-
ment, in Burnham v. Comfort, 37
Hun (N. Y.) 216; Clark v. Jetton,
5 Sneed (37 Tenn.) 229, 236; Will-
iams V. Bolton, 1 Dick. 405 r Lech-
mere v. Carlisle, 3 P. Wms. 211;
Wilcocks V. Wilcocks, 2 Vern.,
pt. 2, 558, Its correctness has been
doubted. Dissenting opinion of
Boardman, J., in Burnham v. Com-
fort, 37 Hun (N. Y.) 216, 218,
where the authorities are reviewed
at length.
See I 708, n. 1.
ADEMPTION AND SATISFACTION. 1077
that of advancements in eases of intestacy. It is founded
on the presumption that a parent intends all the natural
objects of his bounty to share equally in his estate. Where
he makes a gift to a child of a similar amount of money
previously given by a general legacy in his will, it is
presumed that he intends to take away the legacy, wholly
or partially, according to the value of the gift. The rela-
tionship of the parties creates the presumed intention,
therein differing from the case where the legatee is a
stranger, although the actual intention may always be
shown.*® The rule seems unreasonable, as putting a
stranger on a better footing than the testator 's own chil-
dren, but it is well established.*'^ There are, however,
cogent reasons in its favor. A legacy from a father to
his child is deemed a portion, double portions are not
favored, and a father's natural inclination to treat his
children alike renders it more probable that his gift was
in the nature of an advancement rather than a discrimi-
nation in favor of one.**
§ 738. Advancements, Value Thereof and Interest Thereon.
The value of an advancement is to be computed as of
the date at which it was made and possession taken ;*^
46 Ellard v. Ferris, 91 Ohio St. 48 Suisse v. Lowther, 2 Hare
339, 110 N. E. 476. 424; Richardson v. Bveland, 126
47 "But here, as in many other 111. 37, 1 L. R. A. 203, 18 N. E. 308;
cases, we must he content to de- Weston v. Johnson, 48 Ind. 1; Es-
clare, Ita lex scripta est — It is es- tate of Youngerman, 136 Iowa 488,
tabUshed, although it may not he 15 Ann. Cas. 245, 114 N. W. 7; Car-
entirely approved." — 2 Story, Bq. michael v. Lathrop, 108 Mich. 473,
Jur., § 1110. 32 L. R. A. 232, 66 N. W. 350; Mat-
"This rule has excited the regret ter of Weiss, 39 Misc. Rep. 71,
and censure of more than one emi- 78 N. Y. Supp. 877.
nent judge, though it has met 49 Pigg v. Carroll, 89 111. 205 ;
with approbation from other high Kyle v. Conrad, 25 W. Va. 760.
authorities." — 2 M'illiams Bxrs.
(7th Am. ed.) 1194.
1078 COMMENTARIES ON THE LAW OF WILLS.
thus the emancipation of slaves, given to a child as an
advancement before the war between the States, did not
relieve him from accounting for their value.^"
If legatees are chargeable with advancements evidenced
by promissory notes or receipts which are uncollectible
from them, they can not require the notes and receipts to
be treated as part of the assets of the estate for the pur-
pose of ascertaining their shares. ^^
Where children are to be charged with advancements,
interest runs thereon from the date of filing the execu-^
tor's account up to the time of distribution.^^ Where,
however, a testator gave his residuary estate to his widow,
for life, with remainder to his children, with the proviso
in common form for bringing into hotchpot all advance-
ments made to them by him, interest was computed from
the death of the widow, and neither from the date of
the respective advances, nor from the death of the tes-
tator.^*
§739. Statutor7 Regulations as to Gifts and Advancements.
Advancements or advanced payments and gifts have
been regulated by statute in some jurisdictions. For ex-
ample, in California, "advancements or gifts are not to
be taken as ademptions of general legacies, unless such
intention is expressed by the testator in writing.''* In
50 Fennell v. Henry, 70 Ala. 484, From the date of the parent's
45 Am. Rep. 88; Ventress v. death. — Kyle v. Conrad, 25 W. Va.
Brown, 34 La. Ann. 448. See, how- 760.
ever, Hughey v. Elchelberger, 11 53 Rees v. George, L. R. 17 Ch.
S. C. 36; Wilson v. Kelly, 21 S. C. Div. 701.
535. 64 Cal. Civ. Code, § 1351.
51 Hill V. Bloom, 41 N. J. 276, The same provisions have been
7 Atl. 438. passed In Dakota, Montana and
62 Ford's Estate, 11 Phila. (Pa.) Utah. — Stimson's Am. Stat. Law.
97. See, also, Barrett v. Morriss, § 2811.
33 Gratt. 273.
ADEMPTION AND SATISFACTION. 1079
Kentucky it is provided that a provision for or advance-
ment to any person shall be deemed a satisfaction in
whole or in part of a devise or bequest to such person
contained in a previous "will, if it would be so deemed in
case the devisee or legatee were the child of the testator ;
and whether he is a child or not, it shall be deemed so
in all cases in which it shall appear from parol or other
evidence to have been so intended.®^ In construing this
Kentucky statute it is held the one claiming: an advance-
ment to be in satisfaction of a legacy or devise has the
burden of proving that such was the testator's intention,
whether the beneficiary is or is not a child of the testa-
tor. If the devisee has signed a writing to the effect that
a devise to him has been satisfied by an advanced pay-
ment, a prima facie case is established, and the burden
is then on the devisee to show that the writing was ob-
tained by mistake or f raud.^®
§ 740. Evidence of Testator's Intention: Statutory Regrulations
and Provisions of the Will.
In considering the question as to what evidence is ad-
missible to establish or disprove that a gift by a testator
to one to whom he stands in loco parentis is in satis-
faction of a previous legacy, resort must first be had to
the statute, if any, on the subject. For instance, if the
statute provides that no gift or advancement shall cause
the ademption of a legacy unless the testator express
55 Kentucky Stats., (1915) § 4840. to be In satisfaction of a legacy
The intention of the statute was must allege in his pleadings that
to prevent a double portion. — such was the intention of the tes-
Louisville Trust Co. v. Southern tator. — Swinebroad v. Bright, 110
Baptist Theological Seminary, 148 Ky. 616, 62 S. W. 484.
Ky. 711, 147 S. W. 431. 56 Smith v. Cox's Committee,
One who claims an advancement 156 Ky. 118, 160 S. W. 786.
1080 COMMENTAEIES ON THE LAW OP WILLS.
such intention in writing, parol evidence would be in-
admissible. Or parol evidence may be proper under the
particular legislative regulation. Decisions should be
considered in the light of such enactments.^^
Where the will of the testator clearly expresses his in-
tention, its provisions can not be varied or explained by
parol evidence, but if the intention is not clear, extrinsic
evidence may be received. However, if the language is
clear and unambiguous, the intent of the testator must
be gathered from the provisions of the will.^*
§ 741. The Same Subject : Parol Declarations and Other Evi-
dence.
To prove the ademption of a legacy by advancement
it must appear, first, that the legatee received the money
from the testator; and second, that the money was ad-
vanced as a portion with the intention of satisfying the
legacy.^® To prove the mere fact of the passing over
of the money from the parent to the child, evidence of
the parol declarations of the testator is not admissible,
and such independent fact must be proved by other tes-
timony.®" Also charges in books, as evidence of the
passing over of the money, although admissible, are
not entitled to much weight.®^
The fact of the money having passed from the parent
57 S e e statutory regulations, 37 S. W. 901; Wtutsett v. Brown,
§ 739. 56 N. C. 297.
„ , „ T T, in 59 Van Houten v. Post, 33 N. J.
ssFowkes v. Pascoe, L. R. 10 . «= ,
Eq. 344, 346.
60 Fawkner v. Watts, 1 Atk. 406,
407; Batten v. Allen, 5 N. J. Eq.
(1 Halsted Ch.) 99, 43 Am. Dec.
Richardson v. Bveland, 126 111. 37, 630; Van Houten v. Post, 33 N. J.
1 L. R. A. 203, 18 N. E. 308; Rob- Eq. 344, 346.
bins V. Swain, 7 Ind. App. 486, 34 ei Van Houten v. Post, 33 N. J.
N. E. 670; Garth v. Garth, (Mo.) Eq. 344, 346.
Ch. App. 343; Smith v. Conder,
L. R. 9 Ch. D. 170; Chapman v.
Allen, 56 Conn. 152, 14 Atl. 780;
ADEMPTI02Sr AND SATISFACTION.
1081
to the child, after the execution of the mil, being proved,
the next question is as to the admissibility of evidence to
show the intention, whether it was by way of gift, inde-
pendent of the provisions of the will, or a loan, or pay-
ment of an obligation, or whether it was intended as
a portion in satisfaction of the legacy. In the absence
of any statute determining by what evidence an advance-
ment made to a child shall be proven, contemporaneous
memoranda, charges in the form of accounts, and parol
evidence are admissible to show the intention with which
the payment was made and received.®^ Although a pay-
ment of money or conveyance of property to a child is
presumed to be by way of advancement, this presumption
is slight, and to overcome it, evidence of parol declara-
62 Biggleston v. Grubb, 2 Atk.
48; PhiUips v. Phillips, 34 Beav.
19; Kirk t. Bddowes, 3 Hare 509;
Thellusson v. Woodford, 4 Madd.
420; Miller v. Payne, 28 App. D. C.
396; May v. May, 28 Ala. 141;
Davis V. Whittaker, 38 Ark. 435;
Johnson v. Belden, 20 Conn. 322;
Rogers v. French, 19 Ga. 316 ; Rich-
ardson V. Bveland, 126 111. 37, 1
L. R. A. 203, 18 N. E. 308; Daugh-
erty v. Rogers, 119 Ind. 254, 3
L. R. A. 847, 20 N. E. 779; Tim-
berlake v. Paris, 5 Dana (Ky.)
346; Wallace v. DuBois, 65 Md.
153, 4 Atl. 402; Richards v. Hum-
phreys, 15 Pick. (32 Mass.) 133;
Nelson v. Nelson, 90 Mo. 460, 463,
2 S. W. 413; Van Houten v. Post,
33 N. J. Bq. 344; Grogan v. Ashe,
156 N. C. 286, 72 S. B. 372; Zeiter
V. Zeiter, 4 Watts (Pa.) 212, 28
Am. Dec. 698.
A testator's certificate that he
has advanced a certain sum to an
heir is admissible in evidence, but
is not conclusive proof of its re-
citals.— In re McClintock's Appeal,
58 Mich. 152, 24 N. W. 549.
Where a father advanced vari-
ous sums to several children,
taking receipts "as part of my
apportionment of his estate," but
in his yfiXl directed his estate to
be sold and divided equally among
his children, making no provision
with respect to the advancements,
it Viras ruled that the children
should take equal shares. — Camp
V. Camp, 18 Hun (N. Y.) 217.
In a case in which a father,
being surety for his son, and pay-
ing a part of the debt, declared
it to be by way of advancement,
and took the notes and placed
them in a package of receipts
from other children to whom he
had made advancements, writing
1082 COMMENTARIES ON THE LAW OF WILLS.
tions of the testator is admissible to show that he did not
intend the money as a portion in satisfaction of the leg-
acy; and, in reply thereto, his parol declarations that he
did so intend may be shown, to ascertain if the presump-
tion be well or ill founded.®*
The declarations of a testator, when admitted in evi-
dence to overcome or sustain the presumption, should
not be vague and uncertain, but should have been made
with some particularity, so that they could be understood
by the witnesses who heard them; otherwise they are en-
titled to but little weight.**
A testator may indicate by reference in his will to ac-
count books and ledgers, what he intends shall be con-
sidered as advancements.*^ But in the absence of any
reference to books in the will or other evidence point-
ing to them, entries therein of advancements to a child
are not sufficient to show an intention that deduction
thereon that they would "show as also, Darden v. Harrill, 10 Lea (78
receipts," this was held to be ad- Tenn.) 421.
missible, and sufficient evidence of Where a note twenty-four years
the payment having been made as °^^ "^^^ ^°^^^ among the testator's
an advancement.-McDearman v. P^P^''^' *-^^ presumption of pay-
ment prevented it being treated as
an advancement. — ^White v. Moore,
23 S. C. 456.
esRosewell v. Bennett, 3 Atk.
certain chattels to a child, taking 77. ^^^.j^ ^_ Eddowes, 3 Hare 509;
from her a promissory note, bear- yan Houten v. Post, 33 N. J. Eq.
ing interest, for the estimated 344^ 347
value thereof, that the note 64 Van Houten v. Post, 33 N. J.
showed a debt and not an advance- Eq. 344, 347.
ment; and that parol evidence 65 Limpus v. Arnold, 13 Q. B.
could not be received to show that Div. 246; s. c, 15 Q. B. Div. 300;
the transaction was Intended as an In re Robert, 4 Demarest (N. Y.)
advancement. — Fennell v. Henry, 185; Robert v. Corning, 23 Hun
70 Ala. 484, 45 Am. Rep. 88, citing (N. Y.) 299; Lawrence v. Law-
Terry V. Keaton, 58 Ala. 667. See, rence, 4 Redf. (N. Y.) 278.
Hodnett, 83 Va. 281, 2 S. E. 643.
It has been held in Alabama, in
a case where a father delivered
ADEMPTION AND SATISFACTION. 1083
should be made from a legacy.®* Entries in an account
book, which appeared not to be contemporaneous with the
transactions recorded, have been rejected as evidence of
advancements.®^
§742. The Same Subject: Oral Declarations: By Whom, Time
When Made, and Parties Present.
The general rule is that only declarations of the parent
contemporaneous with making the gift are admissible to
show that it was intended as an advancement.®^ But sub-
sequent verbal declarations made by the father to the
child, and not at the time controverted by the latter,
may be offered in evidence.®® So, conversely, the dec-
larations of the parent in the absence of the son, not
known to the latter nor agreed to by him, can not prove
an advancement® And, again, if at the time a parent
took a note or obligation of a child, anything was said
or done to indicate an intention that the payment should
be regarded as an advancement, subsequent acts or dec-
larations recognizing that fact are admissible.''^^
Verbal declarations made by a parent to third persons,
that he had made an advancement to the child, are in-
competent when offered in the interest of the estate.''^
And loose verbal declarations of the father to a third
party, that he intended a debt due him from a son to be
66 Benjamin v. Dimmlck, 4 Redt to Miller's Appeal, 107 Pa. St.
(N. Y.) 7. 221.
67 Nelson v. Nelson^ 90 Mo. 460, 7i Merkel's Appeal, 89 Pa. St.
464, 2 S. W. 413. 340; Watklns t. Young, 31 Gratt.
68 Fennell v. Henry, 70 Ala. 484, (Va.) 84.
45 Am. Rep. 88. See, also, Wat- 72 Ray v. Leper, 65 Mo. 470;
kins V. Young, 31 Gratt. (Va.) 84. Nelson v. Nelson, 90 Mo. 460, 464,
69 Nelson v. Nelson, 90 Mo. 460, 2 S. W. 413.
463, 2 S. W. 413.
1084 COMMENTAEIES ON THE LAW OF WILLS.
an advancement, are insufficient evidence that such was
the factJ*
A son's statement to a third party that he was indebted
to his father, and that the amount would be deducted from
his share in the paternal estate, is not sufficient evi-
dence that the money was received as an advancement.'^*
§743. The Same Subject: Declarations Against Interest.
In connection with the rules laid down in the preceding
sections, must be borne in mind the admissibility of ac-
counts or oral declarations against the interest of the
declarant, for then it is immaterial when the entries were
made or the words spoken. On this ground, where a con-
veyance has been made by the father to a child, the
father 's subsequent declarations may be received to show
that the conveyance was not an advancement, but an out
and out gift.^^
§ 744. A Devise of Real Property Fails If the Testator Has No
Interest Therein at His Death.
The term "ademption," as has been shown, is prop-
erly applicable only to legacies of personal property. ''''
But a will operates only upon property legally or equi-
tably belonging to the testator at the time of his death.'^'^
If a testator die possessing no interest in real property,
no testamentary gift of realty, either specific or residu-
ary, can become effective. Although a testator may own
certain lands at the time of the execution of his willand
73 Harley v. Harley, 57 Md. 340. 16; Nelson v. Nelson, 90 Mo. 460,
See, also, Watkins v. Young, 31 464, 2 S. W. 413. See, also. Long v.
Gratt. (Va.) 84. Long, 19 111. App. 383, 389.
74 Green v. Hathaway, 36 N. J. 76 See §§ 708, n. 1; 736, n. 45.
Eq. 471. 77 Bruck v. Tucker, 32 Cal. 425,
7 5 Johnson v. Beldon, 20 Conn. 431.
.'522; Phillips v Chappell, 16 Ga.
ADEMPTION AND SATISFACTION.
1085
may specifically devise them, yet if they are disposed of
in any manner during his life, the devise must fail. The
disposition by the testator of real property previously
devised may effect a revocation of such devise either in
express terms or because it is wholly inconsistent with his
previously expressed testamentary intention. The effect
may be said to be the same as in the case of the ademp-
tion of a specific legacy and in many decisions the term
ademption has been applied to devises.
A sale and conveyance of realty operate as a revoca-
tion of a previous devise thereof.''^ The same result is
reached if the ownership of the property is lost by rea-
son of its sale for the non-payment of taxes,'^" or by
78 In re Benner's Estate, 155 Cal.
153, 99 Pac. 715; WorrlU v. Gill,
46 Ga. 482; Crist v. Crist, 1 Ind.
570, 50 Am. Dec. 481; Meily v.
Knox, 269 III. 463, 110 N. E. 56;
Walker v. Waters, 118 Md. 203, 84
Atl. 466; White v. Winchester, 6
Pick. (23 Mass.) 48; Brown v.
Thorndike, 15 Pick. (32 Mass.)
388; Gregory v. Lansing, 115 Minn.
73, 131 N. W. 1010; Marshall v.
Hartzfelt, 98 Mo. App. 178, 71 S. W.
1061; Hattersley v. Bissett, 51 N. J.
Eq. 597, 40 Am. St. Rep. 532, 29
Atl. 187; Adams v. Winne, 7 Paige
Ch. (N. Y.) 97; Ametrano v.
Downs, 170 N. Y. 388, 88 Am. St.
Rep. 671, 58 L. R. A. 719, 63 N. E.
340; see § 542.
Compare: Nutzhorn v. Sittig, 34
Misc. 486, 70 N. Y. Supp. 287.
Even if property devised be con-
veyed by the testator to the devi-
see in trust for the benefit of the
testator himself, It has been held
to act as an ademption of the
devise. — Coulson v. Holmes, Fed.
Cas. No. 3274, 5 Sawy. (U. S. C. C.)
279.
In New Hampshire, Massachu-
setts and Maine, when a testator
is disseised of lands which he had
devised, the devisees take in the
same manner that the heirs would
have taken had he died intestate;
and in the latter two states the
devisees have all the remedies for
the recovery of the lands that the
heirs might have used. — Stimson's
Am. Stat- Law, § 2814.
As to the implied revocation of
a devise from a void conveyance,
see § 540.
As to revocation of a devise
from alteration of the testator's
circumstances, see §§ 541, 544, 545.
79 Borden v. Borden, 2 R. I. 94.
1086 COMMENTAEIES ON THE LAW OP WILLS.
loss of property through, condemnation proceedings.^"
This is so hecause the property is subject to the right
of sale for the collection of taxes and to right of emi-
nent domain and the taking thereof from the testator is
clearly a conveyance by due process of law and is incon-
sistent with any devise of the property by will. The rule
has been applied where the testator exchanged the lands
devised for town lots, the property thus acquired pass-
ing to the residuary legatee.** But where the testator
parts with only a portion or a part interest in the lands
disposed of by his wiU, the devise will fail pro tanto
only.**
§745. The Same Subject: Effect of Re-Acquiring Ownership.
The common law rule was that devises of lands were
effective only if the testator owned them at the time of
making his will, and also that such ownership continued
uninterrupted until his death. An interruption of the
ownership worked a revocation.®* This rule has been gen-
erally changed by statute, but the decisions are conflict-
ing.** The question of revocation is largely statutory,
many states having laws similar to the statute of 1 Vic-
toria, ch. 26, sec. 19, which provides that no will shall be
revoked by any presumption of intention on the ground
soAmetrano v. Downs, 62 App. Barb. (N. Y.) 416; Philson v.
Div. 405, 70 N. Y. Supp. 833; s. c, Moore, 23 Hun (N. Y.) 152.
170 N. Y. 388, 88 Am, St. Rep. 671, See § 544.
58 L. R. A. 719, 63 N. E. 340. 83 See § 28. See, also. Miller v.
81 Decker v. Decker, 121 111. 341, Malone, 109 Ky. 133, 95 Am. St.
12 N. E. 750. Rep. 338, 78 S. W. 708; Hawes v.
82 In re Kean's Will, 9 Dana Humphrey, 9 Pick. (26 Mass.) 350,
(Ky.) 25; Walton v. Walton, 7 20 Am. Deo. 481.
^ohns. Ch. (N. Y.) 258; Brown 84 See §§ 229-234.
V. Brown, 16 Barb. (N. Y.) 569; As to the date from which a will
Vandemark v. Vandemark, 26 speaks, see §§ 235, 236.
ADEMPTION AND SATISFACTION. 1087
of an alteration in circumstances ; and sec. 23 of tlie same
act, which says that no conveyance or other act made or
done subsequently to the execution of a wiU of or relat-
ing to any leal or personal estate therein comprised, ex-
cept an act by which such will shall be revoked as pro-
vided for by the statute, shall prevent the operation of
the will with respect to such estate or interest in such
real or personal property as the testator shall have power
to dispose of by will at the time of his death. Thus where
a testator devises certain lands, subsequently conveys
them to a third party, but later re-acquires the owner-
ship thereof which continues until his death, the authori-
ties are conflicting as to whether or not such devise was
revoked by the conveyance. There is authority that it is
sufficient if the realty devised be in the testator's posses-
sion at his demise,^^ also authority to the contrary.®*
§746. The Same Subject: Effect of Agreement to Sell.
In equity, if the owner of lands has entered into a valid
contract for their sale, as to such owner they are con-
sidered as personalty, and as to the vendee they are
deemed to be realty. ^^ Where real property devised is
thereafter, by the testator, contracted to be sold, it is
held a revocation of the devise.*® The contract, how-
ever, must be executory and binding at the time of the
testator's death. If unenforceable, it will not effect a
revocation.®^ But in many jurisdictions, by statute, the
fact that the testator enters into a contract to sell lands
85Woolery v. Woolery, 48 Ind. 217; Walton v. Walton, 7 Johns.
523; Brown t. Brown, 16 Barb. Ch. (N. Y.) 258; Donohoo v. Lea,
(N. Y.) 569. 1 Swan (31 Tenn.) 119, 55 Am.
86 Walton V. Walton, 7 Johns. Dec. 725. See § 244, n. 72.
Ch. (N. Y.) 258. 89 Crowe v. Menton, L. R. 28 Ir.
8T See § 244. 519.
88 Watts V. Watts, L. R. 17 Eq.
1088 COMMENTARIES ON THE LAW OS- WILLS.
theretofore specifically devised will not cause a revoca-
tion thereof, but the devisee will take the property sub-
ject to the agreement."" But if the purchase money is
paid and the contract of sale completed before the tes-
tator's death, it is in effect a conveyance and a revoca-
tion.^i
Options, however, which may be exercised at the elec-
tion of the proposed vendee, but which can not be en-
forced against him contrary to his wish, have been held
not to constitute a revocation of a prior specific devise
of the lands covered by the option, and this rule has been
applied although a deed to the property has. been placed
in escrow to be delivered upon the payment of the pur-
chase price, payment, however, not being tendered until
after the testator's death."^
§ 747. The Same Subjecjt: Effect of Mortgage.
A mortgage placed by a testator upon lands specifically
devised by him will not work a revocation of the devise,
but the devisee will take the property subject to the en-
90 Cal. Civ. Code, § 1301; Slaugh- v. Smith, 2 De G. & S. 722; Lang-
ter V. Stephens, 81 Ala. 418, 2 don v. Astor, 3 Duer (N. Y.) 477,
So. 145; In re Dwyer's Estate, 605.
159 Cal. 664, 673, 115 Pac. 235; A testator specifically devised
Hall V. Bray, 1 N. J. t. 212; Mc- certain estates. Later he made a
Taggart v. Thompson, 14 Pa. St. codicil which did not refer to this
149; Livingston v. Livingston, 3 property, and on the day of the
Johns. Ch. (N. Y.) 148. execution of the codicil he granted
91 Powell's Distributees v. Pow- a lease of the specifically devised
ell's Legatees, 30 Ala. 697; In re property with an option of pur-
Dwyer's Estate, 159 Cal. 664, 673, chase to the lessee. The lessee
115 Pac. 235. did not exercise his option until
92 Drant v. Vause, 1 You. & Coll. after the testator's death. The
C. C. 580; Flagg v. Teneick, 29 court held that ther© was no
N. J. L. 25; Van Tassell v. Burger, ademption of the specifically de-
119 App. Div. (N. Y.) 509, 104 vised estates. — In re Pyle, L. R.
N. Y. Supp. 273. See, also, Emuss (1895) 1 Ch. Div. 724.
ADEMPTION AND SATISFACTION. 1089
cumbrance.®' And it has been expressly held that there
is no distinction between a mortgage to a devisee and a
mortgage to a stranger, although such distinction had
previously been made.®* A mortgage executed by the tes-
tator to the devisee of lands specifically devised to him
will amount to a revocation pro tanto.^^ And the same is
true of mortgages to strangers or conveyances in trust
for creditors to secure the payment of debts.®®
A mortgage is considered as personal property.®^ Thus
if a testator sells real property theretofore specifically
devised, although he takes a mortgage back to secure the
payment of the purchase price, such transaction amounts
to a revocation of the devise and the proceeds from the
mortgage will be considered as part of the personal estate
of the testator.®®
§748. The Same Subject: Realty Directed to Be Converted
Into Money.
A testamentary gift of lands which by the testator's
will are directed to be converted into money and the pro-
ceeds distributed is in effect a bequest of personalty.®®
Under the Kentucky statute a will devising land to an
executor in trust to sell and divide the proceeds among
93 Langdon v. Astor, 3 Duer (N. Y.) 97. See, also, Emery v.
(N. Y.) 477, 605. Union Soc. of Savannah, 79 Me.
94McTaggart v. Thompson, 14 334, 9 Atl. 891; Beck v. McGillis,
Pa. St. 149. 9 Barb. (N. Y.) 35, 52.
95 McTaggart v. Thompson, 14 Proceeds of property taken
Pa. St. 149. under eminent domain during lite
96 Lambe v. Parker, 2 Vern. of a testator will not pass to the
495; Parsons v. Freeman, 3 Atk. devisee of such lands. — Ametrano
741; Herrington v. Budd, 5 Denio v. Downs, 170 N. Y. 388, 88 Am. St.
(N. Y.) 321; Livingston v. Living- Rep. 671, 58 L. R. A. 719, 63 N. B.
Bton, 3 Johns. Ch. (N. Y.) 148. 340.
97 See § 256. 99 See § 288.
fls Adams v. Winne, 7 Paige Ch.
n Com. on Wills — IB
1090
COMMENTAEIliS ON THE LAW OF WILLS.
named persons, operates merely as a bequest of the pro-
ceeds of the sale of the land and a disposition of such
realty by the testator in his lifetime does not cause an
ademption of the legacy.^
1 MUler V. Malone, 109 Ky. 133,
95 Am. St. Rep. 338, 58 S. W. 708;
Kentucky Stats., § 2068.
When the proceeds of real es-
tate are bequeathed to named per-
sona, the bequest is not adeemed
by the sale of the land by the
testator so long as the money real-
ized from it can be traced and
identified. — Durham v. Clay, 142
Ky. 96, 134 S. W. 153.
CHAPTER XXVn.
LAPSED IiEGACIES AND DEVISES.
§ 749. Lapsed legacies and devises defined.
§ 750. The same subject : Distinguishing features.
§ 751. Instances of lapsed legacies or devises.
§ 752. Statutory regulations as to lapse.
§ 753. The same subject : Purpose of statutes.
§ 754. Illustrations of the regulation in the Victorian Statute of
"WiUs.
§755. Construction of terms used in the statutes: "Descend-
ants," "relatives," and "lapse."
§ 756. Beneficiary dead when will is executed, or dying before
testator.
§ 757. Conditional or contingent legacies or devises may lapse.
§ 758. Legacy given to pay a debt owing to legatee.
§ 759. Legacy of a debt owing testator.
§ 760. Legacy charged upon real estate.
§ 761. The same subject: Contingent charges: "Exception" dif-
fers from "charge."
§ 762. Legacy of proceeds of real estate.
§ 763. Devises in trust.
§ 764. Effect of failure of residuary devise or legacy.
§ 765. Divorce wUl not cause a lapse.
§ 766. Object of devise failing.
§ 767. Gifts to joint tenants and tenants in common.
§ 768. Death of beneficiary before or after title vests.
§ 769. Death of life tenant does not cause gift of remainder to
lapse.
§ 770. Testator may, by provisions in his will, prevent lapse.
§ 771. The same subject.
§ 772. Substituted legatees or devisees.
§ 773. The same subject : Words of inheritance.
§ 774. The same subject: Gift to beneficiary "and his heirs."
(1091)
].092 COMMENTARIES OX THE LAW 0¥ WILLS.
§ 775. The same subject: Gift to beneficiary "or his heirs."
§ 776. The same subject: Construing "and" as "or," and "or"
as "and."
§ 777. To whom the benefit of lapsed legacies and devises ac-
crues.
§ 778. The same subject.
§ 779. To whom the benefit of void legacies and devises accrues.
§ 780. The same subject.
§ 781. General rule as to lapsed or void legacies or devises.
§ 749. Lapsed Legacies and Devises Defined.
A lapsed legacy or devise is one wMch is valid when
made, and in favor of one capable of taking, but which
never vests because of the death of the beneficiary be-
fore that of the testator, or the non-happening of some
contingency or the non-performance of some condition
precedent. The result is that the legacy or devise does
not go to the beneficiary named, or to his executor or
administrator, should he be dead.^ The term presupposes
the existence of a valid testamentary gift and a bene-
ficiary capable of taking at the time the wiU is executed,
therein being distinguished from a legacy or devise to
one who has died before the will is made. In the latter
instance the testamentary gift is void because of the non-
existence of the supposed beneficiary.^
iHutton V. Simpson, 2 Vem. Dec. 141; Birdsall v. Hewlett, 1
722; Brett v. Rigden, Plow. 340, Paige Ch. (N. Y.) 32; Fry v.
345; Fuller v. Fuller, Cro. Ellz. Smith, 10 Abb. N. C. (N. T.) 224;
422; Goodright v. Wright, 1 Robins v. McClure, 67 How. Pr.
P. Wms. 397; Wynn v. Wynn, (N. Y.) 83; Booth v. Baptist
3 B. P. C. 95; Ambrose v. Hodg- Church, 126 N. Y. 215, 242, 28
son. 3 B. P. C. 416; Trippe v. N. E. 238; Gordon v. Pendleton,
Fazier, 4 Har. & J. (Md.) 446; 84 N. C. 98.
Ballard v. Ballard, 18 Pick. (35 2 Meeker v. Meeker, 4 Redf.
Mass.) 41; Gore v. Stevens, 1 (N. Y.) 29.
Dana (31 Ky.) 201, 205, 25 Am.
LAPSED LEGACIES AND DEVISES. 1093
The most common instance of lapse is where the death
of the beneficiary" occurs before that of the testator, the
will making no provision for such a contingency;* but
the term "lapse" is often applied to conditional or contin-
gent legacies or devises which fail.* In this connection
lapse would be applicable if the condition be precedent,
forfeiture if the condition be subsequent.^
If the beneficiary survive the testator, the fact of his
death before probate or distribution will not cause a leg-
acy or devise in his favor to lapse.®
The common law distinction between a lapsed legacy
and a lapsed devise has been abolished, and they are
now similarly considered.^
§ 750. The Same Subject: Distingtdshing Features.
Lapse is distinguished from abatement* or ademption'
for the reason that in either of the two latter instances
it is the gift which fails because of insufficiency of assets,
or its loss, destruction, or the like, while a legacy or de-
vise lapses because of the failure of a beneficiary or con-
tingency. If a legacy or devise be revoked by the tes-
tator, it, of course, fails because it is annulled, but it
would not be said to lapse. Also, a legacy or devise may
fail because void as against public policy, as in the case
of the creation of a perpetuity for a use not charitable in
nature.^" Such a gift is void ab initio, therein differing
3 Meeker v. Meeker, 4 Redf. 6 Jersey v. Jersey, 146 Micli. 660,
(N. Y.) 29; Woolley v. Paxson, 110 N. W. 54.
46 Ohio St. 307, 24 N. E. 599; 7 See, post, §§777, 778.
Shadden v. Hembree, 17 Ore. 14, 8 See §§ 690 et seq.
18 Pac. 572. » See §§ 708 et seq.
4 Eisner v. Koehler, 1 Demarest lo Fite v. Beasley, 12 Lea (80
(N. Y.) 277. Tenn.) 328.
6 Booth v. Baptist Church, 126
N. Y. 215, 28 N. E. 238.
1094 COMMENTAKIES OH THE LAW OP WILLS.
from valid benefits which subsequently fail. The same
may be said of a gift void for uncertainty.^^ Then again,
a beneficiary may refuse to accept a testamentary gift
because of conditions attached, or where it is given in
lieu of a debt or dower, there being the right of elec-
tion. Such questions as void legacies and devises, condi-
tional or contingent legacies and devises, election and
equitable conversion will be separately treated.
§ 751. Instances of Lapsed Legacies or Devises.
There are other circumstances besides the death of the
beneficiary before the time of vesting which may cause
a legacy or devise to lapse or fail. For example, if a be-
quest be made to a female for life, or so long as she
remains unmarried, her marriage during the lifetime of
the testator operates in the same manner as her death.^^
A. legacy may lapse by reason of the dissolution of an
association to which it has been bequeathed.^* A legacy
to a religious society, to be used in building a church,
has been held to have lapsed when fourteen years after
the testator's death no action had been taken toward
erecting the building, and there appeared to be no pur-
pose to do so.^*
So there may be a failure of part of a bequest in favor
11 Gill V. Grand Tower Mining lapsed. — ^Brooks v. Belfast, 90 Me.
etc. Co., 92 111. 249. 318, 38 Atl. 222.
12 Andrew v. Andrew, 1 Coll. Where a bequest is made to an
C C 686 690. asylum named and no such asy-
lum exists, the legacy will fail or
lapse, for a legacy to an asylum
in Ijeing is not to be considered
as made to an asylum to be cre-
erty to a corporation such as the ated.-New Orleans v. Hardie, 43
Central School District of a La. Ann. 251, 9 So. 12.
named city, and it had ceased to i4 Chadwick v. Chadwick, 37
exist before his death, the legacy N. J. Eq. 71.
13 Neil's Estate, Myrlck's Prob.
(Cal.) 79.
Where the testator left prop-
LAPSED LEGACIES AND DEVISES. 1095
of a religious or charitable society, wh.en it exceeds the
proportion of the testator's estate which may be law-
fully disposed of to such uses.^^ Again, a legacy may
lapse under statutes requiring bequests to charitable uses
to be executed a certain time before the death of the
testator by reason of the testator dying within the lim-
ited time.^® A bequest by the testator to a woman whom
he supposed to be his wife, but who was not legally mar-
ried to him and who was herself cognizant of the fact,
will not take effect on account of the fraud.^'' But a de-
vise will not lapse because of invalid limitations over.^*
A power created by a testamentary writing will lapse
upon the death of the donee before the donor.^*
§ 752. Statutory Regulations as to Lapse.
The general rule of the common law in regard to the
lapse of legacies and devises has been greatly modified
by modem statutory exceptions thereto in favor of chil-
dren or descendants, or relatives of the testator and their
issue; and in some of these United States the rule has
been entirely abolished. By the Victorian Statute of
Wills, it was enacted that where any person, being a
child or other issue of the testator, to whom shall be de-
vised or bequeathed any estate or interest not deter-
minable at or before the death of such person, shall die
in the lifetime of the testator leaving issue who survive
the testator, "such devise or bequest shall not lapse, but
shall take effect as if the death of such person had hap-
15 Kearney v. St. Paul Mission- i7 Tilby v. Tilby, 2 Demarest
ary Soc, 10 Abb. N. C. (N. Y.) (N. Y.) 514.
274. 18 Heald v. Heald, 56 Md. 300.
16 Greer v. Belknap, 63 How. 19 Jones v. Southall, 32 Bear.
Pr. (N. Y.) 390; Rhymer's Ap- 31. But see Culsha v. Cheese, 7
peal, 93 Pa. St. 142, 39 Am. Rep. Hare 236, 245.
736.
1096
COMMENTAEIBS ON THE LAW OP WILLS.
pened immediately after the death of the testator, unless
a contrary intention shall appear by the will."^"* By the
same statute, devises of estates tail are saved from laps-
ing where the first devisee dies before the testator, leav-
ing issue who survive the testator.^^
A similar law has been enacted in most of the states
of the Union, differing, however, in certain particulars.^-
20 statute of 1 Vict., ch. 26, § 33.
21 Statute of 1 Vict., ch. 26, § 32;
In re Parker, 1 Sw. & Tr. 523.
22 Jones V. Jones, 37 Ala. 646;
Clendening v. Clymer, 17 Ind. 155;
Maxwell v. Featherston, 83 Ind.
339; Hamlin v. Osgood, 1 Eedf.
(N. Y.) 409; Bishop v. Bishop,
4 Hill (N. Y.) 138; Downing v.
Marshall, 23 N. Y. 366, 80 Am.
Dec. 290; Van Beuren v. Dash,
30 N. Y. 393 ; Dickinson v. Purvis,
8 Serg. & R. (Pa.) 71; Schleftelin
V. Kessler, 5 Rawle (Pa.) 115;
Newbold v. Prichett, 2 Whart.
(Pa.) 46; Woolmer's Estate, 3
Whart. (Pa.) 477; Commonwealth
V. Nase, 1 Ashm. (Pa.) 242; Min-
ter's Appeal, 40 Pa. St. Ill; Stim-
son's Am. Stat. Law, § 2823, re-
ferring to the statutes of most of
the states.
Power of appointment. — The
exception in favor of a child of
the testator does not apply to an
appointment under a special
power. — Holy land v. Lewin, L. R.
26 Ch. Div. 266, disapproving
Freme v. Clement, L. R. 18 Ch.
Div. 499. But on the contrary it
has been held that a statute in-
cluding relations of the testator
applies to a devise or legacy
made by the exercise of a general
power of testamentary appoint-
ment, where the devisee or lega-
tee was a relation of the testator,
but was not a relation of the
donor of the power. — ^Thompson
V. Pew, 214 Mass. 520, 102 N. E.
122.
Where the statute provides
against the lapsing of legacies by
the death of the legatee or devi-
see before the testator, and a
later statute provides that the
former shall not apply when the
testator shall become insane or
otherwise incompetent to cancel,
revoke, or alter the will, in a case
where the legatee died before the
testatrix, and the firm of which
he was a member was indebted
to the testatrix, but at the time
of the latter's death her claim
had been barred by the statute
of limitations, and the testatrix
had become insane after making
her will but before the passage
of the later statute, it was held
that the legacy passed to those
entitled to it as representatives
of the legatee, free from all claim
of the indebtedness. — Hemsley v.
Hollingsworth, 119 Md. 431, 87
Atl. 506.
LAPSED LEGACIES AND DEVISES.
1097
In some it is limited to a devise or bequest to a child of
the testator,** or the child or grandchild, while in others
it includes children, grandchildren, brothers and sisters.
It has been extended not only to lineal descendants of
the testator, but also to the issue of a brother or sister
of a testator who leaves no lineal descendants.** In some
states the statutes include any relative of the testator,^^
while in others they embrace all legatees and devisees
whatsoever, and their issue accordingly.*^ The statutes
in all eases must be particularly consulted.
23 Under the New York statute,
providing tliat a legacy shall not
lapse If the legatee dies before
the testator, but shall vest in the
surviving child or descendant of
the legatee, the child vsrill take
without administration upon his
parent's estate, and to the exclu-
sion of the parent's widow and
creditors. — Cook v. Munn, 12 Abb.
N. C. (N. Y.) 344; s. c, 65 How.
Pr. (N. Y.) 514.
24 Bacon's Appeal, 13 Pa. St.
518.
This act does not apply to de-
vises to brothers and sisters as
a class. — Guenther's Appeal, 4
Weekly Not. of Cas. (Pa.) 41.
25 Workman v. Workman, 2
Allen (84 Mass.) 472; Morse v.
Mason, 11 Allen (93 Mass.) 36;
Ballard v. Ballard, 18 Pick. (35
Mass.) 41; Warner v. Beach, 4
Gray (70 Mass.) 162; Fisher v.
Hill, 7 Mass. 86; Esty v. Clark,
101 Mass. 36, 3 Am. Rep. 320;
Sears v. Putnam, 102 Mass. 5, 10;
Guitar v. Gordon, 17 Mo. 408;
Jamison v. Hay, 46 Mo. 546;
Lefler v. Rowland, 62 N. C. (Phil.
Eq.) 143.
It seems that in Massachusetts
the issue of a donee who died
during the testator's life time do
not take the gift intended for
the parent, if they were born be-
fore the making of the will. —
Wilder v. Thayer, 97 Mass. 439.
26 Dazey v. Killam, 1 Duval (62
Ky.) 403; Dunlap v. Shreve, 2
Duval (63 Ky.) 335; Carson v. Car-
son's Exr., 1 Mete. (58 Ky.) 300;
Young v. Robinson, 11 Gill & J.
(Md.) 328; Billingsley v. Tongue,
9 Md. 575; Moore v. Dimond, 5
R. I. 121; Ford v. Ford, 1 Swan
(31 Tenn.) 431; Morton v. Morton,
2 Swan (32 Tenn.) 318; Strong v.
Ready, 9 Humph. (28 Tenn.) 168;
Allen V. Huff, 1 Yerg. (9 Tenn.)
404, 408; Rhodes v. Holland, 2
Yerg. (10 Tenn.) 341; Wood v.
Sampson, 25 Gratt. (Va.) 845.
Under a statute substituting the
Issue of any legatee in the place
of his deceased ancestor, a testa-
mentary gift, shown in the will
to have been prompted simply by
1098 COMMENTARIES ON THE LAW OP WILLS.
§ 753. The Same Subject: Purpose of Statutes.
The purpose of the statutes to prevent the lapse of a
legacy or devise is not to defeat the will and intention
of the testator, but to supplement and aid it. Where a
different intention is manifested by the will, these stat-
utes do not operate to defeat such intention.^'^ The ob-
ject of making an exception in favor of descendants is
to confer a benefit upon the issue of the legatee or devisee,
not to enable the beneficiary to control the gift.^*
§ 754. Illustrations of the Regulation in the Victorian Statute
of Wills.
A curious illustration of the operation of the statu-
tory provision that the devise or bequest shall take effect
as if the death of the child "had happened immediately
after the death of the testator,"^* is found in an English
case in which a father devised a house to his son, and
the son made a will leaving all his real estate to his
father. The son died leaving issue; then the father died.
Under the statute, the son was deemed to have died im-
mediately after his father; accordingly, under the wiU of
the personal regard of the testator force of the statute they take
for the legatee himself, will not under the will In his place, and
lapse unless the will further shows they take the same estate he
au intention that the descendants would have taken thereunder,
of the legatee shall not take. — Do- Their title to the devise comes
mestic and Foreign Missionary to them directly from the testator
Soc. V. Pell, 14 R. I. 456. through the will, and not through
27 Rudolph V. Rudolph, 207 111. the estate of the deceased devisee.
266, 99 Am. St. Rep. 211, 69 N. E. His estate therefore has no inter-
834; Domestic and Foreign Mis- est in the devise."— In re McKel-
sionary Soc. v. Pell, 14 R. I. 456. lar, 114 Me. 421, 96 Atl. 734.
"The purpose and effect of the 28 Newbold v. Prechett, 2 Whart.
statute seem clear. It preserves (Pa.) 46. See, however, Johnson
such a devise from lapsing by sub- v. Johnson, 3 Hare 157.
stituting in place of the deceased 29 Statute of 1 Vict., ch. 26, § 33.
devisee his lineal descendants. By
LAPSED LEGACIES AND DEVISES. 1099
his parent, the house passed to the son absolutely, and
became subject to any testamentary disposition which
he may have made of his real estate. Yet, inasmuch as
he had devised his realty to his father, and the latter, so
far as this particular piece of property was concerned,
must be deemed under the statute to have died immedi-
ately before the former, although, as a matter of fact, the
father was the survivor, his heirs could not take, and the
devise lapsed and descended to the heir at law of the
son.^"
The operation of the Victorian statute is further illus-
trated by the following case: A testator directed that a
share which he bequeathed to his daughter should, if she
survived him, be subject to the trusts of her marriage
settlement, and be paid to the trustees thereof. His
daughter did not survive him, but left children living at
the time of the testator's death. Her husband as admin-
istrator of her estate claimed her share under her father 's
win. But the court ruled that under the statute the daugh-
ter must be deemed to have survived her father, and that
the legacy must be paid, as provided by the will in that
contingency, to the trustees of her marriage settlement.*^
§755. Construction of Terms Used in the Statutes: "Descend-
ants," "Relatives," and "Lapse."
Although, loosely speaking, property may be said to
"descend" when it passes to collateral kindred, the stat-
utory exceptions in favor of "descendants" have been
construed to refer exclusively to lineal descendants.*^
30 Jones V. Hensler, L. R. 19 531; Baker v. Baker, 8 Gray (74
Ch. Div. 612. Mass.) 101. See, also, Gordon v.
31 In re Hone's Trusts, L. R. Pendleton, 84 N. C. 98.
22 Ch. Div. 663. It is held in South Carolina that
32 West V. West, 89 Ind. 529, the provision of the statute that
1100 COMMENTARIES ON THE LAW OP WILLS.
Accordingly, they can not be deemed to include brothers,'*
nor stepsons,'* nor nieces,'* nor sons-in-law."
In construing the term "relatives" as used in the stat-
utes of this character, the decisions have quite uniformly
regarded it as applying to those only who are related by
consanguinity to the testator, not those so connected by
affinity. The words frequently used are "child or other
relative." The conclusion of the courts is that the rela-
tionship intended is that which is associated with the
word "child," in other words, a relative by blood.''' A
wife is not a relative of her husband, nor a husband of
Ids wife, within the meaning of such statutes. A devise
or bequest from one to the other, the beneficiary dying
before the testator, would lapse.'^
The word "lapse," whether used in a statute or a
will, is construed according to the general language and
if any child shall die in the life- 115; Esty v. Clark, 101 Mass. 36,
time of his father or mother, hav- 3 Am. Rep. 320; Mann v. Hyde, 71
ing issue, any "legacy" given him Mich. 278, 39 N. W. 78; Bramell
in the last will of either parent v. Adams, 146 Mo. 70, 89, 47 S. W.
shall go to his issue, does not In- 931; Schaefer v. Bernhardt, 76
cUide a devise of land, the legisla- Ohio St. 443, 10 Ann. Cas. 919, 81
ture having evidently Intended to N. E. 640; Matter of Renton, 10
use the word "legacy" in its tech- Wash. 533, 537, 39 Pac. 145;
nical sense as a hequest of person- Cleaver v. Cleaver, 39 Wis. 96, 20
alty.— Pratt v. McGhee, 17 S. C. Am. Rep. 30.
428. The terms "child or other rela^
33 West V. West, 89 Ind. 529. tion of testator" includes only one
34 In re Pfuelb's Estate, My- connected by consanguinity, and
rick's Prob. (Cal.) 38. not one connected by affinity. — ^In
35 Dickinson v. Purvis, 8 Serg. re Pfuelb's Estate, 48 Cal. 643.
& R. (Pa.) 71. 38 Esty v. Clark, 101 Mass. 36,
36 Commonwealth v. Nase, 1 3 Am. Rep. 320; Canfield v. Can-
Ashm. (Pa.) 242. field, 62 N. J. Eq. 578, 50 Atl. 471;
87 Elliot V. Pessenden, 83 Me. McKleman v. Beardslee, 72 N. J.
197, 205, 13 L. R. A. 37, 22 Atl. Bq. 283, 73 Atl. 815.
LAPSED LEGACIES AND DEVISES.
1101
object of such statute or will, and is not confined to its
strict technical meaning.*®
§ 756. Beneficiary Dead When Will Is Executed, or Dying Be-
fore Testator.
A mil is ambulatory in its nature and does not become
effective until the testator's death. A dead man can not
himself take a testamentary benefit. A legacy or devise
in favor of a dead man is a nullity. This applies if
the named beneficiary be dead when the will is executed.*"
And since no devise or legacy can pass until the death of
the testator, in the absence of a statute or some provision
of the will to the contrary, a legacy or devise will lapse
if the beneficiary die before the testator.*^ The rule ap-
39 Construction of word "lapse,"
when used in a will. See Van
Pretres v. Cole, 73 Mo. 39.
In construing the word "lapse"
in a statute reading, "that here-
after legacies and devises to chil-
dren and grandchildren shall not
lapse by the death of the legatee
or devisee before the testator, pro-
vided such legatee or devisee shall
have children, living at the death
of the testator, who would have
taken as heir by descent, or as
distributee of the legatee or devi-
see," the word "lapse" was held not
to be taken in its technical sense
as indicating the falling back of
the legacy into the testator's es-
tate, but as applicable to all cases
where it would have fallen back
or gone to the others under the
will. The court says: "The word
'merge' would have been more
proper than the word 'lapse.' But
it is sufficiently clear that the
legislature had in view not the
death of all of the legatees, but
the death of any of them, and
Intended to provide for such death
provided the decedent should have
children, etc.; and this intention,
manifested by the general lan-
guage and object of the statute,
must control the meaning of the
single word 'lapse.' " — Yeates v.
Gill, 9 B. Mon. (48 Ky.) 203.
40 In re Tamargo, 220 N. Y. 225,
115 N. E. 462.
One claiming that a legacy has
lapsed on the ground that the lega-
tee named in the will did not
exist, must make clear and satis-
factory proof of such claim. — Sil-
cox V. Nelson, 24 Ga. 84.
41 Corbyn v. French, 4 Ves. Jun.
418, 434; Tidwel v. Ariel, 3 Mad.
403; Gittings v. McDermott, 2 Myl.
& K. 69; Doe d. Stewart v. Shef-
1102
COMMENTARIES ON THE LAW OP WILLS.
plies, however, only when the testamentary benefit is ex-
clusively the mere bounty or gift of the testator, and is
field, 13 East 526; In re Roberts,
L. R. 30 Ch. Div. 234; la re Pln-
horne, L. R. (1894) 2 Ch. 276; Rob-
ison V. Portland Female Orphan
Asylum, 123 V. S. 702, 31 L. Ed.
293, 8 Sup. Ct. 327; Capron v.
Capron, 6 Mackey (D. C.) 340;
Woodroof V. Hundley, 147 Ala. 287,
39 So. 907; Galloway v. Darby, 105
Ark. 558, Ann. Cas. 1914D, 712, 44
L. R. A. (N. S.) 782, 151 S. W.
1014; Gibbons v. Ward, 115 Ark.
184, 171 S. W. 90; In re Goetz's
Estate, 13 Cal. App. 292, 109 Pac.
492; Matter of Murpby, 157 Cal.
63, 137 Am. St. Rep. 110, 106 Pac.
230; Miller v. Metcalf, 77 Conn.
176, 58 Atl. 743; Cooch v. Clark,
8 Del. Ch. 299, 68 Atl. 247; Craw-
ley V. Kendrick, 122 Ga. 183, 2 Ann.
Cas. 643, 50 S. B. 40; Rudolph v.
Rudolph, 207 111. 266, 99 Am. St.
Rep. 211, 69 N. E. 834; Ballard v.
Camplin, 161 Ind. 16, 67 N. E. 505;
Collins V. Collins, 126 Ind. 559, 25
N. E. 704, 28 N. E. 190; Gilbert v.
Gilbert, 127 Iowa 568, 103 N. W.
789; Dougart's Succession, 30 La.
Ann. 268; Farnsworth v. Whiting,
102 Me. 296, 66 Atl. 831; In re
McKellar, 114 Me. 421, 96 Atl. 734;
Fisher v. Wagner, 109 Md. 243, 21
L. R. A. (N. S.) 121, 71 Atl. 999;
Horton t. Earle, 162 Mass. 448,
38 N. E. 1135; Pittman v. Burr,
79 Mich. 539, 44 N. W. 951; Cady
V. Cady, 67 Miss. 425, 7 So. 216;
Martin v. Lachasse, 47 Mo. 591;
Loveren v. Donaldson, 69 N. H.
639, 45 Atl. 715; Murphy v. Mc-
Keon, 53 N. J. Eq. 406, 32 Atl. 374;
Voorhees v. Singer, 73 N. J. Eq.
532, 68 Atl. 217; Langley v. West-
chester Trust Co., 180 N. Y. 326,
73 N. E. 44; Twitty v. Martin,
90 N. C. 643; Woolley v. Paxson,
46 Ohio St. 307, 24 N. E. 599;
Shadden v. Hembree, 17 Ore. 14,
18 Pac. 572; Scott v. Ford, 52 Ore.
288, 97 Pac. 99; Garrett's Estate,
248 Pa. St. 199, 93 Atl. 999; Fiske
V. Fiske's Heirs and Devisees, 26
R. I. 509, 59 Atl. 740; Rivers v.
Rivers, 36 S. C. 302, 15 S. B. 137;
Dixon V. Cooper, 88 Tenn. 177, 12
S; W. 445; Coleman v. Jackson,
(Tex. Civ. App.) 126 S. W. 1178;
Colbum V. Hadley, 46 Vt. 71; Kent
V. Kent, 106 Va. 199, 55 S. B. 564;
In re Renton, 10 Wash. 533, 39
Pac. 145.
By statute, in California, where
two persons die in the same ca-
lamity and there are no circum-
stances showing anything to the
contrary. It is presumed as fol-
lows : If both are under the age of
fifteen, that the younger died first;
if both are over the age of sixty,
that the elder died first; if one
be under fifteen and the other
over sixty, , that the elder died
first; if one be either under fif-
teen or over sixty he is presumed
to have died before one between
the ages of fifteen and sixty; if
both are between the ages of fif-
teen and sixty and the sexes be
LAPSED LEGACIES AND DEVISES.
1103
independent of any contract or obligation impelling the
testator to make the disposition.*^
Where a will empowers a sole executor to divide the
residue of the estate among educational, benevolent or
charitable institutions, and constitutes such executor the
sole judge as to what institutions shall be benefited and
as to the amounts they shall receive, should he die before
the testator, such legacy will lapse.**
different, the female is presumed
to have died first. — Cal. Civ. Code,
§ 1963, sub. 40.
Where a testator gave his wife
a legacy of $15,000, and the resi-
due of his estate was left to trus-
tees for the benefit of his wife
during her life, thereafter to desig-
nated beneficiaries, and the hus-
band and wife died at the same
time on account of the wreck of a
vessel, it was held that the legacy
of $15,000 to the wife passed under
the residuary clause. It was held
immaterial where the testator so
expected it to pass, the will not
disclosing a distinct intention that
it should not so pass. — In re Batch-
elder, Petitioner, 147 Mass. 465,
IS N. E. 225.
Where the will provided a re-
siduary bequest, as follows: "The
remainder of my estate shall be
an inheritance for those who shall
have paid for me and my daugh-
ters' maintenance," and as a mat-
ter of fact no one was competent
to take and no such beneficiary
existed because no one had paid
for such maintenance, the bequest
failed. — Lehnhoff v. Theine, 184
Mo. 346, 83 S. W. 469.
Where real estate is devised to
the eldest male issue of a named
couple surviving at the death of
the testator, and at such time
there is no such issue, the devise
will lapse. — Smith v. Smith, 141
N. Y. 29, 35 N. B. 1075.
Simultaneous deaths. — Three
sisters left wills by which each
devised all her real and personal
estate to her two sisters or to the
survivor, and to their heirs and
assigns. The three all perished in
the same calamity — the burning of
their home. Under the facts the
question of survivorship was held
to be regarded as unascertainable,
and the rights of succession to
their estates were determined as
if death had occurred to all at
the same moment. — ^In re Willbor,
PeUtioner, 20 R. I. 126, 78 Am. St.
Rep. 842, 51 L. R. A. 863, 37 Atl. ;
634.
42 Ballard v. Camplin, 161 Ind.
16, 67 N. E. 505.
43 Hall V. Harvey, 77 N. H. 82,
88 Atl. 97.
1104 COMMENTARIES ON THE LAW OP WELLS.
§757. Conditional or Contingfent Legacies or Devises May
Lapse.
Where a legacy or devise is to become effective only
upon tlie happening of some contingency or the perform-
ance of some condition, the failure of the contingency or
the non-performance of the condition will cause the same
to lapse. Thus a testamentary gift to a person on con-
dition that he be in the employment of the testator at
the time of his death, will lapse by the beneficiary named
voluntarily leaving the service of the testator.** So where
a certain sum is to be paid to a legatee upon his reaching
the age of twenty-one years provided the testator be not
living, the legacy can never become payable if the tes-
tator be stiU alive when the legatee reached the age men-
tioned.*^
A legacy to a church on condition that the church shall
remove from one location to another or rebuild on the
site then occupied, will lapse if the conditions be not per-
formed.** If the testator makes no provision for a fur-
ther disposition of a conditional legacy or devise which
lapses, the property goes into his estate and is distributed
under the rules of succession.*^
Where a legacy or devise is made contingent upon an
event which does not nor never can happen, such legacy
or devise will lapse.*^ For example, a legacy will lapse
^4 Johnson v. Folsom, 145 Ga. 607; MoGreevy v. McGrath, 152
479, 89 S. E. 521. Mass. 24, 25 N. E. 29; Allen v.
45 Pope V. Pope, 209 Mass. 432, Parham, 5 Munt (Va.) 457.
95 N. E. 864. Where the only disposition of
46 Chadwick v. Chadwick, 37 property is contained in a clause
N. J. Eq. 71, 73. wherein the testatrix devised all
47 Conant v. Stone, 176 Mich, of her property to her husband for
654, 143 N. W. 39. life, and further provided: "If my
48 Parsons v. Lanoe, 1 Ves. Sen. husband survive me, I desire at
189; Sinclair v. Hone, 6 Ves. Jun. his death that all that I may
LAPSED LEGACIES AND DEVISES. 1105
which is contingent upon the wife of the testator exercis-
ing her power to dispose of the same by will, and she fails
to do so.** Where by the provisions of the will a bequest
is made of certain personal property according to a
memorandum hearing even date, to which the will refers,
and the memorandum is never made, the legacy will fail ;
and if there is a residuary clause to the will, the prop-
erty so bequeathed will pass with the residue.^"
§ 758. Legacy Given to Pay a Debt Owing to Legatee.
A legacy given by the will of a debtor to his creditor
to pay the debt, will not lapse should the legatee die be-
fore the testator ;^^ and this rule has been held to apply
even where the debt was barred by the Statute of Limita-
tions at the time the testator made his will.^^ A legacy
declared to be " for value received, ' ' will be presumed to
have been given to discharge an obligation and, in the
absence of evidence to the contrary, will preclude a lapse
even though the legatee die before the testator.^*
own or be possessed of shall go 144, 45 Atl. 534; Cole v. Niles,
to my well-beloved stepdaughter, 3 Hun 326; affinned in 62 N. Y.
H. B. G.," and the husband died 636; McNeal v. Pierce, 73 Ohio St.
before the testatrix, the property 7, 112 Am. St. Rep. 695, 4 Ann.
was distributed as if the testatrix Cas. 71, 1 L. R. A. (N. S.) 1117,
had died intestate.— Gibson v. Sey- 75 N. E. 938.
mour, 102 Ind. 485, 52 Ann. Rep. As to legacy by debtor to cred-
688, 2 N. E. 305. iter in satisfaction of the debt,
49 Giddings v. Gilllngham, 108 see §§ 728, 729.
Me. 512, 81 Atl. 951. As to legacy to debtor by cred-
50 Cramer v. Cramer, 35 Misc. itor, see §§ 726, 727.
Rep. (N. Y.) 17, 71 N. Y. Supp. 60. 52 Phillips v. Phillips, 3 Hare
51 Turner v. Martin, 7 De Gex, 281; Turner v. Martin, 7 De G.,
M. & G. 429; In re Sowerby's M. & G. 429; Ballard v. Camplln,
Trust, 2 Kay & J. 630; Phillips v. 161 Ind. 16, 67 N. B. 505; Ward v.
Phillips, 3 Hare 281; Williamson v. Bush, 59 N. J. Bq. 144, 45 Atl. 534.
Naylor, 3 You. & C. 208; Ballard 53 Ward v. Bush, 59 N. J. Eq.
V. Camplin, 161 Ind. 16, 67 N. E. 144, 45 Atl. 534.
505; Ward T. Bush, 59 N. J. Bq.
II Com. on Wills — 16
1106 COMMENTARIES ON a?HE LAW OF WILLS.
All legacies, however, by debtors in favor of their cred-
itors, are not given for the purpose of liquidating debts.^*
Nor will the rule first above stated apply where the will
directs that the testator's debts be paid.^^ Accordingly,
the mere recital that the testatrix had lived with the leg-
atee for a number of years does not show that the legacy
was intended in satisfaction of a claim, nor save it from
lapse where there is a direction to the executors to pay
all debts.^* Where by the terms of the will it appears
that the intention of the testator was to confer a bounty,
it is not competent to show a different intfention and
to prevent a lapse by extrinsic evidence tending to show
that the legacy was given in payment of a debt.®''
§ 759. Legacy of a Debt Owing Testator.
Where the legacy is of a debt, it is equally liable to
lapse with gifts in any other form.^^ Thus, where the
words of the will were, "I remit and forgive," accom-
panied by direction that the bond be delivered up, the
debtor failed to derive any benefit therefrom by reason
of dying before the testator.^® On the other hand, Lord
Hardwicke has said that the forgiving of a debt, coupled
with a general direction to the executor to deliver up the
security, Avithout saying to whom it must be delivered
would operate as a release, although the legatee died in
the testator's lifetime; yet it was admitted that in regard
54 See §§728, 729. 57 BoUes v. Bacon, 3 Demarest
55 Russell V. Minton, 42 N. J. (N. Y.) 43.
Bq. 123, 126, 7 Atl. 342; BoUes r. 58 Elliott v. Davenport,! P. Wms.
Bacon, 3 Demarest (N. Y.) 43, 47; S3; s. c, 2 Vern. 521; Toplls v.
Fort V. Gooding, 9 Barb. (N. Y.) Baker, 2 Cox 118; Maltland v.
371. Adair, 3 Ves. Jun. 231. See, also,
66 BoUes V. Bacon, 3 Demarest Wyckoft v. Perrine's Exrs., 37 N. J.
(N. Y.) 43, 47; Fort v. Gooding, Eq. 118.
9 Barb. (N. Y.) 371. 59 Izon v. Butler, 2 Price 34.
LAPSED LEGACIES AND DEVISES.
1107
to the administx'ation of assets, sucli a gift must be treated
as other legacies.®**
§ 760. Legacy Charged Upon Real Estate.
The early rule was that a legacy charged upon real
estate, but not to be paid until some date subsequent to
the death of the testator, such as the arrival of the leg-
atee at a certain age, did not vest upon the death of the
testator and lapsed if the legatee died before the arrival
of the time of payment.®^ The rule as to legacies to
be paid out of personal property is directly to the con-
trary. This early rule regarding legacies charged upon
real estate was for the benefit of the heir, who was par-
ticularly favored by the English courts,®^ but it has sub-
sequently been very much narrowed.^*
60 Sibthorp v. Moxton, 1 Ves.
Sen. 49; s. c, 3 Atk. 580.
Otter cases which hold that a
legacy of a debt does not lapse by
the death of the debtor before the
testator: South v. Williams, 12
Sim. 566; Davis v. Blmes, 1 Beav.
131; Williamson v. Naylor, 3
Younge & C. 208; In re Sowerby's
Trust, 3 Kay & J. 630; Turner v.
Martin, 7 De Gex, M. & G. 429.
Compare: Coppln v. Coppin, 2
P. Wms. 291, 295; Golds v. Green-
field, 2 Smale & G. 476.
As to legacy by debtor to cred-
itor in satisfaction of the debt, see
§§ 728, 729.
As to legacy to debtor by cred.
itor, see §§ 726, 727.
61 Arnold v. Chapman, 1 Ves.
Sen. 108; Gravenor v. Hallum,
Ambl. 643; Bland v. Wllkins, cited
1 Bro. C. C. 61; Henchman y.
Attorney-General, 2 Sim. & St.
498; Kennell v. Abbott, 4 Ves.
Jun. 802, 811.
Contra: Jackson v. Hurlock,
Ambl. 487.
As to real property directed by
will to be sold and proceeds given,
being considered as a bequest of
personalty, see § 288, n. 65.
62 Prowse V. Abingdon, 1 ^tk.
482.
63 "I am not aware that it has
ever been extended to a case
where the estate was given to a
stranger, upon express condition
that he pay the legacy charged
thereon. The rule has long since
been much narrowed down, even
as between the legatees and the
heirs at law." — Chancellor Wal-
worth In Birdsall v. Hewlett, 1
Paige Ch. (N. Y.) 32.
1108 COMMENTARIES ON THE LAW OF WILLS.
The general rule now prevailing is that if the payment
of a legacy charged upon land is by the terms of the
will postponed until the arrival of the legatee at a certain
age, or to some other fixed time in the future, the legacy
lapses if the legatee dies prior to time of payment pro-
vided the postponement of the payment was made on ac-
count of the circumstances of and for the supposed good
of the legatee. If, however, the postponement was made
on account of the circumstances of the estate or for the
benefit or aggrandizement of the estate, the legacy does
not lapse but vests in and passes to the personal repre-
sentatives of the legatee in case of his death before pay-
ment.®* In all cases, however, the intention of the tes-
tator must control, and is the ultimate test.
§761. The Same Subject: Contingent Charges: "Exception"
Differs Prom "Charge."
When real estate is charged with a legacy upon a con-
tingency which fails, the charge sinks into the devise for
the benefit of the devisee.®^ The same rule applies in
case of void accumulations out of rents or income of land
or a fund previously devised or bequeathed.^®
64 Richardson v. Greese, 3 Atk. Eq. 277; Hillis t. Hillis, 16 Hun
65; Attorney-General v. Mllner, 3 (N. Y.) 76; Ward v. Stanard, 82
Atk. 112; Chandos v. Talbot, 2 App. Div. (N. Y.) 386, 81 N. Y.
P. Wms. 601; Myers v. Adler, 6 Supp. 906; Woods v. Woods, 44
Mackey (D. C.) 515, 1 L. R. A. 432; N. C. 290.
Devine v. Steffen, 189 111. App. 66 Combe v. Hughes, 11 Jur.
196; Warner's Admr. v. Bronson, N. S. 194; In re Clulow's Trust,
81 Vt. 121, 69 Atl. 655. 1 Johns. & H. 639. See, however,
65 Croft V. Slee, 4 Ves. Jun. 60; Burt v. Sturt, 10 Hare 415; Ma-
in re Cooper's Trusts, 23 L. J. thews v. Keble, L. R. 4 Eq. Cas.
Ch. 25; Tregonwell v. Sydenham, 467.
3 Dow. 194, 210; Fulton v. Fulton, But see McDonald v. Bryce, 2
24 Grant Ch. (TJ. C.) 422; Mack- Keen 276, which holds that pro-
net's Exrs. V. Macknet, 24 N. J. hibited accumulations directed to
LAPSED LEGACIES AND DEVISES.
1109
If the gift is to be considered as intended only as a
"charge" upon the estate first devised, the devisee him-
self will be entitled to the benefit of the lapse.*^ This is
the rule also under the Louisiana Code, which provides
that the legatee shall receive the benefit of the lapse of
a charge which he would have been bound to perform.®®
If, however, the gift to a particular person, or for a par-
ticular purpose, may be considered to have been intended
by the testator as an "exception" from the first devise,
the devisee wiU not profit by the lapse thereof.®^
Where the payment of a legacy is charged upon real
estate, and such realty is devised to another who dies
prior to the testator, the death of the devisee, although
causing the devise to lapse, will not cause the legacy to
fail.'^"
be made out of realty or person-
alty, whicli constitutes a part of
the residue, will pass to the heir
or next of kin, as the case may be.
6 T Jackson v. Hurlook,Amb. 487;
Barrington v. Hereford, cited 1 Bro.
C. C. 61; Kennell v. Abbott, 4 Ves.
Jun. 802, 811; Baker v. Hall, 12
Ves. Jun. 497; Cooke v. Stationers'
Co., 3 Myl. & K. 262; Ridgway v.
Woodhouse, 7 Beav. 437; In re
Cooper's Trusts, 23 L. J. Ch. 25;
s. c, 4 De Gex, M. & G. 757;
Carter v. Haswell, 3 Jur. N. S.
788; Tucker v. Kayess, 4 Kay & J.
339.
68 La. Rev. Code, (1875) § 1704.
69 Arnold v. Chapman, 1 Ves.
Sen. 108; Gravenor v. Hallum,
Amb. 643; Cooke v. Stationers'
Co., 3 Myl. & K. 262; Arnold v.
Chapman, 1 Ves. Sen. 108; Collins
V. Wakeman, 2 Ves. Jun. 683;
Hanchman v. Attorney-General, 2
Sim. & St. 498; Page v. Leaping-
well, 18 Ves. Jun. 463; Gibbs v.
Rumsey, 2 Ves. & B. 294; Jones v.
Mitchell, 1 Sim. & St. 290; Cruse
V. Barley, 3 P. Wms. 20; In re
Smith, 11 N. Y. Supp. 783.
As to the distinction between
"charges" and "exceptions," see
Baker v. Hall, 12 Ves. Jun. 497;
Cooke V. Stationers' Co., 3 Myl.
& K. 262; In re Cooper's Trusts,
23 L. J. Ch. 25; Heptinstall v.
Gott, 2 J. & H. 449.
70 Hills V. Wirley, 2 Atk. 605;
Oke V. Heath, 1 Ves. Sen. 135;
Cady V. Cady, 67 Miss. 425, 7 So.
216; Gilroy v. Richards, 26 Tex.
Civ. App. 355, 63 S. W. 664.
1110 COMMENTARIES ON THE LAW OP WILLS.
§ 762. Legacy of Proceeds of Real Estate.
Where a legacy was payable out of tlie proceeds of real
estate, the early cases were slightly conflicting, but the
general rule was that such a legacy, being void or hav-
ing lapsed, inured to the benefit of the heir rather than
the residuary legatee, the money being considered as
land.'^^ But by the statute of I Victoria, ch. 26, sec. 25,
all lapsed or void legacies or devises of any interest in
real property pass under the residuary clause. And it is
now generally held that where realty is directed by the 4
will to be sold and the proceeds paid to a beneficiary, it
is in effect a gift of personalty.'^* The benefit so given,
if there be a lapse, will pass under the residuary clause.''*
Under the modern doctrine the common law distinction
between devises and legacies with regard to lapse, no
longer prevails.''*
§ 763. Devises in Trust.
Where there is a devise in trust to apply the income
to a designated beneficiary during his life and on his
death to pay the principal over to another, if the benefi-
ciary first named die before the testator, the gift does not
lapse but the trust becomes a naked one in favor of the
other.''^ Where a will contains numerous powers which
71 Cruse V. Barley, 3 P. Wms. 73 Crerar v. Williams, 145 111.
20; Collins v. Wakeman, 2 Ves. 625, 21 L. R. A. 454, 34 N. E. 467;
jun. 683; Gibbs v. Rumsey, 2 Ves. English v. Cooper, 183 111. 203, 55
& B. 294; Hutcheson v. Hammond, N. E. 687; Milwaukee Protestant
3 Bro. C. C. 128, 148; Amphlett v. Home v. Becher, 87 Wis. 409, 58
Parke, 4 Russ. 75; Johnson v. Holi- N. W. 774.
field, 82 Ala. 123, 2 So. 753. 74 See § 777, 778.
Contra: Page v. Leapingwell, 18 75 Frelinghuysen v. New York
Ves. Jun. 463; Noel v. Lord Hen- Life Ins. & Tr. Co., 31 R. I. 150,
ley, 1 Dan. 322. Anh. Gas. 1912B, 237, 77 Atl. 98.
T2 See § 288, n. 65.
LAPSED LEGACIES AND DEVISES. 1111
are attaclied to the trust provided for therein and are
not personal to the trustee named in the will, and the
trustee dies before the testator, a new trustee appointed
by the court has the same powers, rights and duties as
if he had been originally appointed J*
The lapse of the legal title devised to a trustee does
not, of course, affect the equitable or beneficial devise;
for the testator's heir or the residuary devisee, as the
case may be, will take the legal title, subject to the trust.
And it has even been held that after the lapse of the
beneficial interest, the legal title will still devolve under
the will to the trustee.T'^
§ 764. Effect of. Failure of Residuary Devise or Legacy.
A residuary legacy or devise may be void or may lapse
the same as any testamentary gift. In such a case the
legacy or devise passes to the next of kin or the heir as
if to such property the testator had died intestate. '^^ The
same rule applies where the gift fails only as to one of
several residuary legatees or devisees, the benefit inur-
ing to the next of kin or heir of the testator, and not to
the remaining residuary beneficiaries.''*
TeStanwood v. Stanwood, 179 N. E. 373; Hard v. Ashley, 117
Mass. 223, 60 N. B. 584. N. Y. 606, 23 N. B. 177; In re
77 Doe d. Shelley v. Edlin, 4 Ad. Gorgas' Estate, 166 Pa. St. 269,
& E. 582. 31 Atl. 86; Almy v. Jones, 17 R. I.
78 Bill V. Payne, 62 Conn. 140, 265, 12 L. R. A. 414, 21 Atl. 616;
25 Atl. 354; Brooks v. Belfast, 90 McHugh t. McCole, 97 Wis. 166,
Me. 318, 38 Atl. 222; Prettyman 65 Am. St. Rep. 106, 40 L. R. A.
V. Baker, 91 Md. 539, 46 Atl. 1020; 724, 72 N. W. 631.
Horton v. Earle, 162 Mass. 448, 38 79 Page v. Page, 2 P. Wms. 489 ;
N. E. 1135; Lyman t. Coolidge, Humble v. Shore, 7 Hare 247;
176 Mass. 7, 56 N. B. 831; Huston Crum v. Bliss, 47 Conn. 592; Stet-
V. Read, 32 N. J. Bq. 591; Bolles son v. Eastman, 84 Me. 366, 24
V. Bacon, 3 Demarest (N. Y.) 43; Atl. 868; Lombard v. Boyden, 5
Ward V. Ward, 105 N. Y. 68, 11 Allen (87 Mass.) 249; Hulin v.
1112 COMMENTARIES ON THE LAW OP WILLS.
§ 765. Divorce WUl Not Cause a Lapse.
Where a husband makes a bequest in favor of Ms
wife the legacy does not lapse because of a subsequent
divorce, even though for her fault.*" A legacy in the
words, "one-third to my wife Mary Brown Jones," did
not faU although the beneficiary subsequently obtained a
divorce from the testator.^^
A gift by a testator to his "wife" ordinarily refers
to his wife when the will was made, but a gift to his
"widow" means the wife who survives him.*^
§ 766. Object of Devise Failing.
Where a legacy or devise is given for a particular pur-
pose, and the purpose is impossible of consummation, the
gift must fail. Thus, a legacy to pay the funeral expenses
of the beneficiary will lapse if such beneficiary die dur-
ing the lifetime of the testator.*^ A devise of a remain-
Squires, 63 Hun (N. Y.) 352, 18 E. J., the sum of $1000, to be paid
N. Y. Supp. 309; Matter of Whit- to her within one year after my
ing, 33 Misc. Rep. (N. Y.) 274, decease," and directed the residue
68 N. Y. Supp. 733; Matter of of his property to be equally di-
Benson, 96 N. Y. 499, 502, 48 Am. vided among his children, and
Rep. 646; Booth v. Baptist Church, soon after the marriage the wife
126 N. Y. 215, 28 N. E. 238; In re deserted her husband, who pro-
Gray's Estate, 147 Pa. St. 67, 23 cured a divorce therefor, it was
Atl. 205; In re Gorgas' Estate, 166 held that she was entitled to the
Pa. St. 269, 31 Atl. 86; Church v. legacy according to the terms of
Church, 15 R. I. 138, 23 Atl. 302. the will.— Charlton v. Miller, 27
Compare: Gray v. Bailey, 42 Ohio St. 298, 22 Am. Rep. 307.
Ind. 349. 81 Jones' Estate, 211 Pa. St. 364,
80 Card v. Alexander,' 48 Conn. 107 Am. St. Rep. 581, 3 Ann. Cas.
492, 40 Am. Rep. 187; Charlton v. 221, 69 L. R. A. 940, 60 Atl. 915.
Miller, 27 Ohio St. 298, 22 Am. 82 Meeker v. DrafCen, 201 N. Y.
Rep. 307; Wintercast v. Smith, 4 205, Ann. Cas. 1912A, 930, 33
Rawle (Pa.) 177. L. R. A. (N. S.) 816, 94 N. E. 626.
Where before marriage the man S3 Hall v. Smith, 61 N. H. 144.
made his will, as follows: "I give The provision in a will that the
and bequeath to my intended wife, executor should expend a certain
LAPSED LEGACIES AND DEVISES. 1113
der over in real property after the death of the mother
of the testatrix, -apon condition that the beneficiary in the
meantime remain on the land and support the mother as
long as she might live, was held to have failed where the
mother died before the testatrix, inasmuch as the gift
was evidently intended as remuneration for what the
devisee might do for the mother.^*
§ 767. Gifts to Joint Tenants and Tenants in Common.
At common law, when an estate was bequeathed to sev-
eral persons in joint tenancy, if one or more of them
happened to die in the lifetime of the testator their
shares would survive to the others,^* and the lapse of
any portion of the estate would be thereby prevented.^®
It was enacted in Kentucky that when a devise is made
to several as a class, or as tenants in common, or as joint
tenants, and one or more of the devisees shall die before
the testator, and another or others survive the testator,
the shares of such as die shall go to their descendants,
if any, and if none then to the surviving devisees, unless
a different disposition is made by the testator.*'^ By stat-
amount for a tomb for the testa- est of one dying before tbe testa-
trix does not lapse because the tor.
body of the deceased could not be ^e Morley v. Bird, 3 Ves. Jun.
recovered and deposited in it. The «28; Buffar v. Bradford, 2 Atk.
word "tomb" is sufficiently broad ^20; Holbrook v. Harrington, 16
Gray (82 Mass.) 102; Hooper v.-
to be held to be a monument in
memory of the dead. — Succession
Hooper, 9 Cush. (63 Mass.) 122,
130; Dow V. Doyle, 103 Mass. 489.
of Langles, 105 La. 39, 29 So. 739. „ i tt i, rr, ,
yjL jjausico, j-uu j^a. , g^g^ ^j^^^ Humphrey v. Tayleur,
84 Burleyson V. Whitley, 97 N. C. j^^^ ^gg. y^^^g ^ T)a.nes, 2
295, 2 S. E. 450. Drew. & S. 167; Larklns v. Lar-
85 Webster v. Webster, 2 P. Wms. kins, 3 Bos. & P. 16.
347. 87 Ky. Gen. Stats., (1873) ch. 50,
See, post, subject. Gifts to a § 2. See, also, Stimson's Am. Stat.
Class, where survivors take inter- Law, § 2823D.
1114 COMMENTARIES ON THE LAW OP WILLS.
ute in West Virginia, if a devise be made to two or more
persons jointly, and one or more of them die without
issue, the lapsed portion does not go to the other joint
devisee, but to the heir at law, unless the will otherwise
provide.** This is probably the rule in all those states
in which joint tenancy has been deprived of the char-
acteristic of survivorship.*^ Lapsed legacies of tenants
in common fall to the testator's next of kin or to the
residuary legatee, if there be one.®"
§ 768. Death of Beneficiary Before or After Title Vests.
A legacy given absolutely, although to be paid at a fu-
ture date, vests in the legatee if he survive the testator,
even though he die before the time fixed for payment.
Where a legacy or devise has once vested, it will not fail
because of the death of the beneficiary prior to the time
of his enjoyment of possession.®^ But, although a leg-
88 W. Va. Bien. Laws, (1882) so Bagwell v. Dry, 1 P. Wms.
oh. 24, §12; Code W. Va., 1899, 700; Page v. Page, 2 P. Wms. 489;
ch. 77, § 12. See, also, Stimson's Commonwealth v. Kiel, 1 Ashm.
Am. Stat. Law, (1886) §2822. (Pa.) 242; Craighead v. Given, 10
89 Coley V. Ballance, 60 N. C. Serg. & R. (Pa.) 351; Frazier v.
634; Strong v. Ready, 9 Humph. Frazier, 2 Leigh (Va.) 642.
(28 Tenn.) 168, 170. Where the children of the testa.
The term "equally and jointly" tor take their shares under the
implies that the beneficiaries take will as tenants in common and not
as tenants in common, the word as joint tenants, the death of a
"equally" overcoming the word child before the testator will cause
"jointly." — Taylor v. Stephens, 165 a legacy to such child to lapse. —
Ind. 200, 74 N. E. 980. ' In re Krummenacker, 60 Mis«.
A devise to two or more bene- Rep. 55, 112 N. Y. Supp. 596.
ficiaries creates a tenancy in com- 9i Scurfield v. Howes, 3 Bro.
mon, unless a contrary intention C. C. 90; Lane v. Goudge, 9 Yes.
is expressed in the will. — Gilmore Jun. 225; Looker v. Bradley, 5
y. Jenkins, 129 Iowa 686, 6 Ann. Beav. 593; Johnson v. Washington
Cas. 1008, 106 N. W. 193. L. & T. Co., 224 U. S. 224, 56 L. Ed.
See § 248 as to joint tenancy not 741, 32 Sup. Ct. 421 ; Newberry
being favored in the United States, v. Hinman, 49 Conn. 130; Ballard
LAPSED LEGACIES AND DEVISES.
1115
atee or devisee survive the testator, if no estate has
vested in him at the time of his death, the legacy or devise
in his favor will lapse.*^
§ 769. Death of Life Tenant Does Not Cause Gift of Remainder
to Lapse.
The death of a person to whom a particular estate has
been devised or bequeathed during the lifetime of the
V. Camplin, 161 Ind. 16, 67 N. E. XJ. S. 224, 239, 56 L. Ed. 741, 32
505; Myers v. Carney, 171 Ind.
379, 84 N. E. 506; Kamp's Exr. t.
Hallenberg, 8 Ky. L. Rep. 529;
Groan v. Maraman's Guardian, 148
Ky. 135, 146 S. W. 398; Leonora
V. Scott, 10 La. Ann. 651; Cook v.
Hay ward, 172 Mass. 195, 51 N. E.
1075; Hibler v. Hitler, 104 Mich.
275, 62 N. W. 361; Pox v. Hicks,
81 Minn. 197, 200, 50 L. R. A. 663,
83 N. W. 538; Tillson v. Holloway,
90 Neb. 481, Ann. Gas. 1913B, 78,
134 N. W. 232; Herbert v. Post,
26 N. J. Eq. 278; In re Gardner,
140 N. Y. 122, 35 N. E. 439; In re
Smith, 226 Pa. St. 304, 75 Atl. 425;
Pond V. Allen, 15 R. I. 171, 2 Atl.
302; West v. Smith, 89 S. C. 540,
72 S. E. 395; Selby v. Morgan's
Exrs., 6 Munf. (Va.) 156.
"A devise of lands to be sold
after the termination of a life es-
tate given by the will, the pro-
ceeds to be distributed thereafter
to certain persons, is a bequest
to those persons, and vests at the
death of the testator." — Cropley v.
Cooper, 19 Wall. (U. S.) 167, 22
L. Ed. 109; approved in Johnson
V. Washington L. & T. Co., 224
Sup. Ct. 421.
"Words directing land to be con-
veyed to or divided among re-
maindermen after the termination
of a particular estate are always
presumed, unless clearly con-
trolled by other provisions of the
will to relate to the beginning of
enjoyment by the remaindermen,
and not to the vesting of title in
them. ... So a direction that
personal property shall be divided
at the expiration of an estate for
life creates a vested interest." —
McArthur v. Scott, 113 U. S. 340,
28 L. Ed. 1015, 5 Sup. Ct. 652.
92 Hall V. Terry, 1 Atk. 502, 26
Eng. Repr. 317; Myers v. Adler,
6 Mackey (D. C.) 515; Estate of
Hinckley, Myr. Prob. (Cal.) 189;
Usry V. Hobbs, 58 Ga. 32; Gillett
V. Gillett, 109 111. App. 75; affirmed
in Blinn v. Gillett, 208 111. 473, 100
Am. St. Rep. 234, 70 N. B. 704;
Minot V. Doggett, 190 Mass. 435,
77 N. E. 629; Garland v. Smiley,
51 N. J. Eq. 198, 26 AU. 164; Clark
v. Cammann, 160 N. Y. 315, 54
N. E. 709; King v. Crawford, 17
Serg. & R. (Pa.) 118; Lee v. Mc-
Farland, 19 Tex. Civ. App. 292,
46 S. W. 281.
1116 COMMENTARIES ON THE LAW OF WILLS.
testator, does not defeat the interests of persons in re-
mainder wlio survive. ^* Although the language of the
gift of the remainder may seem to make the vesting of
such interest dependent upon the life estate or other in-
terest taking effect, yet it is deemed that the testator
did not intend to make the gift in remainder contingent
upon the former estate vesting, but that the language
used was only for the purpose of describing what the tes-
tator supposed would be the subsequent condition of
events.^* So, also, a gift to two persons, and in the event'
of the death of either then over to the other, does not
lapse by reason of the death of one of them during the
life of the testator."^ But if a particular estate fail
through the death of the first tenant before the testator's
decease, a contingent remainder over does not take effect,
unless the event upon which it was to depend has taken
place, although the remainderman survive the testator.®"
When a remainder has once vested it will not lapse by
reason of the death of the remainderman during the
life of the first tenant;®^ but will pass to the heirs of the
93 Stimson's Am. Stat. Law, De Gex & J., 114, 124; Anonymous,
§2822, citing the statutes of Cali- 2 Vent. 363; Massey v. Hudson,
fomia, Dakota, Montana and Utah; 2 Mer. 130; Key v. Key, 4 De Gex,
Billingsley v. Harris, 17 Ala. 214; M. & G. 73; Wright v. Wright, 21
West V. Williams, 15 Ark. 682; L. J. Ch. 775.
Armstrong v. Armstrong, 14 95 Martin v. Lachasse, 47 Mo.
B. Mon. (53 Ky.) 333; Martin v. 591.
Lachasse, 47 Mo. 591; Norris 96 Humberstone v. Stanton, 1
V. Beyea, 13 N. Y. 273; Traver v. Ves. & B. 385; Doo' v. Brabant,
Schell, 20 N. Y. 89; Downing v. 3 B. C. C. 393; Williams v. Jones,
Marshall 23 N. Y. 366, 80 Am. Dec. 1 Russ. 517.
290; Adams v. Gillespie, 2 Jones 9T Partridge v. Baylis, L. R. 17
Eq. (N. C.) 244; Mehane v. Wo- Ch. Div. 835; Tippin v. Coleman,
mack, 2 Jones Eq. (N. C.) 293. 59 Miss. 641; Harwood's Appeal,
94 Webb V. Hearing, Cro. Jac. 103 Pa. St. 73.
415; Walmsley v. Vaughan, 1
LAPSED LEGACIES AND DEVISES. 1117
remainderman, who will take by descent and not by pur-
chase.^*
§ 770. Testator May, by Provisions in His Will, Prevent Lapse.
The general rule of the common law that the death of
a beneficiary before that of the testator will cause a
testamentary gift to lapse, being founded upon the sup-
posed intention of the testator that only those persons
who might be living at the time of his death should re-
ceive gifts under his will, may be controlled by expres-
sions manifesting a contrary intention. A testator may,
by express provisions in his will or by language from
which a clear implication may be drawn that such was
his intention, prevent a lapse in case of the death of the
legatee or devisee before him.**
§ 771. The Same Subject.
To prevent a legacy from lapsing, the testator must
declare, either expressly or in terms from which his in-
tention can be with sufficient clearness collected, what per-
son he intends to substitute for a legatee who may die
in his lifetime.^ For it will only be presumed that the tes-
tator contemplated a failure of his gift and made pro-
vision for lapse when there is a clear intimation to that
effect.^ A legacy is not to be saved from lapse by the
fact that the testator knew of the death of the legatee and
intended that his children should receive the benefit in
98 King V. Scoggln, 92 N. C. 99, Beav. 318; Underwood v. Wing,
53 Am. Rep. 410. 4 De Gex, M. & G. 633; s. c, H. L.
99FaTOSworth v. Whiting, 102 Gas. 183; Carpenter v. Heard, 14
Me. 296, 66 Atl. 831; University of Pick. (31 Mass.) 449; Goddard v.
Pennsylvania's Appeal, 97 Pa. St. May, 109 Mass. 468.
187; Moss V. Helsley, 60 Tex. 426. 2 Cowley v. Knapp, 42 N. J. L.
1 Pickering v. Stamford, 3 Ves. 297.
Jun. 493; Johnson v. Johnson, 4
1118 COMMENTAEIES ON THE LAW OF WILLS.
Ms stead, unless it was so provided in the will or a codicil
thereto.* If a legatee be dead at the time the will is made,
and no words substituting his issue be used, the legacy
will lapse, whether the testator knew of the death or
not.*
Where the common-law rule is in force, it must appear
from the face of the will that the intention of the testator
was that the legacy or devise should not lapse by reason
of the death of the beneficiary before the demise of the
testator, in order to avoid the effect of the rule. Such
intention must de declared in unequivocal terms, by desig-
nating whom the testator wishes to take the gift in case
of the death of the beneficiary.®
§ 772. Substituted Legatees or Devisees.
A will may contain a direct provision that a certain
legacy or devise shall not lapse, or by a distinct provi-
sion may substitute another in the place of a beneficiary
should the latter die before the testator. Where it is
explicitly provided by the will that in the event of the
death of a legatee or devisee, his children, issue, or heirs,
or any named object, shall take in his stead, the legacy
or devise will not lapse because of the death of the first
named beneficiary during the life of the testator.®
s Comfort v. Mather, 2 Watts Estate, 15 Phila. (Pa.) 553; Boy-
& S. (Pa.) 450, 37 Am. Dec. 523. kin v. Boykln, 21 S. C. 513.
4 Dildine v. Dildine, 32 N. J. Eq. In Re Brown's Estate, 93 N. Y.
78. 295, the will read: "Upon the
5 Coleman v. Jackson, (Tex. Civ. death of any or either of my said
App.) 126 S. W. 1178. daughters, I give . . . unto
6 Harris v. Carpenter, 109 Ind. such child or children as my said
540, 10 N. B. 422; Cunningham v. daughter shall have or leave liv-
Dungan, 83 Ind. 572; Outcalt v. ing at her decease; . . . that
Outcalt, 42 N. J. Eq. 500, 8 Atl. Is to say, the children of my said
532; Wright v. Dugan, 15 Abb. daughter to have the part or share
N. C. (N. Y.) 107; Laguerenne's whereof the mother received the
LAPSED LEGACIES AND DEVISES. 1119
Thus, a gift over after the death of the testator 's widow
to several children, and a substitution of the issue in-
stead of "any of my said children dying before my said
wife," will save the, legacy from lapse, and entitle to a
share in the remainder the children of a son who died in
his father's lifetime/ So, also, where a will by which
all the testator's estate, real and personal, was given to
his wife, declared that at her decease, it "shall go to and
be equally divided among my children, the issue of a de-
ceased child standing in the place of the parent," the
children took vested interests which were not liable to
lapse.*
§ 773. The Same Subject: Words of Inheritance.
In the absence of express words to prevent a lapse, or
some provision of the will which indicates a contrary
intention, the common-law rule, unless changed by stat-
ute, will prevail, and the legacy or devise to a beneficiary
who dies before the testator will lapse. A will is am-
bulatory and does not become effective until the death of
the maker, and until such time no testamentary gift can
vest in the beneficiary.® A testator may provide in his
will that any legacy or devise which may lapse shall go
to the heirs or nest of kin of the beneficiary, but the
rent and Income during her life." 7 Outcalt v. Outcalt, 42 N. J. Eq.
It was thought that the insertion 500, 8 Atl. 532. See, also, Fussey
of the words "have or leave," with v. White, 113 III. 637; Harris v.
respect to the daughter's children. Carpenter, 109 Ind. 540, 10 N. E.
and that the addition of the latter 422; Cunningham v. Dungan, 83
portion of the clause quoted, when Ind. 572; Boykln v. Boykin, 21
taken in connection with the prin- S. C. 513.
cipal sentence, disclosed the testa- 8 Gibbens v. Gibbens, 140 Mass.
tor's purpose to let in the issue 102, 54 Am. Rep. 453, 3 N. E. 1.
of children dying before their » In re Wells, 113 N. Y. 396, 10
mother, testator's child. Am. St. Rep. 457, 21 N. E. 137.
1120 COMMENTAKIES ON THE LAW OF WILLS.
provision must be in such form as to clearly indicate that
the heirs or next of kin take as purchasers directly under
the wiU.i»
Words of inheritance are now unnecessary to convey
a title in fee, whether by deed or by will ; they are mere
surplusage. But the fact of the use of such unnecessary
words is not a sufficient reason for deducing therefrom
an intention on the part of the testator to substitute
in his place the heirs of a legatee or devisee who may
predecease the testator." Although such words may now
be dispensed with, their insertion in a will does not
give them a legal effect different from what it formerly
was.^^
§ 774. The Same Subject: Gift to Beneficiary "and His Heirs."
It is well settled that the use of mere words of limita-
tion will not prevent a legacy or devise from lapsing.
Terms frequently used in testamentary gifts, such as
adding after the name of the beneficiary the words ' ' and
his heirs" or "and his heirs or assigns," are words of
limitation, merely descriptive of the nature of the estate
■ 10 In re Bamett's Appeal, 104 time of the testator, and that, as
Pa. St. 342; Cureton v. Massey, 13 to so much of the estate disposed
Rich. Eq. (S. C.) 104, 94 Am. Dec. of by the residuary clause, the
151. testator had died intestate.
11 In re Wells, 113 N. Y. 396, 12 Van Beuren v. Dash, 30 N. Y.
10 Am. St. Rep. 457, 21 N. B. 137; 393.
Sword's Lessee v. Adams, 3 Yeates In Thurher v. Chambers, 66
(Pa.) 34; Sloan, v. Hanse, 2 Rawle N. Y. 42, 47, it was said of the
(Pa.) 28. presence of similar words in a
In Hand v. Maroy, 28 N. J. Eq. will, that "although the use of
59, Chancellor Runyon, in a well- them was unnecessary to vest a
considered opinion, held that the fee, it is quite common and the
addition of the words "heirs and usual way in deeds and convey-
asslgns" to a gift of the residue ances to insert them for greater
did not prevent a lapse, where a certainty."
residuary legatee died in the life-
LAPSED LEGACIES AND DEVISES,
1121
given, and do not create a substituted legacy or devise. ^^
Thus, a legacy or devise to a named beneficiary * ' and his
heirs," "will lapse upon the death of the devisee during
the life of the testator; for the words "and his heirs"
are words of limitation only, and serve only to show that
the testator intended to bestow a fee-simple estate.^* The
same is true of a gift to a person, "and his executors
and administrators and assigns. "^^ This rule is equally
applicable to realty and personalty.^®
A declaration that a legacy shall not lapse, following
a bequest to a person and his executors or administra-
tors, will be considered to indicate an intention to substi-
13 Jackson v. AIsop, 67 Conn.
249, 34 Atl. 1106; Devine v. Stef-
fen, 189 ni. App. 196; Maxwell v.
Feattierston, 83 Ind. 339; Farns-
worth V. Whiting, 102 Me. 296, 66
Atl. 831; Horton v. Earle, 162
Mass. 448, 32 N. E. 1135; Loveren
V. Donaldson, 69 N. H. 639, 45
Atl. 715; McKlernan v. Beardslee,
72 N. J. Eq. 283, 73 Atl. 815; In re
Wells, 113 N. Y. 396, 10 Am. St.
Rep. 457, 21 N. E. 137; Barnett's
Appeal, 104 Pa. St. 342.
"The general rule prevailing in
equity as at law, that if a legatee
dies after the making of the will
and before the death of the tester
tor the legacy lapses, is not af-
fected by the insertion after the
name of the legatee, of the words
'his heirs, executors, administra-
tors and assigns,' unless a dec-
laration that the legacy shall not
lapse is superadded: for those
words, according to their uniform
and well established interpreta-
tion only express the intention of
II Com. on Wills— 17
the testator to pass the absolute
property in the estate real or per-
sonal to the legatee." — Kimball v.
Story, 108 Mass. 382, 384.
"Before the revised statutes the
doctrine of lapse applied indis-
criminately to gifts with or with-
out words of limitation to heirs
or heirs of the body, and it also
applied equally to bequests of per-
sonalty, even where words of lim-
itation to his executors or admin-
istrators had followed the bequest
to a person deceased before the
will took effect." — Matter of Vos-
seler, 89 Misc. Rep. (N. Y.) 674,
152 N. Y. Supp. 208.
14 Hand v. Marcy, 28 N. J. Eq.
59; Sword's Lessee v. Adams, 3
Yeates (Pa.) 34.
15 Stone v. Evans, 2 Atk. 86;
Maybank v. Brooks, 1 Bro. C. O.
84. See, also, BrumBeld v. Drook,
101 Ind. 190; Long v. Long, 62
Md. 33.
16 Colbum V. Hadley, 46 Vt. 71.
1122 COMMENTARIES ON THE LAW OF WILLS.
tute tliem in the event of the legatee himself dying be-
fore the testator,*'^ But where a gift to a legatee, his
executors, administrators and assigns, is followed by a
declaration that the legacy is to vest in him immedi-
ately upon the execution of the will, lapse will not be
thereby avoided.^*
§ 775, The Same Subject: Gift to Beneficiary "or His Heirs."
In some cases where a legacy or devise is to a named
beneficiary followed by such words as "or his heirs,"
the disjunctive "or" being used instead of the conjunc-
tive * ' and, ' ' it has been held that a substitution of bene-
ficiaries was implied so as to prevent a lapse upon the
death of the beneficiary first named.^® It is a refined in-
terpretation and has been resorted to only when neces-
sary to meet the ends of justice.^" The weight of author-
17 Sibley v. Cooke, 3 Atk. 572. 1st Church, Hoff. Ch. (N. T.)
18 Browne v. Hope, L. R. 14 Eq. 202.
343. But see, as to "or her represen-
19 Girdlestone v. I>oe, 2 Sim. tatives," University of Pennsylva-
225; Speakman v. Speakman, 8 nia's Appeal, 97 Pa. St. 187.
Hare 180; Crooke v. De Vandes, In Gittings v. McDermott, 2
9 Ves. Jun. 197; Newman v. Night- Mylne and K. 69, it Is said: "The
ingale, 1 Cox C. C. 341; In re force of the disjunctive word 'or'
Porter's Trust, 4 Kay & J. 188 ; is not easily to be got over. Had it
Salisbury v. Petty, 3 Hare 86; been 'and' the words of limitation
In re Newton's Trust, L. R. 4 Eq. would, of course, as applied to a
171; In re Porter's Trust, 4 Kay chattel interest, have been sur-
& J. 188; Fussey v. White, 113 111. plusage, but the disjunctive marks,
637; Janney v. Sprigg, 7 Gill (Md.) as plainly as possible, that the tes-
197, 48 Am. Dec. 557; Kimball v. tator by using it intended to pro-
Story, 108 Mass. 382; Brokaw v. vide for an alternative bequest;
Hudson's Bxrs., 27 N. J. Eq. 135; namely, to the legatees if they
Hand v. Marcy, 28 N. J. Eq. 59; should survive, and if they should
Miller v. Caragher, 35 Hun (N. T.) not, to their heirs."
485; Wetmore v. Peck, 66 How. 20 Keniston v. Adams, 80 Me.
Pr. (N. Y.) 54; Wright v. Method- 290, 14 Atl. 203.
LAPSED LEGACIES AND DEVISES. 1123
ity, however, seems to be that where a legacy or devise
is to one "or his heirs, issue," or the like, whatever the
form of expression may be, the wiU containing no provi-
sions showing a different intent, the word "or" will be
construed to mean "and"; and a testamentary gift to
"A or his heirs" will lapse if A die before the testa-
tor.2i
§776. The Same Subject: Construing "and" as "or," and
"or" as "and."
When the testamentary intent is clear and unequivocal,
the courts go so far, in order to give effect to such in-
tent, as to convert the word "and" into "or," and con-
strue words of limitation as words of purchase, or words
of purchase as words of limitation.^^ It is a rule of
construction that, if possible, effect be given to every
word, but if the conversion of "and" into "or" would
cause only one part of the sentence to become inoperative
instead of the other, the change should not be sanctioned.
It is allowable only when absolutely necessary to sup-
port the evident, intent of the testator .^^
21 Horridge v. Ferguson, Jac. who shall survive him, unless the
583; Harris v. Davis, 1 Coll. 416; intention is perfectly clear." — ■
Shand v. Kidd, 19 Beav. 310 ; Ads- Corhyn v. French, 4 Ves. Jun. 418,
head v. Willetts, 29 Beav. 358; 435.
Wright V. Wright, 1 Ves. Sen. 409; 22 Taggart v. Murray, 53 N. Y.
Turner v. Moor, 6 Ves. Jun. 557; 233; In re Wells, 113 N. Y. 396,
Richardson v. Spraag, 1 P. Wms. 10 Am. St. Rep. 457, 21 N. E. 137.
434; Bccard v. Brooke, 2 Cox's See, also. In re Gilmor's Estate,
C. C. 213; Montague v. Nucella, 154 Pa. St. 523, 35 Am. St. Rep.
1 Russ. 165; In re Philips' Will, 855, 26 Atl. 614.
Li. R. 7 Eq. 151; Parkin v. Knight, 23 Farnsworth v. Whiting, 102
15 Sim. 83; O'Brien v. Heeney, Me. 296, 66 Atl. 831; In re Gilmor's
2 Edw. Ch. (N. Y.) 242. Estate, 154 Pa. St. 523, 35 Am. St.
"A testator is never supposed to Rep. 855, 26 Atl. 614.
mean to give to any but those In Morgan v. Thomas, L. R. 9
1124
COMMENTARIES ON THE LAW OF WILLS.
The simplest form is a testamentary gift to "A and his
heirs," or to "A or his heirs." In such cases, as we have
seen, the words referred to are generally treated as
words of limitation. The situation may be different where
certain contingencies are mentioned, as a devise to "A
and the heirs of his body if he should attain the age of
twenty-one years or have issue, but if A should die before
the age of twenty-one and without issue, then to B."
Where A attained the age of twenty-one years but died
without issue, it was held that B was entitled to the de-
vise.^* In those cases where it has been sanctioned, it
was only for the purpose of allowing the legacy or devise
to vest, not to defeat it.^^ But subsequently it was held
that "and" should not be construed as "or,"^® and
Q. B. Dlv. 643, 645, Sir George Jes-
sel illustrated the matter in the
following manner. He said: "You
will find it said In some cases that
'or' means 'and,' but 'or' never
does mean 'and' unless there is a
context which shows it is for 'and'
by mistake. Suppose a testator
said, 'I give the black cow on
which I usually ride to A B,' and
he usually rode on a black horse,
of course the horse would pass,
but I do not think any annotator
of cases would put in the marginal
notes that 'cow' means 'horse.' "
In Griffith's Lessee v. Woodward,
1 Yeates (Pa.) 316, 318, it was
said: "Courts of justice will trans-
pose the clauses of a will and
construe 'or* to be 'and' and 'and'
to be 'or' only in such cases when
It is absolutely necessary so to do,
to support the evident meaning
of the testator. But they can not
arbitrarily expunge or alter words
without such apparent necessity."
24 Brownsword v. Edwards, 2
Ves. Sen. 243; Doe d. Usher v.
Jessep, 12 East 288; Woodward v.
Glassbrook, 2 Vem. 388.
Contra: Grey v. Pearson, 6 H. L.
Gas. 61.
25 Day V. Day, Kay 703, 708;
Maddison v. Chapman, 3 De Gex
& J. 536; Hetherington v. Oak-
man, 2 You. & C. C. 299; May-
nard v. Wright, 26 Beav. 285; Ma-
berly v. Strode, 3 Ves. Jun. 450;
Bell V. Phyn, 7 Ves. Jun. 453, 459.
26 Grey v. Pearson, 6 H. L. Cas.
61. See, also. Doe v. Watson, 8
How. (U. S.) 263, 12 L. Ed. 1072
Butterfield v. Haskins, 33 Me. 393
Carpenter v. Boulden, 48 Md. 122
Chrystie v. Phyfe, 19 N. Y. 344.
A gift over after a life-estate to
S. G. and A. K., "and their heirs
and representatives," was held
LAPSED LEGACIES AND DEVISES. 1125
the earlier cases were considered as having been over-
ruled.^'^
The word "or" has been construed to mean "and"
where necessary to carry out the apparent intention of
the testator. Thus if a gift be made to A with a limita-
tion over upon two contingencies, such as if A should
die under the age of twenty-one or unmarried, it has been
held that the testator contemplated an absolute gift to A
except upon the happening of both contingencies, and
therefore "or" has been converted into "and." It is
supposed the. testator had in mind an absolute gift if
the beneficiary reached his majority, or to benefit his
issue should he have any.^^ But to the contrary, where
the devise was to A and J in tail, with the proviso that
if A and J died "under age" or without having lawful
issue, then over to B, although A died under age and with-
out issue and J died without issue but after having be-
come of age, it was held that "or" should not be
construed as "and." That while the testator might have
intended by the limitation over to give a benefit to the
issue, should there be any, of the beneficiaries should they
die under age, yet converting "or" into "and" would be
not to be substitutional. — ^Apple- 440; Dillon v. Harris, 4 Bligh
ton V. Rowley, L. R. 8 Bq. 139, 145. (N. S.) 324, 329.
The condition annexed to a de- 28 Grant v. Dyer, 2 Dow 73, 87;
vise was: "If both my grandchil- Grimshawe v. Pickup, 9 Sim. 591;
dren shall happen to die under Long v. Dennis, 4 Burr. 2052; Kin-
age and without any lawful issue, dig v. Smith, 39 111. 300; Sayward
then it is my will," etc. The death v. Sayward, 7 Me. 210, 22 Am. Dec.
of the grandchildren, without issue 191; Watkins v. Sears, 3 Gill
but after becoming of age, did not (Md.) 492; Hunt v. Hunt, 11 Mete.
make the devise over effective. — (52 Mass.) 88; Anderson v. Jack-
Doe V. Watson, 8 How. (U. S.) son, 16 Johns. (N. Y.) 382; Broad-
263, 12 L. Ed. 1072. dus v. Turner, 5 Rand. (Va.) 308.
27 Secombe v. Edwards, 28 Beav.
1126 COMMENTARIES ON THE LAW OP WILLS.
contrary to the expressed intention of tlie testator that
B should take the remainder upon certain contingencies.^*
§ 777. To Whom the Benefit of Lapsed Legacies and Devises
Accrues.
At common law, a distinction was recognized between
a lapsed bequest of personal property and a lapsed de-
vise of real estate, the former going to the residuary leg-
atee, if there were one, or to the next of kin, while the
latter descended to the heir of the testator.^" The reason
given for the distinction was that a bequest of personal
property operated on all such of the testator's property
owned by him at the time of his death, but that a devise
operated only upon land of which he was seised when
he made his wiU.*^ But the reason for this distinction
no longer exists under the modern statutes enabling a
testator to devise realty of which he was not seised at
the time of making the will,^^ and the effect of this legis-
lation has been by implication to place lapsed devises of
real estate and lapsed bequests of personal estate on
precisely the same footing.^^ Accordingly, the modern
29 Mortimer V. Hartley,. 6 Exch. street v. Doyle, 75 Va. 356, 367,
47. See, also, Hawksworth v. 40 Am. Rep. 731.
Hawksworth, 27 B«av. Xi Cooke v. See §§ 26-29, 228-230.
Morihouse, 34 Beav. 27; Kelley v. 32 Decker v. Decker, 121 111. 341,
Kelley, 182 Pa. St. 131, 37 Atl. 12 N. B. 750; West v. West, 89
830. Ind. 529, 533.
30 4 Kent Com. *541; Greene v. See §§30, 230-236.
Dennis, 6 Conn. 293, 16 Am. Dec. S3 Galloway v. Darby, 105 Ark.
58; Gore v. Stevens, 1 Dana (31 558, Ann. Cas. 1914D, 712, 44
Ky.) 201, 25 Am. Dec. 141; Stone- L. R. A. (N. S) 782, 151 S. W.
street v. Doyle, 75 Va. 356, 367, 1014; Holbrook v. McCleary, 79
40 Am. Rep. 731. Ind. 167; West v. West, 89 Ind.
sijones V. Mitchell, 1 Sim. & 529, 533; Blaney v. Blaney, 1 Cush.
St. 290; West v. West, 89 Ind. (55 Mass.) 107; Prescott v. Pres-
529, 532; Prescott v. Prescott, 7 cott, 7 Mete. (48 Mass.) 141, 146;
Mete. (48 Mass.) 141, 146; Stone- Albany Hospital v. Albany Guar-
liAPSED LEGACIES AND DEVISES.
1127
rule may be stated to be that where there is a residuary
clause, unqualified and absolutely general in its terms,^*
not only lapsed bequests of personalty, but lapsed de-
vises of realty also,^* will sink into the residue, and
neither the next of Mn nor the heir at law will take any
interest therein, unless there be expressions in the will
manifesting a contrary intention.^® Such an intention is
not to be inferred from the failure of the testator to
provide for the contingency which occasioned the lapse.^^
But a provision precluding the residuary devisee from
disposing of property wiUed to the testator's children is
dian Soc, 131 N. Y. Supp. 1017.
See, also. In re Russell, 150 Cal.
604, 89 Pac. 345; Lamb v. Lamb,
131 N. Y. 227, 30 N. B. 133; Duck-
worth V. Jordan, 138 N. C. 520,
51 S. B. 109; Kent T. Kent, 106
Va. 199, 55 S. E. 564.
Compare: Mann v. Hyde, 71
Mich. 278, 39 N. W. 78.
34 Burnside's Succession, 35 La.
Ann. 708; In re Benson, 96 N. Y.
499, 48 Am. Rep. 646.
35 Burton V. Newbery, L. R. 1
Ch. Div. 234; Ballance v. Lanphier,
L. R. 42 Ch. Div. 63; Green v.
Dunn, 20 Beav. 6; Hinckley's Es-
tate, Myrick's Prob. (Cal.) 189;
Decker v. Decker, 121 111. 341, 12
N. B. 750; Dorsey v. Dodson, 203
111. 32, 67 N. B. 395; Hogan's Heirs
V. Hogan's Exr., 3 Dana (33 Ky.)
572; Stetson v. Eastman, 84 Me.
366, 24 Atl. 868; Barnum v. Bar-
num, 42 Md. 251; Levering v.
Loverlng, 129 Mass. 97; Dresel v.
King, 198 Mass. 546, 126 Am. St.
Rep. 459, 85 N. E. 77; Givens v.
Ott, 222 Mo. 395, 121 S. W. 23;
Matter of Whiting, 33 Misc. Rep.
274, 68 N. Y. Supp. 733; Duck-
worth V. Jordan, 138 N. C. 520, 51
S. B. 109; Woodward v. Congdon,
34 R. I. 316, Ann. Cas. 1914C, 809,
83 Atl. 433; Bradford v. Leake,
124 Tenn. 312, Ann. Cas. 1912D,
1040, 137 S. W. 96.
Where personal property lapses
and Is to be distributed among the
next of kin, the widow will take a
portion thereof, notwithstanding a
provision made for her by the will
as in lieu of dower. — ^Dildine v.
Dildine, 32 N. J. Eq. 78.
Where a legacy lapses, the pro-
portional share of the surplus per-
sonalty that would have fallen to
the legatee had he survived goes
with the legacy to the residuary
legatee.^n re Harland's Estate,
13 Phila. (Pa.) 229.
36 In re L'Hommedieu, 32 Hun
(N. Y.) 10; Wetmore v. Peck, 66
How. Pr. (N. Y.) 54.
37 In re L'Hommedieu, 32 Hun
(N. Y.) 10.
1128
COMMENTARIES ON THE LAW OP WILLS.
a sufficient manifestation of an intention that lie should
have no part in the share of one of them which had
lapsed.**
§ 778. The Same Subject.
The general rule stated above prevails in England,^'
and in most of these United States. In Pennsylvania,
however, the common-law rule was said not to be altered
by the statute enabling testators to dispose of after-
acquired realty; and accordingly in that state a lapsed
devise of realty descended to the heir at law, and formed
no part of the residuary estate, unless plainly so intended
by the testator.*" This, however, has been changed by
statute.*^
Where the will contains no residuary clause, lapsed leg-
acies*^ and devises** will pass to the next of kind or
38 Moss V. Helsley, 60 Tex. 426.
39 The statute of 1 Victoria, ch.
26, §25, reads: "Unless a con-
trary intention shall appear by
the will, such real estate or inter-
est therein as shall be comprised
or intended to be comprised in
any devise in such will contained,
which shall fall or be void by rea-
son of the death of the devisee in
the lifetime of the testator, or by
reason of such devise being con-
trary to law or otherwise inca-
pable of taking effect, shall be in-
cluded in the residuary devise (if
any) contained in such will."
40 Massey's Appeal, 88 Pa. St.
470, characterizing as dicta ex-
pressions to the contrary in Pat-
terson v. Swallow, 44 Pa. St. (8
Wright) 487, 490, and in Yard v.
Murray, 86 Pa. (5 Norris) 113.
41 The Pennsylvania ruling re-
ferred to above was handed down
on the 28th of January, 1879; on
the 4th of June of the same year
it was enacted that unless a con-
trary intention should appear in
the will, any devise which should
fail or be void by reason of the
death of the devisee in the life-
time of the testator, or by reason
of being contrary to law or other-
wise incapable of taking effect,
should be included in the resid-
uary devise, if any. This, how-
ever, has been held not to apply
to lapsed shares of the residuary
devise. — Everman v. Everman, 15
Weekly Not. of Cas. (Pa.) 417.
42 Twitty V. Martin, 90 N. C. 643.
43 Murray T. Yard, 12 Phila.
(Pa.) 441.
LAPSED LEGACIES AND DEVISES.
1129
descend to the heirs at law, as in cases of intestacy.**
This is the common-law rule, and has been enacted into
the statutes of some of the states.*^
§ 779. To Whom the Benefit of Void Legacies and Devises Ac-
crues.
With respect to the question whether the heir or the
residuary devisee is entitled to the benefit of a devise
which fails, a distinction has been drawn between lapsed
devises and void devises ;*** and the distinction not being
well founded in reason, the decisions are naturally con-
flicting. While on one hand it has been said that the
heir should inherit in the case of a lapsed devise, and the
residuary devisee should take a void devise;*'' on the
44 Hamlet v. Johnson, 26 Ala.
557; Mills v. Newberry, 112 111.
123, 54 Am. Rep. 213, 1 N. E. 156;
Dorsey v. Dodson, 203 111. 32, 67
N. E. 395; Lash v. Lash, 209 III.
595, 70 N. E. 1049; Hovey v. Dary,
154 Mass. 7, 27 N. E. 659; Gore v.
Stevens, 1 Dana (31 Ky.) 201, 206,
25 Am. Dec. 141; James v. James,
4 Paige Ch. (N. Y.) 115; Van
Kleeck v. Ministers etc. of Re-
formed Dutch Church, 6 Paige Ch.
(N. Y.) 600; Rhode Island Hos-
pital Co. V. Harris, 29 R. I. 408,
39 Atl. 750; In re Bradley, 123
Wis. 186, 3 Ann. Cas. 716, 101
N. W. 393. But see Gray v. Cor-
bit, 61 Md. 149; Vandewalker v.
Rollins, 63 N. H. 460, 3 Atl. 625.
45 Frail V. Carstairs, 187 111. 310,
58 N. E. 401; In re Freeman's
Estate, 146 Iowa 38, 124 N. W.
804; Garrard v. Kendall, (Ky.) 121
S. W. 997; 111. Rev. St. 1874,
p. 419; Iowa Code, §3281; Ky. St.
1909, §4843 (Russell's St., §3966).
By the Kentucky Gen. Stats.,
(1873) ch. 113, § 20, in the case
of no residuary clause, both real
and personal property pass as in
the case of intestacy, unless a
contrary intention appear in the
will.
It has been held in New York
that a lapsed legacy, given by the
will of a married woman, will he
taken by the husband and not by
the next of kin. — Robins v. Mo-
Clure, 33 Hun (N. Y.) 368.
In West Virginia the statute
provided that if there be no resid-
uary devise, the heir-at-law took
the beneiit of the lapse. — Stim-
Bon's Am. Stat. Law, § 2822a.
46 Billingsley v. Tongue, 9 Md.
575.
47 Ferguson v. Hedges, 1 Har.
(Del.) 524; Hayden v. Inhabitants
1130 COMMENTARIES ON THE LAW OF WILLS.
other hand there are cases in which, although the devise
was void from the beginning, the heir was preferred
to the residuary devisee on the ground that the testator
never intended that the specific devise which was void
should fall into the residuum.*^
For example, it has been said that accumulations raised
by a null and void part of a will are necessarily undis-
posed of by that part, and must come within the opera-
tion of the residuary clause.** Although, of course, void
accumulations directed to be made by the residuary clause
itself will pass to the heir if growing out of realty, and
to the next of Mn if out of personalty,^" so, again, a re-
siduary devise of "all the balance of my property after
paying the above special bequests, and the five thousand
dollars mentioned in the second clause of my will," has
been held to embrace any part of the five thousand dol-
lars which may have been given to create a perpetuity
against public policy.^^
of Stoughton, 5 Pick. (22 Mass.) otherwise disposed of," devises to
528, 537; Brigham v. Shattuck, 10 sisters dead when the will was
Pick. (27 Mass.) 306. made passed under the residuary
48 Greene v. Dennis, 6 Conn, clause. — Doe d. Stewart v. Shet-
293, 16 Am. Dec. 58; Brewster v. field, 13 East 526.
McCall's Devisees, 15 Conn. 274, Where the residuary clause was
297, 298; Lingan v, Carroll, 3 Har. of "the rest and residue of the
& McH. (Md.) 333; Van Cortlandt estate not therein disposed of," a
V. Kip, 1 Hill (N. Y.) 590; James specific devise, void ab initio,
V. James, 4 Paige Ch. (N. Y.) 115; passed to the heir. — Greene v.
Van Kleeck v. Ministers etc. of Dennis, 6 Conn. 293, 16 Am.
Reformed Dutch Church, 6 Paige Dec. 58.
Ch. (N. Y.) 600. 60 Burt v. Sturt, 10 Hare 415;
49 Ex parte Sergeant, 11 Phlla. McDonald v. Bryce, 2 Keen 376 ;
(Pa.) 8, 10. See, also, Crawley v. Mathews v. Keble, L. R. 4 Eq.
Crawley, 7 Sim. 427; O'Neill v. Cas. 467.
Lucas, 2 Keen 313. Bi Fite v. Beasley, 12 Lea (80
Where the residuary devise of a Tenn.) 328, citing and reviewing
will covered all lands "not therein Bland v. Lamb, 2 Jacob & W. 399,
LAPSED LEGACIES AND DEVISES. 1131
§ 780. The Same Subject.
On the other hand, it has been said that legacies hav-
ing failed because of being invalid, constitute a fund not
embraced nor intended to be embraced in the residuary-
clause of the testator's will, and therefore must pass to
the next of kin, "by the rule well established by the ad-
judications."^^ Thus, in Virginia it was held that when
a specific devise of real estate is made which is void or
ineffectual on account of the incapacity of the devisee
to take, the estate is not included in the residuary devise,
but passes to the heirs as in case of intestacy, the reason
assigned being that the testator conceives himself to
have disposed of the property, and that he, therefore,
does not intend the residuary devisee to take it. "The
specific devise," it was said, "although inoperative for
legal causes, as plainly indicates an intention to exclude
the residuary devisee as though the same estate had
been given to some other person, who was at the time
capable of taking, but by subsequent events was rendered
incapable." The heir in such case takes the estate, not
on the ground of any supposed intention of the testator
in his behalf, but because he is entitled to any part of
it which is not effectually and legally given to some other
person.^* Accordingly, we find rulings to the effect that
lands and accumulations of income devised in perpetuity
406; Shanley v. Baker, 4 Ves. Jun. fevre, 59 N. Y. 434, 443; Kerr v.
732; Cambridge v. Rous, 8 Ves. Dougherty, 79 N. Y. 328.
Jun. 12; King v. Woodhull, 3 Edw. In Maryland it has been held
Ch. (N. Y.) 79; Reeves v. Reeves, that a void devise goes to the heir
5 Lea (73 Tenn.) 653, 655. of the testator, a void legacy to
52 Stephenson v. Ontario Or- the residuary legatee. — Orrlck v.
phan Asylum, 27 Hun (N. Y.) 380, Boehm, 49 Md. 72, 81. See, also,
citing Iseman v. Myres, 26 Hun Elder v. Lantz, 49 Md. 186.
(N. Y.) 651; Betts v. Betts, 4 Abb. 53 Stonestreet v. Doyle, 75 Va.
N. C. (N. Y.) 317; Lefevre v. Le- 356, 40 Am. Rep. 731, citing Van
1132 COMMENTARIES ON THE LAW OP WILLS.
go to the heir at law;^* that land directed to be sold by
the executor for the purpose of paying a void bequest
will descend to the heir as land;^^ and that where the
income of personalty is bequeathed to a legatee for life,
with remainder over to a charity which fails as contrary
to a statute, the corpus of the estate will remain to the
testator's next of kin.^" Such distinctions between lapsed
and void legacies, recognized, by the common law, have
in most jurisdictions been eliminated by statute and are
no longer followed unless the testator show a contrary
intention by the provisions of his will.®^
§ 781. Grcneral Rule as to Lapsed or Void Legacies or Devises.
By the Victorian Statute of Wills all distinction be-
tween void devises and lapsed devises was eliminated,
and under that statute any devise which fails, no matter
from what cause, passes under the residuary devise if
there be one, unless a contrary intention shall appear
from the -vdll.^* Similar statutes have been passed in
inany of these United States. It is almost universally
Kleeck v. Ministers etc. of Re- that whether the residuary lega-
formed Dutch Church, 6 Paige Ch. tees or the distributees under the
(N. Y.) 600; Kennon v. McRob- statute are entitled to the benefit
erts, 1 Wash. (Va.) 96, 1 Am. Dec. of a trust, which failed as being
428. contrary to statute, must be de-
B4 Wilson V. Odell, 58 Mich. 533, termined by the provisions of the
25 N. W. 506. will.— Craig v. Beatty, 11 S. C. 375.
55 Patton V. Fatten, 39 Ohio St. 57 See § 781 as to general rule
590. as to lapsed or void legacies or
As to legacies charged upon real devises,
estate, see, ante, §§ 760, 761. As to common law distinction
As to a legacy of the proceeds between lapsed legacies and
of real estate, see, ante, § 762. lapsed devises being no longer
56 Seiber's Appeal, (Pa.) 9 Atl. recognized, see §§ 777, 778.
863. 88 Statute of 1 Victoria, ch. 26,
In South Carolina, it was held § 25.
LAPSED LEGACIES AND DEVISES.
1133
true that a will of a testator unless it contains some pro-
vision to the contrary, operates upon all property, real
or personal, which he owns at the time of his death,
the old rule of the common law having been generally
superseded or abolished. The general rule is that where
a testator by a general residuary clause unqualifiedly
and without restriction devises and bequeaths the resi-
due of his estate generally and not specifically, and no
provisions of the will indicate a contrary intention, and
since intestacy, even partial, is to be avoided, all legacies
and devises which fail, either through invalidity or lapse,
fall into the residuum.^^
59 In re Rymer, L. R. (1895)
1 Ch. Div. 19; Reynolds v. Kort-
right, 18 Beav. 417, 427; Markham
V. Ivatt, 20 Beav. 579; Fisk v.
Attorney-General, L. R. 4 Eq. Gas.
521; Doe d. Stewart v. Sheffield,
13 East 526; Corporation of Town
of Whitby t. Liscombe, 22 Grant
Ch. (U. C.) 203; Johnson v. Holi-
field, 82 Ala. 123, 2 So. 753; Bill v.
Payne, 62 Conn. 140, 25 Atl. 354;
Thweatt v. Redd, 50 Ga. 181; Eng-
lish V. Cooper, 183 111. 203, 55 N. E.
687; Dorsey v. Dodson, 203 111. 32,
67 N. E. 395; West v. West, 89
Ind. 529; Cunningham v. Cunning-
ham, 18 B. Mon. (Ky.) 19, 68 Am.
Dec. 718; New Orleans v. Hardie,
43 La. Ann. 251, 9 So. 12; Stetson
V. Eastman, 84 Me. 366, 24 Atl.
868; Dulany v. Middleton, 72 Md.
67, 19 Atl. 146; Reld v. Walbach,
75 Md. 205, 23 Atl. 472; Minot v.
Baker, 147 Mass. 348, 9 Am. St.
Rep. 713, 17 N. E. 839; Dexter v.
President etc. of Harvard College,
176 Mass. 192, 57 N. E. 371; Mann
V. Hyde, 71 Mich. 278, 39 N. W. 78;
Dozier v. Dozier, 183 Mo. 137, 81
S. W. 890; Garthwaite's Exr. v.
Lewis, 25 N. J. Eq. 351; Burnet's
Exrs. v. Burnet, 30 N. J. Eq. 595;
Sanford v. Blake, 45 N. J. Eq. 248,
17 Atl. 812; Ward v. Stanard, 82
App. Div. (N. Y.) 386, 81 N. Y.
Supp. 906; Spencer v. De Witt C.
Hay Library Assn., 36 Misc. Rep.
(N. Y.) 393, 73 N. Y. Supp. 712;
Lamb v. Lamb (Lamb v. Forsyth),
131 N. Y. 227, 30 N. E. 133; In re
Tompkins' Will, 154 N. Y. 634, 49
N. E. 135 ; Langley v. Westchester
Trust Co., 180 N. Y. 326, 73 N. E.
44; Lindsay v. Pleasants, 4 Ired.
Eq. (39 N. C.) 320; In re High's
Estate, 136 Pa. St. 222, 20 Atl. 421;
In re Wood's Estate, 209 Pa. St.
16, 57 Atl. 1103; Fiske v. Fiske, 26
R. I. 509, 59 Atl. 740; Prison Assn.
V. Russell, 103 Va. 563, 49 S. E.
966.
As to residuary devises and
legacies generally, see §§ 668-681.
The Illinois statute reading as
1134
COMMENTARIES ON THE LAW OF WILLS.
follows: "All such estate, both
real and personal, as is not de-
vised or bequeathed in the last
will and testament of any person,
shall be distributed in the same
manner as the estate of an intes-
tate; but in all such cases the
executor or executors, administra-
tor or administrators, with the
will annexed, shall have the
preference in administering on
the same," was held not to change
the rule that lapsed or void lega-
cies fall into the residuum. — Cre-
rar v. Williams, 145 111. 625, 21
L. R. A. 454. 34 N. E. 467.
CHAPTEE XXVni.
CHABGES FOE PAYMENT OP DEBTS AND LEGACIES.
§ 782. As to liability of heir, devisee or legatee for debts of de-
cedent: Common law rule.
§ 783. The same subject : Statutory changes.
§ 784. Order in which property is resorted to for payment of
debts.
§ 785. Personal property of estate is primarily liable for debts
and legacies.
§ 786. Direction in will that all debts and legacies be paid.
§ 787. The same subject: Construed, if possible, as referring to
personalty.
§ 788. The same subject : Doubtful expressions.
§ 789. Direction in will that executor pay all debts and legacies.
§ 790. Presumption where testator knows the personalty is inade-
quate.
§ 791. Waste of personalty by executor.
§ 792. Charges on lands specifically devised.
§ 793. Exoneration of personalty from charges : Personalty spe-
cifically bequeathed.
§ 794. Common law rule as to debts secured by mortgage.
§ 795. The same subject : Expressions of intent.
§ 796. The same subject : Exceptions to rule.
§ 797. Testamentary gift of mortgaged property : Modern rule.
§ 798. Effect of blending realty with personalty.
§ 799. Effect of realty and personalty being blended in the resid-
uary clause.
§ 800. "Whether the charge is upon the devise or upon the devi-
see.
§ 801. The same subject.
§ 802. Limitations upon charges.
§ 803. Charges following the land.
§ 804. Marshaling of assets.
(1135)
1136 COMMENTAEIES ON THE LAW Off WIIJjS.
§ 805. The same subject.
§ 806. Widow's right of dower.
§ 807. Constructive or equitable conversion defined.
§ 808. Conversion depends on intention of testator: How ex-
pressed.
§ 809. Time when conversion is considered to take place.
§ 810. Effect of failure of purpose for which sale was directed.
§ 811. Realty converted into personalty does not bar dower, but
otherwise is distributed as personalty.
§ 812. Reconversion defined: How effected.
§782. As to Liability of Heir, Devisee or Legatee for Debts
of Decedent : Common Law Rule.
The rule of the early common law was that the heir
of a decedent took title by descent rather than by devise
although the property which he inherited was likewise
given him by will. In such a case the devise was in
effect void. If the estate devised differed from that
which went to the heir by inheritance, he took such
estate by purchase.^ This rule was changed by the
statute of 3 and 4 Wm. IV, ch. 106, sec. 3, which
provided that all lands devised to an heir should go
to him as a devise and not by descent. The reason for the
cormnon law rule was that it was desirable that the heir
should take by descent because it was convenient that
the property should be assets in his hands.^
At common law the realty descended to the heir while
the personalty passed to the personal representatives of
the decedent for administration and satisfaction of claims
against the estate. Realty was chargeable in the hands
iHaynsworth v. Pretty, Cro. Mass.) 161; Whitney v. Whitney,
Eliz. 833; Clark v. Smith, 1 Salk. 14 Mass. 88.
241 ; Chaplin v. Leroux, 5 M. & S. 2 Chaplin v. Leroux, 5 M. & S. 14.
14; Ellis V. Page, 7 Cush. (61
CHAEGES FOR DEBTS AND LEGACIES. 1137
of the heir only witli specialty debts^ or those of record.
The heir was not liable for the simple contract debts of
the decedent,* and his liability for specialty debts wherein
he was named did not exceed the value of the lands
taken.^ A devisee, since he took by purchase and not
by descent, as did the heir, was not liable for any of
the debts of the decedent;® nor did any such liability
attach to a legatee although he might have secured from
the executor or administrator some of the assets of the
estate^
§783. The Same Subject: Statutory Changes.
By the statute of 3 and 4 W. & M., ch. 14, a right of
action was given against devisees jointly with the heir
in favor of specialty creditors whose claims could be
recovered by an action of debt;^ later, by the statute
of 1 Wm. IV., ch. 47, the remedy could be enforced against
the devisee alone. Subsequent, by the statute of 3 and 4
3 A specialty debt was one ere- lace, 10 N. J. L. 311; Deyo v.
ated by deed or an instrument Morss, 30 N. Y. App. Div. 56, 51
under seal. It included not only N. Y. Supp. 785.
the obligation to pay money, but 5 Dyke v. Sweeting, Willes 585;
also the performance of some act. Hays v. Jackson, 6 Mass. 149;
— Powdrell v. Jones, 18 Jur. 1048; Sauer v. Griffin, 67 Mo. 654; Tick-
In re Dickson, 40 L. J. Ch. 707; nor v. Harris, 14 N. H. 272, 40 Am.
Hodgson V. Shaw, 3 Myl. & K. Dec. 186.
183; Speer v. Wilkins, 31 Ga. 289; 8 Wilson v. Knubley, 7 East 128;
M'Dowell V. Caldwell, 2 McCord Plunket v. Penson, 2 Atk. 290, 292;
Eq. (S. C.) 43, 56, 16 Am. Dec. 635. People v. Brooks, 123 111. 246, 248,
Specialty debts were abolished 14 N. E. 39; Rogers v. Farrar,
in England by the statute of 6 T. B. Mon. (22 Ky.) 422; Sauer
32 and 33 Vlct, ch. 46, and in v. Griffin, 67 Mo. 654.
almost all of these United States. 7 Rogers v. Farrar, 6 T. B. Mon.
4 Ryan v. Jones, 15 111. 1; HofE- (22 Ky.) 422; Ticknor v. Harris,
man v. Wilding, 85 111. 453; Evans 14 N. H. 272, 40 Am. Dec. 186.
V. Fisher, 40 Miss. 643; Ministers 8 Wilson v. Knubley, 7 East 128.
etc. of Episcopal Church v. Wal-
II Com. on Wills— 18
1138 COMMENTAEIES ON THE LAW OP WILLS.
Wm. IV., ch. 104, it was provided that all estates and
interest in lands of which one might die possessed and
which by will were not charged with or devised subject
to his debts, should be assets for the payment of all debts
of the decedent, specialty or' simple^ and that the heir
or devisee should be liable to suits in equity by the cred-
itors the same as the heir was formerly liable to such a
suit by a specialty creditor. Specialty debts, however,
were to be paid in full before simple contracts debts, but
by the statute of 32 and 33 Vict., oh. 46, this distinction
was abolished, but the rights of secured creditors were
saved.
In the United States similar statutes have been en-
acted in practically all jurisdictions, and all property of
the estate is liable for all the debts of the decedent, heirs
and devisees being liable to the extent of the property
going to them by descent or devise.*
§ 784. Order in Which Property Is Resorted to for Payment
of Debts.
The rule for the marshaling of assets for the pay-
ment of the debts of a decedent, in the absence of tes-
tamentary direction to the contrary, is as follows : First,
9 Rankin v. Big Rapids, 133 Fed. 87 Md. 173, 39 Atl. 807; Grow v.
670, 66 C. C. A. 568; Wilkinson v. Dobbins, 128 Mass. 271; Bartlett v.
Leland, 2 Pet. (U. S.) 627, 7 L. Ed. Ball, 142 Mo. 28, 43 S. W. 783;
542; Steele v. Steele, 64 Ala. 438, Dodson v. Taylor, 53 N. J. L. 200,
38 Am. Rep. 15; Hall v. Brewer, 21 Atl. 293; Selover v. Coe, 63
40 Ark. 433; Matter of Moulton, N. Y. 438; Read v. Patterson, 134
48 Cal. 191; Lord v. Lord, 23 Conn. N. Y. 128, 31 N. E. 445; Murchi-
327; Sutherland v. Harrison, 86 son's Exrs. v. "Whitted, 87 N. C.
III. 363, 366; People v. Brooks, 123 465; Shannon v. Newton, 132 Pa.
111. 246, 14 N. E. 39; Whittern v. St. 375, 19 Atl. 138; Williams v.
Krick, 31 Ind. App. 577, 68 N. E. Weeks, 70 S. C. 1, 48 S. E. 619;
694; Rubel V. Bushnell, 91 Ky. 251, Sommerville v. Sommerville, 26
15 S. W. 520; Constable v. Camp, W. Va. 484.
CHARGES FOE DEBTS AND LEGACIES. 1139
the personal estate, and of this (a) the personal estate
not disposed of by will, (b) the personal estate gener-
ally bequeathed, and (c) the personal estate specifically
bequeathed; and, second, the real estate, and of this
(a) property which descended to the heirs at law, (b) that
which is generally devised, and (c) that which is the
subject of a special devise.^" This is the rule laid down
by statute in some jurisdictions,^^ and was also the rule of
the common law.^^
§785. Personal Property of Estate Is Primarily Liable for
Debts and Legacies.
All legatees or devisees under the will of a decedent
take subject to his debts,^* unless the property be exempt
by law from execution. The general rule now is that
the real property, by virtue of statute, is liable for the
debts of the decedent the same as is personalty. In most
jurisdictions all unsecured claims against an estate are
of equal degree and are equally a charge on all the assets,
legal or equitable. However, the personalty is still both
the natural and primary fund for the payment of debts,
10 Duck V. McGrath, 160 App. disturb it. — In re Woodworth's
Div. 482, 145 N. Y. Supp. 1033. Estate, 31 Cal. 595. But see, post,
11 N. Y. Code Civ. Pro., §§ 2752- §§ 794-797.
2757. isMaitlen v. Maitlen, 44 Ind.
12 In re Woodworth's Estate, 31 App. 559, 89 N. B. 966; In re Met-
Cal. 595. calf's Estate, 143 Iowa 310, 120
It is said that this order for N. W. 104; Ison v. Halcomb, 136
resorting to property for the pay- Ky. 523, 124 S. W. 813; Bull v.
ment of debts is not to be dis- Hepworth, 159 Mich. 662, 124
turbed by the fact that lands are N. W. 569; Oliver v. Smith, 94
devised subject to a mortgage or Miss. 879, 49 So. 1; O'Donnell v.
encumbrance thereon, and that it McCann, 77 N. J. Eq. 188, 75 Atl.
requires express words or a 999; American National Bank v.
clearly manifest Intention to be First National Bank, 62 Tex. Civ.
gathered from the entire will to 519, 114 S. W. 176.
]140 COMMENTARIES ON THE LAW OF WILLS.
and all personalty is included which the will does not ex-
empt or other\\dse dispose of. The rule is the same with
legacies as with debts; if the testator does not specify
out of what fund they shall be paid, the presumption
is that they shall be satisfied out of the personal estate.
The testator may, of course, charge the realty with the
payment of debts and legacies, either by express direc-
tion or by necessary implication.^* The surrounding cir-
cumstances may be considered in arriving at the testa-
tor's intention ;^^ but the burden of proving that the
realty is so charged is upon the one asserting the con-
tention.^* But the rule is that the burden is primarily on
the personalty, and this can be altered only by the tes-
tator. The mere charging of the realty with the payment
of debts does not exonerate the personalty. The testator
must not only charge the realty, but must show his inten-
tion that the personalty should not be so applied in order
that it be exempted, and such intention must be expressed
in the will or clearly appear by necessary implication."
14 In re Rawlings, 81 Iowa 701, unpaid. — Hessig v. Hessig's Guar-
47 N. W. 992; Forbes v. Harping- dian, 131 Ky. 514, 115 S. W. 748.
ton, 171 Mass. 386, 50 N. E. 641; 15 Smitli v. Bush, 59 iVrisc. Rep.
Fecht V. Henze, 162 Mich. 52, 127 648, 111 N. Y. Supp. 428; MoGold-
N. W. 26; Harris v. Fly, 7 Paige rick v. Bodkin, 140 App. Div. 196,.
Ch. (N. Y.) 421; McGoldrick v. 125 N. Y. Supp. 101; Brennan v.
Bodkin, 140 App. Div. 196, 125 Brennan, 127 N. Y. Supp. 420.
N. Y. Supp. 101; Farmers Loan & Where testator knew his par-
Trust Co. V. Kip, 192 N. Y. 266, sonal estate was insufficient to
85 N. E. 59; Hope v. Wilkinson, satisfy the legacies given, see
14 Lea (Tenn.) 21, 52 Am. Rep. § 788.
149. le McGoldrick v. Bodkin, 140
Provision of will directing that App. Div. 196, 125 N. Y. Supp. 101.
any balance due on certain prop- it Grose v. McMuUens, 2 Del.
erty should be paid out of the pro- Ch. 227; Morris v. Higbie, (N. J.
oeeds thereof, held a charge on Eq.) 27 Atl. 438 ; Sweeney v. War-
same for part of purchase price ren, 127 N. Y. 426, 24 Am. St. Rep.
CHARGES FOE DEBTS AND LEGACIES.
1141
§ 788. Direction in Will That All Debts and Legacies Be Paid.
A direction by the testator that his debts shall be paid,
as a general rule charges all his real as well as his per-
sonal estate therewith.^*
468, 28 N. E. 413; Riegelman's Es-
tate, 174 Pa. St 476, 34 Atl. 120;
New's Exr. v. Bass, 92 Va. 383,
23 S. E. 747.
As to abatement of legacies, see
§§ 690-707.
As to ademption of legacies and
devises, see §§ 708-748.
IS Shallcross v. Finden, 3 Ves.
Jun. 738; Clifford v. Lewis, 6
Madd. 33. But see Smith v. Soper,
32 Hun (N. T.) 46.
"In a few cases a general direc-
tion to pay debts, followed by a
specific appropriation of particular
estates for tbe payment, has been
held not to create a charge on the
real estate not specifically appro-
priated; but the doctrine of the
cases is doubtful." — Hawkins on
Wills, 284, citing Thomas v. Brit-
nell, 2 Ves. Sen. 313; Palmer v.
Graves, 1 Keen 545.
Where the words of the will
were, "after payment of all my
just debts, one-half of my entire
personal estate," etc., they were
held to create a special charge
upon the personalty. — Maybury v.
Grady, 67 Ala. 147.
Where the will gave thirty acres
of land to a son and the remain-
ing ninety acres to his two daugh-
ters, but providing that if any
property remained after settling
"above claims," it should go to the
children equally, it was held that
intent was shown to charge the
land with the payment of debts. —
Cox V. Johnson, 242 III. 159, 89
N. E. 697.
Provision of will that the
amount of a legacy to the daugh-
ter should remain in the "home
place," with interest annually,
should she marry, was held to
make a charge on the land, al-
though the will contained a further
provision for selling the property
and paying the legacy should the
daughter become a widow. — Fau-
her V. Keim, 85 Neb. 217, 122
N. W. 849.
In Brill v. Wright, 112 N. Y. 129,
8 Am. St. Rep. 717, 19 N. E. 628,
the will, after the introductory
clause, read: "First, after all my
debts are paid and discharged, I
give and bequeath to J. S. B. the
sum of two thousand dollars, to be
paid him within three months
after my decease. Secondly, I give
and bequeath all the rest and resi-
due of all my real and personal
estate, of whatsoever name or
nature to J. C. and M. C." A third
party was appointed executor. The
debts were nominal and the per-
sonal property was more than
sufficient to pay the debts and
legacy. The direction to pay debts
was on the printed form used for
the will. The court held that the
real estate was not charged, the
1142 COMMENTARIES ON THE LAW OF WILLS.
"After payment of debts," means that until the tes-
tator's debts be paid he gives nothing, that everything
he has shall be subject to his debts. "To give these words
any effect they must charge the real estate."'*
Where a testator directs that his debts and legacies be
first paid and then devises his real estate, or where he
devises his real estate, or the remainder of his estate,
real and personal, after the payment of debts and lega-
cies, it has been held that the real estate was charged,
not only with the debts but also with the legacies.^"
Where a legacy is charged upon certain real estate and/
the testator disposes of a portion thereof during his life, ■
the legacy will remain a charge on the remainder undis-
posed of by the testator at his death.^^ But although a
charge may be made for the payment of debts, it may be
thereafter released. Thus, where a residuary legatee
was charged in the will with the payment of debts, and
by a codicil a piece of land was left him to sell and to
devote the proceeds, first, to the payment of the debts,
and to pay whatever might remain to the testator 's heirs,
it was deemed a release of the charge upon him for the
payment of debts in his capacity of residuary legatee.^^
personalty being sufficient, and Jun. 738; Tomkins v. Tomkins,
the direction to pay debts formal Free. Ch. 397; Hassel v. Hassel,
and conventional only. To the 2 Dick. 527; Kentish v. Kentish,
same effect, see In re Rochester, 3 Bro. C. C. 257; Newman v. John-
110 N. Y. 119, 17 N. E. 678. son, 1 Vern. 45; Trott v. Vernon,
19 Shallcross v. Finden, 3 Ves. 2 Vern. 708; Harris v. Ingledew,
Jun. 738. 3 P. Wms. 91.
20 Bench v. Biles, 4 Madd. 187; 21 Watson v. McLench, 57 Ore.
Brudenell v. Boughton, 2 Atk. 268; 446, 110 Pac. 482, 112 Pac. 416.
Williams v. Chltty, 3 Ves. Jun. 22 In re Hulton's Estate, 104 Pa.
545; Shallcross v. Finden, 3 Ves. St. 359.
CHARGES FOE DEBTS AND LEGACIES. 1143
§787. The Same Subject: Construed, If Possible, as Referring
to Personalty.
If a direction for the payment of debts can be fairly
construed to refer to personalty, it will not be deemed
to have reference to realty.^* A bequest of the interest
on a hundred dollars, "the principal to remain secured
in teal estate, ' ' does not constitute such a charge upon the
testator's realty as will save the bequest from abatement
upon a deficiency of the personal estate.^* Where the
income of the real and personal estate is given to the
widow for life, although a power be given to the execu-
tors to sell any part of the realty at their discretion,
taxes on the real estate are to be paid out of the person-
alty, and no part of the real estate can be sold there-
for.25
A provision that a person shall have a support "out
of" land constitutes a charge upon the income only, and
not upon the land itself.^® But if the body of the realty
be once clearly charged with the payment of legacies,
subsequent words will not be lightly construed to limit
the charge to the income merely.^^
23 Adams v. Braokett, 5 Mete. 53 Am. Rep. 462; Misenheimer V.
(46 Mass.) 280. Sifford, 94 N. C. 592.
Where the will directs that the it has been held in Pennsylva-
amount of a certain debt he de- nia that a direction, coupled with
ducted from a specific legacy, the a devise of a farm, to pay one-
direction must be followed, al- third of the grain raised thereon
though the debt was paid during to the testator's widow during her
the testator's lifetime, the will life, constitutes a charge upon the
manifesting such an intention. — farm itself. — In re Springer's Ap-
Lewis V. Lewis, 150 111. App. 354. peal, 111 Pa. St. 228, 2 AO. 855.
24 Rambo V. Rumer, 4 Del. Ch. 9. 27 Phillips v. Gutterldge, 3 DeG.,
25 Cadmus v. Combes, 37 N. J. J. & S. 332; Pearson v. Helliwell,
Ed. 264. L. R. 18 Eq. 411; In re Hedge's
26 Gray v. West, 93 N. C. 442, Trusts, L. R. 18 Eq. 419.
1144 COMMENTAEIES ON THE LAW OF WILLS.
§788. The Same Subject: Doubtful Expressions.
Doubtful expressions are not permitted to exempt the
testator's personal property from the payment of debts
and legacies. In order to charge them upon the real
estate, it must clearly appear from the language of the
will that the testator so intended.^* Nevertheless, it is
sufficient if such a purpose be gathered from the words
of the will by necessary inference ; it is not required that
it be stated in express terms.^^ "Where a legacy directed
to be paid from the income of personalty was afterward
alluded to in a provision that the legacies should be
paid from the proceeds of land, it constituted a charge
upon the land as weU.^" Again, where a testator directed
the payment of his debts as soon as possible from any
money he might die possessed of, and then specifically
bequeathed his personalty, it was decided that the debts
were payable from the undevised realty.^^ But. under a
distinct provision for a division of a fund, and for a
certain charge upon it, the land is in no way affected or
charged.*^
28 Knightley v. Knightley, 2 Ves. where the terms used have heen
Jun. 328; Davis v. Gardiner, 2 held sufficient to charge the pay-
P. Wms. 187; Canfleld v. Bost- ment of legacies upon real estate;
wick, 21 Conn. 550; Cornish v. but it would scarcely be useful to
Willson, 6 Gill (Md.) 299; Seaver occupy time and space in repeat-
V. Lewis, 14 Mass. 83; Tracy v. ing them here, as they would not
Tracy, 15 Barb. (N. Y.) 503; Kirk- govern other cases not entirely
Patrick v. Rogers, 7 Ired. Eq. (42 similar." — 2 Redfield, Wills (2d
N. C.) 44; In re Wright's Appeal, ed.), p. 208.
12 Pa. St. 256. 30 Tichenor v. Tichenor, 41 N. J.
■20 Ion v. Ashton, 8 Week. R. Eq. 39, 2 Atl. 778.
573; s. c, 6 Jur. N. S. 879; Port- 3i Douglass v. Baber, 15 Lea (83
arlington v. Damer, 10 Jur. N. S. Tenn.) 651.
54; Bugbee v. Sargent, 27 Me. 338. 32 French v. Mastln, 19 Mo. App.
"The cases are very numerous 614.
CHARGES FOK DEBTS AND LEGACIES. 1145
g 789. Direction in Will That Executor Pay All Debts and Leg-
acies.
An exception obtains where the direction that the debts
shall be paid is coupled with a direction that they are to
be paid by the executors, in which case it is assumed that
the intention was that they should be paid out of the
property which passes to the executors.** So, where the
devisee of the real estate is appointed executor and is
expressly directed to pay the debts and legacies, a charge
upon the realty will be created.** But a direction that
they be paid by his executor charges only the real estate,
if any, devised to him.*^
It was at one time doubted whether a direction that
debts be paid by the executors would charge more than
the personal estate, but it is now established that such
a direction prima facie constitutes a charge upon all the
property devised to them jointly by the will, whether real
or personal;*® and whether the realty be given them as
trustees or beneficially.*'^ In a modern English case it
was held that a direction to executors to pay debts, to-
gether with a devise which conferred upon them the whole
legal fee as joint tenants, although they took unequal
beneficial interests thereunder, operated to charge the
real estate with the debts.** But if there are several ex-
33 Cook V. Dawson, 29 Beav. 126. Henvell v. Whitaker, 3 Russ. 343;
34 Dover v. Gregory, 10 Sim. Dover v. Gregory, 10 Sim. 393.
393; Alcock v. Sparhawk, 2 Vern. ^^^^^^^ ^ Gregory, 10 Sim.
228; Doe v. Pratt, 6 Ad. & E. 180;
Henvell v. Wliitaker, 3 Russ. 343.
35 Keeling v. Brown, 5 Ves. Jun.
359; Powell v. Robins, 7 Ves. Jun.
209; Gaw v. Huffman, 12 Gratt.
(Va.) 628, 633. ^^ In re Tanqueray, 20 Ch. Div.
393; Dormay v. Borradaile, 10
Beav. 263; Hartland v. Murrell, 27
Beav. 204; Robson v. Jardine, 22
Grant Oh. (U. C.) 420.
36 Harris v. Watkins, Kay 438; 465.
1146 COMMKNTABIES ON THE LAW OP WILLS.
ecutors, a direction to them to pay debts does not charge
lands devised to one of them only.®*
It has been said that a direction to executors to pay
legacies would constitute a charge upon the lands devised
to them, either beneficially or as trustees, as in the case
of a direction to pay debts.*" Mr. Hawkins doubts the
soundness of this extension of the rule.*^ There is a
case, however, in which the larger part of the realty was
devised absolutely to the testator's widow, the sole execu-
trix, and a small part to her for life only with remainder
over, where it was held that the whole interest taken by
her under the will, including the life estate, was subject
to the charge.*^ But it has been held that the mere fact
of devising the real estate to the executor, either wholly
or in part, without an express direction to him to pay
legacies, and without any condition that he shall pay
them, is not sufficient to charge them upon the realty in
his hands ;*^ although in such cases, where the personalty
is manifestly insufficient to pay the debts and legacies,
and the real estate is given to the executor, very slight
circumstances will be laid hold of by the courts to raise
an implied or equitable charge upon the realty.** Where
a will directs the payment by the executors of testamen-
tary charges and expenses, charges incurred for legal
services rendered the executors in proceedings for the
39 Warren v. Davles, 2 Myl. & K. 4i Hawkins, Wills, 286, citing
49. See, also, Wasse v. Heslington, Parker v. Feamley, 2 Sim. & St.
3 Myl. & K. 495; Symons v. James, 592. But see Brown v. Knapp, 79
2 You. & C. V. C. 301, where the N. Y. 136 and cases cited,
devise was to trustees for the use 42 Harris v. Watkins, Kay 438.
of two of the executors. 43 Stevens v. Gregg, 10 Gill & J.
40 Alcock V. Sparhawk, 2 Vern. (Md.) 143.
228 ; Preston v. Preston, 2 Jur. 44 Luckett v. White, 10 Gill & J.
N. S. 1040; Thayer v. Finnegan, (Md.) 480; Harris v. Fly, 7 Paige
134 Mass. 62, 45 Am. Rep. 285 Ch. (N. Y.) 421.
CHAEGES FOR DEBTS AND LEGACIES. 1147
revocation of probate are a lien upon the corpus of the
estate.*^
§ 790. Presumption Where Testator Knows the Personalty Is
Inadequate.
An intention to charge legacies upon the land may be
under certain circumstances presumed from the fact that
the personal estate was known by the testator to be in-
adequate for the payment of the legacies. Thus, where a
testator made his will one day before his death, bequeath-
ing two legacies which his personal estate was not suffi-
cient to pay, it was deemed to indicate an intention that
they should be charged upon the realty.*" So where an
executrix appointed one son executor and gave him all
her property, he to pay her debts and the college ex-
penses of another son for whom she made no provision,
and the personal estate amounted to no more than twenty
dollars, but the real estate to some fifteen hundred, the
court decided that the provision in favor of the second
son should constitute a charge upon the realty.*'^ And
45 Wolfe V. Wolfe, 2 Demarest v. Henze, 162 Mich. 52, 127
(N. Y.) 305. N. W. 26.
46 McCorn v. McCom, 100 N. Y. Where the testatrix did not
511, 3 N. B. 580. See, also, Heroy know that her personal estate was
V. German Catholic Church, 62 insufficient to pay all legacies, but
Misc. Rep. 435, 116 N. Y. Supp. 39 ; on the contrary had grounds for
McGoIdrick v. Bodkin, 140 App. the belief that it was sufficient, it
Div. 196, 125 N. Y. Supp. 101; was said there was no intent to
Brennan v. Brennan, 127 N. Y. make a charge against the rule. —
Supp. 420. Farmers' Loan & Trust Co. v. Os-
Legacles will not abate if the born, 70 Misc. Rep. 428, 128 N. Y.
provisions of the will indicate that Supp. 915.
the testator intended that they 47 Thayer v. Finnegan, 134 Mass.
should be paid, although he knew 62, 45 Am. Rep. 285.
that the personalty would be in- Compare: Taylor v. Tolen, 38
sufficient for such purpose. — Fecht N. J. Eq. 91.
1148 COMMENTARIES ON THE LAW OF WILLS.
even where at tlie time the will was made the personal
estate was sufficient to pay a legacy to the testator 's son,
but at the time of the testator's death his property had
so changed that the legacy could not be paid except from
the realty, it was held that, as the will taken as a whole
clearly showed an intent that the legacy should be paid in
any event, it should constitute a charge upon the land.*"
§ 791. Waste of Personalty by Executor.
The fact that the executor has wasted the personal
estate will give legatees no claim upon the lands devised
to him.*® It has even been said that where legacies are
charged upon the realty in case the personal estate prove
insufficient, and the latter doBs prove insufficient through
the wastefulness of the executor, the legatees will have
no lien upon the realty.^" But when a legacy is charged
upon the realty, the fact that the legatee accepted the
executor's note in payment, giving a receipt in full, will
not estop him from resorting to the land after judgment
upon the note and return of execution unsatisfied.*^
§ 792. Charges on Lands Specifically Devised.
Where the realty is specifically devised, doubtful words
will not be construed to exonerate the personalty from
payment of debts and legacies.*^ Accordingly, a charge
of legacies on the real estate, or all the real estate of the
testator, does not prima facie charge lands specifically
48 Scott V. Stebblns, 91 N. Y. so Richardson v. Morton, L. R.
605. 13 Eq. 123.
49 Sims V. Sims, 10 N. J. Eq. 5i Shanck v. Arrowsmlth, 9 N. J;
(2 Stookt,) 158; Wilkes V. Harper, Eq. (1 Stockt.) 314; Terhune v.
1 N. Y. 586. Colton, 10 N. J. Eq. (2 Stockt.) 21.
See § 705. 62 Arnold v. Dean, 61 Tex. 249.
CHARGES FOR DEBTS AND LEGACIES. 1149
devised.^^ Thus, where the testator wrote, "I charge and
encumber all my estates of every description with the fol-
lowing legacies," although the executors and legatees
were empowered to distrain any part of the estate for
interest on the legacies, it was held that the specific de-
vises were not charged.^* But by way of exception to
this general doctrine, it has been held that if the tes-
tator charge his real estate with debts and legacies, inas-
much as the debts are a charge on lands specifically
devised, the legacies also are charged upon specific de-
vises.®^ Where the testator does charge lands specifically
devised with the payment of a certain legacy, the devi-
see, if he accepts the devise, obligates himself to pay the
charge.^*
§793. Exoneration of Personalty From Charges: Personalty
Specifically Bequeathed.
"The charging the real estate ever so anxiously for
payment of debts is not of itself sufficient to exempt the
personal estate."®'^ In order that the personal estate may
be exonerated, there must be an evident intention not
only to charge the realty, but to discharge the person-
alty.^* Such an intention may be shown by the whole
53 Spong V. Spong, 3 Bligh. N. S. 58 Tait v. North wick, 4 Ves. Jun.
84; Conron v. Conron, 7 H. L. Cas. S16, 823; United States v. Parlser,
168. 2 McAr. (D. C.) 444; Marsh v.
54 Conron v. Conron, 7 H. L. Marsh, 10 B. Mon. (Ky.) 360;
Cas 168 Seaver v. Lewis, 14 Mass. 83;
Tole V. Hardy, 6 Cowen (N. Y.)
333; Robards v. Wortham, 17 N. C.
(2 Dev. Eq.) 173, 179; Palmer v.
56 Kakuska v. Roubyk, 155 111. Armstrong, 17 N. C. (2 Dev. Eq.)
App. 452; Mohn v. Mohn. 148 Iowa 268; In re Hanna's Appeal, 31 Pa.
288, 126 N. W. 1127. gt 53^ 57. j^ ^g Crone's Appeal,
57 Tait V. North wick, 4 Ves. Jun. 103 Pa. St. 571; Monroe v. Jones,
816, 823. 8 R. I. 526.
55 Maskell v. Farrington, 1 N. R,
(Eng.) 37.
1150 COMMENTARIES ON THE LAW OF WILLS.
personal estate being specifically bequeathed, together
with provisions for the payment out of the realty of all
those charges which would primarily affect the person-
alty.^^ With respect to legacies and annuities — for the
payment of which the personal estate is primarily liable —
an intention to exonerate the personalty from such lia-
bility may be inferred from their being charged upon
particular parts of the real estate,*" or upon certain other
legacies of personalty,®^ or from a direction that land be
sold and the legacies paid out of the proceeds.®*
It has been held in New York that if legacies are ex-
pressly charged upon land and the personalty is spe-
cifically disposed of, the latter is exonerated and the land
is primarily liable ; but that if the personalty be not spe-
cifically bequeathed, it is primarily liable.®* So where all
the personal estate was specifically bequeathed to the tes-
tator's widow, and the realty was devised to trustees
to sell and pay debts, funeral expenses, etc., it was de-
cided that the personalty was thereby exonerated.®* But
a specific bequest of the personalty alone, without a pro-
vision for the payment of funeral and other expenses
out of the realty, is not sufiicient to exonerate the former
59 Michell V. Michell, 5 Madd. 61 Jones v. Bruce, 11 Sim. 221;
69; Driver v. Ferrand, 1 Rubs. & Lamphier v. Despard, 2 Dru. &
M. 681; Blount v. HipMns, 7 Sim. Walsh 59.
43; Plenty v. West, 16 Beav. 173.
But see Gilbertson v. Gilbertson,
34 Beav. 354; Scott v. Scott, 18
Grant (U. C.) 66.
60 Creed v. Creed, 11 CI. & F. ®* ^°«s "^- ^^^ Hoeson, 1 Barb.
491; Lomax v. Loraax, 12 Beav. ^h. (N. Y.) 379, 400.
285, 29Q; Ion v. Ashton, 28 Beav. 64 Greene v. Greene, 4 Madd.
379; Larkin v. Mann, 53 Barb, 148; Lance v. Aglionby, 27 Beav.
(N. Y.) 267; Cole v. Cole, 53 Barb. 65.
(N. Y.) 607.
62 Hancox v. Abbey, 11 Ves. Jun.
179; Dickin v. Edwards, 4 Hare
273.
CHAEGBS FOE DEBTS AND LEGACIES. 1151
from these charges.*" Nor does the rule with respect to
exoneration apply so strongly to a case where provision
is made for the payment of a particular debt out of the
real estate.*®
An intention to exonerate the personalty may be also
inferred from other circumstances, as where the realty
is devised for payment of debts, and the residue, after
payment thereof, is directed to be added to the personal
estate ;*'' and so, too, where a term of five hundred years
was created for the payment of debts, and the costs of
administering the real as well as the personal estate were
charged together under the trusts of the term.** But if
an annuity or legacy be charged upon a particular fund
which fails, the personal estate will generally become sec-
ondarily liable.*®
§ 794. Common Law Rule as to Debts Secured by Mortgage.
At common law, debts created by the testator and se-
cured by mortgage, either upon lands or chattels, were
primarily payable out of the personal estate in the same
manner as the other debts of the testator.'"' So, also, the
specific legatee of articles which had been pawned or
pledged was entitled to require of the executors that the
testator's right of redemption should be exercised for his
benefit.''^ If the executors failed to perform this duty,
65 Collis V. Robins, 1 De Gex 11 Allen (93 Mass.) 139; Richard-
& S. 131. son V. Hall, 124 Mass. 228 ; McLen-
66 Hancox v. Abbey, 11 Ves. Jun. ahan v. McLenahan, 3 Green C. E.
179; Evans v. Cockeram, 1 Coll. d^ N. J.) 101; Gould v. Winthrop,
C. C. 428. ^ ^- ^- ^^^■
«_T.T ,_i. T o T5 _ n n en As to how interests of mortgagor
67 Webb V. Jones, 2 Bro. C. C. 60.
68 Bootle V. Blundell, 1 Mer. 193.
and mortgagee of real estate are
considered, see § 256.
69 Mann v. Copland, 2 Madd. 223. 71 Knight v. Davis, 3 Myl. & K.
ToHewes v. Dehon, 3 Gray (69 358; Johnson v. Goss, 128 Mass.
Mass.) 205; Plimpton v. Fuller, 433.
1152 COMMENTARIES ON THE LAW OF WILLS.
the legatee was entitled to compensation^* Likewise ar-
rears of rent, falling due before the testator's death/*
were not primarily payable by the legatee of the lease.''*
Where the lien upon the land was for the unpaid purchase
money thereof, the devisee was entitled to have it satis-
fied from the testator's personal estate.''^ This rule has
in some cases been so extended as to require that the
executors should pay, for the benefit of a specific legatee
of shares of stock, calls for the unpaid balance of the pur-
chase money, even though made after the testator's
death.^'' But this is thought to have carried the doctrine
too far.''''
§ 795. The Same Subject : Expressions of Intent.
The rule expressed in the preceding section yielded to
the intention of the testator ; but the courts required very
clear expressions of a contrary intention, in order to im-
pose the burden of the mortgage upon the devisee or leg-
atee. Where an estate in mortgage was devised to one,
"he paying the mortgage thereon," it was held that this
imposed a condition upon the devisee, and exonerated the
72 Bothamley v. Sherson, L. R. must assume the cost of repairs.
20 Eq. 304. —Marshall v. Holloway, 5 Sim. 196.
T3 Hawkins v. Hawkins, 13 Ch. ,, . ^
. „ 75 Andrews v. Bishop, 5 Allen
Div 470
■ ■ „ ^. , ^ (87 Mass.) 490, 493; Thompson V,
74 Barry v. Hardmg, 1 Jones ™i, . ^. .
. r n \ AH^ A^a Thompson, 4 Ohio St. 333; In re
& L. (Ir.) 475, 489. tt ^. » , «, _
. ' ' ,. ^. , ^^ , Hoff's Appeal, 24 Pa. St. 200, 203.
As to the application of the rule
with reference to a sum due from ''* ^1*^^ v. Clive, Kay 600;
the testator to his lessor with re- Wright v. Warren, 4 De Gex & S.
spect to a renewal granted in the ^^'^' Blount v. Hipkins, 7 Sim.
testator's lifetime, see Fitzwill- ^^' ^^^
iams V. Kelly, 10 Hare 266. 77 Armstrong v. Burnet, 20 Beav.
Where the lessee was liable for 424; Addams v. Ferick, 26 Beav.
dilapidations, his specific legatee 384; Day v. Day, 1 Drew. & S. 261.
CHAKGES FOE DEBTS AND LEGACIES. 1153
personal estate ;''* "but the decision is directly opposed
to two unci ted cases/® in which it was held that similar
words applied to debts and legacies did not impose a con-
dition."^" Even though in devising the land the tes-
tator spoke of it as "subject to a mortgage or encum-
brance," this did not so throw the charge on the estate
as to exempt the funds which by law are primarily liable,
the testator being considered to have used such terms
merely as descriptive of the state of the property, and
not for the purpose of subjecting his devise to the bur-
den.*^
§796. The Sajne Subject: Exceptions to Rule.
The devisee or legatee of mortgaged property was not
entitled to have it exonerated out of personalty spe-
cifically bequeathed,^^ nor out of pecuniary legacies of a
certain amount,^^ nor, of course, out of devises of other
lands not charged by the testator with the payment of
debts, although such lands might be liable to the cred-
itor.^* The donee of the estate was not entitled to exon-
eration out of the personalty, where the mortgage was
created not by the testator, but by a previous owner of
the property bequeathed, unless a contrary intention ap-
TSlxickhart v. Hardy, 9 Beav. 1 Bro. C. C. 454; Astley v. Tanker-
379. But see Hatch, v. Skelton, ville, 3 Bro. C. C. 545.
20 Beav. 453. 82 Oneal v. Mead, 1 P. Wms. '
79 Bridgman V. Dove, 3 Atk. 201; ^93; Emuss v. Smith, 2 De Gex
Mead V. Hide, 2 Vern. 120. ^ S. 722, 737; Halliwell v. Tanner.
1 Russ. & M. 633.
80 2 Jarman, Wills (4th London
ed.), 635.
83 Lutkins v. Leigh, cas. temp.
Talb. 53; Lucy v. Gardiner, Bunb.
81 Bickham v. Cruttwell, 3 Myl. 137
& C. 763, 769; Goodwin v. Lee, 84 2 Jarman, Wills (4th London
1 Kay & J. 377; Serle v. St. Eloy, ed.), 636; Gallon v. Hancock, 2
2 P. Wms. 386; Ancaster v. Mayer, Atk. 430, 438.
n Com. on Wills — 19
1154 COMMENTAEIBS ON THE LAW OP WILLS
peared by the will, or unless the testator had assumed the
debt as his own.®* If the fund designated for the payment
of debts included the mortgaged estate, the mortgaged
property was not exonerated.**
§797. Testamentary Gift of Mortgaged Property: Modern
Rule.
By the statute of 17 and 18 Victoria it was enacted that,
in the absence of a contrary intention, as shown, either by
the will or any other document, the mortgaged estate
' ' shall, as between the different persons claiming through
the deceased person, be primarily liable to the payment
of all mortgage debts with which the same shall be
charged."*'' Under this act the question arises, what is
a sufficient indication of a contrary intention?
In order to exonerate mortgaged property from the
payment of the debt, it is sufficient if the property subject
to the mortgage be specifically devised without in any
manner referring to the mortgage, and some other prop-
erty or fund be specially designated as the source for
the payment of debts.** But a general direction by the
85 Andrews v. Bishop, 5 Allen A mortgage debt paid by the
(87 Mass.) 490, 493; Thompson v. testator in his lifetime held a
Thompson, 4 Ohio St. 333; In re charge on land subsequently de-
Hoff's Appeal, 24 Pa. St. 200, 203. vised by him to his sons subject
86 Woolstencroft v. Woolsteh- to the mortgage and in favor of
croft, 2 De Gex, F. & J. 347. daughters to whom he procured
87 Statute of 17 and 18 Victoria, an assignment of the mortgage to
ch. 113, § 1. See, also. Statute of be paid when he paid the debt. —
30 and 31 Victoria, ch. 69. Lydon v. Campbell, 204 Mass. 580,
See § 747. 134 Am. St. Rep. 702, 91 N. E. 151.
ssEno V. Tatam, 1 N..R. 529; As to grantee of real property
Hellish V. Vallins, 2 Johns. & H. assuming a mortgage debt on the
194; Stone v. Parker, 1 Drew. & S. same In such manner as to indi-
212; Allen v. Allen, 30 Beav. 395; cate an intention to make the
Smith V. Smith, 3 Giff. 263. mortgage debt against the prop-
CHAEGBS FOB DEBTS AND LEGACIES.
1155
testator that Ms debts be paid, without specifying any
fund for such purpose, will not be construed as showing
an intention to exonerate the mortgaged estate.^® Neither
a direction to pay debts out of the residuary estate, nor
that they be paid by the executors, is sufficient to exon-
erate the mortgaged property;^" but a direction to pay
all debts, whether on bond and mortgage, or otherwise,
will suffice.*^ Where the testator expressly "charged"
and made liable the estate for the payment of the debt, it
was held that, as the estate could not be charged in
favor of the creditor more than it was before, it must
have been the testator 's intention that the devisee should
bear the burden.®^
erty his own, and this is clearly
expressed, it has been said that
the devisee of the decedent
grantee may call on the personal
estate to satisfy the mortgage. —
Campbell v. Campbell, 30 N. J. Eq.
415; Cumberland v. Codrington, 3
Johns. Ch. (N. Y.) 229.
The debts of the testator which
are secured by mortgage must first
be satisfied out of the mortgaged
property. — ^Howe v. Kern, 63 Ore.
487, 125 Pac. 834; affirmed in 128
Pac. 818.
Some cases hold that the pre-
sumption is that mortgage debts
are to be paid out of the person-
alty.— In re Woodworth's Estate,
31 Cal. 595; Sutherland v. Harri-
son, 86 111. 363; Towle v. Swasey,
106 Mass. 100.
89 Pembrooke v. Friend, 1 Johns.
& H. 132 ; Brownson T. Lawrence,
L. R. 6 Bq. 1.
Contra: Moore V. Moore, 1
De Gex, J. & S. 602.
The New York statute, 1 N. Y.
Rev. Stats. 749, § 4, required an •
"express direction to authorize the
payment of real estate mortgages
from the personalty. The force of
such a direction, however, is not
destroyed by a provision which, if
ambiguous, rather supports the
direction than otherwise. — ^Alexan-
der V. Powell, 3 Demarest (N. Y.)
152.
Under the New York statute, if
one, after making a will, mort-
gages land therein devised, the
devisee will take cum onere unless
a contrary direction be made in
the will. — Wetmore v. Peck, 66
How. Pr. (N. Y.) 54.
90 Taylor v. Wendel, 4 Bradf.
(N. Y.) 330; Rapalye v. Rapalye,
27 Barb. (N. Y.) 610.
91 Waldron v. Waldron, 4 Bradf.
(N. Y.) 114.
92 Evans v. Cockeram, 1 Coll.
C. C. 428.
1156 COMMENTAEIES ON THE LAW OF WILLS.
§ 798. Effect of Blending Realty With Personalty.
Eeal estate may be cliarged with the payment of debts
and legacies by being blended with the personalty,®^ as
where, in the same sentence, the will provides for the
payment of specific amounts and also makes a devise of
realty.** An authority conferred upon the executors to
sell any and all the realty for the benefit of the legatees
is an equitable conversion of the lands, and charges them
with the legacies.®^ If the real estate be directed to be
sold and the proceeds be given, together with the personal
estate, for the payment of debts, legacies, and annuities,
the two species of property are liable to the charges pari
passu in proportion to their respective values.®*
Where a testator by his will directs his real and per-
sonal estate to be sold and converted into a common
fund, charging the fund with the payment of debts and
legacies, it has been held that the charge is not pri-
marily upon that part of the fund arising from the per-
sonalty, but that the portion arising from each is charged
proportionally.®'' So, also, a direction that real estate
be sold and that the proceeds shall form or be considered
part of the residuary personal estate of the testator, will
subject the real estate to all charges affecting the person-
93 Allan V. Gott, L. R. 7 Ch. App. 98 Roberts t. Walker, 1 Russ.
439; Qulnby v. Frost, 61 Me. 77; & M. 752; Turner v. Turner, 57
Fecht V. Henze, 162 Mich. 52, 127 Miss. 775.
N. W. 26; Tracy V. Tracy, 15 Barb. 97 Roberts v. Walker, 1 Russ.
(N. Y.) 503. & M. 752; Kidney v. Coussmaker,
94Kakuska v. Roubyk, 155 111. 1 Ves. Jun. 436 ;• Stocker v. Harbin,
App. 452. 3 Beav. 479; Salt v. Chattaway,
96 Brink v. Masterson, 4 Demar^ 3 Beav. 576; Reynolds v. Reynolds'
est (N. Y.) 524. Exrs., 16 N. Y. 257, 261.
See §§ 288, 748.
CHARGES FOE DEBTS AND LEGACIES. 1157
alty®* and they will each bear the liability proportion-
ally.^® But if the two Mnds of property be given to-
gether, subject to charges, without a direction that the
realty be sold, the personal estate will remain primarily
liable.^
If realty and personalty both be charged with the pay-
ment of legacies, the former is merely subsidiary to the
latter, and can not be resorted to until the personalty is
exhausted -^ and the mere fact that a mixed fund of real
and personal estate is devised and bequeathed to the ex-
ecutor is not of itself sufficient to charge legacies upon
the real estate.^
§799. Effect of Realty and Personalty Being Blended in the
Residuary Clause.
The question whether real estate is charged is one of
intention, and no presumption of such an intention arises
from a gift of real and personal property by the same
clause of the will.* But if legacies be given generally,
and afterward the residtie of the real and personal estate
be given in one mass, the legacies constitute a charge
upon the whole residuary estate, real as well as per-
98 Kidney v. Coussmaker, 1 Ves. 3 Nyssen v. Gretton, 2 You. &
Jun. 436; Bright v. Larcher, 3 C. 222; Reynolds v. Reynolds'
De Gex & J. 148; Field v. Peckett, Exrs., 16 N. Y. 257, 262.
29 Beav. 568. 4 Smith v. Bush, 59 Misc. Rep.
99 Simmons v. Rose, 6 De Gex, 648, 111 N. Y. Supp. 428 ; McGold-
M. & G. 411, 413. rick v. Bodkin, 140 App. Div. 196,
1 Boughton V. Boughton, 1 H. L. 125 N. Y. Supp. 101; Brennan v.
Gas. 406; Tench t. Cheese, 6 Brennan, 127 N. Y. Supp. 420;
De Gex, M. & G. 453. Reynolds v. Reynolds' Exrs., 16
2BIann v. Bell, 5 De Gex & S. N. Y. 257, 262; Armentrout v. Ar-
658; Quennell v. Turner, 13 Beav. mentrout's Legatees, 111 Va. 348,
240; Whieldon v. Spode, 15 Beav. 69 S. E. 333.
537.
1158
COMMENTARIES ON THE LAW OF WILLS,
sonal." This rule applies, althougli there be a specific
devise of part of the real .estate intervening between
the gift of the legacies and the residuary clause.® It has
been said, however, in Pennsylvania, that the blending of
realty and personalty in the residuary clause, whereby
the debts are charged upon the realty, may be a circum-
stance indicative of an intention to exempt the person-
5 Ex parte Dickson, 64 Ala. 188;
Hilford V. Way, 1 Del. Ch. 342;
Walker v. Pollett's Estate, 105 Me.
201, 73 Atl. 1092; Wilcox v. Wil-
cox, 13 Allen (95 Mass.) 252; Hays
V. Jackson, 6 Mass. 149; Thayer
V. Finnegan, 134 Mass. 62, 45
Am. Rep. 285; Knotts v. Bailey,
54 Miss. 235, 28 Am. Rep. 348;
Heatherington v. Lewenberg, 61
Miss. 372; Corwine v. Corwine, 24
N. J. Eq. 579; Wain v. Emley, 26
N. J. Eq. 243; Johnson v. Poul-
son, 32 N. J. Eq. 390; Cook v.
Lanning, 40 N. J. Eq. 369, 3 Atl.
132; Lavaggi v. Borella, 73 N. J.
Eq. 419, 67 Atl. 929; Lewis v.
Darling, 16 How. (U. S.) 1, 10,
14 L. Ed. 819; Goddard v. Pom-
eroy, 36 Barb. (N. Y.) 547; Shul-
ters V. Johnson, 38 Barb. (N. Y.)
80 ; Roman Catholic German
Church V. Wachter, 42 Barb.
(N. Y.) 43; Finch v. Hull, 24 Hun
(N. Y.) 226; LeFevre v. Toole,
84 N. Y. 95; Hoyt v. Hoyt, 85 N. Y.
142; Scott T. Stebbins, 91 N. Y.
605; Moore v. Beckwith's Exrs.,
14 Ohio St. 129, 135; In re Galla-
gher's Appeal, 48 Pa. St. 122; In re
Wertz's Appeal, 69 Pa. St. 173;
In re Davis' Appeal, 83 Pa. St.
348; Greene v. Rathbun, 32 R. I.
145, 78 Atl. 528; Haldeman v. Op-
penheimer, 103 Tex. 275, 126 S. W.
566; Read v. Gather's Admr., 18
W. Va. 263.
The rule is adopted in a modi-
fied form in Johnson v. Farrell,
64 N. C. 266, and Bynum v. Hill,
71 N. C. 319.
Contra: Gridley v. Andrews, 8
Conn. 1; Lupton v. Lupton, 2
Johns. Ch. (N. Y.) 614; Myers v.
Eddy, 47 Barb. (N. Y.) 264.
In the following cases it was
held that such a blended gift is
not, of itself, sufficient to charge
the realty, but may have that ef-
fect when combined with other
circumstances. See Van Winkle v.
Van Houten, 2 Green Ch. (N. J.)
172; Dey v. Dey, 19 N. J. Eq. (4
Green C. E.) 137; Laurens v.
Read, 14 Rich. Eq. (S. C.) 245.
Compare: McLoughlin v. Mo-
Loughlin, 30 Barb. (N. Y.) 459;
Forster v. Civill, 20 Hun (N. Y.)
282; Manson v. Manson, 8 Abb.
N. C. (N. Y.) 123; Hart v. Will-
iams, 77 N. C. 426.
6 Francis v. Clemow, Kay 435,
437; Wheeler v. Howell, 3 Kay
& J. 198; Bench v. Biles, 4 Madd.
187.
OHAKGES FOR DEBTS AND LEGACIES. 1159
alty as the primary fund for their payment; but that of
itself, it is insufficient to effect that results And in West
Virginia it would seem that a charge upon realty will be
deemed to have been created by such blended residuary
bequest only in the event of the personalty proving inade-
quate for the payment of the legacies.*
§ 800. Whether the Charge Is Upon the Devise or Upon the
Devisee.
A devisee who accepts a benefit conferred by a will,
coupled with a direction that he shall pay a certain sum
to another person, thereby becomes personally liable to
pay the legacy; and the legatee may enforce payment by
an action of debt.^ The land, however, is not discharged
from the lien of the legacy; nor is the legatee obliged,
before resorting to the land, to proceed against the tes-
tator's personal estate." But something more than
a ■ mere direction to a devisee to pay a legacy is nec-
essary to constitute a charge upon the land devised.^^
7 In re Crone's Appeal, 103 Pa. caring for two younger children
St. 571. was held to create a lien in their
8 Thomas v. Rector, 23 W. Va. 26. favor for such purpose. — Low v.
sKakuska v. Roubyk, 155 111. Ramsey, 135 Ky. 333, 135 Am. St.
App. 452; Lofton v. Moore, 83 Ind. Rep. 459, 122 S. W. 167.
112; Porter v. Jackson, 95 Ind. Where the will directed that the
210, 48 Am. Rep. 704; Mohn v. "owners" of land devised should
Mohn, 148 Iowa 288, 126 N. W. put in the stable on the premises
1127; Etter v. Greenawalt, 98 Pa. occupied by the testator's wife "as
St. 422. much hay as she may need to
The devisee is not liable to the feed one horse and two cows," the
legatee before taking possession fact that the widow removed from
of the land. — Wilson v. Moore, 86 the premises mentioned did not
Ind. 244. forfeit her right to the hay, and it
10 Lofton V. Moore, 83 Ind. 112. was held a charge on the land. —
The provisions of a will charg- In re Gingrich's Estate, 226 Pa. 9,
ing the son and sole legatee of 74 Atl. 611.
the testator with the duty of ii Hamilton v. Porter, 63 Pa. St.
1160 COMMENTARIES ON THE LAW OF WILLS.
Accordingly, where a testator devised land to his son
William, "he paying the legacies hereinafter enjoined on
him to pay," and the son died without paying a certain
legacy, it was held that the legatee could not follow the
land.^^ Where a devisee is charged with the support of a
person, the latter 's claim can not be enforced against the
land itself in the absence of words in the will clearly
warranting such a construction.^^ So where the words of
the will were, "Hamilton is to take a hundred acres of
land at my death and pay seven hundred dollars to each
of my within-named heirs, ' ' it was decided that the lega-
cies were not charged upon the land, but that the devisee,
having accepted the gift, became personally liable and
answerable in assumpsits*
§ 801. The Same Subject.
To make a legacy a charge upon the land given the dev-
isee, it is necessary that it should be declared so by ex-
press words, or that it may be inferred from the whole
Avill that such was the intention of the testator. ^^ Such
an inference may be drawn from the use of the word
"thereout," or similar expressions;^® as where the gift
to the devisee is followed by such words as "he to pay
thereout" a legacy to another.^'' And an intention to
332; In re Buchanan's Appeal, 72 is Montgomery v. McElroy, 3
Pa. St. 448; Van Vliet's Appeal, Watts & S. (Pa.) 370, 38 Am. Dec.
102 Pa. St. 574, 576. 771.
12 In re Buchanan's Appeal, 72 16 Hoover v. Hoover, 5 Barr. (5
Pa. St. 448. Fa.) 351.
•13 In re Haworth's Appeal, 105 17 Thayer v. Finnegan, 134 Mass.
Pa. 362. 62, 45 Am. Rep. 285; In re Cable's
14 In re Brandt's Appeal, 8 Appeal, 91 Pa. St. 327, 329.
Watts (Pa.) 198; Dewittv. Eldred, Compare: 4 Kent Com. *540;
4 Watts & S. (Pa.) 414; Hamilton King v. Denison, 1 Ves. & B. 260;
v. Porter, 63 Pa. St. 332, 334. Gardner v. Gardner, 3 Mason 178,
CHAKGES FOE DEBTS AND LEGACIES. 1161
charge the legacies upon the land itself was gathered
from the whole will, in a case where the testator be-
queathed certain land to a son "at thirty-three dollars
per acre, and the proceeds thereof to be divided into
eight equal shares,." and be distributed among the other
sons and daughters.^^ Likewise, where a testator gave
a sum of money to his sons in trust for his daughters, to
pay to each her share upon her attaining a certain age,
and the rest of the property, both real and personal,
was directed to be divided among his sons, the daugh-
ters' shares constituted a charge upon the land.^^ Where,
however, it was evidently the testator's intention that
legacies imposed as charges on an estate should be paid
from the income after the maintenance of the de^^see
should have been secured out of the income, the liability
of the devisees to the legatees was held to be confined to
the income from the estate.^" In another case, a farm was
devised to the testator's son, and the will directed that a
daughter of the testator should be supported on it. The
house having burned and the son having offered the
daughter a choice of residences until a new house should
be built, she could not, upon refusal of the offer, enforce
a claim against him for money.^^
§ 802. Limitations Upon Charges.
Where no time for the payment of legacies charged
upon land is fixed by the will, the general rule is that
they should be raised immediately, and the title thereto
Fed. Cas. No. 5227; In re Walters' 20 Eskridge v. Farrar, 34 La.
Appeal, 95 Pa. St. 305. Ann. 709; Nudd v. Powers, 136
18 In re Gilbert's Appeal, 85 Pa. Mass. 273.
St. 347. 21 Bennett v. Akin, 38 Hun
10 Moore v. Davidson, 22 S. C. 92. (N. Y.) 251.
1162 COMMENTAKIES ON THE LAW OF WILLS.
will vest upon the death of the testator j^^ and charges do
not fail by reason of the lapse of the devise or legacy
upon which they are made.^^ The claims of legatees
upon lands charged with the payment of legacies are not
barred by statutes of limitations,^* although, of course,
equity will not aid the enforcement of such a claim where
a legatee has been guilty of laches. ^^ A charge once cre-
ated will continue until satisfied, although dependent
upon so remote a contingency as the future liability of
the testator's daughters "coming to waut."^® A provi-
sion in a will that the value of land specifically devised
shall be charged to the devisee as part of his share, re-
quires that the charge be made on the basis of the full
value of the land, although the devisee's estate be a de-
feasible one.^^
§ 803. Charges Following the Land.
Purchasers of real property from devisees prior to a
complete settlement of the estate take the land subject to
the possibility that it may be sold for the satisfaction
of claims against the estate.^^ Creditors may hold each
beneficiary liable to the extent of the assets received by
22 Cowper V. Scott, 3 P. Wms. 24 Watson v. Saul, 1 GilC. 188.
119; Wilson v. Spencer, 3 P. Wms. 25 Henderson v. Atkins, 28 L. J.
172; Ernes v. Hancock, 2 Atk. 507; Ch. N. S. 913; Gwynne v. Gell, 20
Hodgson V. Rawson, 1 Ves. Sen. L. T. 508.
44; Furness v. Pox, 1 Gush. (56 26 Pickering v. Pickering, 15
Mass.) 134, 48 Am. Dec. 593; Bow- N. H. 281. But see Donnelly v.
ker V. Bowker, 9 Gush. (63 Mass.) Edelen, 40 Ind. 117; Clyde v. Simp-
519. son, 4 Ohio St. 445; Baylor's
Compare: Ager v. Pool, Dyer Lessee v. Dejarnette, 13 Gratt.
3711); Turner v. Probyn, 1 Anstr. (Va.) 152.
66; Chandos v. Talbot, 2 P. Wms. 27 Brltton v. Thornton, 112 TJ. S.
612, Cox's note. 526, 28 L. Ed. 816, 5 Sup. Ct. 291.
23 Oke V. Heath, 1 Ves. Sen. 135. 2S Flood v. Strong, 108 Mich. 561,
See §§ 760, 761. 66 N. W. 473; Thomas v. Williams
CHAEGES FOR DEBTS AND LEGACIES.
1163
liim,^^ but a beneficiary may protect himself by requiring
all debts and expenses to be paid prior to distribution.^"
Charges for the payment of legacies will follow the
land in the hands of bona fide purchasers for value with-
out actual notice; for the purchaser in such cases is
affected with constructive notice of the charge f^ although
as between two purchasers, one having constructive, the
other actual notice, the latter should be first charged.^^
But it has been held on the other hand that a bona fide
purchaser for value from a devisee who had been di-
rected to pay the testator's debts, need not look to the
application of the purchase money.^* In England, in a
(In re Jones' Estate), 80 Kan. 632,
25 L. R. A. (N. S.) 1304, 103 Pac.
772.
29 Walker v. Ganote, (Ky.) 116
S. W. 689; HiU's Admr. v. Griz-
zard, 133 Ky. 816, 119 S. W. 168;
Converse v. Nichols, 202 Maes.
270, 89 N. E. 135; Hill v. Moore,
131 App. Dlv. 365, 115 N. Y. Supp.
289; Hebert v. Handy, 29 R. I. 543,
72 Atl. 1102.
The procedure depends on the
local statutes. — Mathewson v.
Wakelee, 83 Conn. 75, 75 Atl. 93.
A creditor who has no lien on
property devised Is entitled only
to a personal judgment against the
devisee to the extent of the prop-
erty received by him. — ^Wendel v.
Binninger, 132 App. Dlv. 785, 117
N. Y. Supp. 616.
Where complaint against admin-
istrator and heir shows assets in
the hands of the former, no cause
of action exists against the heir. —
McKillop V. Burton's Admr., 82 Vt.
403, 74 Atl. 78.
so Chenault v. Crooke, (Ky.) 128
S. W. 302. See, also, Richards v.
Gill, 138 App. Dlv. 75, 122 N. Y.
Supp. 620, decided under Decedent
Estate Law (Consol. Ijaws, ch. 13,
§ 101) ; Green v. Dunlop, 136 App.
Dlv. 116, 120 N. Y. Supp. 583, re-
ferring to action against heirs and
devisees under the New York
Code.
siWallington v. Taylor, 1 N. J.
Bq. (Saxt.) 314; Harris v. Fly, 7
Paige Ch. (N. Y.) 421.
32 Aston V. Galloway, 38 N. C.
(3 Ired. Eq.) 126.
A purchaser will take subject
to the charge, notwithstanding a
paper executed by the cestui and
recorded, in which she stated that
the trust money had been invested
to her satisfaction, and that she
released the land from the charge.
— Dickinson v. Worthington, 10
Fed. 860, 4 Hughes 430.
33 Grotenkemper v. Bryson, 79
Ky. 353.
1164 COMMENTARIES ON THE LAW OP WILLS.
modern ruling on this point, it was held that where execu-
tors in whom the legal fee is vested are selling real estate
charged with debts, a purchaser is not bound nor entitled
to inquire whether debts remain unpaid, unless twenty-
years have elapsed from the testator's decease.^*
Statutes have been passed in some jurisdictions pro-
tecting innocent purchasers from devisees.^^ In New
York, where a testator devises his lands after his debts
shall have been paid, the statutory lien expires after three
years, and a good title may then be given.** When real
estate not chargeable with debts has been sold to pay
them, the devisee thereof may subject other lands which
were charged with the debts to his claim for reimburse-
ment.*^
§ 804. Marshaling of Assets.
The term "marshaling of assets," as applied to the set-
tlement of estates of decedents, may be said to be such an
arrangement of the various funds of the estate as to en-
able all parties having equities to receive their due pro-
portions, notwithstanding any intervening interest, liens
34 In re Tanqueray, D. R. 20 77 N. J. Eq. 188, 75 Atl. 999, to
Ch. Div. 465. the effect that a creditor may
35 Rich V. Morisey, 149 N. C. 37, recover against a legatee out of
62 S. E. 762. • his legacy although his claim is
30 White V. Kane, 1 How. Pr. barred as against the executor.
(N. S.) 382, 51 N. Y. Sup. Ct. 295; Action against devisee to en-
Hill V. Moore, 131 App. Div. 365, force decedent's stockholder's lia-
115 N. Y. Supp. 289. hility does not accrue until death
A claim barred because of fall- of testator, and the Statute of
ure to present same to executor or Limitations does not commence to
administrator of the estate can not run until then. — Richards v. Gill,
be enforced against lands in the 138 App. Div. 75, 122 N. Y. Supp.
hands of the heirs. — Stewart v. 620.
Thomasson, 94 Ark. 60, 126 S. W. 37 Cranmer v. McSwords, 24
86. But see O'Donnell v. McCann, W. Va. 594.
CHARGES FOR DEBTS AND LEGACIES. 1165
or other claims of particular persons to prior satisfaction
out of a portion of these funds.** Courts of equity have
established rules for the marshaling of assets and for
their appropriation in such manner that the equities of
all parties are substantially met. The general principle
underlying these rules is that the assets shall be so ap-
propriated that every claim shall be satisfied in so far
as the assets of the estate will allow, by an arrangement
consistent with various claims.*'
The decedent's legal representative or his creditor
alone may maintain an action to marshal the assets, and
the heirs at law are necessarily the parties defendant.*"
Where a creditor's debt remains unpaid, whether it has
been reduced to judgment or not, he may maintain a suit
in equity against the personal representative of the de-
cedent, his heirs and devisees, to marshal the assets and
apply the proceeds thereof to the liquidation of the in-
debtedness against the estate.*^
§ 805. The Same Subject.
The rules regarding marshaling of assets of an estate
are founded on natural and moral equity, and not de-
38 Farmers' Loan & Tr. Co. v. the personal assets in the pay-
Kip, 192 N. Y. 266, 85 N. E. 59. ment of his debts, and no further;
39 New York Life Ins. Co. v. and this because the specialty
Brown, 32 Colo. 365, 76 Pac. 799. creditor could go against both
"If, for instance, a specialty personal and real estate or against
creditor whose debt in England either of them." — Hope y. Wilkin-
was a lien on the real estate, re- son, 14 Lea (82 Tenn.) 21, 52 Am.
ceive satisfaction out of the per- Rep. 149.
sonalty, a simple contract creditor, 4o Still v. Wood, 85 S. 0. 562,
who had no claim except on the 67 S. E. 910.
personal assets, shall, in equity, 4i American Bank and Trust Co.
stand in place of the specialty v. Douglass,.75 W. Va. 207. 83 S. E.
creditor as against the real estate 920.
so far as the latter has exhausted
1166 COMMENTAEIES ON THE LAW OF WILLS.
duced from the contract between the debtor and the cred-
itor. They do not depend upon the will or caprice of one
creditor who has within his reach a double fund whereby,
if unrestrained, he might disappoint another creditor of
the satisfaction of his claim.*^ If a creditor has a lien on
two different parcels of land and another creditor has a
junior lien on only one of the parcels, and the former
elects to collect his whole demand out of the land on which
the junior creditor has his lien, such junior creditor will
be entitled either to have the prior claim or lien collected
out of the other funds or have such claim or lien as-
signed to him, upon payment, and thus receive all the aid
which it can afford him.** The equitable principle is not
to take from any prior lien-holder any substantial rights
which he may have, but simply to enforce his just rights
in such order of priority as will, without loss to him, pro-
tect as far as possible the subsequently acquired rights of
others.**
§ 806. Widow's Right of Dower.
A widow is entitled to receive her dower free from
encumbrance, and where a widow's interest in the lands
of her deceased husband has been sold to pay her hus-
band's mortgage debts she has an equitable claim to be
reimbursed out of the personal estate in the hands of the
executor or administrator, to the full value of her inter-
est in the lands sold.*^ This doctrine applies also to a
case where the fund out of which the widow seeks to be
42 New York Life Ins. Co. v. 44 Sibley v. Baker, 23 Micli. 312.
Brown, 32 Colo. 365, 76 Pac. 799; 4B McCord v. Wright, 97 Ind. 34;
Post V. Mackall, 3 Bland (Md.) Shobe v. Brlnson, 148 Ind. 285,
486. 47 N. E. 625; Henagan v. Harllee,
43 Cheesebrough v. Millard, 1 10 Rich. Eq. (S. C.) 285.
Johns. Ch. (N. Y.) 409.
CHARGES FOR DEBTS AND LEGACIES. 1167
reimbursed is derived from the sale of real estate as well
as if the fund was the proceeds of personalty.*® If a
widow receives a legacy in lieu of dower and a creditor
has a lien upon the fund from which such legacy is to be
paid, equity wiU subrogate her to the rights of the cred-
itor.*^
§ 807. Constructive or Equitable Conversion Defined.
A testator may direct in his will that specified real or
personal property of his estate shall be sold and the pro-
ceeds distributed in a certain manner. By such directions
the testator effects a constructive or equitable conversion
of the property. Equity regards that done which should
be done. Constructive or equitable conversion as applied
to the law of wills is the transformation of real property
into personalty and personal property into realty, not by
reason of physical change, but by intendment. If the
will of a testator directs certain lands be sold by his ex-
ecutor and the proceeds be given to certain beneficiaries
named, the effect is not a devise of realty, but a bequest
of personalty. It will be so treated for the purposes of
taxation*® and the gift will be subject to the incidents at-
tending legacies of such class. It is a general principle of
equity that money directed to be employed in the pur-
chase of land, and land directed to be sold and turned into
money, are to be considered as that species of property
into which they are directed to be converted.*®
46 Shobe V. Brinson, 148 Ind. leu, 62 Ala. 145; Attorney General
285, 47 N. E. 625. v. Hubbuck, L. R. 13 Q. B. 275;
47 Durham v. Rhodes, 23 Md. In re Pforr's Estate, 144 Cal. 121,
233. 77 Pac. 825; In re Clark's Appeal,
48 See § 288. 70 Conn. 195, 39 Atl. 155; In re
49 Smith V. Claxton, 4 Madd. Stevenson's Estate, 2 Del. Ch. 197;
484; Given v. Hilton, 95 U. S. 591, Lash v. Lash, 209 111. 595, 70 N. E.
24 L. Ed. 458; Masterson v. Pul- 1049; Starr v. Willoughby, 218 111.
1168
COMMENTARIES ON THE LAW OP WILLS.
§ 808. Conversion Depends on Intention of Testator: How Sx-
pressed.
Equitable conversion, as applied to wills, depends upon
the express intention of the testator that the sale shall
be made rather than upon the time of its consummation.
The intention of the testator need not be stated in direct
terms ; it is sufficient if it can be drawn from all the pro-
visions of the will considered together.^" If the intention
be not stated in direct terms, in order that there may be
a conversion a sale must be necessary in order to carry
485, 2 L. R. A. (N. S.) 623, 75 N. E.
1029; Stake v. Mobley, 102 Md.
408, 62 Atl. 963; Thlssell v. Schll-
linger, 186 Mass. 180, 71 N. E. 300;
Canfield v. Canfleld, 62 N. J. Eq.
578, 50 Atl. 471; Power v. Cassidy,
79 N. Y. 602, 35 Am. Rep. 550;
Bowdltch V. Ayrault, 138 N. Y. 222,
3?, N. B. 1067; Blolasky v. Gaily,
1 Sm. P. F. (N. C.) 509 ; McClure's
Appeal, 22 Sm. P. F. (N. C.) 509;
Brothers v. Cartwright, 55 N. C.
113, 64 Am. Dec. 563; Lee v. Baird,
132 N. C. 755, 44 S. B. 605; Collier
V. Grimesey, 36 Ohio St. 17; Hutch-
jiigs V. Davis, 68 Ohio St. 160, 67
N. E. 251; Allison v. Kurtz, 2
Watts (Pa.) 185; In re Peterson's
Appeal, 88 Pa. St. 397; Jones v.
Caldwell, 97 Pa. St. 42; Taylor v.
Haskell, 178 Pa. St. 106, 35 Atl.
732; In re Severns' Estate, 211
Pa. St. 65, 60 Atl. 492; Wilkins
V. Taylor, 8 Rich. Eq. (S. C.) 291;
Walker v. Killian, 62 S. C. 482,
40 S. E. 887; Wayne v. Fonts, 108
Tenn. 145, 65 S. W. 471; Bennett
V. Gallaher, 115 Tenn. 568, 92 S. W.
66; Efflnger v. Hall, 81 Va. 94;
Ford V. Fotd, 70 Wis. 19, 5 Am. St.
Rep. 117, 33 N. W. 188; Becker
V. Chester, 115 Wis. 90, 91 N. W.
87, 650.
A power conferred upon an ex-
ecutor to sell lands does not pass
to an administrator with the will
annexed. — Hodgin v. Toler, 70
Iowa 21, 59 Am. Rep. 435, 30
N. W. 1.
As to ademption of such lega-
cies, see § 748.
As to a testamentary gift of in-
terests in lands founded on con-
tracts of sale and purchase, see
§§ 244, 746.
As to how interests of mort-
gagor and mortgagee in lands are
considered, see §§ 256, 747.
50 In re Pforr's Estate, 144 Gal.
121, 77 Pac. 825; Greenwood v.
Greenwood, 178 111. 387, 53 N. E.
101; Green v. Johnson, 4 Bush (67
Ky.) 164; Stake v. Mobley, 102
Md. 408, 62 AO. 963; Clift v.
Moses, 116 N. Y. 144, 22 N. E. 393;
In re Severns' Estate, 211 Pa. St.
65, 60 Atl. 492; Becker v. Chester,
115 Wis. 90, 91 N. W. 87, 650.
CHAEQES FOR DEBTS AND LEGACIES. 1169
out the provisions of the will,'*^ or real and personal
property must have been so blended by provisions of the
will as to show an intent on the part of the testator that
they be considered a fund from which legacies are to be
paid.^^
A direction that executors shall at their discretion
either sell lands in a certain place, and invest the proceeds
in more rentable property or use the proceeds in im-
proving the land unsold, does not effect a constructive
conversion, the authority to the executors being discre-
tionary merely. And a direction to sell a homestead
accompanied by a direction not to do so until the widow
to whom it has been left in lieu of dower shall cease to
desire it as her home, nor unless it will sell for ten thou-
sand dollars, is not sufficiently positive to effect a con-
structive conversion.®* Yet, the fact that a conversion
The use of the word "desire" 42 Atl. 641; Stake v. Mobley, 102
instead of "direct" in authoriz- Md. 408, 62 Atl. 963; Thissell v.
ing a sale is held equivalent to Schillinger, 186 Mass. 180, 71 N. E.
"I will" that it be sold, and is 300; Roy v. Monroe, 47 N. J. Eq.
imperative. — In re Pforr's Estate, 356, 20 Atl. 481; Asche v. Asche,
144 Cal. 121, 77 Pac. 825, citing 113 N. Y. 232, 21 N. E. 70; In re
Appeal of City of Philadelphia, 112 Hunt's Appeal, 105 Pa. St. 128,
Pa. St. 470, 4 Atl. 4. 141; Becker v. Chester, 115 Wis.
"Equitable conversion is effected 90, 91 N. W. 87, 650.
by a power to sell and a duty to 52 In re Hunt's Appeal, 105 Pa.
sell. It is not enough to manifest St. 128, 141; In re Sauerbier's
an intent that land shall pass as Estate, 202 Pa. St. 187, 189, 51 Atl.
money, unless there is also, either 751.
in terms or by implication, a grant B3 Ford v. Ford, 70 Wis. 19, 5
of the means of turning it into Am. St. Rep. 117, 33 N. W. 188.
money." — Appeal of Clark, 70 See, also, Taylor v. Haskell, 178
Conn. 195, 39 Atl. 155, citing Hale Pa. St. 106, 35 Atl. 732; In re
V. Hale, 125 111. 399, 17 N. E. 470; Sauerbier's Estate, 202 Pa. St. 187,
Hobson V. Hale, 95 N. Y. 588. 51 Atl. 751.
51 DulBeld V. Pike, 71 Conn. 521,
n Com. on Wills— 20
1170 COMMENTARIES ON THE LAW OF WILLS.
was directed to be made "as soon as practicable" does
not impair its imperative nature.^*
General words giving the executors power to settle the
estate as they judge best do not confer a power to sell
real estate, nor operate as an equitable conversion.^^
§ 809. Time When Conversion Is Considered to Take Place.
Where the power and duty of sale by the executor are
expressed or implied in the will of the testator, it then
becomes a question as to when conversion takes effect.
When the sale is not dependent upon a contingency or
the time of sale is not discretionary with the executor,
the conversion is regarded as complete as from the
time of the testator's death.^* It is so considered even
though the will direct that the sale be postponed.^'' If the
sale is to be made upon the happening of some contin-
gency certain to occur, such as the termination of a life
54 Ford V. Ford, 70 Wis. 19, 5 v. Taylor Orphan Asylum, 46 Wis.
Am. St. Rep. 117, 33 N. W. 188. 106, 50 N. W. 422.
See, also. Bates v. Spooner, 75 Other cases deny the correct-
Conn. 501, 54 Atl. 305; Starr v. ness of the rule stated in the pre-
Wllloughby, 218 111. 485, 2 L. R. A. ceding note, and require that the
(N S ) 623 75 N E 1029 direction be positive and explicit.
', ' I, ,j. it. 4. See Edwards' Appeal, 47 Ind. 138,
There are cases holding that
.,, ^. ^ 144; Seeger's Exrs. v. Seeger, 21
if It appears from the will that ^_ _ _, „. _. ,>,..,,.
N. J. Eq. 90; Chew v. Nicklln, 45
the testator intended that his ex- ■□„ eu. o.i tj ^.^ _ /^ i, i.
Pa. St. 84; Bennett T. Gallaher,
ecutors should sell, although they ^^g rp^^^ ggg^ 92 s_ ^ ge.
are not absolutely directed so to 55 skinner v. Wood, 76 N. C. 109.
do, the property will be deemed in 66 ReifE v. Strite, 54 Md. 298;
equity to be converted. See Whel- Wurts' Exrs. v. Page, 19 N. J. Eq.
dale V. Partridge, 5 Ves. Jun. 388; 365; In re McWilliams' Appeal,
Blount V. Moore, 54 Ala. 360; 117 Pa. St. Ill, 11 Atl. 383.
Whitehead v. Wilson, 29 N. J. Eq. 67 High v. Worley, 33 Ala. 196;
396; Dodge v. Pond, 23 N. Y. 69; Hooker v. Gentry, 3 Meto. (Ky.)
Gray v. Henderson, 71 Pa. St. 368 ; 463 ; Stagg v. Jackson, 1 N. Y. 206 ;
Dodge V. Williams, 46 Wis. 70, In re Severns' Estate, 211 Pa. St.
1 N. W. 92, 50 N. W. 1103; Gould 65, 60 Atl. 492.
CHARGES FOR DEBTS AND LEGACIES.
1171
estate, the authorities are not in harmony. Some hold
that the conversion is effective as of the date of the tes-
tator's death,^® while others hold that the conversion does
not take place until the termination of a life estate.^^ But
if the direction to sell is positive, merely the time and
mode of sale being discretionary with the executor, an
immediate conversion is not prevented.®" Where the ex-
ecutor is given the power of sale and is vested with dis-
ss Handiey V. Palmer, 103 Fed.
39, 43 C. C. A. 100; In re Steven-
son's Estate, 2 Del. Ch. 197; Ran-
kin V. Rankin, 36 111. 293, 87 Am.
Dec. 205; Lash v. Lash, 209 111.
595, 597, 70 N. E. 1049.
69 Bank of TJkiah v. Rice, 143
Cal. 265, 101 Am. St. Rep. 118, 76
Pac. 1020; Matter of Hammond's
Estate, 74 App. Div. (N. Y.), 547,
77 N. Y. Supp. 783; Tillman v.
Davis, 95 N. Y. 17, 47 Am. Rep. 1.
When a will directs the conver-
sion of real property into money,
such property and all its proceeds
must be deemed personalty from
the time of the testator's death.
This is enacted by statute in Cali-
fornia, Dakota, Montana and Utah.
— Stlmson's Am. Stat. Law, § 2805.
But see Estate of Walkerly, 108
Cal. 627, 652, 49 Am. St. Rep. 97,
41 Pac. 772, which holds that the
statute does not apply where the
direction Is for a future sale. The
court says: "The rule of equitable
conversion merely amounts to
this: That, where there is a man-
date to sell at a future time,
equity, upon the principle of re-
garding that done which ought to
be done, will, for certain purposes
and in the aid of justice, consider
the conversion as effected at the
time when the sale ought to take
place, whether the land be then
really sold or not. But whenever
the direction is for a future sale,
up to the time fixed the land is
governed by the law of real
estate." — Estate of Walkerly, 108
Cal. 627, 652, 49 Am. St. Rep. 97,
41 Pac. 772.
60 Russell V. Hilton, 80 App.
Div. 178, 80 N. Y. Supp. 563; Dodge
V. Pond, 23 N. Y. 69; In re Phila-
delphia's Appeal, 112 Pa. St. 470,
4 Atl. 4; In re Sevems' Estate, 211
Pa. St. 65, 60 Atl. 492; Carr v.
Branch, 85 Va. 597, 8 S. B. 476.
Where the testator directs the
trustee to sell certain real and
personal property in such manner ■
and for such price as he may deem
fit, and to pay the income to a
specified beneficiary, under the
doctrine of equitable conversion
the realty is converted into per-
sonalty as of the time of the testa-
tor's death, and the beneficiary
acquires no interest in the realty.
— Lambert v. Morgan, 110 Md. 1,
132 Am. St. Rep. 412, 17 Ann. Cas.
439, 72 Atl. 407.
1172 COMMENTARIES ON THE LAW OP WILLS.
cretionary authority to determine whether or not it shall
be made, a sale made in accordance with the power and
to effectuate the purpose of the testator will work a con-
version as of the date of sale.*^
§ 810. Effect of Failure of Purpose for Which Sale Was Di-
rected.
Where a testator directs a sale of all or a portion of
his estate and specifies the purpose for which it is to be
made, either expressly or by implication, the conversion
will be limited to such purpose. If the purpose fails either
because of the happening of events or because of it being
void in law, the conversion will fail likewise. If the pur-
pose was to collect a fund and to pay it over to certain
legatees, and such legacies lapse because of the death of
the beneficiaries, the purpose likewise fails and there is
no conversion. The conversion will be effective only in
so far as it fulfills the purposes and intent of the testator.
If no sale is necessary the property will devolve in its
original form, unconverted, upon the persons who would
be entitled thereto either as heirs or as residuary legatees
according to whether such property is covered by the re-
el Walker v. Shore, 19 Ves. Jun. 51 Atl. 751; Taylor v. Haskell, 178
387; In re Ibbitson, L.. R. 7 Eq. Pa. St 106, 35 Atl. 732; In re
226; In re Wintle, (1896) 2 Ch. Cooper's Estate, 206 Pa. St. 628,
711; Haward v. Peavey, 128 111. 98 Am. St. Rep. 799, 56 Atl. 67.
430, 15 Am. St. Rep. 120, 21 N. E. "In order to work a conversion,
503; Cronise v. Hardt, 47 Md. 433; the direction to sell must be posi-
Romaine v. Hendrickson, 24 N. J. tlve and explicit. It must not rest
Ea. 231; Condit v. Bigalow, 64 in the discretion of the executor,
N. J. Eq. 504, 54 Atl. 160; Reed v. nor depend upon contingencies.
Underbill, 12 Barb. (N. Y.) 113; A direction to sell upon a future
In re Tatum, 169 N. Y. 514, 62 contingency does not effect an
N. E. 580; Mills v. Harris, 104 equitable conversion until an
N. C. 626, 10 S. E. 704; In re actual sale." — Jones v. Caldwell,
Sauerbier's Estate, 202 Pa. St. 187, 97 Pa. St. 42.
CHARGES FOR DJBTS AND LEGACIES. 1173
siduary clause or whether it passes as intestate prop-
erty. If a portion of the property has been sold and the
purpose and intent of the testator has been satisfied, and
there still remains some property undisposed of, it will
devolve in the same manner. If a sale has already been
consummated and a balance remains because of the fact
of the purpose being satisfied or having failed in part,
such balance will pass the same as the original property
would have passed, to the heirs or residuary beneficiaries,
as the case may be.*^ However, where it is necessary that
a sale take place in order to fulfill the testamentary pur-
pose of the testator and a physical conversion is effected,
such as changing land into money, although the surplus
money will be considered as land in so far as the estate
of the testator is concerned, yet should the heir or re-
siduary devisee die subsequent to the testator, the sur-
plus money will go to his personal representatives as
62 Shallcross V. Wright, 12 Beav. Rep. 654, 39 Atl. 968; Yerkes v.
505; Bagster V. Fackerell, 26 Beav. Yerkes, 200 Pa. St. 419, 50 Atl.
469; Hilton v. Hilton, 2 McArth. 186; Phillips v. Ferguson, 85 Va.
(D. C.) 70; James v. Hanks, 202 509, 17 Am. St. Rep. 78, 1 L. R. A.
111. 114, 16 N. E. 1034; Harker v. 837, 8 S. E. 241; Gallagher v.
Reilly, 4 Del. Ch. 72; Cronise v. Rowan's Admr., 86 Va. 823, 11
Hardt, 47 Md. 433; Orrick v. S. B. 121; McHugh v. McCole, 97
Boehm, 49 Md. 72; Rizer v. Perry, Wis. 166, 65 Am. St. Rep. 106, 40
58 Md. 112; Stake v. Mobley, 102 L. R. A. 724, 72 N. W. 631.
Md. 408, 62 Atl. 963; Moore V. Rob- As to whom the benefit of
bins, 53 N. J. Bq. 137, 32 Atl. 379; lapsed and void legacies accrues,
Canfield v. Canfield, 62 N. J. Bq. see §§ 681, 777-781.
578, 50 Atl. 471; Girand v. Girand, Where there is a partial failure
58 How. Pr. (N. Y.) 175; Jones v. of the purpose of conversion in
Kelly, 63 App. Div. 614, 72 N. Y. the case of land directed to be
Supp. 24; Read v. Williams, 125 turned into money, the undisposed
N. Y. 560, 21 Am. St. Rep. 748, of surplus will revert to the heir
26 N. E. 730 ; Lindsay v. Pleas- of the testator, and not to his per-
ants, 39 N. C. 320; In re Rudy's sonal representative. — Ackroyd v.
Estate, 185 Pa. St. 359, 64 Am. St. Smithson, 1 Bro. C. C. 503.
1174 COMMENTARIES ON THE LAW OP WILLS.
money, even though, the sale may be effected subsequent
to his death.**
The testator may, however, by positive directions in
his will show that it is his intention that real property
directed to be sold and converted into money shall not
pass as realty, but as personalty. He may blend his real
and personal estate and direct the sale of the same to
form a fund to be distributed as personal property. In
such a case conversion will be effected by the testator's
direction even though his purpose may fail in part.®* ^
§ 811. Realty Converted Into Personalty Does Not Bar Dower, '^
But Otherwise Is Distributed as Personalty.
A widow who is not provided for or mentioned in the
will of her husband may claim her dower rights. By so
doing she does not make an election which deprives her
of other rights in her husband's estate. If the will directs
that the real property be converted into money, the
proceeds must be treated as personalty for all purposes,
except as to dower, including the right of the widow un-
provided for by the will of her husband to claim a dis-
tributive share in his personal estate. She is not estopped
from making such demand although she elected to take
the value of her dower interest in money.®^
63 Wall V. Colshead, 2 De Gex North v. Valk, Dud. Eq. (S. C.)
& J. 683; Ackroyd v. Smithson, 212; Gallagher v. Rowan's Admr.,
] Bro. C. C. 503; Smith v. CJaxton, 86 Va. 823, 825, 11 S. E. 121.
4 Madd. 482, 492; Wright v. 64 Craig v. Leslie, 3 Wheat.
Wright, 16 Ves. Jun. 188; Craig v. (U. S.) 563, 4 L. Ed. 460; Hutch-
Leslie, 3 Wheat. (U. S.) 563, ings v. Davis, 68 Ohio 160, 67 N. B.
4 L. Ed. 460; Wood v. Cone, 7 251; Harrington v. Pier, 105 Wis.
Paige Ch. (N. Y.) 471; Wright v. 485, 76 Am. St. Rep. 924, 50 L. R. A.
Trustees of M. E. Church, Hoff. 307, 82 N. W. 345.
Ch. (N. Y.) 202; Lindsay v. Pleas- 66 Hutchings v. Davis, 68 Ohio
ants, 4 Ired. Eq. (N. C.) 320; 160, 67 N. E. 251. See, also, Fer-
OHAEGES FOE DEBTS AND LEGACIES. 1175
§ 812. Reconversion Defined: How Effected.
The doctrine of constructive conversion is based on
equitable principles. Realty directed to be sold is con-
sidered as personalty in a proper case even before sale,
but this only to carry out the intent and purpose of the
testator. The beneficiaries under the will are likewise to
be considered; after the death of the testator, and all
claims against the estate are satisfied, they are the prin-
cipal parties in interest. No reason exists why the lega-
tees of the proceeds of realty directed by the testator to
be sold can not by unanimous consent accept the prop-
erty in its original form. This does not prevent the first
equitable conversion, but is rather deemed a reconver-
sion.*® If all the beneficiaries interested elect to take the
property in its original form, then the power of sale under
the will is extinguished.*'' If the rights of but a single
beneficiary are involved and he is capable of acting, his
election alone will suffice. If more than one are interested
the consent must be unanimous** and must be manifested
by some unequivocal act or declaration.** If the recon-
guson v. Stuart's Exrs., 14 Ohio 67 Duckworth v. Jordan, 138 N.C.
140; Collier v. Collier's Exrs., 520, 51 S. E. 109.
3 Ohio St. 369, 374. 68 Bank of Ukiah v. Rice, 143
Effect of widow accepting pro- Cal. 265, 101 Am. St. Rep. 118, 76
vision in will in lieu of dower, Pac. 1020; In re Pforr's Estate,
see post, §§ 826-829. 144 Cal. 121, 77 Pac. 825; Strode
66 Pearson v. Lane, 17 Ves. Jun. v. McCormick, 158 111. 142, 41 N. E.
101; Craig v. Leslie, 3 Wheat. 1091; Lash v. Lash, 209 111. 595,
(U. S.) 563, 4 L. Ed. 460; Swann 70 N. E. 1049; Scott v. Douglas,
V. Garrett, 71 Ga. 566; Baker v. 39 Misc. Rep. 555, 80 N. Y. Supp.
Copenharger, 15 111. 103, 58 Am. 354; Duckworth v. Jordan, 137
Dec. 600; Sears v. Choate, 146 N. C. 520, 51 S. E. 109; Shallen-
Mass. 395, 4 Am. St. Rep. 320, berger v. Ashworth, 25 Pa. St.
15 N. E. 786; Prentice v. Janssen, 152; Harcum's Admr. v. Hudwell,
79 N. Y. 478; Mellen v. Mellen, 14 Gratt. (Va.) 369.
139 N. Y. 210, 34 N. E. 925. 69 Boland v. Tiernay, 118 Iowa
1176
COMMENTARIES ON THE LAW OF WILLS,
version is effected by a reconveyance, all must join. A
reconveyance by only one of several interested benefi-
ciaries will not operate as a reconversion of bis interest/**
Should any of tbe beneficiaries be incapable of acting, be-
cause of infancy, insanity, or otber cause, election can be
made for them only by sanction and order of the court
after due bearingj^
59, 91 N. W. 836; Mellen v. Mel-
len, 139 N. Y. 210, 34 N. B. 925;
Wayne v. Fouts, 108 Tenn. 145,
65 S. W. 471.
TO Bank of XJkiah v. Rice, 143
Cal. 265, 101 Am. St. Rep. 118, 76
Pac. 1020; Baker v. Copenbarger,
15 111. 103, 58 Am. Dec. 600; Ebey
V. Adams, 135 111. 80, 10 L. R. A.
162, 25 N. B. 1013; Lash v. Lash,
209 111. 595, 70 N. B. 1049; Mo-
Donald V. O'Hara, 144 N. Y. 566,
39 N. E. 642.
71 Duckworth v. Jones, 137 N. C.
520, 51 S. E. 109.
Compare: Bank of XJkiah v.
Rice, 143 Cal. 265, 101 Am. St. Rep.
118, 76 Pac. 1020.
See, post, § 825.
A court may so order if for the
best Interests of an infant legatee.
— Swann v. Garrett, 71 Ga. 566.
A married woman may elect to
take land instead of money, but
she can do so only under the
same forms and solemnities as are
required by law to enable her to
convey a fee. — Baker v. Copen-
barger, 15 111. 103, 106, 58 Am. Dec.
600.
CHAPTER XXIX.
DOCTRINE OF ELECTION AS APPLIED TO WILLS.
§813. Election defined.
§ 814. Immaterial whether or not testator knew he did not own
the property disposed of.
§ 815. When presumption arises that testator intended to dispose
of his own property only : Community property.
§ 816. The same subject : Where testator had only a partial inter-
est in property devised.
§ 817. Doctrine of election founded on equitable principles.
§ 818. Nature of eases calling for election.
§ 819. Manner in which intent to put widow to her election must
be expressed.
§820. The same subject.
§ 821. The same subject : No absolute rule.
§ 822. Gifts in trust, of life estates, or of income.
§ 823, Right of election is personal : Reasons for election inunate-
rial.
§ 824. The same subject: Creditors can not force survivor to
claim statutory rights as against the wiU.
§ 825. Court may make election for donee if he be alive but inca-
pable of acting.
§ 826. Acts constituting election.
§ 827. Election made through ignorance, fraud or mistake may
be repudiated.
§ 828. Election by estoppel.
§ 829. The same subject : AVhere the widow is executrix.
§ 830. The same subject : Effect of acceptance of benefits under
will.
§ 831. What law governs election in case of conflict.
§ 832. Waiver of dower includes claim of dower in lands con-
veyed by husband alone during coverture.
(1177)
1178 COMMENTARIES ON THE LAW OF WILLS.
§ 833. Eights of widow who elects to take under will, as to intes-
tate property.
§ 834. Rights of widow as affected by debts of husband.
§ 835. Eights of widow where property reverts to her estate be-
cause qf her remarriage.
§ 836. Election against the will : Rights of widow.
§ 837. Rights affected by widow electing against the will.
§ 838. The same subject: Where widow relinquishes life estate:
Doctrine of acceleration.
§ 839. Effect on balance of will of election to take under the stat-
ute.
§813. Election Defined.
The doctrine of election involves a choice between two
inconsistent demands, the acceptance of one being a
waiver of the other. Election is defined generally in
e(iuity as the choice which a person must make between
acceptance of a benefit under an instrument and a reten-
tion of some property already his own which the same in-
strument purports to dispose of to another.^ The doctrine
undoubtedly originated in the civil law,^ and was early
recognized in England.^ In testamentary law, in order
1 Bispham's Equity, (4th ed.) In Devaynes v. Noble, 1 Mer.
I 295. See, also, 2 Story, Eq. Jur., 605, the Master of the Rolls re-
§ 1075; 1 Pomeroy, Eq. Jur., § 395; f erred to the rules regarding elec-
Ga. Code, (1882) §3161; Woolley tion as having been borrowed from
V. Schrader, 116 111. 29, 4 N. E. the civil law, citing Dig., lib. 46,
658; Sigmon v. Hawn, 87 N. C. tit. 8, qu. 1, 3; Dig., lib. 46, tit. 3,
450; Moore v. Harper, 27 W. Va. qu. 5.
362. 3 Rose V. Reynolds, Choice Cas.
As to a legacy by a debtor to his in Ch. 147, 1 Swanst. 446, n. a;
creditor in satisfaction of the debt. Lacy v. Anderson, Choice Cas. in
see §§ 728, 729, 758. Ch. 155, 156, 1 Swanst. 445, n. b;
2 Inst., lib. 2, tit. 20, § 4, tit. 24, Dillon v. Parker, 1 Swanst. 398. n.;
§ 1; Cad., lib. 6, tit. 37, lib. 10, Noys v. Mordaunt, 2 Vern. 582;
tit. 42, lib. 9; Domat, pt. 2, bk. 4, Boughton v. Houghton, 2 Ves.
tit. 2, § 3. Sen. 14.
DOCTRINE OP ELECTION.
1179
that the doctrine may be invoked, it is necessary that the
testator shall dispose of property belonging to another or
in which such other has a statutory right, and by the
same instrument give to such other some benefit out of
the testator's own property. Where a statutory right ex-
ists, such as a -husband being entitled to a distributive
share in the estate of his deceased wife, the fact that
she ignored him in her will and made no provision for
him does not divest him of his statutory interest nor force
him to an election.* Further, the donee must have some
claim.de/iors the will and adverse to it, or the doctrine
of election is not applicable.^ And if the testator makes
no disposition of property in which the donee has an
interest, the latter can not be called upon to make an elec-
tion.® Also, the disposition must be absolute; the mere
4 Smoot V. Heyser's Exr., 113
Ky. 81, 23 Ky. L. Rep. 2401, 67
S. W: 21. And see Harding's
Admr. v. Harding's Exr., 140 Ky.
277, Ann. Cas. 1912B, 526, 130 S. W.
1098.
See §§ 251, 252, 310, 622.
As to antenuptial and other
agreements after property rights
of hushand and wife, see §§ 625-
629.
As to legal disabilities imposed
on married women, see §§ 301-311.
As to neither husband nor wife
being deprived by the other of
right in community property, or of
dower, curtesy, or homestead, see
§§ 251, 252, 310, 622.
A husband or wife may consent
to the making of the will of the
other. See §§ 253, 254, 623, 624.
5 Wollaston v. King, L.. R. 8 Eq.
165, 174; Wallinger v. Wallinger,
L. R. 9 Eq. 301; In re Warren's
Trusts, 26 Ch. Div. 208, 219; Cam-
eron V. Parish, 155 Ind. 329, 57
N. E. 547.
6 Crosbie v. Murray, 1 Ves. Jun.
555, 561; Smith v. Townshend, 27
Md. 369, 92 Am. Dec. 637; Hatters-
ley V. Bissett, 50 N. J. Eq. 577,
25 Atl. 332; Long v. Wier, 2 Rich.
Eq. (S. C.) 283, 46 Am. Dec. 51;
Bible V. Marshall, 103 Tenn. 324,
52 S. W. 1077; Bennett v. Harper,
36 W. Va. 546, 15 S. E. 143.
Although one who might natur-
ally expect to partake of the testa-
tor's bounty be left nothing under
the will because of a mistaken
belief of the testator recited in
the will that such person would
receive property from another
source, yet if the testator does not
dispose of such person's property,
no question of election arises. —
1180 COMMENTAEIES ON THE LAW OP WILLS,
expression of an unenforceable wish or desire is not suf-
ficients
§ 814. Immaterial Whether or Not Testator Knew He Did Not
Own the Property Disposed Of.
A mistaken belief on the part of the testator that he
owned the property of donee and disposed of it only for
that reason, is immaterial; the effect is the same as if
the testator attempted to exercise a disposing power over
the property knowing he had no right so to do.* How-^
ever, if the language of the will denotes that the testator
was in doubt as to his right to dispose of property in fact
owned by another or in which such other had an interest,
and such doubt is expressed in terms which show that the
testator intended to make a disposition of such property
only if he had the power so to do, no cause for election
will arise.® The intention of the testator to dispose of
another 's property must be indicated by the provisions of
the will, either expressly or by necessary implication,
parol evidence not being admissible to establish inten-
tion.i" g^t circumstances regarding the property and
Langslow v. Langslow, 21 Beav. Leonard, 164 111. 602, 45 N. E. 982;
552; Box T. Barrett, L. R. 3 Eq. Weeks v. Patten, 18 Me. 42, 44,
244. 36 Am. Dec 696; Isler v. Isler,
7 Jjangslow V. Langslow, 21 Beav. 88 N. C. 581; Brown v. Ward (Bor-
552; Miller v. Miller, 22 Misc. Rep. den v. Ward), 103 N. C. 173, 9 S. B.
(N. Y.) 582, 49 N. Y. Supp. 407. 300; Moore v. Harper, 27 W. Va.
8 Wistler v. Webster, 2 Ves. Jun. 362.
367, 370; Welby v. Welby, 2 Ves. 9 Church v. Kemble, 5 Sim. 525.
& B. 199 ; Thellusson v. Woodford, lo Dillon v. Parker, 1 CI. & F.
13 Ves. Jun. 211; Cooper v. 303; Dashwood v. Peyton, 18 Ves.
Cooper, L. R. 6 Ch. App. 15, 20, Jun. 27, 41; Blake v. Bunbury,
L. R. 7 H. L. 78 ; Grissell v. Swinhoe, 4 Bro. C. C. 21 ; Wollaston v. King,
L. R. 7 Bq. 291; Coutts v. Acworth, L. R. 8 Bq. 165, 173; Pitzhugh v.
L. R. 9 Eq. 519; In re Brooksbank, Hubbard, 41 Ark. 64, 69; Morrison
34 Ch. Div. 160; Van Schaack v. v. Bowman, 29 Cal. 337, 351; Mo-
DOCTRINE OF ELECTION. 1181
surrounding the testator may be shown for the purpose
of ascertaining the meaning of terms used by the testa-
tor and to make intelligible a provision of the wiU which
otherwise can not be understood.^^
§ 815. When Presumption Arises That Testator Intended to
Dispose of His Own Property Only : Community Prop-
erty.
A testator is not presumed to attempt to dispose of
property belonging to another or in which another has
a statutory right unless the provisions of the will evince
such intention. For instance, under the laws of some of
the states, the "wife is entitled, upon the death of her
busband, to one-half the community property, the other
half being subject to testamentary disposition by the hus-
band.^^ If the busband makes a devise of "all my prop-
erty of which I may die possessed," it will not be con-
strued as manifesting an intent to devise the whole of the
community property so as to put the widow to her elec-
tion.^*
Laughlin v. Bamum, 31 Md. 425, donee may recognize it as his
442; Hall v. Smith, 103 Mo. 289, own; and that parol evidence is
15 S. W. 621; Havens v. Sackett, not admissible to identify the
15 N. Y. 365; Charch v. Charch, property. — Gray v. Williams, 130
57 Ohio St. 561, 49 N. B. 408; In re N. C. 53, 40 S. E. 843.
Van Dyke's Appeal, 60 Pa. St. 481; 12 As to community property,
Penn v. Guggenheimer, 76 Va. 839. see §§ 251, 252.
11. Glemenston V. Gandy, 1 Keen 13 In re Gilmore's Estate, 81
309. See, also, Judd v. Pratt, 13 Cal. 240, 243, 22 Pac. 655. See,
Ves. Jun. 168; Fitzhugh v. Hub- also, Attorney-General v. Fletcher,
bard, 41 Ark. 64, 69; Adamson v. 5 L. J. Ch. N. S. 75; Beard v.
Ayres, 5 N. J. Eq. 349; Dixon v. Knox, 5 Cal. 252, 63 Am. Dec. 125;
McCue, 14 Gratt. (Va.) 540. Payne v. Payne, 18 Cal. 291, 301;
But it has been held that the In re Wickersham's Estate, 138
testator must describe the prop- Cal. 355, 363, 70 Pac. 1076, 71 Pac.
erty of another of which he at- 437; Exchange and Deposit Bank
tempts to dispose, eo that the v. Stone, 80 Ky. 109; Pratt v. Doug-
1182 COMMENTARIES ON THE LAW OP WILLS.
§ 816. The Same Subject: Where Testator Had Only a Partial
Interest in Property Devised.
To raise a case of election, the language of the testator
must clearly express an intention to dispose of property
not his own.^* If a testator make a disposition in general
terms of property in which he has only a partial inter-
est, he will be presumed to have intended to bequeath
only so much thereof as he was properly entitled to give ;
and if in the same will a benefit be conferred upon the
person who shares with him the title or interest in the
property subject to the bequest, such person will not be
required to elect between relinquishing his right therein
and accepting the benefit conferred by the will.^' No in-
tention to put the widow to her election is to be presumed
from a devise in general terms of the whole of the tes-
tator's real estate,^* even although his lands are referred
to as "all and singular whatsoever. "^^ Thus, a general
devise in such language as "all my property," or "all
my land," will be construed to refer only to the interest
las, 38 N. J. Eq. 516. But see Shut- Yates, 8 Paige (N. Y.) 325; Ha-
tle worth v. Greaves, 4 Myl. & C. vens v. Sackett, 15 N. Y. 365;
35, 38. Lefevre v. Lefevre, 59 N. Y. 434;
A devise by the husband of all Konvalinka v. Schlegel, 104 N. Y.
property of which he "might die 125, 58 Am. Rep. 494, 9 N. E. 868.
seised in B county," and he had 15 Maddison v. Chapman, 1
no property in B county except Johns. & H. 470; Ga. Code, (1860)
community property, does not put § 3093; Pratt v. Douglas, 38 N. J.
the widow to her election. — In re Eq. 516; Havens v. Sackett, 15
Gwln's Estate, 77 Cal. 313, 19 Pac. N. Y. 365. See, also, Padbury v.
527. Clark, 2 Macn. & G. 298.
14 Dummer v. Pitcher, 5 Sim. 35; 16 Lawrence v. Lawrence, 2 Vem.
Crabb v. Crabb, 1 Myl. & K. 511; 365.
Jones V. Jones, 8 Gill (Md.) 197; iTDowson v. Bell, 1 Keen 761;
Church v. Bull, 2 Denia (N. Y.) Harrison v. Harrison, 1 Keen 765;
430, 43 Am. Deo, 754; Fuller v. Thompson v. Nelson, 1 Cox 447.
DOCTRINE OF ELECTION. 1183
therein of the testator ;i* likewise where the testator de-
vises only his "interest" in the property.^®
But a specific devise of land in which the testator has
an undivided interest will put the other owners to their
election.^" The intention of the testator to dispose of a
larger interest in property than properly belongs to him
can not be shown by parol ;-^ but, of course, the context
of the will may be examined to determine his intent.^-
And if the provisions of the will show that the testator
intended to dispose not only of his own interest in the
property, but of the interest of the donee as well, a case
arises calling for an election.^*
§ 817. Doctrine of Election Founded on Equitable Principles.
One cardinal principle regarding election is that the
donee named in the will, whose property has been dis-
posed of by that instrument, can not take both his
property and the benefit conferred by the will tmless the
18 Ellis V. Lewis, 3 Hare 310, 20 Isler v. Isler, 88 N. C. 576, 581.
315; Bending v. Bending, 3 Kay 21 Stratton v. Best, 1 Ves. Jun.
& J. 257, 261; Seaman v. Woods, 285; Blake v. Bunbury, 1 Ves.
24 Beav. 372; Miller v. Thurgood, Jun. 514, 523; Pole v. Somers, 6
33 Beav. 496; Blake v. Bunbury, Ves. Jun. 309, 322; Druce v. Den-
4 Bro. C. C. 21; Sherman v. Lewis, nison, 6 Ves. Jun. 385, 402; Doe
44 Minn. 107, 46 N. W. 318; Pratt v. Chichester, 4 Dow. 76; Clement-
V. Douglas, 38 N. J. Eq. 516, 537; son v. Gandy, 1 Keen 309.
Sanford v. Jackson, 10 Paige Contra: Pulteney v. Darlington,
(N. Y.) 266; Charch v. Charch, 2 Ves. Jun. 544. See, also, Fitz-
57 Ohio St. 561, 49 N. E. 408; hugh v. Hubbard, 41 Ark. 64
Gibony v. Hutcheson, 20 Tex. Civ. Baily v. Duncan, 4 Mon. 265, 266
App. 581, 50 S. W. 648; Penn v, 22 Swan v. Holmes, 19 Beav. 471
Guggenheimer, 76 W. Va. 839. 23 Honywood v. Forster, 30 Beav
See § 821. 14; McGregor v. McGregor, 20
x9In re Durfee's Petition, 14 Grant Ch. (U. C.) 450; Matter of
R. I. 47. See, also, Welby v. Gotzian, 34 Minn. 159, 57 Am. Rep.
Welby, 2 Ves. & B. 187; Wintour 43, 24 N. W. 920; Skaggs v. Des-
v. Clifton, 21 Beav. 447. kin, (Tex. Civ.) 66 S. W. 793.
3184 COMMENTARIES ON THE LAW OF WILLS.
constraction of that document shows the testator so in-
tended. The earlier cases held that the doctrine was
founded upon the intent of the testator that his entire will
should stand or that, if the donee whose property had
been disposed of should claim his statutory rights, the
donee would forfeit the testamentary benefits.^* But the
intention of the testator can not be the controlling factor
in a case where he has made a gift of the property of
another under the belief that it belonged to him.^^ It is
often said by the courts that the testator is presumed to
know, and therefore his intention is assumed although it
did not in fact exist ;^® however, evidence dehors the will
is never admitted either to prove or refute intention. ^^
The doctrine of election in fact has become a rule of law.
The testator's intention, when expressed, is controlling,^*
and in most cases it will perhaps be carried out. But the
real foundation of the doctrine is in equity, "that he who
seeks equity must do equity"; that if one seeks rights
adverse to a will, he must recognize the rights of others
under the same instrument. The electing donee by claim-
ing his statutory rights can not deprive other benefi-
ciaries of benefits given them, and at the same time de-
mand the property left him by the will.^' The principle,
24 Greenwood V. Penny, 12 Beav. 675; Gilroy v. Richards, 26 Tex.
406; Broome v. Monck, 10 Ves. Civ. App. 355, 63 S. W. 664.
Jun. 597, 609; Thellusson v. Wood- 27 See § 814.
ford, 13 Ves. Jun. 209; Cowper v. ^sln re Vardon's Trusts, 31 Ch.
Scott, 3 P. Wms. 119; Sugden on ^'^^ 2'^^' 279-
Powers, (StUed.) 575. 29 Cooper v. Cooper, L. R. 7
25 Cooper V. Cooper, L. R. 7
H. L. 67; Barrier v. Kelly, 82 Miss.
233, 62 L. R. A. 421, 33 So. 974;
H. L. 74; MoGinnls v. McGinnis, ^^^^^^ ^_ j^^^^^j,^ ^^^ ^^^ ^^^
1 Ga. 496, 503. il3, 131 S. W. 761; Penn v. Gug-
26 Havens v. Sackett, 15 N. Y. genhelmer, 76 Va. 839.
365, 373; Tripp v. Nobles, 136 "The doctrine of election rests
N. C. 99, 67 L. R. A. 449, 48 S. E. upon the principle that he who
DOCTRINE OF ELECTION. 1185
however, is one of compensation to the beneficiaries who
are disappointed because of the action of the party elect-
ing against the will, rather than one of forfeiture by the
one claiming his statutory rights.*" Accordingly, after the
losses of the beneficiaries whose gifts have been taken
away because of the election against the will have been
satisfied out of the property given by the will to the donee
so electing, any surplus that may remain does not de-
volve as an undisposed of residue, but belongs to the elect-
ing donee.*^
§ 818. Nature of Cases Calling for Election.
A case which will serve to illustrate the doctrine of elec-
tion was one where a debt owing the testator had been
assigned by him to his sister. By his will he left to his
sister all the remainder of his property, and to his debtor
he bequeathed the full amount of the debtor's indebted-
ness to him. Here the testator had undertaken to dispose
of a chose in action belonging to his sister; yet as at
the same time he had given her his whole estate, her con-
science was held to be affected by the implied condition
seeks equity must do it, and 31 L. R. A. 842, 34 S. W. 417.
means, as the term is ordinarily 31 2 Story, Eg. Juris., § 1085;
used, that when two inconsistent Cooper v. Cooper, L. R. 6 Ch. App.
or alternative rights or claims are 15; RancllfCe v. Parkyns, 6 Dow.
presented to the choice of a party, 149. ^er v. Wauchope, 1 Bligh 1;
by a person who manifests a clear ^^.g^^ ^ ^^^^^^ 3 Mer. 86; Gretton
intention that he should not enjoy
both, then he must accept or re-
ject one or the other; and so, in
other words, that one can not take
a benefit under an instrument and Sandoe's Appeal, 65 Pa. St. 314.
then repudiate it."— Peters V. Bain, Compare: Bristow v. Warde, 2
133 U. S. 670, 695, 33 L. Ed. 696, Ves. Jun. 336; Box v. Barrett, L. R.
10 Sup. Ct. 354. 3 Eq. 244; Lewis v. Lewis, 13 Pa.
80 Latta V. Brown, 96 Tenn. 343, St. 79, 53 Am. Dec. 443. See § 837.
II Com. on Wills— 21
V. Haward, 1 Swanst. 409; Ga.
Code, (1882) §3162; Jennings v.
Jennings, 21 Ohio St. 56, 81; In re
1186 COMMENTARIES ON THE LAW OP WILLS.
annexed to the testator's bounty so that, while availing
herself of the will in one direction, she should not defeat
its operation in another.^^ Election, however, is most fre-
quently illustrated by those cases in which the testator
disposes of real estate in such terms as to indicate an
intention to include the dower right of his wife in the
devise, and in the same will confers some benefit upon
his wife. In such cases the wife is required to choose
between the relinquishment of her dower and the accept-
ance of the bequest given in lieu thereof.
§ 819. Manner in Which Intent to Put Widow to Her Election
Must Be Expressed.
A common instance of election is where a testator makes
a devise or legacy in favor of his wife, expressing the
fact that the gift is made in lieu of dower. In such a case
the widow is put to her election, the expressed intention of
the testator being controlling. Difficulty arises, however,
in those cases where the intention of the testator is not
set forth in direct terms. The mere fact that he may
make a bequest or devise in favor of his wife will not
preclude her from taking under the will and demanding
her dower as well unless her claim for dower be incon-
sistent with and operates to defeat the general provi-
sions of or the scheme of disposition set forth in the
Avill.^^ In the absence of express words that a benefit
32 FItzhugh V. Hubbard, 41 Ark. In Kennedy v. Nedrow, 1 DaU.
64, 69. (U. S.) 415, 418, 1 L. Ed. 202, Chief
33 Metteer v. Wiley, 34 Iowa Justice McKean says that to bar
214; Howard v. Watson, 76 Iowa the widow of dower, "it must ap-
230, 41 N. W. 45; Sutherland v. pear to be so intended by the
Sutherland, 102 Iowa 535, 63 Am, words of the will, and not inferred
St. Rep. 477, 71 N. W. 424; Matter from its silence, or presumed upon
of Gorden, 178 N. Y. 25, 92 Am. St. conjecture: for, no devise to a
Rep. 689, 64 N. B. 753. wife, even of 'an estate In fee
DOCTRINE OF ELECTION.
1187
conferred upon his wife by the testator in his will is in
lieu of dower, to preclude her from taking both, the face
of the will must clearly demonstrate the intention of the
testator to the contrary. Such intention is shown only
Avhen it clearly appears without ambiguity or doubt that
to permit the widow to claim both dower and the benefits
given under the will would interfere with the other dis-
positions made by the testator and disturb the scheme
of distribution manifested in the will. The claim of
dower and the right to take under the will must be
clearly incompatible and such incompatibility must ap-
pear from the face of the will.^* The widow is .not put
simple, although ten times more
valuable than her dower, will be,
of itself, a bar to dower; but, it
will be considered as a benevo-
lence, and she is entitled to both.
Nor, in such a case, will equity
interpose against the wife; for I
can not find any instances in
which relief upon this subject has
been given but in the following:
1st. Where the implication that
she shall not have both the devise
and the dower is strong and neces-
sary; 2dly. Where the devise is
entirely inconsistent with the
claim of dower; and 3dly. Where
it would prevent the whole will
from taking effect; that is, where
the claim of dower would over-
turn the will in toto."
In Howard v. Watson, 76 Iowa
230, 41 N. W. 45, it is said: "The
devise to the defendant is an es-
tate for life, and It has been held
that a widow 'may take dower,
notwithstanding a devise to her
in the will, unless there is an
express provision in the will to the
contrary, and the claim for dower
be inconsistent with and will de-
feat some provision of the will." "
In Smith v. Kniskern, 4 Johns.
Ch. (N. Y.) 9, Chancellor Kent laid
down the rule that the widow
takes both her dower and under
the will unless the estate Is in-
sufficient to support both, or such
an inconsistency appears between
the provisions in the will and the
dower as to make the Intention
clear and indubitable that both
provisions were not to be taken.
To the same effect, see Fuller v.
Yates, 8 Paige Ch. (N. Y.) 325;
Sandford v. Jackson, 10 Paige Ch.
(N. Y.) 266.
34 Birmingham v. Kirwan, 2
Schoales & L. 444, 452; Matter of
Zahrt, 94 N. Y. 605; Konvalinka
v. Schlegel, 104 N. Y. 125, 58 Am.
Rep. 494, 9 N. E. 868; Asche v.
Asche, 113 N. Y. 232, 21 N. E. 70.
In Tobias v. Ketchum, 32 N. Y.
319, 324, the test given is that the
1188 COMMENTARIES ON THE LAW OP WILLS.
to her election unless it clearly appears from the will
that the provision made for her was intended as a sub-
stitute for that to which she was entitled by law. The
intention need not be declared in express words, how-
ever, but may be implied if the claim for dower is plainly
inconsistent with the will.^"
§ 820. The Same Subject.
Although the widow's right to dower is favored by the
law, yet the right to both dower and a testamentary
gift in her favor must yield to the intention of the tes-
tator whether expressly stated or clearly implied. In a
case of reasonable doubt the widow will be held entitled
to both ; but when the intention of the testator is clearly
to the contrary, she will be put to her election. This in-
tention must appear from the face of the will, read in
the light of existing facts.** Such intention is not by
devise of the will "be so repug- the instrument must contain some
nant to the claim of dower that provision inconsistent with the as-
they can not stand together." sertion of a right to demand a
In Vernon v. Vernon, 53 N. Y. third of the lands to be set out
357, 361, it was declared that by metes and bounds."
dower is not barred "unless the A manifest incompatibility must
claim of dower is inconsistent exist whenever the will contains
with some other disposition of or provisions so inconsistent with the
arrangement made by the testator right of dower that if the widow
in respect to his property, thereby had the benefit of both, it would
showing an intention to substitute defeat the intention of the testa-
the testamentary gift for the pro- tor. — Matter of Gorden, 172 N. Y.
vision which the law makes for 25, 92 Am. St. Rep. 689, 64 N. E.
her." The court then repeated 753.
with apparent approval the follow- 35 Savage v. Burnham, 17 N. Y.
ing declaration of Lord Redes- 561, 577.
dale, in Birmingham v. Kirwan, 2 36 Adsit v. Adsit, 2 Johns. Ch.
Schoales & L. 444, 452: "The 448, 451. In this case there was
result of all of the cases of im- no express provision excluding the
plied intention seems to be that widow from her dower, and Chan-
DOCTRINE OP ELECTION.
1189
the mere fact, standing alone, that the testator limits a
devise to his wife for life, or as long as she remains his
widow, and at her death, or on her marriage, the estate
to be equally divided between the testator's heirs. In
such a case it is held that the widow's election to take
under the will does not defeat her right of dower.*^
§ 821. The Same Subject: No Absolute Rule.
No general rule can be laid down by which it can be
absolutely declared what particular provisions of a will
necessarily imply an intention on the part of the testator
to exclude his widow from her right of dower, but each
case must be determined for itself upon a consideration
of the terms used in the will. It has been said that the
statutory right of dower is beyond the control of or dis-
cellor Kent held she was entitled
to take hoth her dower and the
benefits under the will.
If a provision for a wife in the
will is not expressly stated to be
in lieu of dower, in order to ascer-
tain whether it was so intended by
the testator, it is essential that
his circumstances, the extent of
his property and liabilities, and
all the facts likely to influence him
in the disposition of his estate,
should be inquired into and made
known. — Tracey v. Shumate, 22
W. Va. 474, 499; Atkinson v. Sut-
ton, 23 W. Va. 197.
37 Sully V. Nebergall, 30 Iowa
340. To the same effect, see Met-
teer v. Wiley, 34 Iowa 214; Wat-
rous V. Winn, 37 Iowa 72; Potter
V. Worley, 57 Iowa 67, 7 N. W.
685, 10 N. W. 298; Daugherty v.
Daugherty, 69 Iowa 679, 29 N. W.
778; Parker v. Hayden, 84 Iowa
493, 495, 51 N. W. 248.
A widow's dower may be barred
by her accepting a provision dur-
ing widowhood only. — O'Harrow v.
Whitney, 85 Ind. 140.
In the absence of provisions to
the contrary in the will, dower
must be allowed unless to do so
would be "inconsistent with and
will defeat some of the provisions
of the will." — Richards v. Rich-
ards, 90 Iowa 606, 58 N. W. 926.
This inconsistency must be such
as to disturb, defeat, interrupt, or
disappoint some provision of the
will. — Corriell v. Ham, 2 Iowa 552,
557; Hunter v. Hunter, 95 Iowa
728, 58 Am. St. Rep. 455, 64 N. W.
656.
1190
COMMENTAEIES ON THE LAW OF WILLS.
position by the husband ; that it is a legal right, and that
a devise in favor of the widow can not be held to be in
lien of dower unless expressly so declared or manifestly
repugnant to such claim.^*
In an early leading case the devise was as follows : "I
give my dear wife and my two children all my estates
whatsoever, to be equally divided among them, whether
real or personal." The testator afterward specified the
property devised. It was held that this disposition was
totally inconsistent with the claim of dower, it being
said: "The testator directing all his real and personal
38 Hair V. Goldsmith, 22 S. C.
566, by a divided court.
Under a statute enacting that a
conveyance or devise by way of
"jointure" may bar the wife's
dower, the word "jointure" Is con-
strued to mean such an estate as
may be conveyed or devised to
the wife in lieu of dower; and
that to operate as a satisfaction
of dower. It must have been so In-
tended by the husband. — ^Ky. Genl.
Stats., ch. 52, art. 4, § 6; Pepper
v. Thomas, 85 Ky. 539, 4 S. W. 297.
Homestead. — While a husband
and father can not deprive his
widow and minor children of their
homestead right, the provisions of
his win might be so clearly ex-
pressed to be In lieu of homestead
that his widow would be compelled
to choose which she would take,
and by electing to take the former,
renounce the latter. But "the In-
tent to exclude the widow from
her legal right must clearly ap-
pear; If It be doubtful, she Is not
to be excluded. It is not neces-
sary that this should appear in
express • words. If the terms of
the instrument clearly and plainly
imply it, if there are provisions
io the will which are inconsistent
with the intent of allowing her
the homestead, then the court will
find the intent to exclude." —
Meech v. Estate of Meech, 37 Vt.
414.
Dower and homestead are for
the same general object, and both
are highly favored in the law. The
former may be, but the latter can
not be, defeated by the husband's
sole deed. A widow's right of
dower becomes a present vested
estate on the decease of the hus-
band and does not depend on the
contingency of the dower being
assigned or set out. It Is con-
summate by the husband's death.
In this respect homestead and
dower stand alike. — Grant v. Par-
ham, 15 Vt. 649; Gorham v. Dan-
iels, 23 Vt. 600; Dummerston v.
Newfane, 37 Vt. 9.
DOCTRINE OF ELE0TI02Sr. 1191
estate to be divided equally, the same quality is intended
to take place in the division of the real as of the per-
sonal estate, which can not be if the widow takes out of
it her dower and then a third of the remaining two-
thirds."^® This rule has been approved,*" although at
variance with the principle that a testator is not pre-
sumed to have intended to dispose of property which he
did not own.*^
On the other hand, inasmuch as the testator is pre-
sumed not to have intended to dispose of a larger interest
in the subject of devise than was properly his own, a
widow who accepts a provision under her husband's
will is not required to relinquish her dower, unless, either
from express statement or necessary inference, the pro-
vision for her is clearly intended to be in lieu of dower,
or the terms in which the lands have been devised are
clearly and manifestly repugnant to the assertion of her
dower right in them.*^ Some decisions, however, have
39 Sir William Grant, M. R., in 4i See §§ 815, 816.
Chalmers v. Storil, '2 Ves. & B. 42 Kennedy v. Nedrow, 1 Dall.
222. (U. S.) 415, 1 L. Ed. 202; Parker
40 Dickson v. Robinson, Jacob v. Sowerby, 4 De Gex, M. & G.
503; Roberts v. Smitb, 1 Sim. & 321; Ambler v. Norton, 4 Hen.
St. 513; Reynolds v. Torin, 1 Russ. & M. (Va.) 23; Lord v. Lord, 23
129; Goodfellow v. Goodfellow, 18 Conn. 327; Burkhalter v. Burk-
Beav. 356; Thompson v. Burra, halter, 88 Ind. 368; Estate of Got-
L. R. 16 Eq. 592, 602; Colgate's zian, 34 Minn. 159, 57 Am. Rep. 43,
Exr. V. Colgate, 23 N. J. Eq. 372; 24 N. W. 920; Fulton v. Fulton,
Bailey v. Boyce, 4 Strob. Eq. 30 Miss. 586; Norris v. Clark, 10
(S. C.) 84. N. J. Eq. 51; Bull v. Church, 5
Contra: A direction that the es- Hill (N. Y.) 206; Dodge v. Dodge,
tate be equally divided between 31 Barb. (N. Y.) 413; Palmer v.
the doweress and others is not Voorhis, 35 Barb. (N. Y.) 479;
inconsistent with her right of Savage v. Bumham, 17 N. Y. 561,
dower. — Konvalinka v. Schlegel, 571; In re Frazer, 92 N. Y. 239;
39 Hun (N. Y.) 451; s. c, 104 N. Y. Shaw's Devisees v. Shaw's Admr.,
125, 58 Am. Rep. 494, 9 N. E. 868. 2 Dana (32 Ky.) 342; Meech v.
1192 COMMENTARIES ON THE LAW OP WILLS.
reversed tlie presumption and held that a widow can not
take botli her dower and the benefits conferred by the
will unless it was clearly so intended by the testator.**
§ 822. Gifts in Trust, of Life Estates, or of Income.
The right of dower carries with it the right of man-
agement and control by the widow during her life of the
one-third allotted to her. A mere power of sale to be
promptly exercised and for the purpose of distribution
only, would not put the widow to her election.** But if
the testator devises the bulk of his property to trustees
who have not only the power of sale, but also the power
to reinvest the proceeds and to manage and control the
property, merely paying the annual income to the widow,
such a trust is incompatible with the widow's right to
manage and control her dower allotment.*®
Estate of Meech, 37 Vt. 414; Hig- 45 Asche v. Asche, 113 N. Y. 232,
ginbotham v. Cornwell, 8 Gratt. 21 N. B. 70.
(Va.) 83, 56 Am. Dec. 130; Tracey When a testator devises all his
V. Shumate, 22 W. Va. 474-499. real property, constituting the
See §§ 815, 816. bulk of his estate, to trustees until
•43 Ragsdale v. Parrish, 74 Ind. his youngest child, about one year
191; Wilson v. Moore, 86 Ind. 244; old, shall become of age and di-
Allen V. Pray, 12 Me. (3 Fairf.) rects that one-third of the net
138; Reed v. Dickerman, 12 Pick, income, after paying expenses, in-
(29 Mass.) 146, 149; Mass. Gen. eluding insurance and repairs, be
Stats., ch. 29, §24; Staigg v. At- paid to the widow, and the other
kinson, 144 Mass. 564, 12 N. E. 354. two-thirds expended for the sup-
44 Gibson v. Gibson, 1 Drew. 42; port and education of his children.
Bending v. Bending, 3 Kay & J, and, upon the expiration of the
257; Ellis T. Lewis, 3 Hare 310, trust, one-third to be conveyed to
313; Colgate's Exr. v. Colgate, 23 the widow during her life or
N. J. Bq. 372, 379; Konvalinka v. widowhood, and the other two-
Schlegel, 104 N. Y. 125, 130, 58 Am. thirds to his children, there is a
Rep. 494, 9 N. E. 868. manifest Incompatibility between
Compare: Vernon v. Vernon, 53 the provisions of the will and a
N. Y. 352. claim of dower. By allowing the
DOCTEINE OP ELECTION.
1193
Where a provision is made for the testator's widow
which is inconsistent with her right to claim dower, al-
though the will does not state that the provision is made
in lieu of dower, she will be required to elect.** Thus, a
deAdse of the whole property to the wife for life upon
the payment of a certain rent per acre, with directions
to keep the house in repair and not to alien except to the
remainderman;*'' the gift of an annuity and the use of
the homestead;** a trust to permit another to use, oc-
cupy, and enjoy the estate for her life;*® a direction to
trustees to carry on the business of the farm, or to
let, for the benefit of his daughter f a specific devise of
a particular piece of realty f^ and a power to trustees to
latter the scheme of the will
would be defeated, for that en-
trusts control and management
of the entire estate to trustees,
while the right to dower car-
ries with it the control and man-
agement of one-third of the realty
during the life of the dowager. —
Matter of Gorden, 172 N. Y. 25,
92 Am. St, Rep. 689, 64 N. E. 753.
46 Dickson v. Robinson, Jacob
503; Ellis v. Lewis, 3 Hare 310;
Adsit V. Adsit, 2 Johns. Ch. 448;
Smith V. Knlshkern, 4 Johns. Ch.
9; Arnold v. Kempstead, 2 Eden
237; Herbert v. Wren, 7 Cranch
(U. S.) 370, 3 L. Ed. 374; Warren
V. Morris, 4 Del. Ch. 289; Snyder
V. Miller, 67 Iowa 261, 25 N. W.
240; Shaw's Devisees v. Shaw's
Admr., 2 Dana (32 Ky.) 342;
Young V. Boyd, 64 How. Pr.
(N. Y.) 213; In re Zahrt, 94 N. Y.
605; Shotwell v. Sedham's Heirs,
3 Ohio 1; Gordon v. Stevens, 2
Hill Eq. (S. C.) 46, 48, 27 Am. Dec.
445; Hall v. Hall, 2 McCord Eq.
(S. C.) 269, 280; Van Steenwyck
v. Washburn, 59 Wis. 483, 48 Am.
Rep. 532, 17 N. W. 289.
47 Birmingham v. Kirwan, 2
Schoales & L. 444. See, also,
French v. Davies, 2 Ves. Jun. 576;
Strahan v. Sutton, 3 Ves. Jun. 249.
It is held that a devise of the
whole estate for life is not incon-
sistent with the widow's claim to
dower. — Potter v. Worley, 57 Iowa
66, 7 N. W. 685, 10 N. W. 298. See,
also, Blair v. Wilson, 57 Iowa 177,
10 N. W. 327.
48 Endicott v. Endicott, 41 N. J.
Eq. 93, 3 Atl. 157.
49 Miall v. Brain, 4 Madd. 119.
50 Butcher v. Kemp, 5 Madd. 61.
51 Parker v. Downing, 4 L. J.
Ch. N. S. 198 ; Miller v. Thurgood,
33 Beav. 496; Morrison v. Bow-
man, 29 Cal. 337, 349; Estate of
Gotzian, 34 Minn. 159, 57 Am. Rep.
1194 COMMENTARIES ON THE LAW OP WILLS.
lease tlie whole realty,^^ have been held to be inconsis-
tent with the widow's assertion of her claim to dower.
But a gift to the widow herself of a rent charge or annu-
ity out of lands is not repugnant to the assertion of her
claim to dower in the same lands ;°^ nor is a bequest to
her of the rents and profits of all the property, for the
purpose of fearing, clothing, and educating the testa-
tor's children;^* nor is a direction that if any portion
be left after paying debts it shall pass to the widow.^'
And where a husband who had assigned his property for
the benefit of creditors, expressly reserving the wife's
dower, subsequently devised property to her, it was'
decided that the devise was not to be taken as in lieu of
dower on the ground that as the purchaser at the sale
did not pay for the dower interest, it was not to be pre-
sumed that the husband intended by the subsequent de-
vise to take it away from his wife and thus allow it to
pass to the purchaser.^^
43, 24 N. W. 920; Pratt t. Doug- 1 Bro. C. C. 292, n.; Poster v.
lass, 38 N. J. Eq. 516, 537. Cooke, 3 Bro. C. C. 347. See, how-
52 Hall V. Hill, 1 Dru. & War. ever, Arnold v. Kempstead, Amb.
94; O'Hara v. Chalne, 1 Jones & 466; Villareal v. Galway, Amb.
L. 662; Grayson v. Deakin, 3 682; Jones v. Collier, Amb. 730;
De Gex & S. 298; Parker v. Sow- Wake v. Wake, 3 Bro. C. C. 255.
erby, 1 Drew. 488; Linley v. Tay-
lor, 1 Glff. 67.
53 French v. Davies, 2 Ves. Jun.
572; Greatorex v. Gary, 6 Ves.
Jun. 615; Holdich v. Holdich, 2
You. & C. Ch. 18; Lowes v. Lowes,
5 Hare 501; Hall v. Hill, 1 Dru.
6 War. 94, 103; Dowson v. Bell, B5 Nelson's Admr. v. Kownslar's
1 Keen 761; Miall v. Brain, 4 ^^^■' '^ ^^- ^^S-
Madd. 119; Pearson v. Pearson, bb Pepper v. Thomas, 85 Ky. 539,
1 Bro. C. C. 291; Pitts v. Snowden, 4 S. W. 297.
54 And she was entitled to have
her dower set apart to her at
once without relinquishing her
trust in the remainder. — ^Rittgers
V. Rittgers, 56 Iowa 218, 9 N. W.
188.
DOCTRINE OF ELECTION. 1195
§ 823. Bight of Election Is Personal : Reasons for Election Im-
material.
The doctrine of election does not apply to creditors. If
a testator in his will appropriates for the payment of his
debts certain property which is not liable therefor, and
by the same instrument gives to other persons property
which Tinder the law is liable for the payment of his
debts, a creditor of the testator may proceed against
the latter-mentioned property, although subversive of the
testator's directions, without releasing his claim against
the property charged for the payment of debts.®''
The right of a donee under a will wherein his property
has been disposed of to another, to elect to stand on his
statutory rights or to take under the will, is personal
to such donee. This right can not be controlled by the
creditors, personal representatives of the donee, or the
court. It might be to the advantage of a creditor to com-
pel a donee to disclaim a devise in his favor and to take
under the statute. Likewise it might be of advantage to
the heirs of a deceased devisee to allow his personal
representatives to exercise the privilege. But the gen-
eral rule is that the right of election can be exercised
only by the donee during his lifetime unless he is labor-
ing under such disability as would authorize tlie court to
make the election for him.^* And this right of election
57Deg V. Deg, 2 P. Wms. 412; S. W. 1098; Bains v. Globe Bank
Clark V. Guise, 2 Ves. Sen. 617; & Tr. Co., 136 Ky. 332, 136 Am. St.
Kidney t. Coussmaker, 12 Ves. Rep. 263, 124 S. W. 343; Millikin
Jun. 136. V. Welliver, 37 Ohio St. 460; Page
68 Fosher v. Guilliams, 120 Ind. v. Eldredge, 69 N. H. 575, 45 Atl.
172, 22 N. E. 118; Bottom v. Fultz, 411; In re Crozier's Appeal, 90
124 Ky. 302, 98 S. W. 1037; Hard- Pa. St. 384, 35 Am. Rep. 666;
ing's Admr. v. Harding's Exr., 140 Church v. McLaren, 85 Wis. 122,
Ky. 277, Ann. Cas. 1912B, 526, 130 55 N. W. 152.
1196 COMMENTAEIES ON THE LAW OP WILLS.
does not depend upon the value of the benefit conferred
by the will. Although the benefit may be many times
greater than the statutory right, yet the donee may re-
nounce the will ; and likewise he may take uilder the will
even though the gift be very much less than his interest
in the property disposed of by the testator. An election
properly made is final, and the court can not question
its validity by inquiring into the reasons therefor.^®
§ 824. The Same Subject : Creditors Can Not Force Survivor to
Claim Statutory Rights as Against the Will.
It has been argued that the right of a husband or wife
to an estate by curtesy or of dower in the real property
of the other vests immediately in the survivor. This,
however, is not a correct statement; if either the hus-
band or wife in his or her will confers a benefit therein
on the other and at the same time disposes of property in
which such other has an interest, the vested right which
the survivor has is the choice between the statutory
rights and the benefits under the Mill.'"' Either a husband
or wife may dispose of his or her property by will as he
or she may desire, limited only by legal disabilities im~
posed. Either has the right to make a will wherein the
right of the other by curtesy or of dower is cut off, sub-
ject only to the right of the survivor to renounce the will
and insist upon his or her statutory claim. This may
leave the survivor with no property out of which the
claims of the creditors may be satisfied ; nevertheless the
59 McCallister v. Brand's Heirs, N. W. 685, 10 N. W. 298; Pieken-
11 B. Mon. (Ky.) 370; In re brock & Sons v. Knoer, 136 Iowa
Powell's Estate, 225 Pa, St. 518, 534, 114 N. W. 200; Gamer v.
74 Atl. 421. Wills, 92 Ky. 386, 388, 17 S. W.
60 Shields V. Keys, 24 Iowa 298; 1023; Bottom v. Fultz, 124 Ky,
Potter V. Worley, 57 Iowa 66, 7 302, 98 S. W. 1037.
DOCTRINE OF ELECTION. 1197
creditors will not be heard to complain should the sur-
vivor elect to take under the will. This rule applies in
all cases where the property of the decedent testator is
not liable for the debts of the survivor. If the creditors
of the survivor could not have proceeded against the
property of the decedent during the lifetime of the de-
cedent, they can not compel the survivor to claim his or
her statutory rights in order that their demands may be
satisfied.^^
§ 825. Court May Make Election for Donee If He Be Alive but
Incapable of Acting.
Where the donee is incapable of acting for himself and
of making an election, such as being insane, the fact that
the right of election is personal does not interfere with
the power of the court to make the election if the donee
be alive. Neither does this power conflict with the prin-
ciple that the right of election dies with the donee.®^
Such election, when once made by the court, is conclu-
sive in all jurisdictions.®^ If the donee is incapable of
acting, the election can not be made by the next friend,®*
61 BrigMman v. Morgan, 111 Ann. Cas. 1914A, 440, 125 Pac. 88;
Iowa 481, 82 N. W. 954; Pieken- Nailer's Children v. Nailor, 4 Dana
brock & Sons v. Knoer, 136 Iowa (34 Ky.) 339; Bonnie's Guardian v.
534, 114 N. W. 200; Robertson v. Haldeman, 31 Ky. L. 522, 102
Sohard, 142 Iowa 500, 134 Am. St. S. W. 308; In re Andrews, 92 Mich.
Rep. 430, 119 N. W. 529; Garner 449, 17 L. R. A. 296, 52 N. W. 743;
V. Wills, 92 Ky. 386, 388, 17 S. W. Washburn v. Van Steenwyk, 32
1023; Hill v. Cornwall & Bros. Minn. 336, 20 N. W. 324; Wright
Assignee, 95 Ky. 512, 26 S. W. v. West, 2 Lea (70 Tenn.) 78, 31
540; Townsend's Assignee v. Am. Rep. 586; Van Steenwyck v.
Townsend, 127 Ky. 230, 16 L. R. A. Washburn, 69 Wis. 483, 48 Am.
(N. S.) 316, 105 S. W. 379; Bains Rep. 532, 17 N. W. 289.
V. Globe Bank & Tr. Co., 136 Ky. 63 Washburn v. Van Steenwyk,
332, 136 Am. St. Rep. 263, 124 32 Minn. 336, 20 N. W. 324.
S. W. 343. 64 Crenshaw v. Carpenter,' 69
62 Martin V. Battey, 87 Kan. 582, Ala. 572, 44 Am. Rep. 539; Cro-
1198 COMMENTAEIES ON THE LAW OF WILLS,
it must be made by tlie court acting for the best interests
of the donee.^®
§ 826. Acts Constituting Election.
Election may be made in either of two ways : As a mat-
ter of record, or by acts amounting to an estoppel.*^® The
former is regulated by statute, and the various acts must
be referred to.®^ Many statutes prescribe the time within
which the election must be made. As to election by rea-
son of actions on the part of the donee, if they are clear
and unequivocable and done with the full knowledge of
all the circumstances and of the rights under the will,
there is small room for controversy. But although an
election may be a matter of fact, yet there is a difference
between waiving rights under the will and waiving a
statutory right such as dower. It will not be held that a
widow has waived her rights under the law by reason of
actions on her part unless they were of such marked
character and of such long duration as to clearly indi-
cate a purpose on her part to take under the provisions
of the will, and she must act with a full knowledge of her
rights both by statute and under the will, and of the true
condition of the estate.®^
zier's Appeal, 90 Pa. St. 384, 35 440; Millikin v. Welliver, 37 Ohio
Am. Rep. 666. See, also, Millikin St. 460.
T. WelliTer, 37 Ohio St. 460. 67 In some of the states having
Election may he made by the laws on the subject, if a widow
guardian of an insane person with does not elect to waive the will
the approval of the court. — Hardy within a certain time, she will be
V. Richards, 98 Miss. 625, 35 deemed to have accepted it; but
L. R. A. (N. S.) 1210, 54 So. 76. in other states she is deemed to
65 Van Steenwyck v. Washburn, have chosen her intestate share
59 Wis. 483, 48 Am. Rep. 532, 17 unless she elects to take under the
N. W. 289. will within a limited time.— Stlm-
66 Forester v. Watford, 67 Ga. son's Am. Stat. Law, §. 3265.
508; Davidson v. Davis, 86 Mo. 68 Matter of Smith, 108 Cal. 115,
DOCTRINE OF ELECTION.
1199
§827. Election Made Through Ignorance, Fraud or Mistake
May Be Repudiated.
An election made in ignorance of facts which might in-
fluence the choice is not binding,^® although an intelligent
dissent to the will is final.''° An election made in ig-
norance may be recalled at any time before the final dis-
tribution of the estate.''^ But after dower has been as-
signed and the estate settled, the proceedings can not be
set aside in the absence of fraud or mistake.''^ Neverthe-
less, even where it is provided by statute''* that, unless
the widow elect within a year against the will, she shall
be deemed to have elected to take under it, the court
may allow her after the expiration of the time to take
against the will where it appears that her failure to act
121, 40 Pac. 1037; Benedict v. Wll-
marth, 46 Fla. 535, 4 Ann. Cas.
1033, 35 So. 84; Forester v. Wat-
ford, 67 Ga. 508; Haynie v. Dick-
ens, 68 m. 267; Clark v. Middles-
worth, 82 Ind. 240; Wilson v. Wil-
son, 145 Ind. 659, 44 N. E. 665;
Shaw's Devisees v. Shaw's Admr.,
2 Dana (32 Ky.) 341; Clay v. Hart,
7 Dana (37 Ky.) 1, 6; Exchange
etc. Bank v. Stone, 80 Ky. 109;
Reed v. Dickerman, 12 Pick. (29
Mass.) 146; Delay v. Vinal, 1 Mete.
(42 Mass.) 57, 65; Hovey v. Hovey,
61 N. H. 599; Stark v. Hunton,
1 N. J. Eq. 216, 227; English v.
English's Exrs., 3 N. J. Bq. 504,
29 Am. Dec. 730; Cory's Exr. v.
Cory's Admr., 37 N. J. Eq. 198, 201;
Millikin v. Welliver, 37 Ohio St.
460, 467; Colored Industrial School
V. Bates, 90 Ohio St. 288, Ann. Cas.
1916C, 1198, 107 N. E. 770; Caston
V. Caston, 2 Rich. Bq. (S. C.) 1;
Craig's Heirs v. Walthall, 14 Gratt.
(Va.) 518, 525; Rutherford v.
Mayo, 76 Va. 117; Cooper v.
Cooper's Exr., 77 Va. 198, 205.
69 Kidney v. Coussmaker, 12 Ves.
Jun. 136; Evans' Appeal, 51 Conn.
435; Cowdry v. Hitchcock, 103 111.
262; Sill v. Sill, 31 Kan. 248, 1 Pac.
556; Hall v. Hall, 2 McCord Eq.
(S. C.) 269, 280; Snelgrove v. Snel-
grove, 4 Desaus. Eq. (S. C.) 274.
70 Cannon v. Apperson, 14 Lea
(82 Tenn.) 553.
71 Evans' Appeal, 51 Conn. 435. '
72 Kennedy v. Nedrow, 1 Dall.
(U. S.) 415, 1 L. Ed. 202; Pigott v.
Bagley, McClel. & T. 569 ; Stark v.
Hunton, 1 N. J. Eq. 216; Quarles
V. Garrett, 4 Desaus. Eq. (S. C.)
146; XJpshaw v. Upshaw, 2 Hen.
& M. (Va.) 381, 3 Am. Dec. 632.
73 1 N. Y. Rev. Stats. 741,
§U3, 14.
1200 COMMENTARIES ON THE LAW OF WILLS.
in the matter was due to the false representations of her
husband's heirs as to the value of the estate.''*
The fact that a widow without full knowledge of her
rights paid her husband's debts and controlled his estate
for five months after his death, is not equivalent to an
election.''^ So where the creditors refused to give the
widow information concerning the estate and there was
no inventory thereof, an action brought by her to recover
the legacies will not constitute an election to take them
in lieu of dower unless she succeeds in. recovering themJ®
§ 828. Election by Estoppel.
Election by estoppel may arise where the party having
the right of election and acting with knowledge of his
rights and not because of ignorance, fraud or mistake,
deals with the property as his own, exercises acts of own-
ership over it, or conveys it to another.'''^ Under the con-
ditions just mentioned, election by estoppel will likewise
arise by a widow joining in a conveyance by the executor
with no stipulation in regard to dower''* by an entry upon
the lands or a suit for dower, from the use and enjoy-
74 Akin V. Kellogg, 39 Hun 123 N. W. 174; Gusler v. Miller,
(N. Y.) 252, reversing, s. c, 16 10 Lea (78 Tenn.) 90.
Abb. N. C. 265 (Bockes, J., dis- A widow may have relinquished
senting). her dower for a valuable consld-
75 MiUikin V. Welliver, 37 Ohio ^''^""'^ ^^ contract with her hus-
St. 460. See, also, Churchill v. ^^""^ ^"^ ^^^ lifetime, which being
Bee, 66 Ga. 621, 632. referred to in the will is equiva-
lent to a provision for her in lieu
76 Johnston V. Duncan, 67 Ga. 61. ^f dower. But her statutory right
77 Clark V. Middlesworth, 82 to elect Is not taken from her by
Ind. 240. See, also. Matter of such a contract. — Ex parte Wilber,
Smith, 108 Cal. 115, 121, 40 Pac. 52 Wis. 295, 9 N. W. 162 ; Wilber v.
1037; Benedict v. Wilmarth, 46 Wilber, 52 Wis. 298, 9 N. W. 163.
Fla. 535, 4 Ann. Cas. 1033, 35 So. 78 Warren v. Morris, 4 Del. Ch.
84; Koep v. Koep, 146 Iowa 179, 289.
DOCTRINE OF ELECTION. 1201
ment of the provisions under the will, and from various
other acts or omissions.'^^ Election to take under the will
may be presumed also from laches.*" So, too, enjoying
for a number of years the possession of property clearly
intended to be in lieu of dower will bar the assertion of
a claim thereto.®^ But an agreement relating to the man-
agement of the estate does not amount to an election
on the part of a widow ;*^ and a claim to an estate to
which she is not entitled, made by a widow in ignorance
of the facts, is not paramount to an election.*^ Where
there are several co-beneficiaries, the acceptance by one
of a legacy under the will does not estop the others from
contesting the instrument.^*
Where facts are relied upon to establish election by
estoppel, such as apparent acquiescence in the provi-
sions of the will, the inference raised may be rebutted,
and even long acquiescence is not conclusive.*^ Mere ac-
quiescence without intelligent choice is not an election.*®
Fraud, mistake or ignorance, as before stated, are
grounds for setting an election aside;*'' and the same is
79 Wake V. Wake, 1 Ves. Jun. 117; Penn v. Guggenheimer, 76 Va.
335; Pearson v. Pearson, 1 Bro. 839; Hoggard v. Jordan, 140 N. C.
C. C. 292; Shaw's Devisees v. 610, 6 Ann. Cas. 332, 4 L. R. A.
Shaw's Admr., 2 Dana (32 Ky.) (N. S.) 1065, 53 S. E. 220.
342; Clay v. Hart, 7 Dana (37 Ky.) 82 Payton v. Bowen, 14 R. I. 375.
1, 6; Steele v. Fisher, 1 Edw. Ch. 33 p^y^^^ ^ ^^^^^^ ^4 ^ j 3^g
(N. Y.) 435; Wilson v. Hamilton,' „, , ^ ^ „„ , ^ .„„
„,„,,„,„ , 84 Floyd V. Floyd, 90 Ind. 130.
9 Serg, & R. (Pa.) 424; Quarles
V. Garrett, 4 Desaus. Eq. (S. C.) 85 Butricke v. Broadhurst, 1 Ves.
146; Watkins v. Watkins, 7 Terg. J^^- 1^1 1 Wake v. Wake, 1 Ves.
(15 Tenn.) 283; Blunt t. Gee, 5 J™- 335; Beaulleu v. Cardigan,
Call fVal 481 ^ Brown Pari. Cas. 277; Reynard
80 Blunt V. Gee, 5 Call (Va.) 481; "■ ^Pence, 4 Beav. 103.
Cooper V. Cooper's Exr.. 77 Va. se sill v. Sill, 31 Kan. 248, 1 Pac.
198. 556.
81 Rutherford v. Mayo, 76 Va. 87 See § 827.
II Com. on Wills — 22
1202 COMMENTARIES ON THE LAW OP WILLS.
true where the widow holds the property only by consent
of the heirs and not in her own right.**
§ 829. The Same Subject: Where the Widow Is Executrix.
A widow who has been named executrix in the will of
her husband may offer the will for probate. There is a
general rule that a trustee may assume the validity of the
trust under which he acts; also that a person can not
both accept and reject the same instrument, or, having
availed himself of part of it, defeat its other provisions.
This general rule is applicable to all instruments, wills
as well as deeds.*" The statute, however, generally allows
a given period, as twelve months, within which to make
an election. It would, therefore, be inconsistent with the
policy of the law to apply the rules strictly to a case
where a widow, for instance, had offered the will of her
husband for probate within a short time after his death, so
as to preclude her from thereafter demanding her statu-
tory rights.®" But if a widow who has been appointed ex-
ecutrix sells or mortgages the property of the estate and
treats it as assets, thus acting in a manner inconsistent
with a claim of dower, or if the rights of third parties
88 Phelps V. Phelps, 20 Pick. (37 89 Saunders v. Richard, 35 Fla.
Mass.) 556. See, also, O'Driscoll 28, 16 So. 679.
V. Roger, 2 Desaus. Eq. (S. C.) 8o Morrison v. Bowman, 29 Cal.
295, 299. 337; Estate of Silvey, 42 Cal. 210;
In Archer v. Barnes, 149 Iowa Estate of Frey, 52 Cal. 658; Matter
658, 128 N. W. 969, it was held of Givin, 77 Cal. 313, 19 Pac. 527;
that a widow's possession for Smith v. Olmstead, 88 Cal. 582, 22
twenty-five years of property given Am. St. Rep. 336, 12 L. R. A. 46,
her during widowhood by her 26 Pac. 521; Stephens v. Gibbes,
husband's will, was not incon- 14 Pla. 331; Hill v. Hill, 88 Ga.
sistent with her dower interest, no 612, 15 S. E. 674.
occasion having arisen calling for Contra: Mendenhall v. Menden-
an assertion of her statutory hall, 53 N. C. (8 Jones L.) 287.
rights.
DOCTRINE OF ELECTION. 1203
are involved, it will be ruled that she has manifested an
election to take under the will.'-*^ Where a widow offered
her husband's will for probate and qualified as execu-
trix thereof, and for nine years and until her death
remained in possession of the property and acquiesced in
the disposition made by her husband, the administrator
of her estate, against the consent of her real representa-
tives, was not permitted to make an election.^^ The
principle is, courts will not disturb things long acqui-
esced in by families regarding which those most in-
terested during their lives had never raised a question.^*
§830. The Same Subject: Effect of Acceptance of Benefits
Under Will.
The general rule is that one who accepts benefits under
a will is estopped to deny it; this applies to all legatees
and devisees.®* This rule, however, is subject to quali-
fication. If the beneficiary accept benefits under a will
without knowledge of the fact of his right to elect be-
tween the benefits so' conferred and his right to certain
property of the estate on account of a claim dehors the
will; or, if he be induced by fraud or deception to ac-
cept the benefits given him by the will, he may revoke
his election and claim under the law, provided, however :
91 Churchill v. Bee, 66 Ga. 621, Guild, 34 Me. 443; Hyde v. Bald-
632. ■win, 17 Pick. (34 Mass.) 303; Van
92 Hoggard V. Jordan, 140 ^f. C. ^uyne v. Van Duyne's Exr., 14
610, 6 Ann. Cas. 332, 4 L. R. A. N. J. Bq. 49; Syme v. Badger, 92
(N. S.) 1065, 53 S. E. 220.
N. C. 706.
The right to repudiate the elec-
93 Tomkyns y. Ladbroke, 2 Ves. ^^^ ^^^^ ^^ ^^^^^^^ ^^^^^^ ^^^
Sen. 593; Dewar v. Maitland, L. R. ^.j^j^^^ ^j innocent third persons
2 Eq. 834. , have intervened. — In re Peaslee's
94 Herbert v. Wren, 7 Cranch Will, 73 Hun 113, 25 N. Y. Supp.
(U. S.) 370, 3 L. Ed. 374; Smith v. 940.
1204
COMMENTARIES ON THE LAW OF WILLS.
(1st) That the rights of innocent third persons will not
thereby suffer; (2d) that there has been no unreasonable
delay, and (3d) that he returns to the estate all benefits
received.^^ The mere fact, however, that the beneficiary
accepts a testamentary gift under protest or under a
claim that it is only a part of what the law entitles him
to, is wholly immaterial and will not give him the right
thereafter to repudiate his election.®®
95 Medin V. Snyder, 61 Kan. 15,
78 Am. St. Rep. 306, 58 Pac. 962;
Watson V. Watson, 128 Mass. 152;
Stone V. Cook, 179 Mo. 534, 64
L. R. A. 287, 78 S. W. 801; Holt v.
Rice, 54 N. H. 398, 20 Am. Rep.
138; Young v. Young, 51 N. J.
Ba. 491, 27 Atl. 627; In re Miller's
Estate, 159 Pa. St. 562, 28 Atl. 441.
Before any beneficiary who has
received benefits under the will
can contest its validity, he must
first repay the estate the amounts
received or bring them into court.
— Noe V. Splivalo, 54 Cal. 207;
Appeal of Whiting, 67 Conn. 379,
35 Atl. 268; Medlock v. Merritt,
102 Ga. 212, 29 S. E. 185; Bu-
chanan V. McLennan, 192 111. 480,
61 N. E. 448; Exchange & Deposit
Bank v. Stone, 80 Ky. 109; Smith
v. Guild, 34 Me. 443; Fisher v,
Boyce, 81 Md. 46, 31 Atl. 707;
Watson V. Watson, 128 Mass. 152;
Weller v. Noffsinger, 57 Neb. 455,
77 N. W. 1075; Beetson v. Stoops,
91 App. Div. (N. Y.) 185, 86 N. Y.
Supp. 332; Rutherford v. Mayo, 76
Va. 117.
Although an election has been
made, it has been held that such
election may be repudiated where
It is practicable to do so without
injury to the estate or to the ex-
ecutor personally. — Arnett's Exr.
V. Arnett, 33 Ala. 274; Steele v.
Steele's Admr., 64 Ala. 438, 38 Am.
Rep. 15; Stephens v. Gibbes, 14
Fla. 331; Hill v. Hill, 88 Ga. 612,
15 S. E. 674.
96 PoUman & Bros. Coal etc. Co.
V. St. Louis, 145 Mo. 651, 47 S. W.
563 ; McCormick v. Interstate Con-
sol. Rapid-Transit Ry. Co., 154 Mo.
191, 55 S. W. 252; Stone v. Cook,
179 Mo. 534, 64 L. R. A. 287, 78
S. W. 801.
Although a beneficiary who has
accepted benefits under a will can
not contest its validity, yet he may
insist upon an interpretation of its
provisions not connected with his
bequest, even though the result
is that a trust Is declared void. —
In re Walkerly's Estate, 108 Cal.
627, 49 Am. St. Rep. 97, 41 Pac.
772.
He may likewise dispute the
truth of a recital in the will that
the testator had conveyed certain
property in trust. — Himt v. Evans,
134 111. 496, 11 L. R. A. 185, 25
N. E. 579.
DOCTRINE OF ELECTION. 1205
The requirement that the beneficiary repay all benefits
received or bring the same into court is not satisfied by
an allegation in his petition that he is ready and willing
to pay into court, or to the executor any amounts which
he has received under the will or have the same deducted
from his share if the will be set aside.®^ The defense of
election by estoppel, however, is an affirmative defense
and can not be raised by demurrer unless the facts con-
stituting such defense afi&rmatively appear on the face of
the petition.®*
§ 831. What Law Governs Election in Case of Conflict.
There is some conflict of authority as to what law gov-
erns the construction of a will wherein a husband has
made a testamentary gift in favor of his wife, whether
such gift, in the absence of express intention, is to be
considered in lieu of dower. In some jurisdictions, if a
husband makes a testamentary provision for his wife, it
is presumed to be in lieu of dower unless he expressly
states it is to be in addition thereto ; in others, and gen-
erally, the widow may take both her dower and under the
will, unless the testator express a contrary intent. The
question of construction of the will may therefore be im-
portant since a testator may execute his will under the
law of his domicile and thereafter remove to another
jurisdiction where the law is different. The general rule
is, as to personalty, that the law of the domicile of the
9T Stone T. Cook, 179 Mo. 534, no one could be prejudiced or be
64 L. R. A. 287, 78 S. W. 801. loser by the conduct of the bene-
Contra: In Medill v. Snyder, 61 ficiary, the mere offer was deemed
Kan. 15, 78 Am. St. Rep. 306, 58 sufficient.
Pac. 962, the legatee who accepted 98 Stone v. Cook, 179 Mo. 534,
the benefits offered to restore 64 L. R. A. 287, 78 S. W. 801.
what had been received, and as
1206
COMMBNTAEIES ON THE LAW OP WILLS.
testator at the time of Ms death governs the construc-
tion of his will.'^ The authorities, however, are not
unanimous.! As to real property and rights therein, the
law of the situs prevails, irrespective of the domicile of
the testator.^ But with regard to the intention of the
testator as drawn from the provisions of the will, the
rule is that such intention is to be determined by the
law of the domicile of the testator, there being a conflict,
however, as to whether it shall be that of his domicile at
the time of the execution of the will or of his domicile at"*
the time of his death.^ /
99 See §§ 273, 275, 276.
1 See § 274. See, also, Martin v.
Battey, 87 Kan. 582, Ann. Gas.
1914A, 440, 125 Pac. 88; Staigg v.
Atkinson, 144 Mass. 564, 12 N. E.
354.
2 See §§ 269, 271.
The effect of a conflict of laws
upon provisions in lieu of dower
is Illustrated by a case in Massa-
chusetts. A testator domiciled in
Massachusetts died, leaving real
estate in that State and in Rhode
Island and Minnesota. By a will
made while domiciled in Rhode
Island he had made provision for
his widow, without expressing it,
however, to be in lieu of dower.
Under the laws of Rhode Island
and Minnesota it is provided that
a widow may have her dower al-
though provision be made for her
In the will, unless a contrary in-
tention be Indicated in the will.
But under the Massachusetts stat-
ute, "a widow shall not be entitled
to her dower in addition to the
provisions of her deceased hus-
band's will, unless such plainly
appears to have been the intention
of the testator." It was decided
that the Massachusetts act did not
apply to land out of that state, and
that upon the sale of the lands in
Minnesota the widow was entitled
to one-third of the proceeds; but
that she must contribute out of
these proceeds with the legatees
under the will to the payment of
the debts secured by mortgage
upon the Massachusetts lands. —
Staigg V. Atkinson, 144 Mass. 564,
12 N. E. 354; Mass. Pub. Stats.,
(1882) ch. 127, §20.
But see, in a case where the
domicile was New York, and the
land devised was situated in Vir-
ginia, it was held that the right
of the widow to dower in land in
Virginia should be determined by
the rule in New York, rather than
by the rule in Virginia. — Boiling v.
Boiling, 88 Va. 524, 14 S. E. 67.
3 See § 272.
DOCTEINB OF ELECTION.
1207
As to the effect of an election, however, no matter
in how many jurisdictions the property may be situated,
an election in one jurisdiction is binding upon the elect-
ing party in all other jurisdictions. The rule is that one
can not claim both under a will and against it. If a sec-
ond election was the same as the first, it would be useless ;
whereas, if it was different, one of the principles upon
which the doctrine of election is founded would be vio-
lated.* And, generally, the proper jurisdiction wherein
4 Apperson v. Bolton, 29 Ark.
418; Lawrence's Appeal, 49 Conn.
411; Cooke v. Fidelity Trust etc.
Co., 104 Ky. 473, 47 S. W. 325; Wil-
son V. Cox, 49 Miss. 538; Wash-
burn V. Van Steenwyk, 32 Minn.
336, 20 N. W. 324; Boeing v. Ows-
ley, 122 Minn. 190, 142 N. W. 129;
Blunt V. Gee, 5 Call (Va.) 481,
492.
In Waterfield v. Rice, 111 Fed.
625, 49 C. C. A. 504, it was decided
that a provision in an Ohio stat-
ute requiring an election by the
widow to take under the will only
applied to wills made in Ohio
and was inapplicable to foreign
widows, and that when a will
made and probated in another
state was brought into Ohio and
there probated and recorded as a
foreign will it was deemed to be
properly proved and that there had
been an election to take under the
will in the domicile of the testator.
In Slaughter v. Garland, 40 Miss.
172, it was said: "There is no war-
rant in our laws for renouncing a
foreign will here by exhibiting in
the probate court here a copy of
the renunciation made in the
proper court of the testator's domi:
cile. Such a proceeding could only
have the effect of evidence that
the renunciation had been made
in the proper tribunal, and to en-
title the party here to whatever
right she might have by the laws
of that domicile, and to affect
property of the estate here,
through the ancillary administra-
tion here. It could not have the
effect of a legal renunciation made
here, because it is unauthorized
by our laws, and because the act
of renunciation pertains to the
forum of the domicile."
In Apperson v. Bolton, 29 Ark.
418, it was ruled that the right of
a widow to renounce the provi-
sions of a foreign will and to take
dower out of lands in Arkansas
was governed by the laws of that
state, but that if there was an
acceptance of the will in the state
of Tennessee, the state of the
domicile, she could not make a
different selection in Arkansas. It
was said (p. 429) that "it is a
general principle of law that one
1208 COMMENTARIES ON THE LAW OP WILLS.
the election should be made is the forum of the original
probate."
§ 832. Waiver of Dower Includes Claim of Dower in Lands
Conveyed by Husband Alone During Coverture.
When a widow elects to accept in lieu of dower the pro-
vision made for her in her husband's will, she unquestion-
ably waives her dower right in all property owned by him
at the time of his death. But the question has arisen as
to whether or not such election is a waiver of dower
rights in real estate sold and conveyed during cover-
ture by her husband alone. If the will, either in express
terms or by implication, shows that the testator in-
tended the provision in favor of his wife to be in lieu
of any other right or claim affecting his estate, an elec-
tion to take under the will bars all other claims. But the
rule can not be confined to such a narrow scope. If the
intention of the testator was that the provision made for
his wife shall be taken in lieu of dower, an election to
accept under the will is undoubtedly a waiver of dower
rights not only in property of which the testator dies
seised, but of all property conveyed by himself alone dur-
can not claim under a will and law of the testator's domicile,
against it, too, and an acceptance There can be but one renunciation
of the provisions of the will in where the estate is dispersed in
Tennessee would bind her every- several jurisdictions. The widow
where," citing Jones v. Gerock, '^^^ °°t elect in one forum to abide
59 N. C. 190, and Blunt v. Gee, ^^ t'^® ^'"' ^"^^ abandon it in an-
5 Call (Va.) 481, 492. °^^^''- ^®'" election, if made at
all, must be in the forum of the
5 Slaughter v. Garland, 40 Miss. onsiuBl probate, whose laws fix
1''2. her rights as distributee in all the
"If she abandons the will, then jurisdictions where property may
her rights of property, wherever be situated."— Wilson v. Cox, 49
situated, are determined by the Minn. 538, 545.
DOCTRINE OF ELECTION. 1209
ing bis lifetime, otherwise the widow would have both
testamentary and statutory rights. The rule would apply
with greater force had the husband conveyed real prop-
erty under a warranty deed, for then his estate would be
liable to make good the loss.®
§ 833. Rights of Widow Who Elects to Take Under Will, as to
Intestate Property.
Election may be either for or against the will. If the
donee accepts the provision made for him in the will,
he thereupon releases all claim in the property disposed
of by the will which he owns or in which he has an in-
terest. His rights in the property pass to the one to
whom it was given by the wiU.'^ Thus, if a widow elects
to take under the will in lieu of dower, her dower rights
are waived. But such action does not take from her the
right to succeed to intestate property of the decedent
under the statute of distributions. It may be stated as a
general rule that accepting a devise of lands or other
provision in lieu of dower does not deprive a widow of
6 Raines v. Corbin, 24 Ga. 185; 289, 15 S. W. 621, as afCected by
Haynie v. Dickens, 68 111. 267; the statute of Missouri.
Allen V. Pray, 12 Me. 138; Buffing- The same rule applied where
ton V. Fall River Nat. Bank, 113 the will provided that "the por-
Mass. 246; Fairchild v. Marshall, tion allotted to my wife shall be in
42 Minn. 14, 43 N. W. 563; Horn- lieu of her dower and statutory
sey V. Casey, 21 Mo. 545; Spalding right in all property belonging to
V. Hershfleld, 15 Mont. 253, 39 me at my decease." — Howe Lum-
Pac. 88; Corry v. Lamb, 45 Ohio ber Co. v. Parker, 105 Minn. 310,
St. 203, 12 N. E. 660; Stokes v. 117 N. W. 518.
Norwood, 44 S. 0. 424, 430, 22 TArdesoife v. Bennett, 2 Dick.
S. E. 417. 463 ; Dewar v. Maitland, L. R. 2
Contra: Bates v. McDowell, 58 Eq. 834; Walker v. Upson, 74
Miss. 815 (by statute); Steele v. Conn. 128, 49 Atl. 904; Chenault
Fisher, 1 Edw. Ch. (N. Y.) 435. v. Scott, 23 Ky. L.. Rep. 1974, 66
And see Hall v. Smith, 103 Mo. S. W. 759.
1210
COMMENTARIES ON THE LAW 0¥ WILLS.
her interest in lands of which her husband died intes-
tate f nor in lands acquired after the maMng of the will,
when not passing thereunder ;" nor in his undisposed of
personal estate;^" nor in stocks standing in the joint
s Davidson v. Boomer, 18 Grant
Ch. (U. C.) 475; Vaughan v.
Vaughan's Heirs, 30 Ala. 329; In
re Evans' Appeal, 51 Conn. 435;
Nelson v. Pomeroy, 64 Conn. 257,
29 Atl. 534; Bennett v. Packer,
70 Conn. 357, 66 Am. St. Rep. 112,
39 Atl. 739; Sutton v. Read, 176
III. 69, 51 N. E. 801; Collins v.
Collins, 126 Ind. 559, 25 N. E. 704,
28 N. E. 190; In re Kempton, 23
Pick. (40 Mass.) 163; Wall v.
Dickens, 66 Miss. 655, 6 So. 515;
Van Arsdale v. Van Arsdale, 26
N. J. L. 404; Havens v. Havens,
1 Sandf. Ch. (N. Y.) 324; Pinck-
ney v. Pinckney, 1 Bradf. (N. Y.)
269, 276; Hatch v. Bassett, 52
N". Y. 359; Lefevre v. Lefevre, 59
N. Y. 434; Carder v. Board of
Comrs., 16 Ohio St. 353; Jones v.
Lloyd, 33 Ohio St. 572; Spangler
v. Dukes, 39 Ohio St. 642; In re
Thompson's Estate, 229 Pa. St.
542, 79 Atl. 173; Seahrook v. Sea-
brook, 10 Rich. Eq. (S. C.) 495.
A legacy to a widow in lieu of
dower bears interest from the date
of the testator's death, and the
fact that the provision was greater
than her dower would have been
does not affect the case. — In re^
Combs, 3 Demarest (N. Y.) 348.
Lapsed and Void Legacies, see
i§ 681, 781. See, also. Matter of
Hodgman, 140 N. Y. 421, 427, 35
N. E. 660; Lee v. Tower, 124 N. Y.
370, 26 N. E. 943.
9 Raines v. Corbln, 24 Ga. 185;
McElfresh v. Schley, 2 Gill (Md.)
182; Durham v. Rhodes, 23 Md.
233; Sutton v. Askew, 66 N. C. 172,
8 Am. Rep. 500; Philadelphia v.
Davis, 1 Whart (Pa.) 490; Hall v.
Hall, 2 McCord Eq. (S. C.) 269;
Cunningham v. Shannon, 4 Rich.
Eq. (S. C.) 135.
10 Pickering v. Stamford, 3 Ves.
Jun. 492; Lett v. Randall, 3 Smale
6 G. 83 ; Colleton v. Garth, 6 Sim.
19; Oldham v. Carleton, 2 Cox
399; Jennings v. Smith, 29 111. 116;
Collins V. Carman, 5 Md. 503, 528;
Sullings V. Richmond, 5 Allen (87
Mass.) 187, 81 Am. Dec. 742;
Kempton's Case, 23 Pick. (40
Mass.) 163; Johnson v. Goss, 132
Mass. 274; State v. Holmes, 115
Mich. 456, 73 N. W. 548; Dildine
V. Dildine, 32 N. J. Eq. 78; Bane
V. Wick, 14 Ohio St 505; Barber
V. Hite, 39 Ohio St. 185; Leina-
weaver v. Stoever, 1 Watts & S.
(Pa.) 160; Carmen's Estate, 11
W. N. C. (Pa.) 95; Reed's Estate,
82 Pa. St. .428; Demoss v. Demoss,
7 Cold. (47 Tenn.) 256; Findley v.
Pindley, 11 Gratt. (Va.) 434. See,
also, Gotzian's Estate, 34 Minn.
159, 57 Am. Rep. 43. 24 N. W. 920;
Skellenger v. Skellenger, 32 N. J.
Eq. 659; Waddle v. Terry, 4 Cold.
DOCTRINE OF ELECTION.
1211
names of herself and the testator ;^^ nor in the statutory
provisions for widows' temporary support ;^^ nor in
lapsed or void legacies or devises.'^*
§ 834. Rights of Widow as Afifected by Debts of Husband.
The estate of a decedent is liable for his debts, except
such property as may be exempt from execution. And a
widow who accepts a legacy or devise in lieu of her
dower can not claim the gift in preference to her hus-
band's creditors, but takes the property subject to the
(44 Tenn.) 256; Dupree's Admr. v.
Gary, 6 Leigh (Va.) 36.
Contra: Hardy v. Scales, 54 Wis.
452, 11 N. W. 590.
11 Dummer v. Pitcher, 5 Sim.
35; Sanford v. Sanford, 45 N. Y.
723; s. c, 2 Thomp. & C. (N. Y.)
641; s. c, 58 N. Y. 69; O'DriscoU
V. Koger, 2 Desaus. Eq. (S. C.)
295. See, also, Coates v. Stevens,
1 You. & C. 66.
As to lands standing in their
joint names, see Exchange & De-
posit Bank v. Stone, 80 Ky. 109;
Crenshaw v. Creek, 52 Mo. 98;
Ketchum v. Wals worth, 5 Wis. 95;
68 Am. Dec. 49.
12 Miller v. Stepper, 32 Mich.
194; McManus' Estate, 14 Phila.
(Pa.) 660; Stineman's Appeal, 34
Pa. St. 394; Wilber's Case, 52 Wis.
295, 9 N. W. 162. See, also, Grif-
fith V. Canning, 54 Mo. 282; Spei-
del's Appeal, 107 Pa. St. 18; Farns-
worth y. Cole, 42 Wis. 403.
13 Pickering v. Stamford, 3 Ves.
Jun. 332, 492 ; Simpson v. Homsby,
3 Ves. Jun. 335; Garthshore v.
Chalie, 10 Ves. Jun. 17; Jones v.
Jones, 8 Gill (Md.) 197; Johnson
V. Johnson, 32 Minn. 513, 21 N. W.
725; Hand v. Marcy, 28 N. J. Bq.
59; Vernon v. Vernon, 53 N. Y.
351; Power v. Cassidy, 79 N. Y.
602, 35 Am. Rep. 550; Melchor v.
Burger, 21 N. C. (1 Dev. & B. Eq.)
634. But see Gibbon v. Gibbon, 40
Ga. 562; Bullard v. Benson, 31
Hun (N. Y.) 104; s. c, 96 N. Y.
499, 48 Am. Rep. 646; s. c, 1
Demarest (N. Y.) 486; Chamber-
lain V. Chamberlain, 43 N. Y. 424.
In New York it has been held
that a widow who elects to take
a provision expressly stated to be
instead of dower and of all claims
against the estate, can not par-
ticipate in lapsed legacies. — Bul-
lard V. Benson, 1 Demarest (N. Y.)
486; s. c, 31 Hun (N. Y.) 104;
s. c, 96 N. Y. 499, 48 Am. Rep.
646; Chamberlain v. Chamberlain,
43 N. Y. 424. But see Vernon v.
Vernon, 53 N. Y. 351; Power v.
Cassidy, 79 N. Y. 602, 35 Am. Rep.
550.
1212
COMMENTARIES ON THE LAW OP WILLS.
lien of Ms debts.^* But if the estate is solvent, the widow
is not required to contribute toward the payment of
debts out of the property accepted by her.^^ Where the
widow accepts benefits under the will of her husband in
lieu of dower she takes as a purchaser for a valuable
consideration, and although her rights may be inferior
to those of creditors, they are superior to those of any
other devisee or legatee.^®
§ 835. Rights of Widow Where Property Reverts to Her Estate
Because of Her Remarriage.
A husband may make a testamentary gift of property
to his wife in lieu of dower, she to have the use thereof
"so long as she remains unmarried"; and in the event
of marriage may confer some other benefit in lieu of
14 Miller v. Buell, 92 Ind. 482;
Hinson v. Eunis, 81 Ky. 363; Beek-
man v. Vandeveer, 3 Demarest
(N. T.) 619; Wanger's Appeal, 105
Pa. St. 346.
15 Lord V. Lord, 23 Conn. 327,
330; Carper v. Crowl, 149 111. 465,
36 N. E. 1040; Dunning v. Dun-
ning, 82 Hun (N. T.) 462, 31 N. Y.
Supp. 719; affirmed, 147 N. T. 686,
42 N. B. 722.
But see, In re Barnett's Appeal,
104 Pa. St. 342, to the effect that
where a third of the estate is left
to the widow in lieu. of dower, she
is entitled only to that proportion
of what may remain after deduct-
ing debts and the expenses of ad-
ministration.
See, also, Beekman v. Vander-
veer, 3 Demarest (N. Y.) 619.
If a widow who has agreed to ac-
cept a provision in her husband's
will instead of her dower desires
to enforce the payment of an
amount equal to her dower inter-
est, she must make the creditors
of the estate parties to the action.
— Beekman v. Vanderveer, 3 Dem-
arest (N. Y.) 619.
16 Steele v. Steele's Admr., 64
Ala. 438, 462, 38 Am. Rep. 15.
As to abatement of a legacy to
the widow in lieu of her dower,
see §§ 698, 699, 806.
But the general rule is that a
widow taking an estate In lieu of
dower stands in the position of a
purchaser, and is not liable to
abatement unless it be so pro-
vided in the will. — Security Co. v.
Bryant, 52 Conn. 311, 52 Am. Rep.
599.
DOCTRINE OF ELECTION. 1213
the former gift, or he may make no other provision for
her. In either case, should the widow remarry, the prop-
erty taken from her will revert to the estate or may pass
under the will should the testator make a gift over of such
property to be effective in the event of such contingency.
But if the win makes no such provision, the property lost
to the widow reverts to the estate and stands as intestate
property. Where the widow has been given a portion of
the original property, or some other gift, in the event of
her marriage, the will may evince that the intention
of the testator was likewise that it should stand in lieu
of dower.^'^ But as to any personal property which may
have reverted to the estate, the widow would take her
share under the statute of distribution in addition to the
provision made by the will.^^ Where no further dispo-
sition of the property is made by the will either to the
widow who remarries or to another, it all becomes in-
testate property and the former wife is entitled to her
distributive share in such property as in the case of in-
testacy.^^
§ 836. Election Against the Will: Rights of Widow.
Where a donee under a will whose property or an in-
terest therein has been conveyed by the same instrument
to another, elects against the will and demands his statu-
tory rights, such donee is thenceforth a stranger to the
will and is entitled to his property precisely as in the
case of intestacy. Thus, a widow would have her right
of dower in the real property of her husband the same
IT Bennett v. Packer, 70 Conn. is Beshore v. Lytle, 114 Ind. 8,
357, 66 Am. St. Rep. 112, 39 Atl. 739. 16 N. E. 499. See, also, McGuire
18 Bennett v. Packer, 70 Conn. v. Brown, 41 Iowa 650; Mannan v.
357, 66 Am. St. Rep. 112, 39 Atl. 739. Mannan, 154 Ind. 14, 55 N. E. 855.
1214 COMMENTARIES ON THE LAW OF WILLS.
as if he had made no will. She either takes the real
property; or, if the land be sold in order to effect a di-
vision among the heirs or devisees or be sold by reason
of directions in the will, or by an order of court in order
to secure assets to pay the debts of the estate, the widow
is entitled to have her claim satisfied out of the pro-
ceeds.^" If the lands are covered by a mortgage in which
the wife had joined, her dower right is subject to the
mortgage, but superior to all other rights.^^ If the land
is sold under foreclosure the widow's dower interest at-
taches to one-third of the surplus.^*
§ 837. Rights Affected by Widow Electing Against the Will.
The rejection of the will by the widow and her elec-
tion to take what the law gives her instead of under the
will, is followed by the usual consequences of an elec-
20 Chaney v. Chaney, 38 Ala. 35; v. Virgin, 189 III. 144, 59 N. E. 586;
Cook's Bxr. V. Cook's Admr., 20 Campbell v. Wilson, 195 111. 284,
N. J. Eq. 375; Schmitt v. Willis, 63 N. E. 103; Hall v. Marshall, 139
40 N. J. Eq. 515, 4 Atl. 767. Mich. 123, 111 Am. St Rep. 404,
21 Fry V. Merchants' Ins. Co., 15 102 N. W. 658; Hinchman v. Stiles,
Ala. 810; Cox v. Garst, 105 111. 342; 9 N. J. Eq. 361; Hawley v. Brad-
Mayfield v. Wright, 107 Ky. 530, ford, 9 Paige Ch. (N. Y.) 200, 201;
54 S. W. 864; Morgan v. Wick- Geiger v. Geiger, 57 S. C. 521, 35
liffe, 115 Ky. 226, 72 S. W. 1122; S. E. 1031; Lavender v. Daniel, 58
Sargeant v. Fuller, 105 Mass. 119; S. C. 125, 36 S. E. 546; Land v.
Smith V. Stephens, 164 Mo. 415, Shipp, 100 Va. 337, 41 S. E. 742.
64 S. W. 260; Needles v. Ford, The Ohio rule is that the
167 Mo. 495, 67 S. W. 240; Norrls widow's dower is computed as one-
V. Morrison, 45 N. H. 490; Smith third of the entire proceeds of the
V. Gardner, 42 Barb. (N. Y.) 356; sale under the mortgage fore-
McMichael v. Russell, 68 App. Div. closure, but her interest is payable
(N. Y.) 104, 74 N. Y. Supp. 212; only out of the surplus and does
.lewett V. Feldheiser, 68 Ohio St. not attach to the land Itself. —
523, 67 N. E. 1072. Mandel v. McClave, 46 Ohio St.
22 Hewitt V. Cox, 55 Ark. 225, 407, 15 Am. St. Rep. 627, 5 L. R. A.
15 S. W. 1026, 17 S. W. 873; Virgin 519, 22 N. E. 290.
DOCTRINE OP ELECTION.
1215
tion in other cases, and the property given to her by the
will is sequestered to compensate those beneficiaries
under the will who have been disappointed in their gifts
because of the widow's election.^^ If the testator pro-
vides in his will for the contingency of his widow de-
manding her statutory rights, then the intention of the
testator will be given effect. Thus, if he directs that in
case his widow should claim her rights under the law the
deduction should be made from the benefits conferred to
a designated beneficiary, the loss will be borne by the one
appointed by the testator.^* The will being silent on the
subject, the property given to the widow in the testator's
will is first used to compensate the disappointed bene-
ficiaries.^^ If the provision made for the widow by the
23 Dean v. Hart, 62 Ala. 308, 310;
Allen V. Hannum, 15 Kan. 625;
Jennings v. Jennings, 21 Ohio St.
56, 81; CaufEman v. Cauffman, 17
Serg. & R. (Pa.) 16; In re San-
doe's Appeal, 65 Pa. St. 314; In re
Batione's Estate, 136 Pa. St. 307,
20 Atl. 572; Callahan v. Robinson,
30 S. C. 249, 3 L. R. A. 497, 9 S. E.
120; Colvert t. Wood, 93 Tenn.
454, 25 S. W. 963; Jones v. Knap-
pen, 63 Vt. 391, 14 L. R. A. 293,
22 Atl. 630; McReynolds v. Counts,
9 Gratt. (Va.) 242; Kinnaird v.
Williams' Admr., 8 Leigh (Va.)
400, 31 Am. Dec. 658; Ford v.
Ford, 70 Wis. 19, 55, 5 Am. St.
Rep. 117, 33 N. W. 188.
As to widow renouncing a life
estate in property given her by
will, see §838.
If a widow renounces the pro-
visions made for her in the will,
she is thenceforth a stranger to it.
and is entitled to her legal estate
in the land precisely as in case
of intestacy. If an admeasure-
ment is made to her in money,
then the land representing the
money is liable therefor, and if
funds of the estate are used in
paying the assessment to her, the
amount becomes a charge upon
the land in the hands of the devi-
sees benefited by the payment. —
Witherspoon v. Watts, 18 S. C.
396.
24 In re Mohn's Appeal, 76 Pa.
St. 92.
See §§ 690, 691.
25 Cooper V. Cooper, L. R. 7 H. L.
53; Smith v. Lucas, 18 Ch. Div.
531, 543; Freke v. Barrington, 3
Bro. C. C. 286; In re Hancock,
(1903) 1 Ch. 16; Key v. Jones,
52 Ala. 238,, 244; Farmington Sav.
Bank v. Curran, 72 Conn. 342, 44
Atl. 473.
1216
COMMENTARIES ON THE LAW OP WILLS.
■will is sufficient to make good the losses to tlie bene-
ficiaries whose gifts were diminished or taken away to
satisfy the widow's statutory rights, then no contribution
is necessary. And if, after the losses of such disap-
pointed beneficiaries have been satisfied, there remains a
surplus, this surplus goes to the widow under the will.
The principle prevailing is one of compensation rather
than of forfeiture.^®
Where the widow demands her statutory rights and
the property rejected by her under the will is insuffi-
cient to satisfy the losses of those beneficiaries whose
gifts were diminished or exhausted to satisfy the wid-
ow's demands, such disappointed beneficiaries are en-
titled to call upon others taking similar interests to con-
tribute.^''
26 Bell V. Nye, 255 111. 283, 42
L. R. A. (N. S.) 1127, 99 N. E. 610;
Wakefield v. Wakefield, 256 111.
296, Ann. Gas. 1913E, 414, 100
N. E. 275; Stanley v. Stanley, 34
App. Div. (N. Y.) 172, 54 N. Y.
Supp. 652; Kirclmer v. Kirchner,
71 Misc. Rep. 57, 127 N. Y. Supp.
399; Lewis v. Lewis, 13 Pa. St. 79,
53 Am. Dec. 443; Colvert v. Wood,
93 Tenn. 454, 25 S. W. 963; LatU
V. Brown, 96 Tenn. 343, 31 L. R. A.
840, 34 S. W. 417; Jones v. Knap-
pen, 63 Vt. 391, 14 L. R. A. 293, 22
Atl. 630; Hlgginbotham v. Corn-
well, 8 Gratt. (Va.) 83, 87, 56 Am.
Dec. 130; Ford t. Ford, 70 Wis. 19,
56, 5 Am. St. Rep. 117, 33 N. W.
188; Pickersgill v. Rodger, 5 Ch.
Div. 163, 173; Welby v. Welby, 2
Ves. & B. 190; Carper v. Growl,
149 111. 465, 36 N. B. 1040; Hlnk-
ley V. House of Refuge, 40 Md.
461, 17 Am. Rep. 617; Lewis v.
Lewis, 13 Pa. St. 79, 53 Am. Dec.
443. But see Devecmon v. Shaw,
70 Md. 219, 16 Atl. 645.
See § 817.
27 Wakefield v. Wakefield, 256
111. 296, Ann. Cas. 1913E, 414, 100
N. E. 275; Henderson v. Green, 34
Iowa 437, 11 Am. Rep. 149; Mc-
Guire v. Luckey, 129 Iowa 559, 105
N. W. 1004; Chamberlain v.
Berry's Exr., 22 Ky. L. 44, 56
S. W. 659; In re Sandoe's Appeal,
65 Pa. St. 314; In re Vance's Es-
tate, 141 Pa. St. 201, 23 Am. St.
Rep. 267, 12 L. R. A. 227, 21 Atl.
643; Baptist Female Univ. v. Bor-
den, 132 N. C. 476, 44 S. E. 47,
1007; Latta v. Brown, 96 Tenn.
343, 31 L. R. A. 840, 34 S. W. 417.
DOCTRINE OF ELECTION. 1217
The order in wMoh legacies abate is well established.
The fact that certain benefits may be diminished is only
an incident calling for contribution — it does not control
or justify an interference with the regular order of pri-
ority for the abatement of legacies.^^
§838. The Same Subject: Where Widow Relinquishes Life-Es-
tate : Doctrine of Acceleration.
Where the interest relinquished by the widow is but a
life-estate, the remainder having been given by the will
to others, the doctrine of acceleration may have its effect
according to circumstances. Under this doctrine where a
life-estate in property is given to the widow with re-
mainder over to third parties, her election to take under
the law and the waiver of her life-estate have the same
result as her death, and the rights of the remaindermen
are accelerated. If the interest relinquished be a life-
estate in lands and the dower be carved out of the same
property, title would vest in the remaindermen subject
to the dower.^^ But this rule has two limitations : First,
it is not applied if it is apparent from the provisions of
28 Wakefield v. Wakefield, 256 1079; Beidman t. Sparks, 61 N. J.
111. 296, Ann. Cas. 1913B, 414, 100 Eq. 226, 47 Atl. 811; Baptist Fe-
N. E. 275; In re Vance's Estate, male Univ. v. Borden, 132 N. C.
141 Pa. St. 201, 23 Am. St. Rep. 476, 44 S. E. 47, 1007; Millikin v.
267 12 L. R. A. 227 21 Atl. 643. Welliver, 37 Ohio St. 460; Estate
See Abatement of Legacies, °^ Ferguson, 138 Pa. St. 208, 20
Atl. 945; Estate of Vance, 141 Pa.
St. 201, 23 Am. St. Rep. 267, 12
L. R. A. 227, 21 Atl. 643; Latta v.
Brown, 96 Tenn. 343, 31 L. R. A.
52 N. E. 332; Allen v. Hannum. g^^^ 34 g ^ ^^7. j^^^^ ^ j^^^^.
15 Kan. 625; Fox v. Rumery, 68 pgn^ 63 Vt. 391, 396, 14 L. R. A.
Me. 121; Randall v. Randall, 85 293, 22 Atl. 630.
Md. 430, 37 Atl. 209; Estate of Compare: Hank v. McComas, 98
Schulz, 113 Mich. 592, 71 N. W. Ind. 460.
II Com. on Wills — 23
§§ 690-707.
29 Dean v. Hart, 62 Ala. 308;
Slocum V. Hagaman, 176 111. 533,
1218 COMMBINTARIES ON THE LAW OF WILLS.
the will that the testator did not intend that title should
pass to the remaindermen until the widow's death;®" and,
second, the scheme of distribution of the testator as in-
dicated by his will, and the rights of legatees and devi-
sees, must not be injuriously affected.*^ The statutory
claim of the widow may be allotted from property other
than that in which the mil gave her a life-interest and thus,
if the rule were applied, the interests of one or more
beneficiaries would seriously suffer while those of others
would be benefited. If such a condition arises, the inter-
ests relinquished by the widow should go to satisfy the
losses of the disappointed beneficiaries,®^
§ 839. Effect on Balance of Will of Election to Take Under the
Statute.
Where a widow refuses to accept the provisions of her
husband's will and takes her statutory rights, she
thereby defeats the purposes of the testator only in so
far as she personally is concerned. The other provisions
30 Muirhead v. Muirhead, L. R. Pa. St. 201, 23 Am. St. Rep. 267,
15 App. 289; Hinkley v. House of 12 L. R. A. 227, 21 Atl. 643; Estate
Refuge, 40 Md. 461, 17 Am. Rep. of Portuondo, 185 Pa. St. 472, 39
6] 7; Brandenburg v. Thomdike, Atl. 1105; McReynolds v. Counts,
139 Mass. 102, 28 N. E. 575; Saw- 9 Gratt. (Va.) 242.
yer v. Freeman, 161 Mass. 543, 37 32 Firth v. Denny, 2 Allen (84
N. B. 942; Baptist Female Univ. Mass.) 468; Matter of Lawrence,
V. Borden, 132 N. C. 476, 44 S. E. 37 Misc. Rep. (N. Y.) 702, 76 N. Y.
47, 1007. Supp. 653; Jones v. Knappen, 63
31 Wood's Admr. v. Wood's Devir Vt. 391, 14 L. R. A. 293, 22 Atl.
sees, 1 Mete. (Ky.) 512; Hinkley 630.
V. House of Refuge, 40 Md. 461^ Contra: Estate of Ferguson, 138
469, 17 Am. Rep. 617; Branden- Pa. St. 208, 20 Atl. 945; Estate of
burg V. Thomdike, 139 Mass. 102, Vance, 141 Pa. St 201, 23 Am. St.
28 N. E. 575; Matter of Lawrence, Rep. 267, 12 L. R. A. 227, 21 AU.
37 Misc. Rep. (N. Y.) 702, 76 N. Y. 643.
Supp. 653; Estate of Vance, 141 See § 837.
DOCTRINE OP ELECTION. 1219
of the will still remain in full force and effect and are
administered so as to effectuate, as far as possible, the
expressed intent of the testator.^^ This rule, however, is
limited to those cases in which it can be applied without
defeating the manifest intention of the testator. If the
assertion by the widow of her statutory rights so changes
the condition of the estate that the remaining portions of
the will can not be enforced consistent with the testator 's
intent, they must be disregarded and the residue of the
estate will be distributed as in the case of intestacy.^*
The principle applicable is the same as where any clause
of a will is declared void. If the will, with such clause
omitted, may still be administered conformable to the
wishes of the testator and the scheme of distribution
set forth, the remaining portions of the will will stand;
but if the omitted clause is so connected with the testa-
mentary scheme as outlined by the testator that it can
not be separated therefrom, the entire will is invali-
dated.*^
33 Allen V. Hannum, 15 Kan. 804; Johnson's Trustee v., John-
625; Noecker v. Noecker, 66 Kan. son, 25 Ky. L. 2119, 79 S. W. 293;
347, 71 Pac. 815; Lilly v. Menke, Andrews v. Lincoln, 95 Me. 541,
126 Mo. 190, 210, 28 S. W. 643, 994. 56 L. R. A. 103, 50 Atl. 898; Niles
34 Fennell v. Fennel!, 80 Kan. v. Mason, 126 Mich. 482, 85 N. W.
730, 18 Ann. Cas. 471, 106 Pac. 1100; Lord v. Lord, 44 Misc.
1038. (N. Y.) 530, 90 N. Y. Supp. 143;
35 Matter of Pichoir, 139 Cal. Matter of Trotter, 104 App. Div.
682, 73 Pac. 606; Cobb v. Battle, (N. Y.) 188, 93 N. Y. Supp. 404;
34 Ga. 458; Reid v. Voorhees, 216 Brown v. Quintard, 177 N. Y. 75,
111. 236, 3 Ann. Cas. 946, 74 N. E. 69 N. E. 226.
CHAPTER XXX.
WORDS DESCRIPTIVE OF CLASSES OF BENEFICIARIES.
§ 840. Gifts to ' ' children, ' ' who included.
§ 841. The same subject.
§ 842. Children en ventre sa mere.
§ 843. Illegitimate children : When may take under will.
§ 844. After-born illegitimate children : "When may take under
will.
§ 845. Effect of marriage of parents of illegitimate child.
§ 846. Illegitimate child as heir of the mother.
§ 847. Adopted children, how considered.
§ 848. "Who included in term "issue" : Strict rule.
§ 849. The same subject: Modern tendency.
§ 850. "Who included in the term "heirs."
§ 851. The same subject.
§ 852. "Heirs" as a class: As to the date which determines who
are included.
§ 853. "Who included in the term "next of kin."
§ 854. The same subject : "With reference to the statutes of distri-
bution.
§ 855. "Next of kin" as a class : As to the date which determines
who are included.
§ 856. "Who included in the term ' ' relatives " or " relations. ' '
§857. "Relatives" or "relations" as a class: As to the date
which determines who are included.
§858. "Who included in the term "representatives" or "legal
representatives. ' '
§ 859. "Who included in the term "nephews" or "nieces."
§ 860. "Who included in the term "cousins."
§ 861. "Who included in the term "family."
§ 862. Neither husband nor wife is heir or next of kin of the
other.
§ 863. " Husband " or " wife ' ' : Effect of an illegal marriage.
(1220)
CLASSES OP BENEFICIARIES. 1221
§ 864. The same subject : Effect of divorce.
§ 865. Gift with limitation over in event of death of beneficiary.
§ 866. The same subject: "Die -without issue": English rule.
§ 867. The same subject: American decisions.
§ 868. In what proportion beneficiaries collectively designated
take ; per capita or per stirpes.
§ 869. The same subject : When reference is had to the statutes
of distribution.
§ 870. The same subject : Directions by the testator as to divi-
sion.
§ 871. The same subject: "Where testator directs division
"equally" or "share and share alike."
§ 872. The same subject.
§ 873. Gifts to a class defined.
§ 874. Effect of statutes to prevent lapse.
§ 875. The same subject: Circumstances considered.
§ 876. Members of class dying before testator, are excluded.
§ 877. Where beneficiaries are designated both by individual
names and as a class.
§ 878. Manner of designating beneficiaries as a class: Where
share of each is mentioned.
§ 879. Mistake in designating number in class.
§ 880. As of what date members of a class are determined.
§ 881. Effect of additional words of description of beneficiaries
designated as a class.
§ 882. Where gift is to those of a class who attain, or when they
attain, a certain age.
§ 883. The same subject.
§ 884. The same subject: Where contingency which determines
membership of class oceiirs during testator's lifetime.
§ 885. The same subject: Where the contingency is "youngest"
of class attaining specified age.
§ 886. Where right to share in benefits depends upon an indefi-
nite future event.
§ 887. Where right to share in benefits depends upon termination
of a preceding estate.
1222 COMMENTAEIES ON THE LAW OP -WILLS.
§ 888. The doctrine generally where enjoyment of benefits de-
pends upon a contingency.
§ 889. The same subject : As to after-horn members of class.
§ 890. Remainder over to a class upon termination of life estate :
Vested and contingent remainders.
§ 891. When word "survivor" is construed to mean "other."
§ 892. The same subject: Where gift to survivors depends upon
a contingency.
§ 893. When gift is direct, words of survivorship refer to testa-
tor's death.
§ 894. To. what date words of survivorship refer when gift is pre-
ceded by a life estate : English rule.
§ 895. The same subject : American decisions.
§ 896. The same subject : Intention of testator.
§ 897. Accrued interest of one survivor generally does not pass
at his death to remaining survivors.
§ 840. Gifts to "Children," Who Included.
A testamentary gift to "children," if there be children
in existence, does not include grandchildren/ stepchil-
1 Pride v. Fooks, 3 De Gex & J. (Pa.) 376, 380; Castner's Appeal,.
252; Radcliffe v. Buckley, 10 Ves. 88 Pa. St. 478; Webb v. Hltchlns,
Jun. 195; White v. Rowland, 67 105 Pa. St. 91; In re Reynolds;
Ga. 546, 44 Am. Rep. 731; Cum- 20 R. I. 429, 39 Atl. 896; Moon v.
mings v. Plummer, 94 Ind. 403, 48 Stone's Exr., 19 Gratt. (Va.) 130;
Am. Rep. 167; Pugh v. Pugh, 105 Waring v. Waring, 96 Va. 641, 32
Ind. 552, 5 N. E. 673; Sheets v. S. E. 150; White v. Old, 113 Va.
Grubbs' Exr., 4 Mete. (61 Ky.) 709, Ann. Gas. 1913E, 586, 75 S. E.
339, 341; Osgood v. .Levering, 33 182.
Me. 464, 469; Tucker v. Stites, 39 The words "children," "issue,"
Miss. 196, 213; Feit's Exrs. v. Va- and "heirs" are not synonymous
natta, 21 N. J. Eq. (6 Green C. E.) terms. The rule of construction is
85; Kirk v. Cashman, 3 Demarest that technical words or phrases
(N. Y.) 242; Hone v. Van Sohaick, which have acquired a peculiar
3 N. Y. 538, 540; Palmer v. Horn, and appropriate meaning in law
84 N. Y. 516, 521; Womack v. shall be construed according to
Backer, 62 N. C. (Phill. Eq.) 161; such peculiar and appropriate
Hallowell v. Phipps, 2 Whart. meaning, unless it appears that
CLASSES OF BENEFICIABIES.
1223
dren,^ or adopted children.' Nor does a gift to * ' grandchil-
dren" embrace great-grandchildren.* Neither does a be-
quest to nieces include a grand-niece.^ Thus, where a tes-
tator by one clause of his will gave the residue of his estate
to his children and to a grandchild by name, in another
clause made certain provisions as to the shares of his
"children" or those who took as their substitutes, and
in still another made a different provision for the share
of his grandchild, it was decided that the reference to
"children" did not embrace the grandchild.* But where
there are no persons to answer the description of "chil-
dren," grandchildren may be allowed to take,'^ and so,
the words were not used in their
technical sense. When words and
phrases have received a fixed legal
interpretation by repeated deci-
sions, such words and phrases,
when employed in deeds or other
written instruments, are to receive
such fixed legal interpretation as a
long line of decisions attached to
them. • — Clarkson v. Hatton, 143
Mo. 47, 65 Am. St. Rep. 635, 39
L. R. A. 748, 44 S. W. 761.
2 Fouke V. Kemp's Lessee, 5
Har. & J. (Md.) 135; In re Hallett,
8 Paige Ch. (N. Y.) 375; Sydnor v.
Palmer, 29 Wis. 226.
3 Schafer v. Eneu, 54 Pa. St 304.
4 Orford v. Churchill, 3 Ves. &
B. 59; Cummings v. Plummer, 94
Ind. 403, 48 Am. Rep. 167.
Nor to the widow of a grandson.
— Hussey V. Berkeley, 2 Eden Ch.
194.
5 Campbell v. Clark, 64 N. H.
328, 10 Atl. 702.
e Brabham v. Crosland, 25 S. C.
525, 1 S. E. 33.
In Low V. Harmony, 72 N. Y.
408, the testator had in one clause
made provision for the appellant,
describing her, as the daughter of
his late daughter Sarah Ann, and
in a later clause gave his resid-
uary estate to his "wife and liv-
ing children." It was held that
this language manifested an in-
tention not to include the repre-
sentatives of a deceased child.
See, also. In re Woodward, 117
N._Y. ^22, 7 L. R. A. 368, 23 N. E.
120'.
1 Crook V. Whitley, 7 De Gex,
M. & G. 490, 496; Berry v. Berry,
9 Week. R. 889; Ewing's Heirs v.
Handley's Exrs., 4 Litt. (14 Ky.)
346, 349, 14 Am. Dec. 140.
"The technical legal import of
the word 'children' accords with
its ordinary and popular significa-
tion. It does not denote grand-
children; and, though sometimes
used with that purpose and effect,
there is no warrant for thus en-
larging its meaning in construing
1224
COMMENTARIES ON THE LAW OF WILLS.
also, when it appears that the testator did not intend to
use the word strictly as indicating issue in the first de-
§ 841. The Same Subject.
The fact that the person to whose children the bequest
is made was dead at the date of the will, leaving only
grandchildren, and that the testator may be presumed to
have known the circumstances, may extend the word
"children" to include grandchildren or descendants."*
a will, unless Indispensably neces-
sary to effectuate the obvious In-
tent of the testator. It may be
regarded as well settled that such
enlarged or extended Import of the
word 'children,' when used as de-
scriptive of persons to take under
a will. Is only permissible In two
cases. First, from necessity,
where the will would be other-
wise Inoperative; and, second,
where the testator has shown by
other words that he did not use
the word In Its ordinary and
proper meaning, but in a' more
extended sense." — Churchill v.
Churchill, 2 Mete. (59 Ky.) 466.
In Re Scholl's Will, 100 Wis. 650,
76 N. W. 616, speaking of the
word "child," It was said:
"Where there are no Immediate
children to whom the term can
apply, or where It is manifest
from other words In the will that
it was used in the broad sense of
issue or descendants, it may be
construed to Include grandchil-
dren, stepchildren, illegitimate
children or descendants, however
remote." See, also. Estate of San-
der, 126 Wis. 660, 5 Ann. Cas. 508,
105 N. W. 1064.
sutz's Estate, 43 Cal. 201;
Hughes V. Hughes, 12 B. Mon. (51
Ky.) 115, 121; Beebe v. Estabrook,
79 N. Y. 246; Server v. Berndt, 10
Pa. St. 213.
9 Crooke v. Brooking, 2 Vem.
107; Berry v. Berry, 3 Giff. 134.
In Bond's Appeal, 31 Conn. 183,
the devise was, "I give to my chil-
dren and their heirs respectively,
to be divided in equal shares be-
tween them." At the date of the
will and at his death the testator
had four children living, and four
others had previously died, all
leaving children. No reason ap-
peared for supposing that the tes-
tator had any preference for his
surviving children over these
grandchildren, and It was held
that the estate In question was
to be distributed in equal shares
among the surviving children and
the representatives of the de-
ceased ones. See, also, Raymond
CLASSES OP BBNEFICIAEIES.
1225
Thus a bequest to the "children" of the testator's sister
was held to refer to grandchildren, the testator knowing
at the date of the will that his sister and all her children
had been dead for many years.^"
The rule limiting the meaning of the term "children"
will yield to any indication of an intention to include
more remote descendants,^^ as where in other parts of the
will such word is used interchangeably with others of
more extended meaning,^^ or where the bequest is to
"children, excepting" one who is a grandchild.^^ Where
there is a gift over in default of "children" of the first
taker, the presumption is in favor of the more remote
descendants of the first taker in preference to the
remainderman.^* Again, grandchildren may take under
a devise to one and his children, where their parent has
V. Hillhouse, 45 Conn. 467, 29 Am
Rep. 688.
10 In re Schedel, 73 Cal. 594, 15
Pao. 297.
11 Prowitt V. Rodman, 37 N. Y.
42; Barnitz' Appeal, 5 Pa. St. 265;
Tipton V. Tipton, 1 Cold. (41
Tenn.) 252, 255.
In Outcalt V. Outcalt, 42 N. J.
Eq. 500, 8 Atl. 532, it appeared that
the testator directed that the resi-
due of his estate after the death
of his wife should be divided
"among my several children, share
and share alike, and in the event
of any of my said children dying
before my said wife and leaving
issue them surviving, then such
issue shall be entitled to and re-
ceive their parent's share, the
same as said parent would receive
were he or she then living." It
was held that by "my several chil-
dren" the testator meant not only
his several children then liviog,
but all of his children, and that
the issue of a child who was dead
at the date of the will was entitled
to a share in the residue. See,
also, Pimel v. Betjemann, 183
N. Y. 194, 5 Ann. Cas. 239, 2
L. R. A. (N. S.) 580, 76 N. E. 157.
12 Hughes V. Hughes, 12 B. Mon.
(51 Ky.) 115; Dunlap v. Shreve's
Exrs., 2 Duvall (63 Ky.) 334;
Prowitt v. Rodman, 37 N. Y. 42;
Houghton V. Kendall, 7 Allen
(Mass.) 72, 75.
13 Dunlap V. Shreve's Exrs., 2
Duvall (63 Ky.) 334; Pemberton
V. Parke, 5 Binn. (Pa.) 601, 606,
6 Am. Dec. 432.
14 Prowitt V. Rodman, 37 N. Y. 58.
1226
COMMENTARIES ON THE LAW OP -WILIiS.
survived the testator and tlie estate lias once vested in
§ 842. Children en Ventre sa Mere.
It is now fully established that a child en ventre sa
mere is within the intention of a gift to children "liv-
ing" or "born" at a designated time/® and the same con-
15 Klngsland v. Leonard, 65 How.
Pr. (N. y.) 7, 9.
16 Trower t. Butts, 1 Sim. & St.
181; Doe v. Clarke, 2 H. Bl. 399;
Crook V. Hill, 3 Ch. Dlv. 773; In
re Salaman, (1908) 1 Ch. Div. 4;
Groce v. Rittenberry, 14 Ga. 234;
Hall V. Hancock, 15 Pick. (32
Mass.) 255, 258, 26 Am. Dec. 598;
Harper v. Archer, 4 Smedes & M.
(12 Miss.) 99, 43 Am. Dec. 472;
Hone V. Van Schaick, 3 Barb. Ch.
(N. Y.) 488, 508; Simpson v.
Spence, 5 Jones Eq. (58 N. C.)
208; Swift v. Duffield, 5 Serg. &
R. (Pa.) 38; Barker v. Pearce, 30
Pa. St. 173, 72 Am. Dec. 691;
Laird's Appeal, 85 Pa. St. 339.
After-born and posthumous chil-
dren defined, see § 631.
As to the rights of after-bom
and posthumous children, see
§632.
The term "children" Includes
after-born children, see § 633.
Deceased devised land to his
wife, with directions that if she
should leave the land or remarry,
it should be rented out for the
benefit of his "children," and, on
their coming of age, equally di-
vided between them. At de-
ceased's death, he had two chil-
dren; a posthumous child being
bom thereafter. Held, that the
posthumous child took by virtue of
the will, being in esse and in-
cluded in the expression "chil-
dren," and hence was not entitled
to claim as a pretermitted child,
under Ky. St. § 4848.— Lamar v.
Crosby, 162 Ky. 320, Ann. Cas.
1916E, 1033, 172 S. W. 693.
In Kentucky the court has gone
so far as to hold that where there
is a general devise to "the chil-
dren" of another than the testator,
such devise Includes all chil-
dren of such person living at the
death of the testator as well as
any that may be thereafter born.
—Lynn v. Hall, 101 Ky. 738, 72
Am. St. Rep. 439, 43 S. W. 402;
Gray's Adm'r v. Pash, 24 Ky. L.
963, 66 S. W. 1026; Goodridge v.
Schaefer, 24 Ky. L. 219, 68 S. W.
411; Caywood v. Jones, 32 Ky. L.
1302, 108 S. W. 888; United States
Fidelity etc. Co. v. Douglas' Trus-
tee, 134 Ky. 374, 20 Ann. Cas. 993,
120 S. W. 328.
But in Barker v. Barker, 143 Ky.
66, 135 S. W. 396, it seems to be
held that the rule laid down In the
preceding Kentucky cases may be
limited to devises to the children
CLASSES OF BENEFICIABIES.
1227
struction has been given to devises to grandchildren des-
ignated as living at a certain time.^'^ But a child en
ventre is considered as born only when such a construc-
tion will result to his advantage.^*
§ 843. Illegitimate Children: When May Take Under Will.
Where legatees and devisees are described as the chil-
dren, sons, issues, etc., of the testator or of another per-
son, such words will be deemed to refer only to those
legitimately begotten, unless the contrary appear from
the language of the will or by necessary implication.^®
of a near relative, and not neces-
sarily applicable where the devise
■was to the children of a stranger
in blood to the testator. — See La-
mar V. Crosby, 162 Ky. 320, Ann.
Cas. 1916B, 1033, 172 S. W. 693.
17 Loockerman v. McBlair, 6
Gill (Md.) 177, 46 Am. Dec. 664;
Hall V. Hancock, 15 Pick. (Mass.)
255, 26 Am. Dec. 598; Swift v.
Duffield, 5 Serg. & R. (Pa.) 38;
Smart v. King, Meigs (19 Tenn.)
149, 33 Am. Dec. 137.
Contra: Hone v. Van Schaick, 3
N. Y. 538, reversing s. c. 2 Barb.
Ch. (N. Y.) 488.
And the rule has been held not
to extend to great-grandchildren
en ventre at testator's death. —
Freemantle v. E^eemantle, 1 Cox
248.
Nor to the children of nephews
and nieces. — Blasson v. Blasson,
10 Jur. N. S. 1113, s. c. 2 De Gex,
J. & S. 665, reversing 10 Jur. N. S.
165.
For a copious enumeration of the
cases on these points, see note to
Randolph v. Randolph, 40 N. J. Eq.
73, 5 Am. Prob. Rep. 406.
isMcKnight v. Read, 1 Whart.
(Pa.) 213; Armistead v. Danger-
field, 3 Munf. (Va.) 20, 5 Am. Dec.
501.
"That the fiction or indulgence
of the law which treats the unborn
child as actually born, applies only
for the purpose of enabling the
unborn child to take a benefit
which if bom it would be entitled
to, and is limited to cases de com-
modis ipsius partus quaeritur." —
Lord Westbury in Blasson v. Bias-
son, 2 De Gex, J. & S. 665.
19 1 can not concur in the conten-
tion that Lord Westbury's judg-
ment in Blasson v. Blasson, 2
De Gex, J. & S. 665, is not a de-
cision in the point involved in this
case. In my opinion it is a direct
decision that, for the purpose of
ascertaining the period of distri-
bution of a fund, the words "born
and living at the time of my de-
cease" do not include a child in
utero, but that for the purpose of
1228
COMMENTARIES ON THE LAW OP WILLS.
A gift to the children of a man by a designated woman
with whom he is unlawfully cohabiting, does not pass to
their illegitimate offspring, for the parents may after-
ascertaining who is to participate
in the gift they do include such a
child, since it is for its benefit to
be included. — ^Villar v. Gilbey,
(1907) A. C. 139; Evans v. Davies,
7 Hare 498; Savage v. Robertson,
L. R. 7 Eg. 176; In re Goodwin's
Trust, L. R. 17 Eq. 345; Dorin v.
Dorin, L. R. 7 H. L. 568; Brown v.
Bolton, 31 Ch. Div. 542; In re Fish,
(1894) 2 Ch. 83; In re Du Bochet,
(1901) 2 Ch. 441; Flora v. Ander-
son, 67 Fed. 182; Hughes v.
Knowlton, 37 Conn. 429; John-
stone V. Taliaferro, 107 Ga. 6, 45
!.. R. A. 95, 32 S. E. 931; McDon-
ald V. Pittsburg etc. Ry. Co., 144
Ind. 459, 55 Am. St. Rep. 185, 32
L. R. A. 309, 43 N. E. 447; Brisbin
V. Huntington, 128 Iowa 166, 5 Ann.
Cas. 931, 103 N. W. 144; Adams v.
Adams, 154 Mass. 290, 13 L. R. A.
275, 28 N. E. 260; Hayden v. Bar-
rett, 172 Mass. 472, 70 Am. St. Rep.
295, 52 N. E. 530; Van Derlyn v.
Mack, 137 Mich. 146, 109 Am. St.
Rep. 669, 4 Ann. Cas. 879, 66
L. R. A. 537, 100 N. W. 278; Gates
V. Selbert, 157 Mo. 254, 80 Am. St.
Rep. 625, 57 S. W. 1065; Heater v.
Van Auken, 14 N. J. Eq. 159; Van
Voorhis v. Brintnall, 23 Hun
(N. Y.) 260; Miller v. Miller, 79
Hun (N. Y.) 197, 30 N. Y. Supp.
116; Collins v. Hoxie, 9 Paige Ch.
(N. Y.) 81, 88; Doggett v. Mosely,
52 N. C. (7 Jones L.) 587; Kirkpat-
rick V. Rogers, 41 N. C. (6 Ired.
Eq.) 130, 135; Gibson v. Moulton, 2
Ddsn. (Ohio) 158; Appel v. Byers,
98 Pa. St. 479 ; Bealafeld v. Slaugh-
enhaupt, 213 Pa. St. 565, 62 Atl.
1113; Shearman v. Angel, 1 Bail.
Eq. (S. C.) 351, 23 Am. Dec. 166;
Ferguson v. Mason, 2 Sneed (34
Tenn.) 618.
Testator left his property to his
children equally, there being four
daughters, one of whom was not
known to be illegitimate, she liv-
ing with him as the others and
being treated the same. Although
it was evidently intended the
illegitimate child should take, the
lord chancellor said "it was im-
possible, in a court of justice, to
hold that an illegitimate child
could take equally with lawful chil-
dren upon a devise to children." —
Cartwright v. Vawdry, 5 Ves. Jun.
530.
In Black v. Cartmell, 10 B. Mon.
(Ky.) 188, the testator, in effect,
devised property to his daughter
Catherine, and provided that if she
died without lawful issue of her
body it should go to his heirs.
Catherine left an illegitimate son,
and the court held that, though a
lawful heir of her body, he was
not lawful issue of her body, as
the latter was interpreted to mean
the descendants of the person, and
that the fact that the illegitimate
child may inherit from the mother
seemed "hardly sufficient ground
CLASSES OF BENEFICIARIES.
1229
Avard marry and have legitimate children.^" Where, how-
uver, the bequest is to the children of a person, dead at
the date of the will, who left none but illegitimate chil-
dren, and these facts may be presumed to have been
known to the testator, the illegitimate children will be
deemed to have been the ones intended to receive the ben-
efit.^^ But a gift to the children of a woman forty-nine
years of age who has none but illegitimate children, has
been held not to pass to them.^^
Illegitimate children may be included under a bequest
to "children" of a deceased person who left but one le-
gitimate child, if the testator may be presumed to have
been acquainted with the facts.^* In such cases it is es-
for saying that lie is embraced in
the words 'lawful issue,' as he cer-
tainly would not be in the words
'lawful descendants.' "
To provide for an illegitimate
child is not against public policy. —
Smith V. Du Bose, 78 Ga. 413, 6
Am. St. Rep. 260, 3 S. E. 309.
In Louisiana the proportion that
a natural parent may leave his
children is fixed by statute, see
La. Civ. Code, arts. 1483-1488.
In South Carolina, if the testa-
tor leave a wife or legitimate chil-
dren, he can not leave over one-
fourth to his natural children, and
this can not be evaded by a secret
trust. — Bouknight v. Brown, 16
S. C. 155; Gore v. Clark, 37 S. C.
537, 20 L. R. A. 465, 16 S. E. 614.
As to Illegitimate children and'
their rights, see § 642.
20Kenebel v. Scrafton, 2 East
530.
21 Woodhouselee v. Dalrymple, 2
Mer. 419; Gill v. Shelley, 2 Russ.
& M. 336; Herbert's Trusts, 1
Johns. & H. 121.
22 In re Overhill's Trusts, 1
Smale & G. 362.
23 Gill V. Shelley, 2 Russ. & M.
336; Leigh v. Byron, 1 Smale & G.
486; In re Bryon, 30 Ch. Div. 110;
In re Jodrell, 44 Ch. Div. 590.
The same principle was applied
where the gift was to the children
of the testator's nephews, and he
had but one legitimate nephew and
no living brother or sister. — Tug-
well V. Scott, 24 Beav. 141.
If illegitimate children are in-
tended, a child en ventre sa mere
may be included, but an illegiti-
mate child bom after the death of
the testator and not at such time
en ventre sa mere, can not take. — ■
Hill V. Crook, 6 H. L. Cas. 265; In
re Shaw, (1894) 2 Ch. 573; In re
Hastie's Trusts, 35 Ch. Div. 728.
1230
COMMENTARIES ON THE LAW OF WILLS.
sential that the testator 's knowledge of the facts may he
inferred.^* Even where the gift is to the children of a
living person, the context of the will may show that ille-
gitimate children are intended,^-' as where the bequest
is. to the children "now living" of a certain person who
at the date of the will has none but illegitimate chil-
dren.^® And a bequest to an illegitimate child by name
24 Hart V. Durand, 3 Anstr. 684;
Gill V. Shelley, 2 Russ. & M. 336,
342; In re Herbert's Trusts, 1
Johns. & H. 121; Edmunds v. Fes-
sey, 29 Beav. 233.
25H1U V. Crook, L,. R. 6 H. L..
265; In re Walker, (1897) 2 Ch.
238; Lyons v. Lyons, 88 Me. 395,
34 Atl. 180; In re Seltzinger's
Estate, 170 Pa. St. 500, 32 Atl.
1097; Smith v. Lansing, 24 Mlsa
Rep. 566, 53 N. Y. Supp. 633; In re
Scholl's Estate, 100 Wis. 650, 76
N. W. 616.
An illegitimate child was in-
cluded where the words of the will
were, "all the children of her
body."— Sullivan v. Parker, 113
N. C. 301, 18 S. E. 347.
With reference to including
Illegitimate children. Lord Eldon
said: "In construing a will, con-
jecture must not be taken for im-
plication, but necessary implica-
tion means not natural necessity,
but so strong a probability of in-
tention that an intention contrary
to that which is imputed to the
testator can not be supposed." —
Wilkinson v. Adam, 1 Ves. & B.
422, 466.
With reference to "natural ne-
cessity," Lord Chelmsford said:
"They are, perhaps, not happily
chosen, but I understand them to
mean that the Intention need not
be expressed in language which Is
necessarily susceptible of only one
interpretation, but that it is suf-
ficient if it is indicated in a way
that excludes the probability of
an opposite Intension having ex-
isted in the mind of the testator."
—Hill V. Crook, L. R. 6 H. L. 265,
277.
"Where it appears from the will
itself, by express designation, or
by necessary implication, that the
intended objects of the testator's
bounty are illegitimate children,
they will take under the designa-
tion of children." — Gelston v.
Shields, 16 Hun (N. T.) 143, af-
firmed 78 N. T. 275.
To the same effect, see Heater
V. Van Auken, 14 N. J. Eg. 159;
Shearman v. Angel, 1 Bail. Eg.
(S. C.) 351, 23 Am. Dec. 166.
Conjecture is not sufficient to
include illegitimates in the word
"children," there must be clear
evidence in the will showing such
intent. — Simmons v. Crook, L. R. 6
H. L. 265; Ferguson v. Mason, 2
Sneed (34 Tenn.) 618.
28 Dover v. Alexander, 2 Hare
CLASSES OF BENEFICIAEIES.
1231
or by a particular description wMch identifies it, is un-
doubtedly valid ;^'' and a bequest to an illegitimate by
name is good although he may be wrongfully described
as the "legitimate son of A."^*
§844. After-Bom Illegitimate Children: When May Take
Under Will.
Gifts to unborn or future illegitimate children are di-
vided into two classes, to those en ventre sa mere at the
time of the execution of the will, and those who may be
begotten in the future. As to the former class, a gift to
such without any reference to the father, is valid. It is
not contrary to the policy of the law to provide for a
child begotten, though unborn, although illegitimate; and
a testamentary gift to the child of a woman enceinte
without alluding to its father allows no uncertainty as to
the intended beneficiary.^** But in order that such an
275, 282; In re Haseldine, 31 Ch.
Div. 511.
Extrinsic evidence is admissible
to show intent only when there are
no legitimate children living at the
time the will is executed. — ^Heater
V. Van Auken, 14 N. J. Eg. 159.
As to other cases in which the
context or the circumstances were
sufficient to show an intention to
include illegitimate children, see
Gelston v. Shields, 16 Hun (N. Y.)
143; Hartley v. Tribber, 16 Beav.
510; Wilkinson v. Adam, 1 Ves. &
B. 422; Crook v. Hill, L. R. 6 Ch.
App. 311; Beachcroft v. Beach-
croft, 1 Madd. 430; Holt v. Sindrey,
L. R. 7 Eg. 170, (where the illegal-
ity of the marriage of the parents
was unknown to the testator) ; and
Gardner v. Heyer, 2 Paige Ch.
(N. Y.) 11, (where the bequest was
to the testator's "daughters," he
never having been married).
27 Metham v. Devon, 1 P. Wms.
529; Rivers' Case, 1 Atk. 410; Hill
V. Crook, L. R. 6 H. L.. 265; Clif-
ton V. Goodbun, L. R. 6 Eq. 278;
Stewart v. Stewart, 31 N. J. Eq.
398.
An illegitimate child has no sur-
name, not even that of his mother,
until he has acquired one by repu- '
tation or adoption. — Rex v. Clarke,
Russ. & R. 358; State v. Cunning-
ham, 111 Iowa 233, 22 N. W. 775;
Shannon v. People, 5 Mich. 71.
2 s Rivers' Case, 1 Atk. 410.
29 Holt v. Sindrey, L. R. 7 Eq.
170; Gordon v. Gordon, 1 Mer. 141;
Evans v. Marsey, 8 Price 22 ; Daw-
son V. Dawson, 5 Madd. 292; Med-
1232 COMMENTARIES ON THE LAW OP WILLS.
after-born child shall take, the will must show, either ex-
pressly or by necessary implication, that such was the
testator's intention.^" If the unborn illegitimate child
is designated by reference to its father, the general rule
is that the uncertainty of parentage precludes the child
from taking.*^ Such uncertainty, however, may be over-
come by the facts of the case, as where a testator makes a
bequest to an illegitimate child begotten by him by a
designated woman and such child is born before the tes-
tator's death and acknowledged by him.^^
Testamentary gifts to illegitimate children not be-
gotten at the date of the will are generally held void as
against the policy of the law.**
§ 845. Effect of Marriage of Parents of Illegitimate Child.
The general rule is that an illegitimate child is the heir
of its mother, no matter when born ; and may become the
ford V. Pope, 27 Bsav. 71; Pratt's used was: "Having two natural
Lessee v. Flamer, 5 Harr. & J. children, and the mother supposed
(Md.) 10. to be now carrying a third child, I
Compare: Barle v. Wilson, 17 do will and bequeath," etc.; and in
Ves. Jun. 528. subsequent parts of the will the
30 In re Bolton, 31 Ch. Dlv. 542; three children were referred to as
Pratt V. Mathew, 22 Beav. 328. "my children" and "my natural
31 Earle v. Wilson, 7 Ves. 528. children as aforesaid."
See, also, Mortimer v. West, 3 32 Occleston v. Fullalove, L.. R. 9
Russ. 370; Dissenting opinion of Ch. 147.
Lord Selbourne in Occleston v. But see dissenting opinion by
Fullalove, L. N. 9 Ch. 147. Lord Selbourne.
Compare: Evans v. Marsey, 8 To same effect as the main opln-
Price 22, where the court held that Ion, see In re Hastie's Trusts, 35
the reference to the father was Ch. Div. 728.
not such as to make the gift only 33 Metham v. Duke of Devon, 1
to the unborn illegitimate child of P. Wms. 529 ; In re Connor, 2 Jones
the testator, but that the bene- & La T. 456, 459; Arnold v. Pres-
ficiary was designated with suf- ton, 18 Ves. Jun. 288; Pratt v.
ficient certainty. The language Mathew, 22 Beav. 328; Harnett v.
CLASSES OF BENEKICIARIES.
123£
heir of its father if duly recognized or acknowledged in
writing. Generally, too, the subsequent marriage of the
parents of an illegitimate child will legitimatize him.**
The statutory rule is that the illegitimacy of a child
is to be determined according to the law of the parents'
domicile, even though the will be executed elsewhere.*^
Yet, although the child has been legitimatized under the
statute, it has been held that such fact does not over-
come the force of the rule excluding illegitimate children
from taking under a devise or bequest to ' ' children, ' ' and
this even though such child may be capable of inheriting
as if born in lawful wedlock.*^ The capacity to inherit
intestate property differs from the right to take under
a will as a legatee or devisee; in the former case the
heir takes by descent, in the latter the beneficiary takes
Tugwell, 31 Beav. 232; Chapman v.
Bradley, 33 Beav. 61; In re Bolton,
31 Ch. Div. 542; Howarth v. Mills,
L. R. 2 Eq. 389; Hill v. Crook,
L. R. 6 H. L. 265.
34 Where the parents of an ille-
gitimate child subsequently marry,
the child is not legitimatized unless
the father, both at the time when
the child was born and at the time
of the marriage, was domiciled in
the jurisdiction under which legiti-
macy is claimed. — In re Grove, 40
Ch. Div. 216.
A statute legitimatizing an ille-
gitimfite by reason of acknowledg-
ment by the father was held appli-
cable to a non-resident alien who
had never been within the juris-
diction of the United States, in ab-
sence of treaty provisions between
the United States and the country
II Com. on Wills — 24
of such alien extending to such
non-resident alien's right to in-
herit real estate within the terri-
torial domain. — Blythe v. Hinck-
ley, 127 Cal. 431, 434, 59 Pac. 787.
But, compare, Doe v. Vardill, 2
CI. & F. 571, 7 CI. & F. 895.
See Miller v. Miller, 91 N. Y.
315, 43 Am. Rep. 669, where the
subsequent marriage legitimatized
their child born prior thereto.
35 In re Andros, 24 Ch. Div. 637;
Skottowe V. Young, L. R. 11 Eq.
474; In re Grey's Trusts, (1892) 3
Ch. 88.
See, also, Adams v. Adams, 154
Mass. 290, 13 L. R. A. 275, 28 N. B.
260.
30 Lyon v. Lyon, 88 Me. 395, 34
Atl. 180; Appel v. Byers, 98 Pa. St.
479.
1234 COMMENTARIES ON THE LAW OF WILLS.
by purchase. The purpose of the statute has been said
to be merely to render the child capable of inheriting.^''
But the authorities are conflicting, and a child, once ille-
gitimate, who has been legitimatized by acts according to
statute, has been held to be included under the designa-
tion of "children" in a will; but no estate which has
become vested prior to the legitimacy of such child can
be disturbed.^^ Yet when a testator leaves a gift in favor
of the "lawful issue" of a designated person it is held
that an illegitimate child of such person, although legiti-
matized by the marriage of his parents prior to the exe-
cution of the will, will not take. The use of the words
"lawful issue" are understood, by laymen and in law,
to refer to children begotten in lawful wedlock,^'
§ 846. Illegitimate Child as Heir of the Mother.
Although an illegitimate child is, by statute, made the
lawful heir of his mother, it has been held that he will
not, for that reason, be included within the term "is-
37 Lyon V. Lyon, 88 Me. 395, 34 deeds or statutes. — Brisbin v.
Atl. 180; Hicks v. Smith, 94 Ga. Huntington, 128 Iowa 166, 5 Ann.
809, 22 S. E. 153. Cas. 931, 103 N. W. 144.
3sln re Grey's Trusts, (1892) 3 A legitimatized child has been
Ch. 88 ; Smith v. Lansing, 24 Misc. included under the following des-
Rep. 566, 53 N. Y. Supp. 633; Gib- ignations: "lawful Issue," Miller's
son V. McNeely, 11 Ohio St. 131, Appeal, 52 Pa. St. 113; "heir," Mc-
136; In re Miller's Appeal, 52 Pa. Gunnigle v. McKee, 77 Pa. St. 81,
St. 113; In re Seitzinger's Estate, 18 Am. Rep. 428; "lawful heirs,"
170 Pa. St. 500, 32 Atl. 1097. Lorlng v. Thorndike, 5 Allen
Compare: United States Trust (Mass.) 257; "heirs of his body,"
Co. V. Maxwell, 26 Misc. Rep. 276, McNichoU v. Ives, 3 Ohio N. P. 6.
57 N. Y. Supp. 53. 39 United States Trust Co. v.
It is necessary that there be a Maxwell, 26 Misc. Rep. 276, 57
complete legitimation to warrant N. Y. Supp. 53.
the inclusion of a bastard in the See, also, Brisbin v. Huntington,
words "issue," "child," and "ohil- 128 Iowa 166, 5 Ann. Cas. 931, 103
dren," as employed in wills or N. W. 144.
CLASSES OF BENEPICIAEIES. 1235
sue,"*" or "lawful issue."*^ But an illegitimate child
who inherits from his mother stands to her as an "heir
by blood," or a "blood relation," and a devise to his
mother for life with remainder over to her "heirs by
blood," or "blood relations," will include such illegiti-
mate child.*2 The term "blood relations," generally
speaking, as used in wills, refers to such persons as take
under the statute regarding the distribution of the es-
tates of intestates.^^
§ 847. Adopted Children, How Considered.
Adoption is a matter regulated by statute in the vari-
ous jurisdictions. After a complete compliance with all
requirements, an adopted child becomes, in a legal sense,
the child of the adopting parents. This, however, does
not deprive him of his right to inherit from his natural
parents unless the statute otherwise provides.''* After
40 Gibson v. McNeely, 11 Ohio ing of the term "blood relatives,"
St. 131. of "child,'' or "heirs," or "next of
41 Black V. Cartmell, 10 B. Mon. ^''^" ^^ common law. The inten-
(Ky ) 188. *'°° °^ ^ testator as regards ille-
gitimates is to be respected and
42 Elliott V. Elliott, 117 Ind. 380, effectuated by courts the same as
10 A,... St. Rep. 54, 20 N. E. 264; j.^^, j^^ention respecting lawful
Hayden v. Barrett, 172 Mass. 472,
issue. — Estate of Sander, 126 Wis.
70 Am. St. Rep. 295. 52 N. E. 530; ggg^ 5 ^„„_ j,^^_ 5^3^ ^p. j^_ ^
Gardner v. Heyer, 2 Paige (N. Y.)
1064.
11; Howell v. Tyler, 91 N. C. 207; ,3 ^^^ ^ ^^^^^ ^^^^^^ ^ ^^^
Powers V. McEachern, 7 S. C. 290; ^^^ ^3^^ gg j^ ^ ^gg. j^^^^ ^
Bennett v. Toler, 15 Gratt. (Va.) wakefleld, 54 Me. 291; Cummings
588, 78 Am. Dec. 638. ^ Cummings, 146 Mass. 501, 16
The offense of the parents in N. E. 401; Gallagher v. Crooks, 132
the case of an Illegitimate off- N. Y. 338, 30 N. E. 746; Cleaver v.
spring under the humane laws of Cleaver, 39 Wis. 96, 20 Am. Rep.
our day is not visited upon the 30.
children to the extent of prevent- 44 Wagner v. Vamer, 50 Iowa
ing them from taking under a will 532, 534 ; Ross v. Ross, 129 Mass.
regardless of the ordinary mean- 243, 245, 37 Am. Rep. 321.
1236
COMMENTAKIES ON THE LAW OP WILLS.
adoption, the adopted child has all rights of inheritance
as if born in lawful wedlock; and this right follows him
although he may remove to some jurisdiction other than
that of the adoption.*^ And a child adopted by the son
of a testatrix after her death is entitled to take under a
devise ' ' to such persons as would, by the intestate laws,
be entitled if the son had died intestate. ' ' *®
The word "issue," used in a will, and there being noth-
ing showing a contrary intent, will include an adopted
child. The term "issue" includes all descendants, and an
adopted child, by statute, assumes that status.*'' How-
129
45 Humphries v. Davies, 100 Ind.
274, 50 Am. Rep. 788; Ross v. Ross,
129 Mass. 243.
46 In re Jolinson's Appeal, 88 Pa.
St. 346.
In Alabama, under the peculiar
statute of that state, the adoption
must precede the execution of the
testator's will, in order that the
adopted child may share In a de-
vise to the children. — Russell v.
Russell, 62 Ala. 48.
47 Warren v. Prescott, 84 Me.
483, 30 Am. St. Rep. 370, 17 L. R. A.
435, 24 Atl. 948; Sewall v. Roberts,
115 Mass. 262; Pearce v. Rickard,
IS R. I. 142, 49 Am. St. Rep. 755,
19 L. R. A. 558, 26 Atl. 38.
Under the statutes of California,
an adopted child inherits the same
rights of inheritance as children
born of the wedlock, although the
statute prescribing the rules of
succession uses the word "issue."
—Estate of Wardell, 57 Cal. 484,
491; Estate of Newman, 75 Cal.
213, 7 Am. St. Rep. 146, 16 Pac.
S87.
See, also, Ross v. Ross,
Mass. 243, 37 Am. Rep. 321.
Contra: Under the New Hamp-
shire statute (Pub. Stat. 1901, c. 195,
§§ 10-13) provided that a widow,
by waiving the provisions of her
husband's will In her favor may
obtain, after the payment of his
debts, one-third of his property
where he leaves "issue" surviving
him, and one-half where there is
no surviving "issue," the same
provision being made for the hus-
band In case of the wife's death,
an adopted child can not be con-
sidered as "issue," and each of the
adopting parents is, with respect
to the estate of the deceased
spouse. In the same position as if
there was no adopted child. —
Morse v. Osbom, 75 N. H. 487,
Ann. Cas. 1912A, 324, 30 L. R. A.
(N. S.) 914, 77 Atl. 403. See, also,
Jenkins v. Jenkins, 64 N. H. 407,
14 Atl. 557; Phillips v. McConica,
59 Ohio St. 1, 69 Am. St. Rep. 753,
61 N. E. 445; Stanley v. Chandler,
53 Vt. 619.
CLASSES OF BENEFICIARIES.
1237
ever, an adopted child is not an "heir of the body," this
term being used generally in a technical sense and not
being synonymous with the words "children" or "is-
sue,
)M8
§ 848. Who Included in Term "Issue": Strict Rule.
As a general rule, the word "issue" when used as a
word of purchase or limitation, includes descendants of
all degrees.^®
Thus, under a devise of a contingent remainder to the
"male issue" of a certain person, those words are con-
strued as words of purchase, and all the lineal male de-
scendants are held entitled, whether sons or grandsons,
4S Pearce v. Rickard, IS R. I. 49 Robinson v. Sykes, 23 Beav.
142, 49 Am. St. Rep. 755, 19 L. R. A.
558, 26 Atl. 38.
See, also, McGunnigle v. McKee,
77 Pa. St. 81, 18 Am. Rep. 428.
Where the clear intent of a tes-
tatrix, in devising a remainder to
the "lawful issue" of her daughter,
is to transmit the whole estate to
her own descendants, and not to
adopted children, although at the
time of making the will she knew
that her daughter, who lived in a
foreign country, had legally
adopted a child, such Intention
controls in the interpretation of
the will, and the status of the
adopted child under the laws of
the country of its adoption is im-
material, even though under such
laws the adopted child is consid-
ered the lawful issue of the testa-
trix's daughter. — New York Life
Ins. etc. Co. v. Viele, 161 N. Y. 11,
76 Am. St. Rep. 238, 55 N. E. 311.
40; Davenport v. Hambury, 3 Ves.
Jun. 258; Freeman v. Parsley, 3
Ves. Jun. 421; Leigh v. Norbury,
13 Ves. Jun. 340; Ralph v. Carrick,
11 Ch. Div. 873; Hobgen v. Neale,
L. R. 11 Bq. 48; Hall v. Hall, 140
Mass. 267, 2 N. E. 700; Palmer v.
Horn, 84 N. Y. 516, 519; Chwatal v.
Schreiner, 148 N. Y. 683, 43 N. B.
166; Palmer v. Dunham, 125 N. Y.
68, 25 N. B. 1081; Soper v. Brown,
136 N. Y. 244, 32 Am. St. Rep. 731,
32 N. E. 768; Drake v. Drake, 134
N. Y. 220, 17 L. R. A. 664, 32 N. E.
114; Johnson v. Brasington, 156
N. Y. 181, 50 N. B. 859; New York
Life Ins. etc. Co. v. Viele, 161 N. Y.
11, 76 Am. St. Rep. 238, 55 N. E.
311; Miller's Appeal, 52 Pa. St.
113; Wistar v. Scott, 105 Pa. St.
200, 215, 51 Am. Rep. 197.
See, also, Remock's Estate, 11
Phila. (Pa.) 623, 626, where issue
was used as equivalent to "chil-
dren or other issue."
1238 COMMENTAEIES ON THE LAW OF WILLS.
and whether sons of sons or of daughters.^" And the ad-
dition of the words "begotten by" a certain person does
not necessarily confine the construction of the word to
" children. "^^ But when reference is made to the "par-
ent" of the issue, as in a direction for the substitution
of issue in the place of their "parent" in the event of
his dying before a certain time, the word "issue" is
deemed to mean children.^^
§ 849. The Same Subject: Modem Tendency.
There are other authorities, however, holding that the
word "issue," when not used as a term of limitation,/'
is ambiguous in meaning, being capable of meaning de-'
scendants generally, or children only; and whether it
shall be construed to mean one or the other depends upon
the intention of the testator as derived from the con-
text of the whole will or from such extrinsic circum-
stances as can be considered.^^
At an early day it was held in England that, in its pri-
mary sense, when not restricted by the context, the word
"issue" was synonymous with and comprehended "de-
scendants" of every degree.^* But inasmuch as such a
construction frequently defeated the intention of the tes-
soWistar v. Scott, 105 Pa. St. Bronson, 1 Demarest (N. Y.) 217;
200, 51 Am. Rep. 197. Barstow v. Goodwin, 2 Bradf. 413,
51 Evans v. Jones, 2 Coll. C. 0. 416.
516. See, also, Ross v. Ross, 20 Beav.
52 Bradshaw v. Melling, 19 Beav. 645.
417; Smith v. Horsfall, 25 Beav. 53 Palmer v. Horn, 84 N. Y. 516,
628; Maynard v. Wright, 26 Beav. 519; s. c 2 Am. Prob. Rep. 92, cit-
285; Pruen v. Osborne, 11 Sim. ing, Orford v. Churchill, 3 Ves. &
132; Sibley v. Perry, 7 Ves. Jun. B. 59, 67; Ralph v. Carrick, 11 Ch.
522; Buckle v. Pawcett, 4 Hare Div. 873; Cannon v. Rucastle, 8
536 (where the direction was that Com. B. 876.
tlie issue should take their father's 54 Palmer r. Horn, 84 N. Y. 516,
or mother's share) ; Murray v, 519.
CLASSES OP BENEPICIARIES.
1239
tator, the tendency of the later cases is strongly in favor
of holding the word to he equivalent to "children" un-
less the context indicates a contrary intention.^^ It is
always allowable for the testator, by a clear expression
of intention in his will, to limit the word "issue" to
"children."^" The tendency is to seize upon slight indi-
cations in other parts of the will as manifesting an in-
tention on the part of the testator to limit the meaning
of the term and to confine it to "children."^'' For ex-
ample, where the term "issue" has been used in a prior
part of the instrument and is subsequently referred to
by the words "said children," it is held that the tes-
tator thereby explains the sense in which he employed
the former term, and the children will take to the ex-
clusion of grandchildren.^^ So where a testator de-
vises land to his son for life, and after his decease to
55 In re Wells, 3 Demarest
(N. Y.) 86; Palmer v. Horn, 84
N. Y. 516, 519.
56 Coyle's Appeal, 83 Pa. St. 242;
Miller's Appeal, 52 Pa. St. 113;
Wistar v. Scott, 105 Pa. St. 200,
215, 51 Am. Rep. 197.
57 Bryan v. Mansion, 5 De Gex
& S. 737; Morgan v. Thomas, 9 Q.
B. Div. 643; Thomas v. Safe De-
posit, etc. Co., 73 Md. 451, 21 Atl.
367, 23 Atl. 3; Jackson v. Jackson,
153 Mass. 374, 25 Am. St. Rep. 643,
11 L. R. A. 305, 26 N. E. 1112;
Palmer v. Horn, 84 N. Y. 516, 519;
Soper V. Brown, 136 N. Y. 244, 32
Am. St. Rep. 731, 32 N. E. 768;
Pearce v. Rickard, 18 R. I. 142, 49
Am. St. Rep. 753, 19 L. R. A. 472,
26 Atl. 38.
In Wistar v. Scott, 105 Pa. St.
200. 51 Am. Rep. 197, the court
says: "The word 'issue,' in a will,
prima facie means the same as
'heirs of the body,' 'lineal de-
scendants, indefinitely,' and is to
be construed as a word of limita-
tion; but the prima facie construc-
tion gives way if there is anything
on the face of the will to show
that the word was intended to
have a less extended meaning, and
to be applied to children only, or,
as in this case, to lineal descend-
ants of a particular class, in being
at a specified time." To the same
effect, see Palmer v. Horn, 84 N. Y.
516.
58 Baker v. Bayldon, 31 Beav.
209; In re Hopkins' Trusts, 9 Ch.
Div. 131; King v. Savage, 121
Mass. 303; Palmer v. Horn, 84
N. Y. 516 ; Taylor v. Taylor, 63 Pa.
St. 481, 484, 3 Am. Rep. 565.
1240 COMMENTARIES ON THE LAW OP WILLS.
Ms lawful issue and their heirs forever, if any, and if
the son "should die without leaving any children," etc.,
then over, it is held that "issue," as used by the testator,
means " children. " ^^ The general rule is that where the
issue is to take the share of a deceased parent, the word
is construed to mean only the children of such parent;®"
and a gift to a certain person for life and on his death
to his lawful issue, will be limited to his children.^^
§ 850. Who Included in the Term "Heirs."
At common law an heir was he upon whom the law cast
the estate immediately upon the death of the ancestor.®^
"Heirs" and "heirs at law," in a legal sense, are the
■ same.®^ The word "heirs" may be interpreted in two
ways, one technical, embracing the whole line of heirs;
the other popular or colloquial, denoting the persons who
may come under the denomination of heirs at a par-
ticular time, and in common speech often used as synony-
mous with children."* Strictly speaking, the term ' ' heirs ' '
means the persons in whom real estate vests by opera-
59 Morgan v. Thomas, 9 Q. B. In Meadowcroft v. Winnebago
Ddv. 643. County, 181 111. 504, 54 N. E. 949.
00 Fairfield v. Bushell, 32 Beav. ^^^ common law meaning of the
158; Madison v. Larmon, 170 111. ^^"""^ "^^^''" *« stated as follows:
G5, 62 Am. St. Rep. 356, 48 N. B. "^eir, at common law: he who Is
556; King v. Savage, 121 Mass. ^°™ o' l^egotten in lawful wed-
303, 306; Cochrane v. Schell, 140 ^°'^^ ^^^ ^'^°^ ^^°^ tl'e law casts
N. Y. 516y 35 N. B. 971; Parkhurst *^® ^^^ate in lands, tenements or
V. Harrower, 142 Pa. St. 432, 24 hereditaments immediately upon
Am. St. Rep. 507, 21 Atl. 826. *^« <^eath of his ancestor."
63 Black V. Jones, 254 lU. 548,
Ann. Cas. 1915D, 1173, 106 N. E.
462.
64 Feltman v. Butts, 8 Bush (71
62 2 Bl. Com. 201; Black v. Ky.) 115; Flint v. Wisconsin Trust
Jones, 264 111. 548, Ann. Cas. 1915D, Co., 151 Wis. 231, Ann. Cas. 1914B,
1173, 106 N. E. 462. 67, 138 N. W. 629.
01 Palmer v. Dunham, 125 N. T.
68, 25 N. B. 1081; Shalters v. Ladd,
141 Pa. St. 349, 21 AO. 596.
CLASSES OF BENEFICIARIES.
1241
tion of law on the death, of the one last seised.®^ Of
course, no one can be the heir of a living person, but
the term "heirs" as used in wills, when the living are
referred to, contemplates the heirs apparent or those who
will be the heirs at the time the devise takes effect.®® How-
ever, there is a distinction between a direct gift to
"heirs" and one where they are substituted in the place
of another. In England, if the testator gives a legacy
to his heir or to the heir of another, the proper sense of
the word as meaning heir at law is not necessarily
changed because the subject of the bequest is personal
estate.®''
65 Seabrook's Ex'rs v. Seabrook,
McMull. Eq. (S. C.) 206; Dukes v.
Faulk, 37 S. C. 255, 34 Am. St. Rep.
745, 16 S. E. 122.
In Templeton v. Walker, 3 Rich
Eq. (S. C.) 543, 550, 55 Am. Dec.
646, it is said: "No one can take as
heir of the body of another unless
he fulfill the description, and is
not only such person as would take
the real estate of that other under
our act of distributions, but, like-
wise, a lineal descendant."
In the case of In re Cowley, 120
Wis. 263, 266, 97 N. W. 930, 98
N. W. 28, it is said that the words
"my lawful heirs" are not ambigu-
ous and that the authorities over-
whelmingly "support the rule that
reference in a will to heirs or legal
heirs of the testator means the
persons who at his death are by
law entitled to inherit the realty;
that such significance can be over-
come only by clear and conclusive
evidence of a different Intent or
meaning. See, also, Flint v. Wis-
consin Trust Co., 151 Wis. 231,
Ann. Cas. 1914B, 67, 138 N. W.
629.
66 Goodright v. White, 2 W. Bl.
1010; Darbison v. Beaumont, 1
P. Wms. 229; Barber v. Pittsburg,
F. W. & C. R. Co., 166 U. S. 83, 41
L. Ed. 925, 17 Sup. Ct. 488; Heard
V. Horton, 1 Denio (N. Y.) 165, 43
Am. Dec. 659.
67 De Beauvoir v. De Beauvoir, 3
H. L. Cas. 524; Mounsey v. Bla-
mire, 4 Russ. 584.
This seems also to be the rule in
Maryland. — Gordon v. Small, 53
Md. 550.
It would seem to be the rule in
Massachusetts, that where the gift
is directly to the heirs of a per-
son, as a substantive gift to them
of something which their ancestor
was in no event to take, the ele-
ment of succession or substitution
being wanting, the heirs take In
their own right as the persons des-
1242
COMMENTAEIES ON THE LAW OF WILLS.
But if tlie gift is to the heirs by way of- substitution
for a legatee upon Ms death before the time of payment,
it is inferred that the testator intended such persons as
would inherit the personal estate under the statute of
distribution.^^
In the United States generally those who succeed to
the property of an intestate decedent are fixed by stat-
ute, the common law rules having been abrogated, and
the same persons usually succeed to both the real and
personal estate. Therefore, as a general rule, the Ameri-
can courts construe the word "heirs" according to the
kind of property given, whether the gift be to the heirs
directly, or by way of substitution in the event of the
death of the first taker. A bequest of personal estate to
"heirs" goes to those who are entitled under the statutes
of distribution,"^ while a bequest of real estate, or of
ignated in the instrument; "and
in such cases the courts have
usually held that the word 'heirs'
must receive the meaning which It
hears at common law, as the per-
sons entitled to succeed to real
estate in case of intestacy." — See
Fahens v. Fahens, 141 Mass. 395,
,■599, 400, 5 N. B. 650, citing, De
Beauvoir v. De Beauvoir, 3 H. L.
Cas. 524 ; Forster v. Sierra, 4 Ves.
Jun. 766; Swaine v. Burton, 15
Ves. Jun. 365; Mounsey v. Bla-
mire, 4 Russ. 384; Clarke v. Cordis,
4 Allen (86 Mass.) 466, 480.
OS Jacobs v. Jacohs, 16 Beav.
557; In re Craven, 23 Beav. 333;
In re Porter's Trust, 4 Kay & J.
188.
Compare: Newton's Trusts, L.
R. 4 Eq. 171, 173; Rees v. Fraser,
25 Grant Ch. (U. C.) 253.
As to the rule in Maine, see
Lord V. Bourne, 63 Me. 368, 18 Am.
Rep. 234.
So in gifts of personal property,
the words "or their heirs," are
words of substitution and not of
limitation. — Gittings v. McDer-
mott, 2 Myl. & K. 69; Reiff v.
Strife, 54 Md. 298.
See §§ 775, 776.
As to substituted legacies gener-
ally, see §§ 772-776.
69 Eddings v. Long, 10 Ala. 203,
205; Hascall v. Cox, 49 Mich. 435,
13 N. W. 807; Scudder's Ex'rs v.
Vanarsdale, 13 N. J. Eq. 109;
Wright V. Trustees of M. E.
Church, 1 Hoff. Ch. (N. Y.) 202,
212; McCormick v. Burke, 2 Dem-
arest (N. Y.) 137; Tillman v.
Davis, 95 N. Y. 17, 47 Am. Rep. 1;
McCabe v. Spruil, 16 N. C. (1 Dev.
CLASSES OF BJENEPICIARIES.
1243
realty and personalty together, is a gift to those who
inherit the real estate.''" The term "heirs," in its legal
sense, comprehends those whom the law appoints to take
the estate of the testator or ancestor named in the event
of intestacy, and this technical meaning will be applied
unless a contrary intent is plainly apparent.^^
§ 851. The Same Subject.
While it is true that the word "heirs" is, strictly
speaking, a word of limitation and not of purchase, and
that if it be used in such technical sense, nothing can
Eq.) 190; Corbitt v. Cortitt, 54
N. C. (1 Jones Eq.) 114, 117; Nel-
son V. Blue, 63 N. C. 660; Ferguson
V. Stuart's Ex'rs, 14 Ohio 140;
Ward V. Sanders, 3 Sneed (35
Tenn.) 387, 391.
Contra: Aspden's Estate, 2
Wall. Jr. 368, 442, Fed. Cas. No.
589.
In Tennessee, however, it has
been held that where a testator
bequeathed the remainder of his
property, both real and personal,
to his heirs according to the laws
of the state, the realty should pass
to his heirs and the personalty to
his next of kin. — Alexander v.
Wallace, 8 Lea (76 Tenn.) 569.
70 Ireland v. Parmenter, 48 Mich.
631, 12 N. W. 883; Clarke v. Cordis,
4 Allen (86 Mass.) 466, 480; Loring
V. Thorndike, 5 Allen (87 Mass.)
257, 269; Rogers v. Brickhouse, 58
N. 0. (5 Jones Eq.) 301, 304; Hack-
ney V. Griffin, 59 N. C. (6 Jones
Eq.) 381, 383.
If personalty be bequeathed to
the testator's widow for life with
remainder over to his "heirs," the
word will not be held to indicate
those who would take under the
statutes of distribution, inasmuch
as the widow herself would be
thereby included. — See Richardson
V. Martin, 55 N. H. 45; Henderson
V. Henderson, 46 N. C. (1 Jones
L.) 221; Jones v. Lloyd, 33 Ohio
St. 572.
Contra: Brown v. Harman, 73
Ind. 412; Weston v. Weston, 38
Ohio St. 473.
As to where it was held to in-
clude all the distributees except
the widow, see Bateman v. Bate-
man, 17 Grant Ch. (U. C.) 227.
71 In re Donahue, 36 Cal. 329,
333; MacLean v. Williams, 116 Ga.
257, 59 L. R. A. 125, 42 S. E. 485;
Kelley v. Vigas, 112 111. 242, 54
Am. Rep. 235; Ewing v. Barnes,
156 111. 61, 40 N. E. 325; Smith v.
Winsor, 239 111. 567, 88 N. E. 482;
Nye V. Grand Lodge A. O. U. W., 9
Ind. App. 131, 32 N. E. 429;
Phillips V. Carpenter, 79 Iowa 600,
44 N. W. 898; Hoover v. Smith, 9S
1244
COMMENTARIES ON THE LAW OP WILLS.
avert the operation of the rule in Shelley's Case/^ yet
the context may show that it was employed by the tes-
tator as descriptio personccJ^ In the construction of a
will greater latitude is allowed than in the case of a
deed/* and the technical meaning of the term "heirs"
will not be allowed to defeat the obvious intent of the
testator as gathered from the four corners of his testa-
ment.'^^
Md. 393, 54 Atl. 102; Lavery v.
Egan, 143 Mass. 389, 9 N. E. 747;
Lincoln v. Perry, (Perry v. Aid-
rich) 149 Mass. 368, 4 L. R. A. 215,
21 N. B. 671; Proctor v. Clark, 154
Mass. 45, 12 L. R. A. 721, 27 N. E.
G73; Olney v. Lovering, 167 Mass.
446, 45 N. E. 766; Jarboe v. Hey,
122 Mo. 341, 353, 26 S. W. 968;
Howell V. Gifford, 64 N. J. Eq. 180,
53 Atl. 1074; Cushman v. Horton,
59 N. Y. 149; Tillman v. Davis, 95
N. Y. 17, 47 Am. Rep. 1; Lawton v.
Corlies, 127 N. Y. 100, 27 N. E. 847;
Groom v. Herring, 11 N. C. 393;
In re Porter's Appeal, 45 Pa. St.
201; In re Eby's Appeal, 50 Pa. St.
311; In re Dodge's Appeal, 106 Pa.
St. 216, 51 Am. Rep. 519; Cook v.
Providence First Universalist
Church, 23 R. I. 62, 49 Atl. 389;
Dukes v. Faulk, 37 S. C. 255, 34
Am. St. Rep. 745, 16 S. E. 122;
Shaw v. Robinson, 42 S. C. 342, 20
S. E. 161; Alexander v. Wallace, 8
Lea (76 Tenn.) 569; Brooks v.
Evetts, 33 Tex. 732, 742; Flint v.
Wisconsin Trust Co., 151 Wis. 231,
Ann. Cas. 1914B, 67, 138 N. W. 629.
72 Allen V. Craft, 109 Ind. 476, 58
Am. Rep. 425, 9 N. E. 919. '
73 Allen V. Craft, 109 Ind. 476, 58
Am. Rep. 425, 9 N. E. 919. '
74 Webbe v. Webbe, 234 111. 442,
17 L. R. A. (N. S.) 1079, 84 N. E.
1054.
75 Blackmore v. Blackmore, 187
111. 102, 58 N. E. 410; Johnson v.
Askey, 190 111. 58, 60 N. E. 76;
Winchell v. Wiuchell, 259 111. 471,
102 N. E. 823; Black v. Jones, 264
111. 548, Ann. Cas. 1915D, 1173, 106
N. E. 462; Duke v. Faulk, 37 S. C.
255, 34 Am. St. Rep. 745, 16 S. E.
122.
"That a case might arise where
the word 'heirs' would be con-
strued to mean children or heirs
apparent may be admitted. But
before a court should say that the
word should not have Its accurate
and legal meaning. It should
clearly appear that the testator
did not use the word advisedly and
that he intended to say something
different from what he did say." —
Flint V. Wisconsin Trust Co., 151
Wis. 231, Ann. Cas. 1914B, 67, 138
N. W. 629.
CIvASSES OF BENEFICIARIES. 1245
Wlierever the context of a will shows that the word
"heirs" was used in the sense of children, it will be so
construed.'^* Where a devise was in trust for the benefit
of one and his family, and upon his death leaving no
"heirs" then over, the word "heirs" was construed
as meaning children.'^^ The expression "nearest male
heir" has been held not to have been used in the tech-
nical sense of referring to the testator's heir being a
male, but as meaning the testator's nearest male rela-
tives^ If the expressions used in the mil show that the
testator intended by the term "heirs at law" to include
only his blood relatives, his wife will be excluded.'^® But
a devise to a sister for life with remainder over to her
heirs in fee does not in itself show that the testator in-
tended the word * ' heirs ' ' should mean ' ' children. " ^^ The
testator's intention must be drawn from the language of
the will ; parol evidence will not be admitted to show what
he might have meant. ^^
§852. "Heirs" as a Class: As to the Date Which Determines
Who Are Included.
"A devise to 'heirs' or 'heirs at law' is always con-
strued as referring to those who are such at the time of
the testator's death, unless a different intent is plainly
76Lockwood's Appeal, 55 Conn. 78 Llghtfoot v. Maybery, (1914)
157, 10 Atl. 517; Bland v. Bland, A. C. 782.
103 111. 12; Bradlee V.Andrews, 137 79 Black v. Jones, 264 111. 548,
Mass. 50; Fahmey v. Holslnger, 65 ^„„_ ^aa. 1915D, 1173, 106 N. E.
Pa. St. 388; Berg v. Anderson, 72
Pa. St. 87; Haverstick's Appeal,
103 Pa. St. 394, 396; Hinton v. Mil- «" ^""^ ^- Wisconsin Trust Co.,
bum's Ex'rs, 23 W. Va. 166. ^^l Wis. 231, Ann. Cas. 1914B, 67,
See, also, Stuart v. Stuart, 18 1^8 N. W. 629.
W. Va. 675. 81 In re Lester's Estate (Webb
77 Anthony v. Anthony, 55 Conn. v. Johnson) 115 Iowa 1, 87 N. W.
256, 11 Atl. 45. 654.
1246 COMMENTARIES ON THE LAW OF WILLS.
manifested by the will."^- Although, strictly speaking,
only the dead have heirs, yet a testamentary gift to the
heirs of a designated person who is living, describes the
beneficiaries with sufficient certainty and is held to refer
to the heirs apparent of such person or those who will
be his heirs when the gift takes effect.^^ An immediate
gift to the heirs of one recognized in the will as living, is
a bequest to those who would be his heirs if he were
dead at the time of the gift.** Where the gift is not im-
mediate, the rule will faiP^ unless the heirs be referred
to as persons already in being or to come into being dur-
ing life of the first taker ;*^ but a postponement for the
life of a person other than of him to whose heirs the gift
is made has been held to be within the rule.*'' Thus, a
remainder to the testator's own "heirs" upon the death
of the particular tenant without issue, includes those who
are heirs to the testator at the time of his death, and
82 Abbott V. Bradstreet, 3 Allen Patterson, 3 Rich. Eq. (S. C.) 156,
(85 Mass.) 587; Minot v. Tappan, 158.
122 Mass. 535; Dove v. Torr, 128 SBReinders v. Koppelmann, 68
Mass. 38. Mo. 482, 30 Am. Rep. 802; Camp-
ssDarbison v. Beaumont, 1 liell v. Rawdon, 18 N. Y. 412, 417;
P. Wms. 229; Goodright v. White, ^^^^ "^^ Stuart, 13 W. Va. 338;
2 W. Bl. 1010; Heard v. Horton, 1 ^^^^"^ ^- Stuart, 18 W. Va. 675.
Denio (N. Y.) 165, 43 Am. Dec. *^ Roberts v. Ogboume, 37 Ala.
ggg 174, 178; Woodruff v. Woodruff, 32
Ga. 358, 360; Conklin v. Conklln,
3 Sand. Oh. (N. Y.) 64, 67.
87 Dove V. Torr, 128 Mass. 38;
Heard v. Horton, 1 Denio (N. Y.)
165, 43 Am. Dec. 659; Simms v.
(N. Y.) 64, 67; Campbell v. Raw- Q^rrott, 21 N. C. 393. 396; Knight
don, 18 N. Y. 412, 417; Ward v. y. Knight, 56 N. C. 167, 169; In-
Stow, 17 N. C. (2 Dev. Bq.) 509, gram v. Smith, 1 Head (38 Tenn.)
517, 27 Am. Dec. 238; Bailey v, 411, 426.
84 Shepherd v. Nabors, 6 Ala.
631, 636; Williamson v. William-
son, 18 B. Mon. (57 Ky.) 329, 370;
Conklin v. Conklin, 3 Sand. Ch.
CLASSES OF BENEPICIAEIES. 1247
does not embrace those who might answer that descrip-
tion at the expiration of the particular estate.^*
.In a gift to heirs by way of substitution, the persons
are ascertained at the death of him whose heirs they are,
and not at the time of distribution;*^ if, however, the
ancestor be dead when the will is made or die before the
testator, those are entitled who, at the death of the tes-
tator, would have taken the property had their ancestor
then died intestate.®"
In construing a will, where the testator after certain
life estates provided that the estate should "descend to
those persons who may then be entitled to take the same
as my heirs," it was said by the court: "The word 'then'
is here inserted,®^ not by way of description of the per-
sons who are to take, but by way of defining the time
when they shall come into the enjoyment of that which is
devised to them. The word 'surviving' is not super-
added,®^ nor is the devise to those who would have been
the testator's heirs if he had died at that time." Accord-
88 stokes V. Van Wyck, 83 Va. to be an adverb of time, but this
724, 3 S. E. 387. is not the general rule, which is,
89 Gundry t. Pinniger, 1 De Gex, that it does not point to the time
M. & G. 502. but indicates the event. It some-
90 Vaux V. Henderson, 1 Jacob times refers to the event upon the
& W. 388; In re Gamboa's Trusts, happening of which the legal heirs
4 Kay & J. 756. take, and not to the time when
91 As in Long v. Blackall, 3 Ves. their right to take begins. To this
Jun. 486; in Sears v. Russell, 8 effect can be cited the following
Gray (74 Mass.) 86, and in Thomp- cases: Buzby's Appeal, 61 Pa. St.
son V. Luddington, 104 Mass. 193. Ill; Ashton's Estate, 134 Pa. St.
92 As in Olney v. Hull, 21 Pick. 390, 19 Atl. 699; Stewart's Estate,
(38 Mass.) 311, and in Hurlburt V; (In re Swann's Estate) 147 Pa. St.
Emerson, 16 Mass. 241. 383, 23 Atl. 599 ; McCrea's Estate,
In the construction of wills there 180 Pa. St. 81, 36 Atl. 412; In re
are instances in which the word Fuller, 225 Pa. St. 626, 74 Atl. 623;
"then" as used in connection with Fitzpatrick's Estate, 233 Pa. St. 33,
a devise of property has been held Ann. Gas. 1913B, 320, 81 Atl. 815.
1248 COMMENTARIES ON THE LAW OP WILLS.
ingly, it was decided that notAvithstanding the use of the
word "then," the estate should pass to those who were
his heirs at the time of his death."* »
§ 853. Who Included in the Term "Next of Kin."
The term "nest of kin," strictly applied, refers to the
"nearest blood relations" standing in equal degree to
the testator or person designated, and does not include
relatives by marriage.** The English rule is that the
next of kin are determined without reference to the stat-
utes of distribution, there being no contrary intention ex-
pressed in the will ; thus, under a devise to the testator 's
next of Mn, the nearest blood relations in equal degree
take in preference to all others even though under the
statutes of distribution, their rights might not have pri-
ority.®^ Of course, where the nearest blood relations are
those who take under the statute, there is no dispute.*®
In fact, in the United States, under the statutes regard-
ing succession to the estates of intestate decedents, the
next of kin and those who take under the rules of suc-
cession will in perhaps a majority of cases be the same.
But if not, the legal meaning of "next of kin" is applied
in some cases, it being a term which has not acquired a
93 Dove V. Torr, 128 Mass. 38. 95 Brandon v. Brandon, 3
94 Haraden v. Larrabee, 113 Swanst. 312; Elmsley v. Young, 2
Mass. 430; Swasey v. Jaques, 144 Myl. & K. 780; Harris v. Newton,
Mass. 135, 59 Am. Rep. 65, 10 N. B. 45 ^ j. ch. 268; Rook v. Attorney-
758; Keniston v. Mayhew, 169 q^^^^^^^^ ^1 Beav. 313; Halton v.
Mass. 166. 47 N. E. 612; Leonard ^^^^^^^ ^_ ^_ ^ ^^_ ^pp_ ^^^. ^^ ^^
Gray's Settlement, (1896) 2 Ch.
V. Haworth, 171 Mass. 496, 51 N E.
7; Watson v. St. Paul City R. Co.,
70 Minn. 514, 73 N. W. 400; Su- ^*'^' ^^*-
preme Council v. Bennett, 47 N. J. »« Graham v. Whitrldge, 99 Ind.
Bq. 39, 19 Atl. 785; Piatt v. Mlckle, 248, 66 L. R. A. 408, 57 AU. 609, 58
137 N. Y. 106, 32 N. E. 1070. Atl. 36.
CLASSES OP BENEFICIARIES.
1249
popular meaning as has the word "heirs."®'' Thus, the
English rule is approved in some American cases.®*
§854. The Same Subject: With Reference to the Statutes of
Distribution.
A distinction is dra-wm between a gift to "next of kin"
and a gift to "nest of kin according to the statute," or a
gift to be divided "as in case of intestacy."®® Accord-
ingly, under a gift over to the ' ' next of kin " of a legatee
who died leaving a brother and three nephews, the sons
of a deceased brother, on the authority of Withy v. Man-
gles^ it was held that the brother took to the exclusion of
the nephews.- "It is certainly difficult," said the court,
"to distinguish between the expressions, 'next of kin,'
'nearest of kin,' 'nearest kindred,' and 'nearest blood re-
lations ' ; and primarily the words indicate the nearest de-
9T New York L. Ins. Co. y. Hoyt,
161 N. Y. 1, 55 N. E. 299.
Where the devise was to pass to
"her heirs or next of kin," the
court held the presumption that
the word "heirs" was used as a
word of limitation only and was
not rehutted by the use of the
words "next of kin." — Serfass v.
Serfass, 190 Pa. St. 484, 42 Atl.
888.
98 Swasey v. Jaques, 144 Mass.
135, 59 Am. Rep. 65, 10 N. E. 758;
Wright V. Trustees of Methodist
Episcopal Church, 1 Hoffm. Ch.
(N. Y.) 202, 213; Harrison v.
Ward, 58 N. C. (5 Jones Eq.) 236;
Simmons v. Gooding, 40 N. C. (5
Ind. Bq.) 382; Redmond v. Bur-
roughs, 63 N. C. 242.
Compare: Warren v. Englehart,
13 Neb. 283, 13 N. W. 401; Pink-
II Com. on Wills— 25
ham V. Blair, 57 N. H. 226; Steel v.
Kurtz, 29 Ohio St. 191; Seabright
V. Seabright, 28 W. Va. 412, 466.
99 Withy V. Mangles, 4 Beav.
358, s. c. 10 CI. & F. 215; Rook v.
Attorney-General, 31 Beav. 313;
Avison V. Simpson, John. 43; Elm-
esley v. Young, 2 Myl. & K. 780;
Garrick v. Camden, 14 Ves. Jun.
372 ("as if I had died intestate") ;
Welsh V. Crater, 32 N. J. Eq. 177 ;
Harrison v. Ward, 58 N. C. (5
Jones Eq.) 236, 240; Redmond v.
Burroughs, 63 N. C. 242, 245.
1 Withy V. Mangles, 4 Beav. 358,
s. c. 10 CI. & F. 215.
2 Swasey v. Jaques, 144 Mass.
135, 59 Am. Rep. 65, 10 N. E. 758,
citing, Harris v. Newton, 25 Week.
R. 228; Halton v. Foster, L. R. 3
Ch. App. 505.
1250 COMMENTARIES ON THE LAW OF WILLS.
gree of consanguinity, and they are perhaps more fre-
quently used in this sense than in any other. What little
recent authority there is beyond that of the English
courts, supports the English view; and on the whole we
are inclined to adopt it."^ But a gift to "next of Idn"
with express referencL to the statute or to intestacy, while
it excludes those in equal degree whom the statutes post-
pone, includes those who take under the statutes by rep-
resentation to next of kin, as well as the next of kin them-
selves.* Those taking in such a case would be the same
as the distributees under the statute.^
§ 855. "Next of Kin" as a Class: As to the Date Which Deter-
mines Who Are Included.
The "next of kin" or "next of Mn according to the
statute" are to be ascertained at the time of the death of
the person to whom they stand so related,® whether the
3 Swasey v. Jaques, 144 Mass. Baier, 37 Neb. 235, 250, 55 N. W.
135, 59 Am. Rep. 65, 10 N. E. 758, 913; Wilkins v. Ordway, 59 N. H.
citing, Wright v. Trustees of M. E. 378; Duffy v. Hargan, 63 N. J. Eq.
Church, 1 HofC. Ch. (N. Y.) 202, S02, 52 Atl. 1131; Snedeker v.
213; Davenport v. Hassel, 45 N. C. Snedeker, 47 App. Div. (N. Y.) 471,
29; Redmond v. Burroughs, 63 63 N. Y. Supp. 580, affirmed 164
N- C. 242. N. Y. 58, 58 N. E. 4; May v. Lewis,
In New Hampshire, "next of 132 N. C. 115, 117, 43 S. E. 550;
kin" has been construed as equiv- Seabright v. Seabright, 28 W. Va.
alent to "next of kin according to 412, 466.
the statute." — Pinkham v. Blair, 6 Bullock v. Downes, 9 H. L. Cas.
57 N. H. 226. 1; Bird v. Luckie, 8 Hare 301;
On the authority of Varrell v. Gundry v. Pinnlnger, 1 De Gex,
Wendell, 20 N. H. 431, where the M. & G. 502; Dove v. Torr, 128
term in dispute was "relations" Mass. 38; Minot v. Harris, 132
and not "next of kin." Mass. 528; Welsh v. Crater, 32
4 Garrick v. Camden, 14 Ves. N. J. Eq. 177; In re Letchworth's
Jii- 372. Appeal, 30 Pa. St. 175; Brent v.
5 Lusby v. Cobb, 80 Miss. 715, 32 Washington's Adm'r, 18 Gratt.
So. 6; Missouri Pacific Ry. Co. v. (Va.) 526, 535.
CLASSES OF BENEFICIARIES. 1251
gift be immediate or by way of remainder over after the
expiration of a particular estate.'^ Accordingly, where
an estate is limited to one for life and upon his death
over to the nest of kin of the testator, if at the time of
the testator's death the life tenant is his sole next of kin,
he will take the property absolutely.* However, a very
clear expression of an intention that the next of kin be
ascertained at the time of distribution may prevail over
the rule.^ Such an intention wiU not be inferred, how-
ever, from the use of words of futurity, such as, after a
life estate, a gift of the remainder to those "who shall be
the next of kin";" although when words of futurity are
used in connection with the adverb "then," as in a be-
quest to the persons "who shall then be considered as
my next of kin," etc.,^^ or to those who "shall then be
my legal representatives, ' ' ^^ the next of kin will be ascer-
tained at the time of distribution. But this effect of the
word "then" may be destroyed by being followed by a
relative clause, as, for instance, where the bequest is,
after the death of A to the persons who shall then become
entitled to take out administration of his estate in case
he shall have died unmarried and intestate.^^ Words
7 Welsh. V. Crater, 32 N. J. Eq. But see. Doe v. Lawson, 3 East
177. 278.
8 HoUoway V. HoUoway, 5 Ves. ii Wharton v. Barker, 4 Kay &
Jun. 399 ; Lee v. Lee, 1 Drew. & S. J. 483.
85; Ware v. Rowland, 2 Phillips, 12 Long v. Blackall, 3 Ves. 486.
635; Wharton v. Barker, 4 Kay & is Cable v. Cable, 16 Beav. 507.
J. 483, 498; In re Buzby's Appeal, See, also, Scofield v. Olcott, 120
61 Pa. St. Ill, 114. 111. 362, 11 N. E. 351; In re Tuck-
9 Bullock V. Downes, 9 H. L. er's Will, 63 Vt. 104, 25 Am. St.
Cas. 1. Rep. 743, 21 Atl. 272;
10 Rayner v. Mowbray, 3 Bro. See, also, Wheeler v. Addams,
C. C. 234; HoUoway v. Holloway, 17 Beav. 417, where the words
5 Ves. Jun. 399. were, "such persons as shall then
1252 COMMENTARIES ON THE LAW OF WILLS,
of futurity may refer only to the enjoyment of the estate.
Thus, where the property of the testator was, if his
widow reached the age of seventy-five and unmarried,
to be divided into equal shares as "soon as may be"
and distributed among his "then" surviving children, it
was held that although the words "as soon as may be"
were words of postponement, yet the postponement re-
lated merely to the situation and character of the estate,
and that the vesting of the legacies was not postponed,
but only the possession and enjoyment.^*
Where there is a gift to "next of kin," or "next of
kin according to the statute, ' ' of one who dies in the tes-
tator's lifetime, the persons who take are to be ascer-
tained at the death of the testator as if he whose next
of kin is referred to had died at that time.^^
§856. Who Included in the Term "Relatives" or "Rela-
tions."
Although the word "relations" is one of very vague
and general import, yet it has obtained a certain degree
of ascertained meaning in the courts with respect to be-
quests of personal property ; and to control the more ex-
tensive meaning of the word, it is generally construed
as embracing those persons who in cases of intestacy
would have taken under the statutes of distribution.^*
be next of kin of A, in case she The rule is the same in case of
had died unmarried and intestate." a substitutional gift to heirs.
Compare: Doe v. Lawson, 3 Gamboa's Trusts, 4 Kay & J. 756.
East 278, ("if I had died Intes- 16 Green v. Howard, 1 Bro. C. C.
tate"). 31; Rayner v. Mowbray, 3 Bro.
14 Harris v. Harris' Estate, 82 C. C. 234; Doe d. Thwaites v.
Vt. 199, 72 Atl. 912. Over, 1 Taunt. 269; Roach v. Ham-
is Philips V. Evans, 4 De Gex mond, Prec. Ch. 401; Drew v.
& S. 188; Wharton v. Barker, 4 Wakefield, 54 Me. 291, 298; Esty
Kay & J. 483, 502. v. Clark, 101 Mass. 36, 3 Am. Rep.
CLASSES OP BENEFICIAEIES.
1253
The same rule of construction is applied to gifts of real
estate, the word including those who would have inher-
ited the realty had there been no will.^'' In a broad sense
it may be applied to those connected either by affinity or
consanguinity,^^ but the general rule is that the word
"relations" or "relatives," as used in wills, the context
showing no contrary intention, is limited to include only
those related by consanguinity.^* "Near relations" are
320; Thompson v. Thornton, 197
Mass. 273, 83 N. E. 880; Varrell v.
Wendell, 20 N. H. 431, 435; Bram-
ell V. Adams, 146 Mo. 70, 89, 47
S. W. 931; Snow v. Durgin, 70
N. H. 121, 47 AU. 89; Gallagher v.
Crooks, 132 N. Y. 338, 30 N. E. 746;
■McNellledge v. Galbraith, 8 Serg.
& R. (Pa.) 43, 11 Am. Dec. 572;
Templeton v. Walker, 3 Rich. Eq.
(S. 0.) 543, 55 Am. Rep. 646.
IT Doe d. Thwaites v. Over, 1
Taunt. 269 ; Handley v. Wrightson,
60 Md. 198; McNellledge v. Bar-
clay, 11 Serg. & R. (Pa.) 103.
So, also, under a gift to "those
related to A." — Rayner v. Mow-
bray, 3 Bro. C. G. 234.
The word does not receive this
restricted construction in charita-
ble gifts (Attorney-General v.
Price, 17 Ves. Jun. 371); nor in
powers of appointment authoriz-
ing a selection from among "rela-
tions."— Varrell v. Wendell, 20
N. H. 431, 435; Harding v. Glyn, 1
Atk. 469.
But a power of appointment
authorizing distribution only, must
be coniined to those within the
statute. — Pope v. Whitcomb, 3
Mer. 689.
And even though there be a:
power of selection with no gift
over in default of appointment,
upon a failure to exercise the
power, only those within the stat-
ute will take. — Harding v. Glyn, 1
Atk. 469; Grant v. Lynam, 4 Russ.
292, 297.
18 Davies v. Bailey, 1 Ves. Sen.
84; Simcoke v. Grand Lodge, 84
Iowa 383, 15 L. R. A. 114, 51 N. W.
8; Snow v. Durgin, 70 N. H. 121,
47 Atl. 89; Lewis v. Mynatt, 105
Tenn. 508, 58 S. W. 857.
In a devise by a testator to his
wife wherein he adds, "believing
she will do justice between her
relatives and mine at her death,"
the word "relatives" will not be
limited to those by consanguinity
only. — Hill v. Page, (Tenn.) 36
S. W. 735, 741.
19 Rayner v. Mowbray, 3 Bro.
C. G. 234; Harvey v. Harvey, 5
Beav. 134; Hibbert v. Hibbert,
L. R. 15 Eq. 372; Thompson v.
Myers, 95 Ky. 597, 26 S. W. 1014;
Elliot V. Fessenden, 83 Me. 197,
13 L. R. A. 37, 22 Atl. 115; Esty
V. Clark, 101 Mass. 36, 3 Am. Rep.
320; Supreme Council v. Bennett,
47 N. J. Eq. 39, 19 Atl. 785; Bios-
1254 COMMENTARIES ON THE LAW OF WILLS.
those who take under the statute of distribution,^*' but
"nearest relations" is more restricted and excludes those
who would take by representation under the statute,
although admitting all who are in an equal degree of con-
sanguinity.^'
The statute of distribution not only determines who
are meant by "relations," but also regulates the propor-
tions which they take, the distribution of the whole being
per stirpes and not per capita. The distribution is pro-
portional among the classes that take, not equally among
the various persons who may be benefited.^^
§857. "Relatives" or "Relations" as a Class: As to the Date
Which Determines Who Are Included.
As a general rule, the relations are to be ascertained
as of the date of the death of him to whom they are
related, or at the time of the testator's death, if the
person has predeceased the testator, whether the gift be
in remainder or immediate.^^ But this rule does not,
perhaps, apply so strictly as in gifts to next of kin;^*
and if the estate can not vest at the death of the testator,
som V. Sidway, 5 Redf. (N. Y.) 400; Marsh v. Marsh, 1 Bro. C. C.
389; Storer v. Wheatley's Ex'rs, 1 293; Stamp v. Cooke, 1 Cox 234;
Pa. St. 506. Ennis v. Pentz, 3 Bradf. (N. Y.)
It does not include a stepson 382, 385.
(Kimball v. Story, 108 Mass. 382) ; 22 Roach v. Hammond, Prec. Ch.
nor an illegitimate niece who, in 401; Masters v. Hooper, 4 Bro.
another part of the will, is desig- C. C. 207; Thompson v. Thornton,
nated as a "niece."— Hibbert v. 197 Mass. 273, 83 N. E. 880; Tem-
Hibbert, L. R. 15 Bq. 372. pleton v. Wallace, 3 Rich. Eg.
20 Whithorn v. Harris, 2 Ves. (S. C.) 543, 55 Am. Dec. 646.
Sen. 527; Handley v. Wrightson, 23 Rayner v. Mowbray, 3 Bro.
60 Md. 198. C. C. 234.
21 Pyot V. Pyot, 1 Vep. Sen. 335; 24 Tiffin v. Longman, 15 Beav.
Smith V. Campbell, 19 Ves. Jun. 275.
CLASSES OF BENEFICIARIES. 1255
the time of ascertainment may be postponed.^' Where
a power of appointment in remainder among the testa-
tor's relations is given to a tenant for life, whether the
power be by way of selection or of distribution, with no
gift over in default of appointment, and the power be not
exercised, the estate will pass to those who would have
been the testator's next of kin had he died at the time of
the death of the tenant for life, and not to the survivors
of those who were his next of kin at the actual date of
the testator's death.^" Although the power be one of dis-
tribution only, the donee may exercise the power in favor
of any who are next of kin according to the statute at the
date of the appointment, although they were not such at
the death of the testator.^'^
§ 858. Who Included in the Term ' ' Representatives " or " Legal
Representatives. ' '
In a strict sense the terms "representatives," "legal
representatives," "personal representatives," and
"legal personal representatives," signify executors or
administrators.^^ Should a testator make a gift simply
2 5 Lees V. Marsey, 3 De Gex, Trusts, L. R. 18 Bq. 686; In re
F. & J. 113. Henderson, 28 Beav. 656; Chap-
See Tiffin V. Longman, 15 Beav. man v. Chapman, 33 Beav. 556;
275, where advertisements had to Morehouse v. Phelps, 21 How.
he made for the relations who (U. S.) 294, 16 L. Ed. 140; Briggs
were unknown at the time of the v. Walker, 171 U. S. 466, 471, 43
death. L. Ed. 243, 19 Sup. Ct. 1; Sullivan
26 2 Sugden, Powers (6th ed.) v. Louisville etc. R. Co., 128 Ala.
270; Pope v. Whitcombe, 3 Mer. 77, 30 So. 528; Davis v. Davis, 26
689; Finch v. HoUingsworth, 21 Cal. 23, 85 Am. Dec. 157; Tarrant
Beav. 112. v. Backus, 63 Conn. 277, 28 Atl. 46;
27 Finch V. HoUingsworth, 21 Wamecks v. Lembca, 71 111. 91, 12
Beav. 112. Am. Rep. 85; Gruenewald v. Neu,
28 In re Wyndham's Trusts, L. R. 215 111. 132, 141, 74 N. B. 101;
1 Eq. 290; In re Best's Settlement Preston v. Connecticut Mutual L.
1256 COMMENTABIES ON THE LAW OF WILLS.
to one of tlie classes mentioned, or to Ms executors, the
recipient will be the one appointed by the court to repre-
sent the testator after his death ; but in the absence of an
intention to the contrary, he will take the property only
as part of the estate of the person whose representative
he is, and not beneficially.^" However, the terms referred
to may be used in the sense of "heirs" or "next of kin,"
as determined by the language of the will. Thus, where
the word "representatives" is qualified by other words,
as in the phrase "next personal representatives,"*" or
is foUoAved by directions that they are to take "share
and share alike, "*^ or "per stirpes and not per cap-
ita," ^^ or that the property is to be divided "equally
amongst my personal representatives,"*^ or where the
intention of the testator is evidently to provide for the
family of a deceased devisee,** the primary meaning of
the word is excluded, and it will be inferred that the
testator intended distributees under the statute as in
Ins. Co., 95 Md. 101, 51 Atl. 838; Eg. 686; Holloway v. Clarkson, 2
Lodge V. Weld, 139 Mass. 499, 2 Hare 521, 523; Halsey v. Pater-
N. E. 95; Halsey v. Paterson, 37 son, 37 N. J. Eq. 445.
N. J. Eq. 445; Geoferoy v. Gilbert, It has been said that a gift to
5 App. Div. 98, 38 N. Y. Supp. 643; executors in one part of the will
Leonard v. Harney, 63 App. Div. is an indication that they were not
294, 71 N. Y. Supp. 546; United referred to in a gift to "legal rep-
States Trust Co. V. Mutual Ben. resentatlves" in another part. —
L. Ins. Co., 115 N. Y. 152, 21 N. B. Walter v. Makin, 6 Sim. 148.
1025; Lyon v. Fidelity Bank, 128 30 Stockdale v. Nicholson, L. R.
N. C. 75, 38 S. E. 251; Ralston v. 4 Eq. 359.
Wain, 44 Pa. St. 279, 287; Osbom 3i Smith v. Palmer, 7 Hare 225.
V. Athens First National Bank, 32Atherton v. Crowther, 19
175 Pa. St. 494, 34 Atl. 858. Beav. 448.
29 King V. Cleaveland, 4 De Gex 33 Holloway v. Radcliffe, 23
6 J. 477; Saberton v. Skeels, 1 Beav. 163, 169; Baines v. Ottey, 1
Russ. & M. 587; In re Crawford's Myl. & K. 465.
Trusts, 2 Drew 230, 234; In re 34 Farnam v. Farnam, 53 Conn.
Best's Settlement Trusts, L. R. 18 261, 290, 2 Atl. 325, 5 Atl. 682.
CLASSES OF BENEFICIARIES.
1257
case of intestacy. In this sense the word "representa-
tives" is equivalent to "heirs" taking by way of dis-
tribution^^ where the statute is referred to in order to
ascertain the persons who are entitled to take as "repre-
sentatives," it will also determine the proportion of their
shares, unless a contrary intent appear in the will.^"
The true rule in determining the meaning of the terms
mentioned, when used in wills, is to take the intention
of the testator as expressed in the instrument and as
affected by the situation of the parties and surrounding
circumstances.*'^
§ 859. Who Included in the Term "Nephews" or "Nieces."
The general rule of construction is that the word
"nephew" means the son, and "niece" the daughter, of
a brother or sister, grandnephews or grandnieces not
35 Smith V. Palmer, 7 Hare 225;
In re Hall, 2 Demarest (N. Y.)
112; Watson v. Bonney, 2 Sand.
(N. Y.) 405, 417.
Under the statute in Georgia, a
widow was held to be within the
meaning of the term "personal
representatives." — Johnson v.
Champion, 88 Ga. 527, 15 S. E. 15.
To the same effect, see Holloway
V. RadcUSe, 23 Beav. 163; Far-
nam v. Parnam, 53 Conn. 261, 2
Atl. 325, 5 Atl. 682; Griswold v.
Sawyer, 125 N. Y. 411, 26 N. ^.
464; Rose v. Wortham, 95 Tenn.
505, 30 L. R. A. 609, 32 S. W. 458.
In Brent v. Washington's Admr.,
18 Gratt. (Va.) 526, 535, it was
held that under a gift to "repre-
sentatives according to the Stat-
utes of Distribution," the husband,
although not a distributee, was
entitled to take. To the same
effect, see Robinson v. Smith, 6
Sim. 47.
36 Thompson v. Young, 25 Md.
450, 461.
Compare: Bullock v. Downes,
9 H. L. Cas. 1.
37 Staples V. Lewis, 71 Conn.
288, 41 Atl. 815 (construing "legal
representatives" to mean "lineal
descendants." See, also, Sullivan
V. Louisville etc. R. Co., 128 Ala.
77, 30 So. 528; Greene v. Hunting-
ton, 73 Conn. 106, 46 Atl. 883; De-
launey v. Burnett, 9 111. 454;
Gruenewald v. Neu, 215 111. 132,
141, 74 N. E. 101; Albert v. Albert,
68 Md. 352, 370, 12 Atl. 11; Howell
v. GifCord, 64 N. J. Eq. 180, 53 Atl.
1074 ; In re Rankin's Estate, 13 Pa.
Co. Ct. 617, 621.
In Johnson v. Edmond, 65 Conn.
1258
COMMENTARIES ON THE LAW OF WILLS.
being included.'* The terms refer to those related by
consanguinity, not by affinity ; thus primarily a legacy by
a testator to his "nephews" or "nieces" means those
related to him by blood, not such relatives of his wife.'*
492, 498, 33 Atl. 503, in holding
that the words "legal representa-
tives" meant executors and admin-
istrators, the court says: "It is
one of those ambiguous terms the
meaning of which can often be
determined only by the context
and the situation of the testator
with reference to the natural ob-
jects of his bounty."
. As to "personal" or "legal rep-
resentatives" being construed as
"next of kin," see Bridge v. Abbot,
3 Bro. C. C. 225; Davies v. Davies,
55 Conn. 319, 325, 11 Atl. 500; Bro-
kaw V. Hudson's Exrs., 27 N. J.
Eq. 136; Lee v. Mil, 39 Barb.
(N. Y.) 516, 521.
As to "legal representatives"
meaning "Issue," see Clark v.
Cammann, 160 N. Y. 316, 326, 54
N. E. 709.
As to "legal representatives"
being construed as "heirs," see
Bowen v. Hackney, 136 N. C. 187,
67 L. R. A. 440, 48 S. E. 633.
As to legal or personal repre-
sentatives meaning those who
take under the statutes of distri-
bution, see Farnam v. Farnam, 53
Conn. 261, 290, 2 Atl. 325, 3 Atl.
682; Brokaw v. Hudson's Exrs.,
27 N. J. Eq. 136.
38 Shelley v. Bryer, Jacob 207;
Crook v. Whitley, 7 De Gex, M.
& G. 490; Lewis v. Fisher,. 2
Yeates (Pa.) 196; Willard v. Dar-
rah, 168 Mo. 660, 9 Am. St. Rep.
468, 68 S. W. 1023; Matter of
Woodward, 117 N. Y. 522, 7
L. R. A. 367, 23 N. E. 120; In- re
Harrison's Estate, 202 Pa. St.
331. 51 Atl. 976; White v. Old,
113 Va. 709, Ann. Cas. 1913E, 586,
75 S. E. 182.
In Falkner v. Butler, Amb. 514,
the testator empowered his wife
to appoint his estate to be paid
to his sisters and their children.
The court held that "the power
was confined to nephews and
nieces, and could not be extended
t o great-nephews and great-
nieces."
In Cromer v. Pinckney, 3 Barb.
Ch. (N. Y.) 466, the general rule
is repeated that the testator must
be presumed to have used words
In their ordinary primary sense
or meaning, and that the words
"nephews and nieces," in their pri-
mary sense, mean the immediate
descendants of the brother or sis-
ter of the person named, and do
not include grand-nephews and
grand-nieces or more remote de-
scendants.
39 Smith V. Lidiard, 3 Kay & J.
252; Merrill v. Morton, 17 Ch. Div.
382; Wells v. Wells, L. R. 18 Eq.
504; Goddard v. Amory, 147 Mass.
71, 16 N. E. 725; In re Green's
Appeal, 42 Pa. St. 25, 30; In re
CLASSES OF BENEPICIAEIES.
1259
And as a general rule, the fact that a nephew or niece
by marriage, or a great-nephew or grand-niece, is
described as a "nephew" or "niece," will not admit
such a one to the benefit of a bequest in another part of
the will to "nephews" and "nieces."*" But children of
half-brothers or half-sisters are included.*^
The rule must yield to intention as shoAAm by the situa-
tion of the parties. Thus if a testator has no nephews or
nieces of his own or living brothers or sisters, a legacy
to "his nephews and nieces" would be held to go to such
relatives of. his wife.*^ A testator may, of course,
expressly include those related to him by affinity, as by
referring to his nephews and nieces "on both sides," or
of himself and wife.** But neither the wife, husband,
widow nor widower of a nephew or niece is included
within the terms.**
Root's Estate, 187 Pa. St. 118, 40
Atl. 818.
40 Thompson v. Robinson, 27
Beav. 486; Smith v. Lidiard, 3 Kay
& J. 252.
Compare: In a case In which
there was a gift to two great-
nieces by name, with the addi-
tional description, "my niece, the
daughter of my nephew B," it was
held that as the testatrix had de-
fined her meaning of the word
"niece" so as to indicate that she
included under it great-nieces,
under a subsequent bequest to all
and every my "nephews and
nieces," nephews and nieces in
the second degree might take. —
James v. Smith, 14 Sim. 214.
41 Grieves v. Rawley, 10 Hare
61, 63; ShuU v. Johnson, 55 N. C.
(2 Jones Eq.) 202. See, also,
Wood V. Mitchell, 61 How. Pr.
(N. Y.) 48; Luce v. Harris, 79
Pa. St 432.
42 Hogg V. Cook, 32 Beav. 641 ;
Sherratt v. Mountford, L. R. 8
Ch. 928; Adney v. Greattrex, 20
L. T. N. S. 647.
Whefre the gift was to "my
nephew," parol evidence held ad-
missible to show which of the tes-
tator's nephews was intended. —
Phelan v. Slattery, L. R. 19 Ir. 177.
43 Frogley v. Phillips, 30 Beav.
168.
44 Goddard v. Amory, 147 Mass.
71, 16 N. E. 725.
1260 COMMENTARIES ON THE LAW OF WILLS.
§ 860. Who Included in the Term "Cousins."
Cousins are related by collateral consanguinity; the
cousins of "A" are all those so related to him except
brothers and sisters and their descendants, and the
brothers and sisters of any ancestor, but they vary in
degree. First cousins are those who have the same
grandfather or grandmother, second cousins those who
have the same great-grandfather or great-grandmother
The child of one of two first cousins would stand toward
the other as a first cousin once removed, a grandchild
twice removed. However, the term ' ' cousins ' ' when used
in wills and no contrary intention appearing, means ' ' first
cousins" only.*^ But first cousins once removed wU
lake under a bequest to cousins where the will shows that
such was the testator 's intention.** And a bequest to ' ' all
the first and second cousins" is deemed to embrace all
within such degrees, and accordingly first cousins once
or twice removed will be included.*'^ If the bequest is to
second cousins, first cousins either once or more
45 Stoddart v. Nelson, 6 De Gex, ceeded not on the principle that
M. & G. 68; s. c. 25 Li. J. Ch. 116; a legacy to a dead person was
Stevenson v. Abingdon, 31 Beav. void, but on the ground that under
305; In re Parker, 15 Ch. Div. 528, well-settled authority such a gift
17 Ch. Div. 262; Caldecott v. Har- indicated no intention on the part
rison, 9 L. J. Ch. 331. of the testator to include cousins
In Howland v. Slade, 155 Mass. already deceased. See, also, Pimel
415, 29 N. E. 631, the leading case v. Betjemann, 183 N. Y. 194, 5
in that state on the subject, the Ann. Cas. 239, 2 L. R. A. (N. S.)
decision that under a gift to "all 580, 76 N. E. 157.
my first cousins," the issue of first 46 Wilks v. Bannister, 30 Ch.
cousins deceased before the mak- Div. 512.
ing of the will could not take, 47 Mayott v. Mayott, 2 Bro. C. C.
while the issue of those who died 125; Charge v. Goodyear, 3 Russ.
intermediate the will of the testa- 140; Silcox v. Bell, 1 Sim. & St.
tor and his death could take, pro- 301.
CLASSES OP BHNEFICIABIES. 1261
removed are excluded;** yet if the testator has no second
cousins, but has first cousins once or more removed
whom he commonly calls his second cousins, such rela-
tives may take.**
§ 861. Who Included in the Term " Family."
Under different circumstances the word "family" may
mean ' ' a man 's household, consisting of himself, his wife,
children, and servants; it may mean his wife and chil-
dren, or his children excluding his wife, or in the absence
of wife and children it may mean his brothers and sisters
or his next of kin, or it may mean the genealogical stock
from which he may have sprung. All these applications
and some others are found in common parlance. ' ' ^^ The
term, however, should be construed according to the
intention of the testator as shown by the language of the
will and the circumstances of the case.^^
Where a testamentary gift is to the "family of A,"
the word "family" is primarily equivalent to " chil-
dren. "^^ Such a gift would not include "A" or his
48 In re Parker, 15 Ch. Div. 528, cepted in many decisions. See
17 Ch. Div. 262; Corporation of Poor v. Hudson Ins. Co., 2 Fed.
Bridgnorth V. Collins, 15 Sim. 541. 432; Cheshire v. Burlington, • 31
49 In re Bonner, 19 Ch. Div. 201. Conn. 326; Hart v. Goldsmith, 51
60 Blackwell V. Bull, 1 Keen 181. Conn. 479; Bates v. Dewson, 128
See, also. Brooks v. Collins, 11 Mass. 334; Bradlee v. Andrews,
Bush (Ky.) 622. 137 Mass. 50; Bowne v. Witt, 19
It may even include an illegiti- Wend. (N. Y.) 475.
mate child. — Lambe t. Eames, 5i Green v. Marsden, 1 Drew.
L. R. 10 Eq. 267. 651 ; Williams v. Williams, 20 L. J.
Webster's definition of "family" Ch. 280; Lucas v. Goldsmid, 30
as that collective body of persons L. J. Ch. 935; Jacobs v. Prescott,
who live in one house and under 102 Me. 63, 65 Atl. 761.
one head or manager; a house- 52 Gregory v. Smith, 9 Hare 708
hold, including parents and chil- Barnes v. Patch, 8 Ves. Jun. 604
dren and servants, has been ac- In re Terry's Will, 19 Beav. 580
1262
COMMENTARIES ON THE LAW OF WILLS.
wife.®* A gift to "the A family" would not embrace
"A,"^* but to "A and his family" would include him
jointly with his children.®^ If the reference is to the
family of a single person, the heirs or next of kin are
naturally presumed to have been intended.^®
The term "family" will.be differently construed if the
testamentary gift is for the purpose of education and
support. Thus, where the testator left a widow and a
daughter fourteen years of age and a son thirty years old
who was capable of supporting himself, provisions for
the testator's "family" were considered not to include
the son.®'' Under a devise in trust for the support of the
Burt V. Hellyar, L.. R. 14 Eq. 160;
In re Hutchinson, 8 Ch. Div. 540;
Raynolds v. Hanna, 55 Fed. 783;
Taylor v. Watson, 35 Md. 519;
Dominick v. Sayre, 3 Sandf.
(N. Y.) 555; Heck t. Clippenger,
5 Pa. St. 385, 388; White's Exr.
V. White, 30 Vt. 338; Stuart v.
Stuart, 18 W. Va. 675.
Bequests to the families of A
and B -will create a joint tenancy
between their children.— Gregory
V. Smith, 9 Hare 708, 711.
A gift to the "family" of a person
living at the death of the testator
and having children. Includes
such children only and excludes
grandchildren. — Barnes v. Patch,
8 Ves. Jun. 604; Burt v. Hellyar,
L. R. 14 Eq. 160; Pigg v. Clarke,
45 L. J. Ch. 849; In re Muffett,
56 L. J. Ch. 600.
53 Barnes v. Patch, 8 Ves. Jun.
604.
But see Bradlee v. Andrews, 137
Mass. 50, where A's "family" was
construed to embrace children and
the wife so long as she continued
to live with A.
54 Gregory v. Smith, 9 Hare 708,
711.
55 A legacy to A and his family
creates an estate in joint tenancy
between A and his children living
and capable of taking at the testa-
tor's death. — In re Parkinson's
Trusts, 1 Sim. N. S. 242; Bowers
V. Bowers, 4 Heisk. (51 Tenn.)
293.
A devise to A and his family
confers upon A an estate tail. —
Lucas V. Goldsmid, 29 Beav. 657.
56 Cruwys v. Colman, 9 Ves. Jun.
319; Grant v. Lynam, 4 Russ. 292.
57 In re Simons' Will, 55 Conn.
239, 11 Atl. 36.
Adult children living separately
from their parents are generally
not included in the term "family."
— Wood V. Wood, 63 Conn. 324, 28
Atl. 520; Phelps v. Phelps, 143
Mass. 570, 10 N. E. 452.
CLASSES OF BENEFICIAEIES. 1263
testator's son and three daughters and of their "famil-
ies," it was considered that the word "would include his
son and daughters, together with their respective chil-
dren, so long as they should live together and form a por-
tion of the same household, or from their tender years be
entitled to be treated as its members. It would also
include the wife of the son if she continued to reside with
or be entitled to support from him."^^ Under a devise
to trustees for the use of the "family" of the testatrix's
son and for his wife and when he ceased to have a family
then over, it was held that children not living in the
father's house were not entitled, and that the family
ceased to exist when the wife had died, all the daughters
had married or attained majority, and all the sons had
become of age,^*
§ 862. Neither Husband Nor Wife Is Heir or Next of Kin of
the Other.
A wife is not a relation of her husband in the usual
sense of the word,"" nor is she her husband's heir;'^^
neither is the husband the heir nor next of kin of his
BSBowditch V. Andrew, 8 Allen 758; Davies y. Bailey, 1 Ves. Sen.
(90 Mass.) 339; Bates v. Dewson, 84; Esty v. Clark, 101 Mass. 36,
128 Mass. 334; Bradlee v. An- 3 Am. Rep. 320; Storer v. Wheat-
drews, 137 Mass. 50, 55. ■ ley's Exrs., 1 Pa. St. 506; Cleaver
59 Stuart Y. Stuart, 18 W. Va. v. Cleaver, 39 Wis. 96, 20 Am.
675. Rep. 30.
A gift to the testator's widow, 6i Ruggles y. Randall, 70 Conn,
"to be for her support and sup- 44, 38 Atl. 885; Brown v. Harmon,
port of my children," vests a bene- 73 Ind. 412; Phillips v. Carpenter,;
ficial interest in the children; and 79 Iowa 600, 44 N. W. 898; Lord
a girl of nineteen who left the v. Bourne, 63 Me. 368, 18 Am. Rep.
mother did not thereby lose her 234; Wilkins v. Ordway, 59 N. H.
support — Proctor v. Proctor, 141 378, 47 Am. Rep. 215; Tillman v.
Mass. 165, 6 N. E. 849. Davis, 95 N. Y. 17, 47 Am. Rep. 1;
60 Worsly v. Johnson, 3 Atk. In re Dodge's Appeal, 106 Pa. St.
1264
COMMENTARIES ON THE LAW OP WILLS.
wif e.*^ A bequest by a husband to Ms ' ' next of kin ' ' would
not prima facie include his wife as a beneficiary,^* and
the converse is true should the wife make a similar gift
to her husband."* However, the court will inspect the
entire will, and if from the whole there is manifested an
intention to include the husband or wife under the term
"next of kin," "relatives," or the like, the intention will
be given effect.*^ Where under the statute a surviving
husband or wife succeeds to an absolute interest in the
estate of the other upon his or her death, it has been held
that the term "heirs at law" will include a surviving
spouse as the statutory heir.®* This effect will always
be given if the context shows that such was the intention
of the testator.^'^
216, 51 Am. Rep. 519; In re Ra-
leigt's Estate, 206 Pa. St. 451, 55
Atl. 1119.
62 In re Ivin's Appeal, 106 Pa.
St. 176, 51 Am. Rep. 516.
63 Garrick v. Camden, 14 Ves.
Jun. 372; Wilkins v. Ordway, 59
N. H. 378, 47 Am. Rep. 215; Mur-
doch; V. Ward, 67 N. Y. 387; Ketel-
tas V. Keteltas, 72 N. Y. 312, 28
Am. Rep. 155; Tillman v. Davis,
95 N. Y. 17, 47 Am. Rep. 1.
64 Garrick v. Camden, 14 Ves.
Jun. 372; Wetter v. Walker, 62
Ga. 142; Wilkins v. Ordway, 59
N. H. 378, 47 Am. Rep. 215; In re
Ivin's Appeal, 106 Pa. St. 176, 51
Am. Rep. 516.
A gift to the heirs of B's de-
ceased wife does not include B. —
Wilkins v. Ordway, 59 N. H. 378,
47 Am. Rep. 215.
65 Garrick v. Camden, 14 Ves.
Jun. 372; In re Steevens' Trusts,
L. R. 15 Eq. 110.
66 Pace V. Klink, 51 Ga. 220, 223;
Craig V. Ambrose, 80 Ga. 134, 4
S. E. 1; Fabens v. Fabens, 141
Mass. 395, 5 N. E. 650; Lincoln v.
Perry (Perry v. Aldrich), 149 Mass.
368, 374, 4 L. R. A. 215, 21 N. E.
671; Olney v. Lovering, 167 Mass.
446, 45 N. E. 766.
67 Mullen V. Reed, 64 Conn. 240,
42 Am. St. Rep. 174, 24 L. R. A.
664, 29 Atl. 478; Alexander v.
Northwestern Masonic Aid Soc,
126 111. 558, 2 L. R. A. 161, 18 N. E.
556; Wilburn v. Wilburn, 83 Ind.
55; Lyons v. Yerex, 100 Mich. 214,
43 Am. St. Rep. 452, 58 N. W. 1112;
Welsh V. Crater, 32 N. J. Eq. 177;
Walsh V. Walsh, 66 Hun (N. Y.)
297, 20 N. Y. Supp. 933; In re
Eby's Appeal, 84 Pa. St. 241, 245.
CLASSES OP BENEFICIARIES. 1265
§ 863. " Husband ' ' or " Wife ' ' : Effect of an Illegal Marriage.
A beneficiary may be designated in a will by descrip-
tion or as partaking of a certain character; as, for in-
stance, "my son's wife L."®* The gift is not avoided
merely because the beneficiary does not in fact legally
occupy the position. The words used are merely descrip-
tive of the person who is to take, and do not define the
capacity in which she may receive the benefit.®^ Thus
where the beneficiary was named as "T. W., the husband
of my said daughter," it was said that' the relationship
could not have been the sole motive of the gift since it
was an individual by name as well as by description, and
that the court could not subject the gift to the condition
that the donee should at the time it took effect, be the
husband of the daughter.'^" Where a testator makes a
bequest in favor of one whom he designates as "my wife, ' '
the gift will pass to the one occupying the position of or
being treated as his wife, although never legally married
to him. ''I The designation of a beneficiary by description
must not be confused with gifts to after-born illegiti-
68 In Anderson v. Berkley, 149; Marks v. Marks, 40 Can. Sup.
(1902) 1 Ch. 936, it was held by Ct. 210.
Joyce, J., that a bequest "to my In Re Petts, 27 Beav. 576, it was
son's wife L., if she shall survive held that a woman who had a hus-
him," was good, though she who band still living when she mar-
lived with the son was not in fact ried the testator, was entitled to
his wife. The son had held her legacies given "to my wife" and
out as his wife, but the judge de- "my said wife," by the will of him
clined to speculate how far this with whom she contracted this
would have affected the testator's second and void marriage,
mind if he had known the truth. In Goods of Howe, 33 Week.
69 Bullock V. Zilley, 1 N. J. Eq. Rep. 48, it was held, where sepa-
489. ration by mutual consent had
70 In re Mellon's Estate, 28 taken place and a ceremony of
Week. Not. Cas. (Pa.) 120. marriage gone through with an-
71 In re Wagstaff, 98 L. T. N. S. other whom the testator had
n Com. on Wills— 26
1266 COMMENTARIES ON THE LAW OP WILLS.
mate children which are void as against the policy of the
law.''^
Although the statute may prescribe that every will
shall speak as of the date of the testator's death, yet this
applies only to the subject matter disposed of, not to the
beneficiaries. As to the persons designated to take under
the will, the instrument speaks as of its date unless a con-
trary intention be shown.''*
§ 864. The Same Subject: Effect of Divorce.
Divorce will not cause a legacy or devise by one spouse
in favor of the other to lapse. A wiU may be revoked at
any time and its retention unaltered raises a strong pre-
sumption that the maker desired it to stand.''* This rule,
however, may be changed by agreement and a property
settlement between the parties at the time of the legal
separation.''^ The terms of the will may also preclude a
treated as his wife, that she took 74 See § 765. In re Boddington,
under the expression "my wife." 22 Ch. Dlv. 597, 25 Ch. Div. 685;
T2 In Pratt v. Mathew, 22 Beav. Card v. Alexander, 48 Conn. 492,
328, at page 338, Sir John Romilly, 40 Am. Rep. 187; In re Brown's
the master of the rolls, held the Estate, 139 Iowa 219, 117 N. W.
phrase "to my wife" carried a 260; Baack© v. Baacke, 50 Neb.
bequest to her whom the testator 18, 69 N. W. 303; Smith v. Greeley,
had gone through the form of mar- 67 N. H. 377, 30 Atl. 413; Charlton
rying, but whom, by reason of her v. Miller, 27 Ohio St. 298, 22 Am.
having been a deceased wife's sis- Rep. 307; Irish v. Smith, 8 Serg.
ter, he could not legally marry. & R. (Pa.) 573, 11 Am. Dec 648;
And in the same case he held void Brown v. Ancient Order United
a bequest to "my children here- Workmen, 208 Pa. St. 101, 57 Atl.
after to be born" though the said 176; In re Jones' Estate, 211 Pa.
wife, so-called, with whom he lived St. 364, 107 Am. St. Rep. 581, 3
until death, was then far advanced Ann. Cas. 221, 69 L. R. A. 940, 60
in pregnancy. Atl. 915.
73 See § 237. In re Jones' Es- 75 Lansing v. Haynes, 95 Mich,
tate, 211 Pa. St 364, 107 Am. St. 16, 35 Am. St. Rep. 545, 54 N. W.
Rep. 581, 3 Ann. Cas. 221, 69 699; Donaldson v. Hall (In re
L. R. A. 940, 60 Atl. 915. Hall), 106 Minn. 502, 130 Am. St.
CLASSES OF BENEFICIARIES. 1267
divorced wife from taking, as where an annuity was
given for the support for life of the "widow" of the tes-
tator should she survive him and remain unmarried.
The divorced "wife was held not to be the "widow" of the
dpeedentJ®
S 865. Gift With Limitation Over in Event of Death of Bene-
ficiary.
It is a settled rule of construction that where a legacy
or devise is given to one person and in case of his death to
another, the contingency referred to is the death of the
first named beneficiary during the lifetime of the testator.
If he survive the testator, he takes an absolute interest.
One purpose of the substituted beneficiary is to prevent a
lapse. This construction is adopted where no contrary
intention is indicated in the will. The words of contin-
gency can only be satisfied by referring them to a death
before some particular period. If none other is men-
tioned it is presumed that the time intended was the death
of the testator; otherwise the first-named devisee could
take but a life estate, since his death at some time is cer-
tain."
§ 866. The Same Subject: "Die Without Issue": English Ride.
Where a devise is given to one with an alternative gift
over in case the first-named devisee die "without issue,"
Rep. 621, 16 Ann. Cas. 541, 20 357; Brlggs v. Shaw, 9 Allen (91'
L. R. A. (N. S.) 1073, 119 N. W. Mass.) 516; Grossman v. Field,
219. And see Wirth v. Wirth, 149 119 Mass. 170, 172; Whitney v.
Mich. 687, 113 N. W. 306. Whitney, 45 N. H. 311; Kelly v.
Contra: Baacke v. Baacke, 50
Neb. 18, 69 N. W. 303.
Kelly, 61 N. Y. 47; Quackenboss
V. Kingsland, 102 N. Y. 128, 55
Am. Rep. 771, 6 N. E. 121; Matter
76 Bell V. Smalley, 45 N. J. Eq. ^f ^ew York, Lackawanna & W.
478, 18 Atl. 70. R Co., 105 N. Y. 89, 59 Am. Rep.
77 Edwards v. Edwards, 15 Beav. 478, 11 N. E. 492.
1268
COMMENTARIES ON THE LAW OF WILLS.
or "without children," or "without leaving a lawful
heir," there is a conflict of authority as to whose death is
referred to. The rule of the English cases is that where
there is a gift over in the event of death without issue,
the death referred to must be held to mean death of the
first taker at any time without issue, unless a contrary
intention appears in the will, and even the introduction
of a previous life estate will not alter the principle.'^*
The rule, however, appears to be confined to bequests of
personalty.''® Where real property is devised in fee with
a limitation over in the event of the devisee dying with-
out issue, the death referred to is the death of the devisee
during the lifetime of the testator ; if the devisee survive
he takes an absolute fee.*" Under certain devises, should
a different construction be allowed, the devisees first
78 Peake v. Pegden, 2 Term R.
720; Cadogan v. Ewart, 7 Adol.
6 El. 637; Mahoney t. Burdett,
7 H. L. Cas. 408; Olivant v.
Wright, 24 Week. R. 84.
79 Forth V. Chapman, 1 P. Wms.
663; Peake v. Pegden, 2 Term
Rep. 720.
In his elaborate opinion in Cado-
gan V. Ewart, 7 Adol. & Ellis 636,
Lord Denman said the words, "de-
part this life without leaving Issue
lawfully begotten," would, "if the
question arose upon a term for
years or other personal estate,
now be held to mean a dying
without issue living at the date
of the first taker."
This distinction between de-
vises of realty and bequests of
personalty has been recognized in
the United States.— Woodland t.
Wallis, 6 Md. 151; Budd v. Posey,
22 Md. 48; Wallis v. Woodland, 32
Md. 101; Allender's Lessee v. Sus-
san, 33 Md. 11, 3 Am. Rep. 171.
In Crooke v. Do Vandes, 9 Ves.
Jun. 197, where the limitation over
after the devise to a grandson and
the heirs of his body lawfully
issuing was "if he has no such
heirs." A distinction was drawn
between these words and the
words "If he leaves no such heirs,"
the limitation over being held
void.
80 Home V. Pillana, 2 Myl. & K.
15, 19; Ware v. Watson, 7 De G.,
M. & G. 248; Clayton v. Lowe, 5
Barn. & Aid. 636; Gee v. Mayor of
Manchester, 17 Q. B. (Ad. & Ell.)
(N. S.) 737; Woodburne v. Wood-
burne, 23 L. J. Ch. 336; Doe v.
Sparrow, 13 East 359.
CLiSSES OP BENEFICIARIES. 1269
]iamed would take but life estates, as where the devise is
to several and in case of any of them "dying without
issue, ' ' their shares shall vest in the other devisees ; but
if any of such devisees "die and leave issue," such issue
shall take the share of their deceased parents. The death
of the devisees, either with or without children, is cer-
tain. If the death referred to is that of a devisee at any
time, no devisee could take an estate in fee since if he
died without issue his share would pass to the others, not
as heirs but as purchasers under the terms of the will ;
and if he died leaving issue, such issue would take in like
manner as purchasers and not as heirs. Therefore no
devisee would have an estate of inheritance of which he
could dispose. So the death referred to is that during
the lifetime of the testator and all devisees who survive
the testator take a fee simple.*^
§ 867. The Same Subject: American Decisions.
In the United States the decisions are conflicting, but
the weight of authority seems to be in favor of the
English rule as to real property, that a devise to one with
a limitation over should the devisee "die without issue,"
vests a title in fee in the devisee if he survive the testa-
si Gee V. Mayor of Mancliester, iire of issue of any person In his
17 Q. B. (Ad. & Ell.) (N. S.) 737. lifetime or at the time of his
See, also, Clayton v. Lowe, 5 Bam. death, or an indefinite failure of
& Aid. 636. issue, shall be construed to mean
In England, under the Statute a want or failure of issue in the
of 1 Victoria, ch. 26, § 29, in testa- lifetime or at the time of death
mentary gifts of real or personal of such person, and not an in-
property, the words "die without definite failure of his issue, un-
issue," or any expression which less a contrary intention shall
may import either a want or fail- appear by the will.
1270 COMMENTAEIES ON THE LAW OF WILLS.
tor.*2 The same rule applies as to personalty.^' Where
a devise is to one with a limitation over in the event of
his death "without issue," the reasons for the rule hold-
ing that the death referred to means during the life of the
testator do not apply. In the latter case there would be
no issue of the devisee to be protected, since the limita-
tion over would take effect only in the event of no issue.
One principle of construction, however, is that an estate
should vest at the earliest moment, yet the intention of
the testator must prevail. Where the will is silent and_^'
its context affords no indication of intention other than
that disclosed by the absolute gift with a limitation over,/*
the terms of the will will be given their legal effect ; but
there is a tendency on the part of the courts to seize upon
slight circumstances to vary this construction. The rule
above mentioned regarding a limitation over if the first-
named devisee "die without issue," being based more on
82 Briggs V. Shaw, 9 Allen (91 "die without issue" has reference
Mass.) 516; Livingston v. Greene, to the failure of issue indefinitely,
52 N. Y. 118; Embury v. Sheldon, that the first-named devisee takes
68 N. Y. 227; Quackenboss v. an estate in fee tail which. If he
Kingsland, 102 N. Y. 128, 55 Am. leave issue, passes to them ad fini-
Rep. 771, 6 N. B. 121; Vanderzee turn by descent as tenants In tail.
V. Slingerland, 103 N. Y. 47, 57 — ^Barber v. Pittsburg, Ft. W. &
Am. Rep. 701, 8 N. E. 247; In re C. R. Co., 166 XJ. S. 83, 41 L. Ed.
Biddle's Estate, 28 Pa. St. 59; In 925, 17 Sup. Ct. 488; Eichelberger
re Mickley's Appeal, 92 Pa. St. v. Bamitz, 9 Watts (Pa.) 447;
514; Stevenson v. Fox, 125 Pa. St. Lawrence v. Lawrence, 105 Pa. St.
568, 11 Am. St. Rep. 922, 17 Atl. 335; Reinoehl v. Shirk, 119 Pa. St.
480; King v. Frick, 135 Pa. St. 108, 12 AO. 806; Ray v. Alexander,
575, 20 Am. St. Rep. 889, 19 Atl. 146 Pa. St. 242, 23 Atl. 383; In re
951; Coles v. Ayres, 156 Pa. St. HofE's Estate, 147 Pa. St. 636, 23
197, 27 Atl. 375. Atl. 890.
The decisions in Pennsylvania Compare: Hill v. Hill, 74 Pa. St
are conflicting; however, the rule 173, 15 Am. Rep. 545.
seems to be that a devise to one 83 Allender's Lessee v. Sussan,
with a limitation over should he 33 Md. 11, 3 Am. Rep. 171.
CLASSES OF BENEFICIARIES. 1271
precedent than, on reason, causes the courts to closely
scrutinize the will and to give effect to the intention of the
testator.®*
§ 868. In WTiat Proportion Beneficiaries Collectively Desig-
nated Take ; per Capita or per Stirpes.
The decisions are hopelessly in conflict as to the
proportions taken by the various heirs, relatives, and
the Kke, when designated as beneficiaries collectively,
whether they take per stirpes or per capita. First, it
may be said that the intention of the testator will prevail.
Further than this, the cases may be roughly divided into
those wherein the will names the beneficiaries specifically
or indicates them by positive description ; those wherein
the beneficiaries can be ascertained only by reference to
the statutes of distribution; and those wherein the will
indicates by the use of such words as "equally" or "share
and share alike," the extent of the gift to each benefi-
ciary.
One line of authorities holds that where the testator
has left undetermined the proportions in which his bene-
ficiaries are to take, the courts, favoring equality, will
direct the distribution to be per capita rather than per
stirpes.^^ Thus, "where a gift is to the children of A
and B, or to the children of A and the children of B, they
take per capita, not per stirpes." ^^ The rule is the same
84 Buel V. Southwick, 70 N. Y. 85 Huntress v. Place, 137 Mass.
581; Hennessy v. Patterson, 85 409; Losey v. Westbrook, 35 N. J.
N. Y. 92; Nellls v. Nellis, 99 N. Y. Eq. 116; Howell v. Tyler, 91 N. C.
505, 3 N. B. 59. See, also, Vander- 207; Kimbro v. Johnston, 15 Lea
zee V. Slingerland, 103 N. Y. 47, (83 Tenn.) 78.
57 Am. Rep. 701, 8 N. E. 247; Sbutt 86 De Laurencel v. De Boom, 67
V. Hambo, 57 Pa. St. 149; Middle- Cal. 362, 7 Pac. 758; Maddox v.
swarth's Admr. v. Blackmore, 74 State, 4 Har. & J. (Md.) 539; Brlt-
Pa. St 414, 419. tain v. Carson, 46 Md. 186; Scha,f-
1272
COMMENTARIES ON THE LAW OF WILLS.
when a devise or legacy is given to a person and the chil-
dren of another person f^ also where there are gifts to a
person described as standing in a certain relation to the
testator and to the children of another person standing in
the same relation. Thus, under a gift "to my son A, and
to the children of my son B," the former will take a
share equal to that of one of the children of the latter.®^
Again, if the gift be made to A and B and their children,
or to a class aad their children, each individual, the par-
ents as well as children, will take an equal proportion of
the fund.*®
A gift to a mother and her children simpliciter will
confer upon each an equal portion."" Where property is
fer V. Kettell, 14 Allen (96 Mass.)
528; Hill v. Bowers, 120 Mass.
135; Farmer v. Kimball, 46 N. H.
435, 88 Am. Dec. 219; Smith v.
Curtis, 29 N. J. L. 345; Post v.
Herbert's Bxrs., 27 N. J. Bq. 540;
Ex parte Leith, 1 Hill's Eq. (S. C.)
153; Skull V. Johnson, 55 N. C.
(2 Jones Eq.) 202; McNeilledge v.
Barclay, 11 Serg. & R. (Pa.) 103,
McNeilledge v. Galbraith, 8 Serg.
& R. 43, 11 Am. Dec. 572; In re
Young's Appeal, 83 Pa. St. 59;
Hoxton V. Griffith, 18 Gratt. (Va.)
574.
As the repetition of such con-
nective words as "of," "to," or
"and," see Brown v. Ramsey, 7
Gill (Md.) 347; Farmer v. Kimball,
46 N. H. 435, 88 Am. Dec. 219; In
re Fissel's Appeal, 27 Pa. St. 55,
57; In re Risk's Appeal, 52 Pa. St.
269, 273, 91 Am. Dec. 156; McMas-
ter V. McMaster's Exrs., 10 Gratt.
(Va.) 275.
87 Butler V. Stratton, 3 Bro. C. C.
367; Blackler v. Webb, 2 P. Wms.
383; Amson v. Harris, 19 Beav.
210; Pitney v. Brown, 44 III. 363;
McCartney v. Osburn, 118 111. 403,
9 N. E. 210; Smith v. Curtis, 29
N. J. L. 345; Fisher v. Skillman's
Exrs., 18 N. J. Bq. 220; Burnet's
Exrs. V. Burnet, 30 N. J. Eq. 595.
See, however, Talcott v. Talcott,
39 Conn. 186; Haskell v. Sargent,
113 Mass. 341; Rand v. Sanger,
115 Mass. 124; Allison v. Chaney,
63 Mo. 279; Sea v. Winston, 7
Humph. (26 Tenn.) 472; Hoxton
V. Griffith, 18 Gratt. (Va.) 574.
88 Lady Lincoln v. Pelham, 10
Ves. Jun. 166; Blackler v. Webb,
2 P. Wms. 383; Payne v. Webb,
L. R. 19 Eq. 26.
89 Cunningham v. Murray, 1
De Gex & S. 366; Murray v. Mur-
ray, 3 Ir. Ch. Rep. 120.
90 Cannon v. Apperson, 14 Lea
(82 Tenn.) 553.
CLASSES OF BENEFICIARIES. 1273
directed to be divided "equally between" tbe wife and
children of the testator, the vvdfe takes a share equal only
to that of each child."^ So, again, where a testator uses
the word "heirs" as applied to brothers and sisters and
to children of living and deceased brothers and sisters in
such a way as to render it evident that all of them were
upon the same footing in his mind, and finally gives the
residue to be divided equally among his "heirs," the
brothers and sisters and children will take per capita.^^
The foregoing rule, however, is not absolute, and will
readily yield to a different intention appearing in the
will.*^ In modern times the rule has been applied with
reluctance by some courts, while by others it has been
wholly rejected.** The construction will be overcome by
the faintest showing of a different intent on the part of
the testator.*^
§ 869. The Same Subject : When Reference Is Had to the Stat-
utes of Distribution.
Where a devise or legacy is to the testator's "rela-
tions," "heirs," "heirs at law," or the like, the statute of
91 In re Lacey, 3 Demarest Mass.) 204; Burnet's Bxrs. t. Bur-
(N. Y.) 61. net, 30 N. J. Eq. 595; Gilliam v.
92 McKelvey v. McKelvey, 43 Underwood, 56 N. C. 100; Howell
Ohio St. 213, 1 N. E. 594. v. Tyler, 91 N. C. 207; In re
93 Clark v. Lynch, 46 Barb. Young's Appeal, 83 Pa. St. 59 ;
(N. Y.) 69; Ferrer v. Pyne, 81 Hoxton v. Griffith, 18 Gratt. (Va.)
N. Y. 281. 574.
94 Raymond v. Hillhouse, 45 As to how far a direction "to
Conn. 467, 29 Am. Rep. 688; Mln- divide" the estate governs the cen-
ter's Appeal, 40 Pa. St. 111. struction, see Pruden v. Paxton,
95 Raymond v. Hillhouse, 45 79 N. C. 446, 28 Am. Rep. 333.
Conn. 467, 29 Am. Rep. 688; Lach- As to the use of the preposition
land's Heirs v. Downlng's Exrs., "between," there being more than
11 B. Men. (Ky.) 32; Alder v. two beneficiaries, see Ward v.
Beall, 11 Gill & J. (Md.) 123; Bal- Tompkins, 30 N. J. Eq. 3; Hern-
com v. Haynes, 14 Allen (96 eisen v. Blake, 1 Phila. (Pa.) 131.
1274
COMMENTARIES ON THE LAW OF WILtiS.
distribution must be resorted, to in order to ascertain
who will take. So far the authorities are in harmony ; but
the question then arises as to whether the statute may be
resorted to to determine the extent of the gift to each
beneficiary, whether each will take as an individual or
whether some will take only by right of representation.
The general rule is that where reference must be had to
the statutes regulating the descent and distribution of
estates to ascertain what persons are entitled to take
under a devise or bequest by a general description, such
as to ''heirs" or to "next of kin," the provisions of the
statute must also be observed as to the quantity each
shall take, there being no contrary intent expressed in the
will. The distribution would therefore be per stirpes.^^
96 In re Porter's Trust, 4 Kay
& J. 188 ; Cotton v. Cotton, 2 Beav.
67; Jacobs v. Jacobs, 16 Beav.
557; Bullock v. Downes, 9 H. L.
Cas. 1, 17; Masters v. Hooper,
4 Bro. C. C. 207; Devlsme v. Hel-
lish, 5 Ves. Jun. 529; Stamp v.
Cooke, 1 Cox C. C. 234; Rowland
V. Gorsuch, 2 Cox C. C. 187; Ray-
mond V. Hillliouse, 45 Conn. 467,
29 Am. Rep. 688; Conklln v. Davis,
63 Conn. 377, 28 Atl. 537; Kelley v.
Vigas, 112 111. 242, 54 Am. Rep.
235; Thomas v. Miller, 161 111. 60,
43 N. E. 848; Wood v. Robertson,
113 Ind. 323, 15 N. B. 457; West
V. Rassman, 135 Ind. 278, 34 N. B.
991; Tillinghast v. Cook, 9 Mete.
(50 Mass.) 143; Daggett v. Slack,
8 Mete. (49 Mass.) 450, 453;
Houghton V. Kendall, 7 Allen (89
Mass.) 72; Balcom v. Haynes, 14
Allen (96 Mass.) 204; Bassett v.
Granger, 100 Mass. 348; Bailey v.
Bailey, 25 Mich. 185; Rlvenett v.
Bourquin, 53 Mich. 10, 18 N. W.
537; Eyer v. Beck, 70 Mich. 179,
38 N. W. 20; Rooms v. Counter,
6 N. J. L,. Ill, 10 Am. Dec. 390;
Ferrer v. Pyne, 81 N. Y. 281;
Woodward v. James, 115 N. Y. 346,
359, 22 N. E. 150; Freeman v.
Knight, 37 N. J. Eq. 72, 75; In re
Baskin's Appeal, 3 Pa. St. 305,
45 Am. Dec. 641; In re Minter's
Appeal, 40 Pa. St. Ill; In re
Hooh's Estate, 154 Pa. St. 417,
26 Atl. 610; Swinburne's Petition,
16 R. I. 208, 14 Atl. 850; Temple-
ton V. Walker, 3 Rich. Eq. (S. C.)
543, 55 Arr. Dec. 646; Dukes V.
Faulk, 37 S. C. 255, 34 Am. St.
Rep. 745, 16 S. E. 122; Taylor v.
Fauver, (Va.) 28 S. B. 31T
But see Walker r. Camden, 16
Sim. 329.
In the case of Kerngood v.
Davis, 21 S. C. 183, where Mr. Jus-
CLASSES OF BENEFICIARIES.
1275
Thus where a testator gave the whole or a part of his
estate to his next of kin, leaving the shares to be taken by
them doubtful, it was said by the court that it was natural
to suppose that he had the statutory form of distribution
in mind.*''
tice McGowan delivers the judg-
ment of the court, this language
is used (page 207) : "In such cases,
after much discussion and some
difference of opinion, it seems to
have been settled as a rule of con-
struction that 'wherever by the
terms of description in a devise or
grant resort must be had to the
statute of distributions for the
purpose of ascertaining the object
of the gift, resort must also be
had to the statute to ascertain the
proportions in which the donees
shall take, unless the instrument
making the gift indicates the in-
tention of the donor that a differ-
ent rule of distribution shall be
pursued.' "
97 In re Dunlap's Appeal, 116
Pa. 500, 9 Atl. 936.
To the same effect, see In re
Minter's Appeal, 40 Pa. St. 111.
Compare: Woodward v. James,
16 Abb. N. C. (N. Y.) 246.
Chief Justice Mclver, in Allen
V. Allen, 13 S. C. 512, 36 Am. Rep.
716, says: "If, therefore, the gift
is to a class of persons designated
as heirs of a particular person,
then, as It is necessary to resort
to the statute to ascertain who are
the Individuals composing t h e
class, resort must also be had to
the statute to determine how or
in what proportions such individ-
uals shall take. This is upon the
presumption that the donor, hav-
ing by implication, at least, re-
ferred to the statute as to the
persons who are to take, also in-
tended that reference should be
had to the statute to determine
the proportions in which they
should take, unless he expresses a
different Intention. But when he
prescribes a different mode of dis-
tribution, then no such presump-
tion can arise, and the distribu-
tion must be made in the manner
prescribed."
In Fraser v. Dillon, 78 Ga. 474,
3 S. E. 695, the testatrix devised
certain real estate to one of her
children and to "the children" of
a deceased child. It was held that
the children of the deceased child
took per stirpes, and not per
capita. It was further ruled that,
"In the absence of anything in the
will to the contrary, the presump-
tion is that the ancestor intended
that his property should go where
the law carries it, which is sup-
posed to be the channel of natural
descent. To interrupt or disturb
this descent, or direct it In a dif-
ferent course, should require plain
1276 COMMENTARIES ON THE LAW OP WILLS.
§ 870. The Same Subject: Directions by the Testator as to Di-
vision.
A direction that land devised shall be divided between
the lawful heirs of the testator's children according to
the number of their heirs as shall then survive collec-
tively, entitles the devisees to take per stirpes and not
per capita.^^ Where there is a direction to divide a resi-
due pro rata among legatees who have received gifts of
various amounts in the former part of the will, the resi-
due will be distributed between the several legatees in,
the proportions existing between the special bequests pre-
viously given them."® A direction that property be dis-'
tributed according to the laws of the state in which the
testator lives will be construed to refer to the laws in
force when the will takes effect.^
§871. The Same Subject: Where Testator Directs Division
"Equally" or "Share and Share Alike."
The general rule just previously announced that where
resort must be had to the statutes of distribution to deter-
mine who take as beneficiaries under the will, the statute
will likewise determine the proportions of those who
take, will yield to the intent expressed by the testator in
his will. This is usually accomplished by such words as
directing that the beneficiaries take "equally," "in equal
parts, " " share and share alike, ' ' or kindred words. The
•words to that effect." See, also, Lesley, 70 N. Y. 512; In re Scott's
MacLean v. "Williams, 116 Ga. 257, Estate, 163 Pa. St. 165, 29 Atl. 877.
59 L. R. A. 125, 128, 42 S. E. 485. 98 Heath v. Bancroft, 49 Conn.
Compare: Tiffin v. Longman, 15 220.
Beav. 275; Best v. Farris, 21 111. 99 Rosenberg v. Frank, 58 Cal.
App. 49; Richards v. Miller, 62 387, Myrick, J., dissenting, p. 412.
111. 417; Records V. Fields, 155 Mo. i Meserve v. Meserve, 63 Me.
314, 55 S. W. 1021; Stevenson v. 518.
CLASSES OF BENEFICIARIES.
1277
direct expression of the testator as to the extent of the
benefit conferred on each who is to take will overcome
any presumption that he intended the distribution should
be according to the statute. The use of the expressions
above mentioned would clearly indicate the intention of
the testator as to the manner of distribution and such
direction should prevail. In such a case, no different
intention appearing elsewhere in the will to control the
construction, the beneficiaries will take per capita.^ This
2Blackler t. Webb, 2 P. Wms.
383, 385; Lincoln v. Pelham, 10
Ves. Jun. 166, 176; Lugar v. Har-
man, 1 Cox 250 ; Weld v. Bradbury,
2 Vern. 705; Abrey v. Newman, 17
Eng. L. & Eq. 125; Mattison v.
Tanfleld, 3 Beav. 132; Walker v.
Griffin, 11 Wheat. (U. S.) 375,
6 L. Ed. 498; Howard v. Howard's
Admrs., 30 Ala. 391; Smith v.
Ashurst, 34 Ala. 208; Lord v.
Moore, 20 Conn. 122; Kean's Les-
see V. Hoffecker, 2 Har. (Del.) 103,
118, 29 Am. Dec. 336; Brown v.
Ramsey, 7 Gill (Md.) 347; Brittaln
T. Carson, 46 Md. 186; Nichols v.
Denny, 37 Miss. 59; Maguire v.
Moore, 108 Mo. 267, 18 S. W. 897;
Farmer v. Kimball, 46 N. H. 435,
88 Am. Dec. 219; Scudder's Exrs.
V. Vanarsdale, 13 N. J. Eq. 109,
113; Collins v. Hoxie, 9 Paige
(N. Y.) 81, 88; Ex parte Leith,
1 Hill's Eq. (S. C.) 153; Bunner v.
Storm, 1 Sandf. Ch. (N. Y.) 357,
362; Bisson v. West Shore R. Co.,
143 N. Y. 125, 38 N. E. 104; Free-
man V. Knight, 37 N. 0. 72, 75;
Burgin v. Patton, 58 N. C. 426;
Hackney v. Griffin, 59 N. C. 381,
384; Hill v. Spruill, 39 N. C. 244;
Harris v. Philpot, 40 N. C. 324;
Johnston v. Knight, 117 N. C. 122,
23 S. E. 92; McKelvey v. McXel-
vey, 43 Ohio St. 213, 1 N. E. 594;
Ramsey v. Stephenson, 34 Ore.
408, 56 Pac. 520, 57 Pao. 195; Du-
pont V. Hutchinson, 10 Rich. Eq.
(S. C.) 1; Allen v. Allen, 13 S. C.
513, 36 Am. Rep. 716; Dukes v.
Faulk, 37 S. C. 255, 34 Am. St.
Rep. 745, 16 S. E. 122; McMaster
V. McMaster's Exrs., 10 Gratt.
(Va.) 275.
In Rogers v. Morrell, 82 S. C.
402, 129 Am. St. Rep. 899, 64 S. E.
143, the will contained the follow-
ing: "I further bequeath unto
H. W. M. and W. F., L. M. and
H. S. G. all my notes, mortgages
and moneys to be equally divided
between them, also my cot or per-
sonal property, horse, cows or
utensils of any kind to be sold to
the highest bidder and the money
equally divided between the lega-
tees above named." H. W. M. was
a son of the testator, the three
other legatees were children of a
pre-deceased daughter. The pro-
1278
COMMENTARIES ON THE LAW OF WILLS.
construction of the word "equally" or the like may be
controlled by the context, and this is often done.^ Thus
bate court had held that because
the name of H. W. M. was fol-
lowed by the word "and" and be-
cause the three others were
grouped together, and because of
the use of the word "between," the
division should be per stirpes.
This was reversed on appeal.
Compare: In re Baskin's Ap-
peal, 3 Pa. St. 304, 305, 45 Am.
Dec. 641; Collier v. Collier, 3 Rich.
Eq. (S. C.) 555, 55 Am. Dec. 653;
Bivens v. Phifer, 47 N. C. 436;
Lowe V. Carter, 55 N. 0. 377.
sKelley v. Vigas, 112 111. 242,
54 Am. Rep. 235, citing Richards
V. Miller, 62 111. 417; Bassett v.
Granger, 100 Mass. 348; In re Bas-
kin's Appeal, 3 Pa. St. 304, 45
Am. Dec. 641.
The above cited cases may be
readily distinguished from Pitney
V. Brown, 44 111. 363, where the
devise was to certain designated
persons, and no reference to the
statute was required. — Kelley v.
Vigas, 112 111. 242, 54 Am. Rep.
235.
A will provided as follows: "The
residue of my estate I give to the
following named persons, to be
divided equally among them: My
sisters R. and S., the grandchil-
dren of my deceased brother W.,
and the grandchildren of my de-
ceased sisters D. and M.; meaning
by this to include all the grand-
children living at the time of my
decease." Held, that the grand-
children took per stirpes and not
per capita. — Raymond v. Hill-
house, 45 Conn. 467, 29 Am. Rep.
688.
In Mayer v. Hover, 81 Ga. 308,
7 S. E. 562, it was held that, under
a will which provided that in a
certain contingency property of a
certain kind should be "divided
between the children of defendant
and Mary A. C. Mayer, share and
share alike," the children in ques-
tion and Mary A. C. Mayer took
per stirpes, and not per capita.
Equally Divided. — ^In Sharman v.
Jackson, 30 Ga. 224, the court had
under consideration a deed which
gave certain slaves to a person
for life, and provided that at his
death they were "to be equally
divided among the heirs of the
body" of the grantee. It was held
that the children of a daughter of
the grantee took under the deed
per stirpes, and not per capita.
Judge Lyon, in referring to the
words "equally divided among the
heirs," says: "It is true she says
equally divided, but that is to be
understood and construed as that
equal division made by the distri-
bution laws, — ^that is, that all the
heirs related to the first taker,
equally, or in the same degree,
should take equally, while those
who were in the same line, but fur-
ther removed, should take by rep-
resentation, that is, all together
standing in the place of the de-
CLASSES OP BENEFICIARIES. 1279
a gift of property to sucli of a class as may be living at
the time of division, and to another person by name,
"share and share alike," confers one-half upon the lat-
ter.^ Under a devise "in eqnal shares to my nieces and
nephews, and to the nieces and nephews of my former hus-
band, ' ' one who is a niece both of the testatrix and of her
former husband does not take a double portion.^ But
where there is a gift to two nephews by name, and the
residue is bequeathed generally to the testator's "neph-
ews" as a class, the former is entitled also to take under
the residuary clause.*
§ 872. The Same Subject.
In some cases it has been said that "the law favors
that construction of a will which will make a distribution
as nearly conform to the general rule of inheritance as
ceased parent, and taking but the Allen," the legatees all being his
share or proportion which is equal daughters, it was held that to give
with the shares of the children, effect to the words "equally di-
This is an equal division among vided," the proper construction of
the heirs of Wm. F. Jackson, and the terms of the bequest to
it is not the less so that one or Amanda, Anna, and Clara was that
more of the shares must again be they should take distributively as
subdivided into as many parts as the others, "as if the word 'each'
there are grandchildren distribu- had been added after their
tees." See, also, Maclean v. Will- names." ■ — Holman v. Price, 84
iams, 116 Ga. 257, 59 L. R. A. 125, N. C. 86, 37 Am. Rep. 614.
128, 42 S. B. 485. 4 In re Osburn's Appeal, 104 Pa.
Where a testator directed that St. 637. See, also. Walker v. Grlf-
the proceeds of certain real estate fin, 11 Wheat. (TJ. S.) 375, 6 L. Ed.
should "be equally divided as fol- 498; Lachland's Heirs v. Down-
lows, to wit, one share to Melinda ing's Bxrs., 11 B. Mon. (50 Ky.)
Eaton, one share to Amanda Wag- 32.
ner, Anna Wagner, and Clara 5 Campbell v. Clark, 64 N. H.
Wagner, and one share to the sole 328, 10 Atl. 702.
and separate use of Margaret 6 Cushing v. Burrell, 137 Mass. 21.
1280 COMMENTARIES ON THE LAW OF WILLS.
the language will permit, and favors equities rather than
technicalities. "'' Accordingly where the issue of a devi-
see are substituted in the stead of the latter in case of his
death, the issue take per stirpes.^ In those states in
which this rule prevails, it is often applied notwithstand-
ing a direction that the property be divided equalli/
among the devisees. Thus, under a devise to the testa-
trix's children by name "in equal proportions," and in
the event of either dying before the testatrix, then the
estate to be "divided among the survivors, or their legal
representatives, share and share alike, ' ' the two children
of one of the daughters who died were deemed entitled
only to their mother 's share.^ So, also, in a case in Penn-
sylvania, where a testator, after the gift of a life estate
to his brother, directed that the real estate "be divided
among my legal heirs, share and share alike," it was
decided that his heirs would take per stirpes and not per
capita.^" In New Jersey, where there is a gift over to the
heirs at law of the first taker, the heirs will share in the
realty per stirpes,^''- and in personalty per capita.^^
§ 873. Gifts to a Class Defined.
A testamentary gift to a class may be described as a
gift of a prescribed amount to beneficiaries designated by
7 Rivenett v. Bourquin, 53 Mich. 9 Rivenett t. Bourquin, 53 Mich.
10, 18 N. W. 537, citing Johnson v. 10, 18 N. W. 537.
Ballon, 28 Mich. 379, 392; In re lo In re Alston's Appeal, (Pa.)
Letchworth's Appeal, 30 Pa. St. 11 Atl. 366. To the same effect, see
175. In re Baskin's Appeal, 3 Pa. St.
8 In re Orton's Trust, L. R. 3 304, 45 Am. Dec. 641; In re Wood's
Eq. 375; Bryden v. Willett, L. R. Appeal, 18 Pa. St. 478.
7 Eq. 472; Ross v. Ross, 20 Beav. ii Hayes v. King, 37 N. J. Eq. 1.
645; Robinson v. Sykes, 23 Beav. 12 Wagner v. Sharp, 33 N. J
40; Ballentine v. De Camp, 39 Eq. 520; Hayes v. King, 37 N. J.
N. J. Eq. 87, 89. Eq. 1.
CLASSES OF BENEFICIARIES. 1281
a description whicli classifies them, uncertain in number
at the time the will is executed, but fixed and determined
by a future event at which time those constituting the
class share equally in the gift, the amount to be received
by each being dependent upon the number.^* A gift to a
class is distinguished from a gift to an individual, in
this : while the death of an individual beneficiary prior to
that of the testator or the happening of a specified con-
tingency will cause a legacy or devise in his favor to
lapse, a gift to a class does not fail if, at the time title is
to vest, there is any member of the class surviving to
take it. The interest of the persons constituting the
class is joint, and upon the death of one before title vests
his share goes to the survivors.^* Where there is a testa-
mentary gift to a class the general rule is that there is
no lapse by reason of the incapacity of any member to
take, as by having been a witness to the will,^^ or because
13 Barber v. Barber, 3 Myl. & C. v. Sanders, 123 Ga. 177, 51 S. E.
688, 697; In re Murphy's Estate, 298; Gray v. Bailey, 42 Ind. 349;
157 Cal. 63, 137 Am. St. Rep. 110, Anderson v. Parsons, 4 Greenl. (4
106 Pac. 230; Clark v. Morehous, Me.) 486; Storrs v. Burgess, 101
74 N. J. Eq. 658, 70 Atl. 307; In re Me. 26, 62 Atl. 730; Howard v.
Barret's Estate, 63 Misc. Rep. 484, Trustees, 88 Md. 292, 41 Atl. 156;
116 N. Y. Supp. 756; In re Farm- Meserve v. Haak, 191 Mass. 220,
ers' Loan & Trust Co., 68 Misc. 77 N. E. 377; Smith v. Haynes,
Rep. 279, 125 N. Y. Supp. 78; Mat- 202 Mass. 531, 89 N. B. 158; Jami-
ter of Russell, 168 N. Y. 169, 61 son v. Hay, 46 Mo. 546; Hall v.
N. E. 166; In re King, 200 N. Y. Smith, 61 N. H. 144; In re King's
189, 21 Ann. Cas. 412, 34 L. R. A. Estate, 135 App. Div. 781, 119
(N. S.) 945, 93 N. E. 484; Kent v. N. Y. Supp. 869; Matter of King,
Kent, 106 Va. 199, 55 S. E. 564. 200 N. Y. 189, 21 Ann. Cas. 412,
14 Page V. Page, 2 P. Wms. 489; 34 L. R. A. (N. S.) 945, 93 N. E.
Waterman v. Canal-Louisiana Bank 484 ; Saunders v. Saunders' Admrs.,
& Tr. Co., 186 Fed. 71, 108 C. C. A. 109 Va. 191, 63 S. E. 410.
183; Bill V. Payne, 62 Conn. 140, is Fell v. Biddolph, L. R. 10
25 Atl. 354; Doe v. Roe, 4 Houst. Com. PI. 709; Shaw v. McMahon, 4
(Del.) 20, 15 Am. Rep. 701; Davis Dru. & War. 431; Clark v. Phillips,
11 Com. on Wills — 27
1282 COMMENTARIES ON THE LAW OF WILLS.
of his death during the lifetime of the testator or before
the time of distribution or payment." The interest of
such dead or excluded member passes to the survivors.
This right of survivorship prevails even though the gift
to one of the members of the class be thereafter revoked
by the testator, the benefit revoked going to the remain-
ing members of the class.^'' Where the gift is not to a
class, but to a number of persons designated by name, if
any one of them dies before the death of the testator, or
before the title to his portion of the estate has vested in
him, the legacy or devise to that person will lapse, and
can not be claimed by the surviving legatees or devi-
sees."
§ 874. Effect of Statutes to Prevent Lapse.
In many jurisdictions statutes have been passed to the
effect that if a beneficiary under a will dies before the
testator, the gift in his favor shall not lapse, but shall
17 Jur. 886. See, also, In re Cole- it Saunders v. Saunders' Admrs.,
man and Jarrom, 4 Ch. Div. 165; 109 Va. 191, 63 S. E. 410.
Anderson v. Parsons, 4 Greenl. is Barber v. Barber, 3 Myl. & C.
(4 Me.) 486. 688; Claflin v. Tilton, 141 Mass.
16 Viner v. Francis, 2 Bro. C. C. 343, 5 N. E. 649; Dildine v. Dil-
658; Leigh v. Leigh, 17 Beav. 605; dine, 32 N. J. Eq. 78; Twitty v.
Dimond v. Bostock, L. R. 10 Ch. Martin, 90 N. C. 643. See, how-
App. Div. 358; Fell v. Biddolph, ever, Crecelius v. Horst, 78 Mo.
L. R. 10 Com. PI. 709; Shuttle- 566; s. c, 9 Mo. App. 51.
worth V. Greaves, 4 Myl. & C. 35; In the absence of provisions in
Stewart v. Sheffield, 13 East 526; the will to the contrary, a legacy
Yeates v. Gill, 9 B. Men. (48 Ky.) to an individual does not lapse by
203, 206; Young v. Robinson, 11 the death of the legatee after that
Gill & J. (Md.) 328; SchafEer v. of the testator, although prior to
Kettell, 14 Allen (96 Mass.) 528; the probate of the will.— Jersey v.
Holbrook v. Harrington, 16 Gray Jersey, 146 Mich. 660, 110 N. W.
(82 Mass.) 102; Hooper v. Hooper, 54; Tillson v. Holloway, 90 Neb.
9 Cush. (63 Mass.) 122, 130; Dow 481, Ann. Cas. 1913B, 78, 134 N. W.
V. Doyle, 103 Mass. 489. 232.
CLASSES OF BENEFICIARIES. 1283
pass to his issue or heirs. There is a conflict of authority
as to the effect of such statutes. Some decisions hold
that the general common law rule with reference to the
right of survivorship in gifts to a class is not affected by
these statutes for the reason that they are only intended
' to prevent a lapse in the event of a beneficiary dying
before the testator, and have no application to gifts to a
class where the legal effect is only to pass a benefit to
the members of a class in existence at a designated
time." The weight of authority, however, favors the rule
that such statutes are applicable to gifts to a class as
well as to individuals. The reason for the rule is that
such statutes are remedial and should receive a liberal
construction; and that the testator is presumed to know
the law and that his will is drawn accordingly-^"
§875. The Same Subject: Circumstaiices Considered.
The circumstances of the case may furnish an addi-
tional reason to the principle last mentioned. For in-
stance, if the gift is to a class such as children, brothers
or sisters, and the members of the class are all adults and
well known to the testator at the time of the execution of
19 OIney v. Bates, 3 Drew. 319; 185, 24 Atl. 811; Howland v. Slade,
Browne v. Hammond, Johns. 210; 155 Mass. 415, 29 N. B. 631; Strong
In re Harvey's Estate, (1893) 1 Ch. v. Smith, 84 Mich. 567, 48 N. W.
567; Martin v. Trustees of Mercer l^^; Guitar v. Gordon, 17 Mo. 408;
University, 98 Ga. 320. 25 S. B. Jamison v. Hay. 46 Mo. 546; Par-
ker V. Leach, 66 N. H. 416, 31 Atl.
522.
20 Raymond v. Hillhouse, 45
Conn. 467, 29 Am. Rep. 688; Down-
19; Pimel v. Betjemann, 183 N. Y.
194, 5 Ann. Gas. 239. 2 L.' R. A.
(N. S.) 580, 76 N. E. 157; In re
ing V. Nicholson, 115 Iowa 493, B.^^leys Estate, 166 Pa. St. 300,
91 Am. St. Rep. 181, 88 N. W. 31 Atl. 96; Jones v. Hunt. 96 Tenn.
1064; Nutter v. Vickery, 64 Me. 369, 34 S. W. 6l3; Wildberger v.
490; Moses v. Allen. 81 Me. 268, Cheek's Exrs., 94 Va. 517, 27 S. E.
17 Atl. 66; Bray v. PuUen. 84 Me. 441.
1284 COMMENTARIES ON THE LAW OP WILLS.
his will, tlie fact that the beneficiaries are not mentioned
by name should not defeat the application of the stat-
nte.^^ Especially would this be so where the circum-
stances are such that the class could not be increased, and
the members are to share equally. Under simple gifts to
a class the number who take is determined at the death
of the testator or at a future time specified in the will;
This uncertainty would be practically eliminated under
the above circumstances.^^ In such a case the burden of
showing that the statute to prevent lapse did not apply
would be upon the one asserting such claim and this is so
even though the testamentary gift was prompted because
of personal regard for the beneficiaries. To prevent the
application of this rule it would be necessary to show
further that the testator did not intend that the heirs of
the beneficiaries should take under the statute.^* How-
ever, the intention of the testator will control and the
rule will always yield to such intent.^*
§ 876. Members of Class Dying Before Testator, Are Excluded.
A legacy or devise in favor of a class does not include
those persons dead at the date of the execution of the will
who, had they survived, would have fallen within the
description of the class. This rule always prevails in the
absence of something in the will or surrounding circiun-
stances showing a different intent.^^ The rule is the same
aiWooUey v. Paxson, 46 Ohio 43 N. B. 1037; White v. Massa-
St. 307, 24 N. E. 599. chusetts Institute, 171 Mass. 84,
22 Strong V. Smith, 84 Mich. 567, 50 N. E. 512; Almy v. Jones, 17
48 N. W. 183. R. I. 265, 12 L. R. A. 414, 21 Atl.
23 Rudolph V. Rudolph, 207 ni. 616.
266, 99 Am. St Rep. 211, 69 N. E. 26 Morse v. Mason, 11 Allen
834. (Mass.) 36; Merriam v. Simonds,
24Bigelow V. Clap, 166 Mass. 88, 121 Mass. 198; Howland v. Slade,
CLASSES OF BENEFICIARIES.
1285
as to members of the class who die before the death of the
testator, although they were living at the date of the exe-
cution of the will.^* The reason for the rule is that if a
beneficiary die before the testator, the will taking effect
as of the testator 's death, he does not fall within the class
to whom the testator gives his property. Such result is a
matter of the construction of the will.^''^ And where the will
makes a gift to named persons, and also to members of a
class living at a designated time, if no members of such
class are then living there is in effect no gift to them, but
it passes to the other beneficiaries who can take.^*
155 Mass. 415, 29 N. E. 631; White
V. Massachusetts Institute, 171
Mass. 84, 50 N. E. 512; Stires v.
Van Renssalaer, 2 Bradf. (N. T.)
172; Wescott v. Higgins, 42 App.
Div. 69, 58 N. Y. Supp. 938;
affirmed, 169 N. T. 582, 62 N. B.
1101; In re Hunt's Estate, 133 Pa.
St. 260, 19 Am. St. Rep. 640, 19
Atl. 548; In re Harrison's Estate,
202 Pa. St. 331, 51 Atl. 976.
26 Thomas v. Thomas, 149 Mo.
426, 73 Am. St. Rep. 405, 51 S. W.
111.
27 Davie v. Wynn (Dane v.
Wynn), 80 Ga. 673, 6 S. E. 183;
Tolhert t. Burns, 82 Ga. 213, 8
S. E. 79; Pimel v. Betjemann, 183
N. Y. 194, 5 Ann. Cas. 239, 2
L. R. A. (N. S.) 580, 76 N. E. 157.
To the same effect is Downing
V. Nicholson, 115 Iowa 493, 91 Am.
St. Rep. 175, 88 N. W. 1064, where
the court conceded that if the gift
had been to an individual by
name, the decision would have
been different. In that case it
was held that a devise to a class.
one of the members of which Is
dead when the will is executed,
can not operate for the benefit of
his heirs, though the statute of
the state declares that if a devisee
dies before the testator, his heirs
shall inherit the property devised
to him, unless, from the terms of
the will, a contrary intent is mani-
fest. Therefore, a devise to the
testator's nephews and nieces can
not benefit a son of a niece who
died long before the will was
made. But see Cheney v. Selman,
71 Ga. 384, where it was held that
a legacy to one dead at the time
of the execution of the will was
not void, but passed to his issue.
28 A testatrix left the residue of
her estate to be divided in equal
shares among "such of the chil-
dren of" her deceased uncle as
were living at the date of her will
and sundry other persons whom
she named, and there proved to
be none of her uncle's children
living at that time. The question
arose whether the share given the
1286
COMMENTABIES ON THE LAW OF WILLS.
§ 877. Where Beneficiaries Are Designated Both by Individual
Names and as a Class.
Grifts to individuals designated by name, although
referred to as a class, such as the children of A, and
although in fact constituting a class, are nevertheless
individual gifts.^^ And although the gift be made by
words which, used alone, would create a gift to a class,
if followed by words equally operative whereby there is
given a devise or bequest to the beneficiaries by name
and in definite proportions, the law will infer individual
gifts.*" Thus, where the testatrix, after naming the resid-
children lapsed to the next of kin
of the testatrix or was to be di-
vided among the other persons
named as co-legatees. It was ar-
gued for the next of kin that the
gift was not to a class, but to a
number of persons nominatim, and
that by the death of any of them,
their portions lapsed, citing In re
Chaplin's Trust, 2 Week. Rep. 147.
But the court held that the whole
residue was devisable among the
other persons named, not, how-
ever, by way of exception to the
general rule as to lapse, but on
the ground that the devise being
to "such as" were then living, and
there being none such, there was
in effect no gift to the children,
but only to the persons named. —
Spiller V. Madge, 18 Ch. Div. 614,
following In re Hornby, 7 Week. R.
729, where a testator bequeathed
his residue to A, B, C and D, if
living, and D being dead at the
date of the will, it was held that
the gift to him was contingent
upon his being alive, and the
whole bequest went to A, B and C.
To the same effect, see Widgen v.
Mello, 23 Ch. Div. 737; Chris-
topherson v. Naylor, 1 Mer. 320.
29 Barber v. Barber, 3 Myl. & C.
688, 697; Estate of Hittell, 141 Cal.
432, 435, 75 Pac. 53; Moffett v.
Elmendorf, 152 N. Y. 475, 57 Am.
St. Rep. 529, 46 N. E. 845.
Where the testamentary gift
was "unto my three sisters, Mary,
Anna and Louisa," It was held
that the beneficiaries named took
as tenants in common, and not as
a class, and the death of one of
the sisters prior to that of the
testator caused the devise to her
to lapse. — Matter of Kimberly, 150
N. Y. 90, 44 N. E. 945.
To the same effect, see Matter
of Wells, 113 N. Y. 396, 10 Am. St.
Rep. 457, 21 N. E. 137.
30 In re Murphy's Estate, 157
Cal. 63, 137 Am. St. Rep. 110, 106
Pac. 230; Moffett v. Elmendorf,
152 N. Y. 475, 57 Am. St. Rep. 529,
46 N. E. 845. But see HoppOck v.
Tucker, 59 N. Y. 202.
CLASSES OF BENBFICIAEIES. 1287
uary legatees, adds "all brothers of my deceased hus-
band J. B.," the beneficiaries take as individuals and not
as a class.'^ A gift to "hereinbefore" or "hereinafter
mentioned legatees ' ' is not a gift to a class, the words of
reference being merely to save repetition; the construc-
tion must be the same as if the repetition of the names
were actually made.^^ And the idea' that the testator
intended that the members of a class should take jointly
may be negatived by a provision in the wiU that the
shares of deceased members of the class shall go to their
children.*^
The above mentioned rule, however, is only a rule of
construction. and no conclusive inference can be drawn,
since the intention of the testator must control.^* The
character of the gift depends upon the language employed
in the will.*^ Although the gift may be to several persons
31 In re Barret's Estate, 132 App. Morse v. Mason, 11 Allen (93
Div. 756, 63 Misc. Rep. 484, 116 Mass.) 36; Todd v. Trott, 64 N. C.
N. T. Supp. 756. 280; Starling's Exr. v. Price, 16
'To the same effect, see Estate Ohio St. 29, 32; In re Proven-
of Hittell, 141 Cal. 432, 435, 75 chere's Appeal, 67 Pa. St. 463;
Pac. 53. Frazier v. Prazier's Exra., 2 Leigh
The rule that intestacy is to be (Va.) 642.
avoided can not defeat the plain saHoare v. Osborne, 33 L. J.
rule of law which declares a gift qj^ ggg; Nicholson v. Patrickson,
to be individual.— In re Murphy's 3 Qjjf 209; In re Gibson, 2 Johns.
Estate, 157 Cal. 63, 137 Am. St. & h. 656.
Rep. 110, 106 Pac. 230.
A testamentary gift "to my sons,
A, B and C," is not a gift to a
class.— Williams v. Neff, 52 Pa. »* I1 re Brown's Estate, 86 Me.
St 326 333 ^'^^' Towne v. Weston, 132 Mass.
Where the testator spoke of the 513, 516; Saunders v. Saunders'
"children" of a certain person and Admrs., 109 Va. 191, 63 S. B. 410.
then mentioned them by name, ss In re Farmers' Loan & Tr.
the bequest is held to them indi- Co., 68 Misc. Rep. 279, 125 N. Y.
vidually and not as a class. — Supp. 78.
33 Taylor v. Stephens, 165 Ind.
200, 74 N. E. 980.
1288 COMMENTARIES ON THE LAW OP WILLS.
by name, in whicli case the presumption is that they take
as individuals, yet this presumption is not conclusive, and
if the beneficiaries constitute a class and the will dis-
closes an intent to make a gift to a class, such intention
wiU be given effect.^® The mere fact that the persons com-
posing the class are mentioned by name is not always suf-
ficient to take the case out of the rules applicable to gifts
to a class ; and if from other provisions of the will taken
in connection with the existing facts, an intention to
confer a right of survivorship may be collected, that
intention will prevail.*'^ But where the will provides that
the beneficiaries shall share equally in an aggregate sum,
or otherwise fixes the amount each is to receive, the lan-
guage is always held to create the relationship of tenants
in common, not a joint tenancy as in gifts to a class.^*
§ 878. Manner of Designating Beneficiaries as a Class : Where
Share of Each Is Mentioned.
In a gift to a class the beneficiaries are described gen-
erally, such as "my brothers' and sister's children,"^® or
36 Security Trust Co. v. Lovett, 103 Mass. 293; Magaw v. Field, 48
78 N. J. Eq. 445, 79 Atl. 616. N. Y. 668; Hoppock v. Tucker,
Some authorities hold that 59 N. Y. 202.
■when the beneficiaries do, as a 37 Schaffer v. Kettell, 14 Allen
matter of fact, constitute a sep- (96 Mass.) 528; Stedman v. Priest,
arate and distinct class of per- 103 Mass. 293; Hall v. Smith, 61
sons, such as the children of a N. H. 144; Page v. Gilbert, 32 Hun
certain person, grandchildren, (N. Y.) 301; Manier v. Phelps, 15
nephews, or nieces, the rule is not Abb. N. C. (N. Y.) 123.
to be altered by the fact that 38 Downing v. Marshall, 23 N. Y.
the testator enumerates them by 366, 373, 80 Am. Dec. 290.
name. — Bolles v. Smith, 39 Conn. 39 In re Brundage's Estate, 36
217; Warner's Appeal, 39 Conn. Pa. Super. Ct. 211.
253 ; Springer v. Congleton, 30 Ga. A gift to a number of bene-
977; Schaffer v. Kettell, 14 Allen ficiaries not Individually named,
(96 Mass.) 528; Stedman v. Priest, but designated by a general de-
CLASSES OP BENEFICIAEIES.
1289
"the eight children of my niece F. F., eight shares, share
and share alike."" The presumption is that the testator
intends to dispose of his entire estate, and the words
"share and share alike," although they tend to show
gifts to individuals which may lapse, yet alone they do
not overcome the general presumption of intent to make
a total disposition.*^ The same is true where the will
provides that the gift shall be divided equally among the
members of the class.*^
In determining whether a testamentary gift is to a
class or to individuals, the manner of designating the
beneficiaries and the share each is to take are of great
scription, such as to brothers and
sisters, is a gift to a class. — Bran-
ton V. Buckley, 99 Miss. 116, 54
So. 850.
In Kentucky the court has gone
so far as to hold that where there
Is a general devise to "the chil-
dren" of another than the testator,
such devise includes all the chil-
dren of such person living at the
death of the testator as well as
any that may thereafter he born. —
Lynn v. Hall, 101 Ky. 738, 72 Am.
St. Rep. 439, 43 S. W. 402; Gray's
Admr. v. Pash, 24 Ky. L. Rep. 963,
66 S. W. 1026; Goodridge v.
Schaefer, 24 Ky. L. Rep. 219, 68
S. W. 411; Cay wood v. Jones, 32
Ky. L.. Rep. 1302, 108 S. W. 888;
United States Fidelity etc. Go. v.
Douglas' Trustee, 134 Ky. 374, 20
Ann. Cas. 993, 120 S. W. 328.
In Barker v. Barker, 143 Ky. 66,
135 S. W. 396, It seems, however,
that the rule laid down in the fore-
going cases may be limited to
devises to the children of a near
relative, and not necessarily ap-
plicable where the devise was to
the children of a stranger in
blood to the testator.
40 Smith V. Haynes, 202 Mass.
531, 89 N. E. 158.
41 Smith V. Haynes, 202 Mass.
531, 89 N. E. 158; In re King's Es-
tate, 135 App. Div. 781, 119 N. Y.
Supp. 869.
As to the proportions in which
beneficiaries take where the testa-
tor directs division "equally" or
"share and share alike," see
§§ 871, 872.
The words "in equal shares and
proportions" generally mean that
the gift is to the beneficiaries as
tenants in common, but this infer-
ence is not conclusive. — Meserve
V. Hook, 191 Mass. 220, 77 N. B.
377.
42 Bartlett v. Sears, 81 Conn. 34,
70 Atl. 33.
1290 COMMENTARIES ON THE LAW OP WILLS.
importance. If the gift is to the beneficiaries by name
and the share each is to receive is mentioned, the gift is
to individuals as tenants in common, and not to a class.*^
§ 879. Mistake in Designating Number in Class.
A testator may make a testamentary gift to the mem-
bers of a class whom he also designates by number.
Where the number is, in fact, greater than that mentioned
by the testator, if the general intent of the testator as evi-
denced by the wiU is that the entire class shall be bene-
fited, the statement of the number will be treated as a
mistake and the testator 's intent will be enforced. "Where
it appears that only a particular number of the members
of the class are to take under the gift and it can not be
ascertained who are intended to be benefited, the gift
must be held void for uncertainty.** If from the will it
43 Rockwell , V. Bradshaw, 67 most part, differently used and
Conn. 8, 34 Atl. 758; Homberger placed and do then express dif-
V. Miller, 28 App. Div. 199, 50 N. Y. ferent ideas. . But when they fol-
Supp. 1079; Savage V. Burnham, 17 low the verb 'divide,' their gen-
N. Y. 561. eral signification is very similar.
In Senger v. Sanger's Ex'r, 81 and in popular use are considered
Va. 687, 698, Richardson, J., in dis- synonymous, though 'among' de-
cussing the meaning of the word notes a collection and is never fol-
"between" in the following clause lowed by two of any sort, whilst
of a will, namely: "It is my will 'between' may be followed by any
and desire that all of my estate be plural number, and . seems to de-
equally divided between the chil- note rather the individuals of the
dren of my deceased son, J. S., and class than the class itself gener-
the children of my daughter, E. S., ally." — See, also, Rogers v. Smith,
taking into consideration what I 145 Ga. 234, 88 S. E. 964.
have already given them," said: 4* Wrightson v. Calvert, 1 Johns.
"It is well known that the same & H. 250; In re Sharp, (1908) 2
words are often capable of differ- Ch. 190; Kalbfleisch v. Kalbfleisch,
ent meanings according to their 67 N. Y. 354.
collocation and connections. And "The proposition must be limited
the same prepositions are, for the to this — that where the court, as a
CLASSES OP BENEFICIAEIES. 1291
appears that tlie testator intended to benefit the whole of
a class, a mistake in the number will not be allowed to
defeat his intention.*^ If the gift be a fixed sum to each
of the members of a class, then each will receive such
benefit although the number be greater than that men-
tioned by the testator.*®
Where an aggregate sum is to be divided among the
members of a class, the amount to be received by each
will depend upon the actual number, each taking his pro-
portion of the total amount. Thus where three take
instead of two as mentioned in the will, the division is in
thirds."
§ 880. As of What Date Members of a Class Are Determined.
Since a will speaks as of the date of the testator's
death, where there is a testamentary gift to a class the
members of the class are prima facie to be determined
upon the death of the testator.** This is not an absolute
matter of construction, arrives at 83; Heathe v. Heathe, 2 Atli. 121;
the conclusion that a particular Northey t. Burbage, Prec. Ch. 470 ;
class of persons Is to he benefited Ruggles v. Randall, 70 Conn. 44,
according to the intention of the 38 Atl. 885; Downing v. Nicholson,
testator, if there has been an in- 115 Iowa 493, 91 Am. St. Rep. 175,
accurate enumeration of the per- 88 N. W. 1064; Richardson v.
sons composing that class, the Willis, 163 Mass. 130, 39 N. B.
court will reject the enumeration.'' 1015; Buzby v. Roberts, 53 N. J.
—Lord Russell in Re Stephenson, Bq. 566, 32 Atl. 9.
(1897) 1 Ch. 75, 81. Only grandchildren in being at
45 In re Stephenson, (1897) 1 Ch. the timv of the testator's death
75, 83. take under a devise of several par-
46 Garvey v. Hibbert, 19 Ves. eels of land to "my dear grand-
Jun. 125. children, to them, and their heirs
47 Deech v. Thorington, 2 Ves. forever, to be equally divided
Sen. 560, approved in Re Sharp, among them." — Loockerman v. Mc-
(1908) 2 Ch. 190. Blair, 6 Gill. (Md.) 177, 46 Am.
48 Hodges V. Isaac, Ambl. 348; Dec. 664.
Horsely v. Chaloner, 2 Ves. Sen. Members of the class born
1292
COMMENTARIES ON THE LAW OF WILLS.
rule but yields to the intention of the testator ; and if the
will indicates a contrary intent such intent will be adopted
and enforced.*^ The character of the gift, whether
immediate or in the future, is to be considered. Thus an
immediate bequest of real or personal estate to a class
designated as the "children," "grandchildren," "issue,"
"brothers," "nephews," or "cousins," etc., either of the
testator himself, or of some other person, will, as a gen-
eral rule, in the absence of any indication of a contrary
intention, vest only in those of the class who are in exist-
ence at the testator's death. Under this rule children
born or begotten prior to, and in esse at the time of, the
death of the testator, will be entitled to share in the dis-
tribution, but those living at the time of the execution of
the will who die before the testator, are excluded.^"
within the period of gestation
after the testator's death are in-
cluded.—Williams V. Duncan, 92
Ky. 125, 17 S. W. 330.
As to children en ventre sa
mare, see § 842.
A testator in 1849 devised real
estate to his daughter "A. and her
children." A. then had a child,
who died in December, 1850. She
had another, born November 20,
1851, which died when three days
eld. Subsequently she had other
children. The testator started on
a journey in January, 1850. In
November, 1851, on information of
his death, the will was admitted to
probate, but the date of his death
was never ascertained. Held, that
it might be Inferred that he died
while the second child was en
ventre sa mere, and that A. and
that child took as tenants in com-
mon, to the exclusion of the sub-
sequently born children, and that
on the death of the second child
its share passed to the parents. —
Biggs V. McCarty, 86 Ind. 352, 44
Am. Rep. 320.
49 In re Swenson's Estate, 55
Minn. 300, 56 N. W. 1115; Bailey v.
Brown, 19 R. I. 669, 36 AU. 581.
BoViner v. Francis, 2 Cox 190;
Mann v. Thompson, Kay 638; Lee
V. Lee, 1 Drew. & S. 85; In re
Coleman & Jarrom, 4 Ch. Div. 165
Devisme v. Mello, 1 Bro. C. C. 537
Smith V. Ashurst, 34 Ala. 208, 210
Adams v. Spalding, 12 Conn. 350
Doe ex dem. Ingram v. Roe, 1
Houst. (Del.) 276, 286; Walker v.
Williamson, 25 Ga. 549, 554; Gilles-
pie V. Schuman, 62 Ga. 252; Down-
ing V. Nicholson, 115 Iowa 493, 91
CLASSES OF BENEFICIAEIES.
1293
Where, under tlie terms of the will, distribution to the
members of a class may be either at the death of the tes-
tator or the death of some beneficiary, if there be no
plainly expressed intent on the part of the testator to
postpone the vesting until the later period, the earlier
period will be adopted.®^ But notwithstanding the fore-
going principles, the date of the will may, by specific lan-
guage or by reasonable interpretation, be made the time
for ascertaining the objects, for the presumption that the
Am. St. Rep. 175, 88 N. W. 1064;
Shotts V. Poe, 47 Md. 513, 28 Am.
Rep. 485; Gardiner v. Guild, 106
Mass. 25; Upham v. Emerson, 119
Mass. 509; Thomas v. Thomas, 149
Mo. 426, 73 Am. St. Rep. 405, 51
S. W. Ill; Whitney v. Whitney,
45 N. H. 311; Campbell v. Clark,
64 N. H. 328, 10 Atl, 702; Chasmar
V. Bucken, 37 N. J. Eq. 415; Ward
V. Dodd, 41 N. J. Eq. 414, 5 Atl.
650; Collin v. Collin, 1 Barb. Ch.
(N. Y.) 630, 636, 45 Am. Dec. 420;
Jenkins v. FYeyer, 4 Paige (N. Y.)
47; Campbell v. Rawdon, 18 N. Y.
412; Downing v. Marshall, 23 N. Y.
366, 373, 80 Am. Dec. 290; Van
Hook V. Rogers' Ex'r, 7 N. C. 178;
Britton v. Miller, 63 N. C. 268; In
re Gross' Estate, 10 Pa. St. 360.
In De Wltte v. De Witte, 11 Sim.
41, the rule was applied to a gift
to A. and his children jointly.
In Harvey v. Stracey, 1 Drew.
73, it was held that the rule ap-
plies to gifts by way of appoint-
ment.
The words "heirs of my late hus-
band" were held to mean, those
who were living at the time of the
death of the testatrix. — In re Bug-
gies' Estate, 104 Me. 333, 71 Atl.
933.
A limitation to the testator's
heirs refers to those who are his
heirs at the time of his death, un-
less a contrary intention be shown.
— Jewett V. Jewett, 200 Mass. 310,
86 N. E. 308.
In Kentucky, contrary to the
general rule, it was held under a
gift to a daughter-in-law and her
children, that children born to the
beneficiary after the testator's
death and not previously begotten,
were nevertheless allowed to share
in the gift. The reasoning of the
court was that such after-born
children were as much the objects
of the testator's bounty and solici-
tude as the others, and that there
was nothing to indicate the tes-
tator desired to exclude them. —
Lynn v. Hall, 101 Ky. 738, 72 Am.
St. Rep. 439, 43 S. W. 402.
61 Brian v. Tylor, 129 Md. 145,
98 Atl. 532.
1294
COMMENTARIES ON THE LAW OF WILLS.
will speaks from the death of the testator is prima facie
only.^2
§881. Effect of Additional Words of Description of Benefi-
ciaries Designated as a Class.
Where the testator not only designates the beneficiaries
as a class but adds other words of description such as the
"present born" children of A,^* or the children of A
"living at the death" of a particular tenant who dies
during the testator's lifetime,^* only those take who come
within the additional description and who are also in
existence at the time of the testator's death.^^ If a con-
52 Unsworth t. Speakman, 4 Ch.
Div. 620; In re Potter's Trusts,
L. R. 8 Eq. 52, 60; Habergham v.
Ridehalgh, L. R. 9 Eq. 395; Morse
V. Mason, 11 Allen (Mass.) 36;
Dingley v. Dingley, 6 Mass. 535;
Whitetead v. Lassiter, 57 N. C. 79.
53 Leigh V. Lielgh, 17 Beav. 605.
54 Lee V. Pain, 4 Hare 201, 250;
Carver v. Oaliley, 57 N. C. 85.
Where the language of the will
was that after the termination of
a particular estate the property
was to be sold and the proceeds
distributed "among my daughters
living at my death," the daughters
of the testator living at his de-
cease took a vested remainder In
fee in the property. The fact that
the property was directed to be
sold did not postpone the vesting
of the Interest. — Johnson v. Wash-
ington Loan and Tr. Co., 224 IT. S.
224, 238, 239, 56 L. Ed. 741, 32 Sup.
Ct. 421.
A gift to issue "living at the
time of my death," does not in-
clude those bom thereafter. — ^Kin-
nan V. Card, 4 Demarest (N. Y.)
156.
B6 Cases cited In notes 53 and 54
supra.
A provision in a will for a home
for the unmarried children and the
use of the premises is construed
to refer to those who should re-
main as they were when the will
was made and not contract a fu-
ture marriage. — Frail v. Carstairs,
187 111. 310, 58 N. E. 401.
Under a devise to a testator's
son for life, remainder to such chil-
dren born in lawful wedlock as he
should leave at his death, where
the son died leaving a child al-
ready born, and his wife enceinte
of a child which was afterwards
born, such posthumous child takes
together with the former child. —
Barker v. Pearce, 30 Pa. St. 173,
72 Am. Dec. 691.
Under a devise by the testator to
certain children "who may be liv-
ing at my decease," a child en
CLASSES OF BENEPICIABIES. 1295
trary intention appear, as from a devise to those horn or
hereafter to be born during the lifetime of their respective
parents, the foregoing rule would not apply.®® But a con-
trary intent is not lightly inferred.^'' The American
rule, however, seems to be that such words of futurity
will let in children born after the testator's death.®*
Though the English decisions are conflicting it has been
held that a gift to "all the children of A, whether now
born or hereafter to be born," embraced those born after
the decease of the testator.®^
§ 882. Where Gift Is to Those of a Class Who Attain, or When
They Attain, a Certain Age.
A distinction is drawn between a case where a direct
benefit is conferred upon individuals or members of a
class, the enjoyment of possession only being postponed
until they shall have attained a certain age, and a case
where the gift is to become effective only in favor of those
who shall reach such age. Under the circumstances first
ventre sa mere at the time of tie and before his death.— Mann v.
testator's death, is entitled to take. Thompson, Kay 638, 643; Butler v.
—Hall V. Hancock, 15 Pick. Lowe, 10 Sim. 317, 325; Sprack-
(Mass.) 255, 26 Am. Dec. 598. ling v. Ranier, 1 Dick. 344; Storrs
As to children en ventre sa v. Benhaw, 2 Myl. & K. 46.
mere, see § 842. 57 Scott v. Harwood, 5 Madd.
56 Scott V. Scarborough, 1 Beav. 332.
154. 58 Napier v. Howard, 3 Ga. 192,
Thus the phrase, given above by 202; Butterfield v. Haskins, 33 Me.
way of illustration, "born or here- 392; Yeaton v. Roberts, 28 N. H.
after to be born," but for the ad- 459; Bullock v. Bullock, 17 N. C.
ditional words "during the life- 307, 316; Shinn v. Motley, 56 N. C.
time of their respective parents," 490, 491.
might, according to some respecta- 59 DelBis v. Goldschmidt, 1 Mer.
ble authorities, have been con- 417.
strued as showing only that the See, also, Mogg v. Mogg, 1 Mer.
testator contemplated children to 654 ; Gooch v. Gooch, 14 Beav. 565,
be born after the date of his will 576, 577.
1296 COMMENTARIES ON THE LAW OP WIIiLS.
mentioned there is an absolute gift to certain persons,
subject to be divested by their deaths before the specified
time ; under the latter there is no gift except to those who
reach the designated age.*° In gifts to a class, where the
contingency on which the right of possession depends in
some event other than the attainment of a certain age or
the survival for a given period, the death of a beneficiary
after that of the testator but pending the contingency does
not cause his interest to pass to the survivors of the class,
but substitutes and lets in his representatives instead of
himself. Where the interest of a beneficiary is once
vested, it does not lapse.*^
§ 883. The Same Subject.
Where the distribution of a testamentary gift to a class
is postponed until the members of a class shall have
attained a certain age, the right to the gift vests in those
in esse at the time the eldest member of the class attains
such age.*^ It includes not only those living at the death
60 Festing v. Allen, 12 Mees. & Gex, M. & G. 608 ; In re Smith's
W. 279; Bull v. Pritcliard, 1 Dow & Will, 20 Beav. 197; Brocklebank v.
C. 268, 314; Newman v. Newman, Johnson, 20 Beav. 205; McLachlan
10 Sim. 51; Wills v. Wills, 1 Dru. y. Taitt, 28 Beav. 407; Tucker v.
& War. 439; Hatfield v. Pryme, 2 Bishop, 16 N. T. 402.
Colles 204; Vawdrey v. Geddes, 1 62 In Andrews v. Partington, 3
Russ. & M. 203. Bro. C. C. 401, Lord Thurlow, the
See, however, Muskett v. Eaton, lord chancellor, says: "Where a
1 Ch. Div. 435. time of payment is pointed out, as
See, also, Bradley v. Barlow, 5 where a legacy is given to all the
Hare 589. children of A. when they shall at-
61 Pinhury v. Elkin, 2 Vern. 758, tain twenty-one, it is too late to
766; King v. Withers Cas. temp, say that the time so pointed out
Talh. 117; s. c. 3 B. P. C. Toml. shall not regulate among what
135; Wilson v. Bayly, 3 B. P. C. children the distribution shall be
Toml. 195; Barnes v. Allen, 1 Bro. made. It must be among the chil-
C. C. 181; Leeming v, Sherratt, 2 dren In esse at the time the eldest
Hare 14; Boulton v. Beard, 3 De attains such age."
CLASSES OF BENEFICIARIES. 1297
of the testator but also those who come into existence
before the first of the class reaches the age mentioned,
this being the time when the fund is first distributable to
any member. Those born after the first member of the
class has attained the specified age are excluded.®^ Thus
a remainder over to such of a class as either before or
after the decease of the life tenant shall attain the age of
twenty-one years or marry, vests in those of the class who
reach the specified age or marry, their interest being
liable to open up and let in others who later fulfill the con-
ditions of the will.®*
Where the gift is directly to a class, as to the children
of A payable when they attain the age of twenty-one
years, or as a remainder over after a life estate upon such
children attaining the age mentioned, if the eldest of the
class has attained the age of twenty-one at the death of
the testator in the former case, or has reached that age at
the death of the life tenant in the latter case, so that his
share is immediately payable at the death of the testator
or of the life tenant, as the case may be, no child subse-
quently born will take. The reason for this is that the
beneficiary who has attained the age of twenty-one years
can not be kept waiting for his share; and if it is once
paid to him it can not be recovered.^^ In this class of
63 Andrews v. Partington, 3 Bro. 65 Gillman v. Davint, 3 Kay & J.
C. C. 401; Gilbert v. Boorman, 11 48.
Ves. Jun. 238 ; Curtis v. Curtis, 6 See, also, Whltbread v. St. John,
Madd. 14; Hubbard v. Lloyd, 6 10 Ves. Jun. 152; Andrews v. Part-
Cush. (Mass.) 522, 53 Am. Dec. ington, 3 Bro. C. C. 401, 403; Hub-
55; Thomas v. Thomas, 149 Mo. bard v. Lloyd, 6 Cush. (Mass.) 522,
426, 73 Am. St. Rep. 405, 51 S. W. 523, 53 Am. Dec. 55; Tucker v.
111. Bishop, 16 N. Y. 402, 404; Hawkins
64 In re Lechmere and Lloyd, 18 v. Everett, 58 N. C. 42, 44; Simp-
Ch. Div. 524. son v. Spence, 58 N. C. 208; Heisse
II Com. on Wills— 28
1298 COMMENTAKIES ON THE LAW OF WILLS.
cases the addition of words of futurity, such as "to be
born," or born "after my death," does not let in those
of the class born after the first share becomes payable.*®
§884. The Same Subject: Where Contingency Which Deter-
mines Membership of Class Occurs During Testator's
Lifetime.
There is no distinction drawn where the contingency
upon which the membership of a class depends occurs in
the testator's lifetime. Thus where there is a gift to A
for life and after his death to his children living at his
decease, should A die before the testator leaving children,
such children living at that time and who survive the tes-
tator take as a class. The death of A would not cause the
gift to lapse.®''
§885. The Same Subject: Where the Contingency Is "Young-
est" of Class Attaining Specified Age.
When the payment of the shares is postponed until the
happening of some event personal to the "youngest" of
the class, as until he attain a certain age, unless the con-
V. Markland, 2 Rawle (Pa.) 274, all who should attain majority was
275, 21 Am. Dec. 445; De Veaux v. followed by a power of advance-
De Veaux, 1 Strob. Eq. (S. C.) 283. ment and maintenance, to take ef-
In Iredell v. Iredell, 25 Beav. feet whether the legatees "shall or
485, the same rule held applicable ^^^" "^"^ have attained the age of
, , .,, twenty-one," and notwithstanding
to grandchildren.
the liability of a "subseauent ad-
66 Whltbread v. St. John, 10 Ves. ^.^.^^ ^^ ^^^ ^^^^^ entitled."-Ire-
Jun. 152; Iredell y. Iredell, 25 ^^u ^ j^^^^jj^ 35 Beav. 485; Bate-
Beav. 485; Heisse v. Markland, 2 ^an v. Gray, L. R. 6 Eq. 215.
Rawle (Pa.) 274, 275, 21 Am. Dec. Contra: Gimblett v. Purton,
445. L. R. 12 Eq. 427, 430.
It has been said, however, that 67 Lee v. Pain, 4 Hare 201, 250;
the rule might be excluded by the Leigh v. Leigh, 17 Beav. 605;
context; as where a bequest to Cruse v. Howell, 4 Drew. 215.
CLASSES OF BENEFICIARIES. 1299
text shows that the testator referred to the youngest in
being at the time,*^ he will be deemed to have reference to
the youngest, whenever born ; and so long as members of
the class continue to be born, the estate must open and let
them in."^® "On their attaining twenty-one" is construed
as equivalent to "on their all attaining" that age, and
admits after-born members of the class.'^*'
§ 886. Where Right to Share in Benefits Depends Upon an In-
definite Future Event.
One uncertainty regarding testamentary gifts to a class
is as to the number who shall take, that depending upon
future events. The testator may add another uncertainty
as to the time when the interests of the members of the
class shall take effect. Where the testator postpones the
right of the members of a class to take an interest until
the happening of some indefinite event, those who take
will be determined, not at the date of the testator's death,
but at the time of distribution.''^ Where a contingent
68 Gooch V. Gooch, 3 De Gex, M. should be paid to the other son, if
& G. 366. living, and that if both sons should
69 Mainwaring v. Beevor, 8 Hare die without wife or issue surviving
44; Handberry v. Doolittle, 38 111. them, the portions allotted to them
202, 206. should be paid to his daughters,
70 Armitage v. Williams, 27 share and share alike, a surviving
Beav. 346. son is not entitled to payment of
Where the will of a decedent be- the legacy given to a deceased
queathed a sum to one of his sons son, immediately upon his death,
to be paid when he should have at- and such legacy is not payable
tained the age of thirty-five years, until by the terms of the will it
and a like sum to another son to would have been payable to the
be paid when he should have at- deceased son if he had lived. — In
tained the age of thirty years, and re Fair's Estate, 103 Cal. 342, 37
provided that in case either son Pac. 406.
named should die without wife or ti Brograve v. Winder, 2 Ves.
issue, the portion allotted to him Jun. 634, 638; Browne v. Ham-
1300
COMMENTAEIES ON THE LAW OF WILLS.
gift is made to a class or to persons designated by descrip-
tion and the contingency consists not merely in uncer-
tainty as to the persons who are to take, but in events
disconnected with them, when the contingency happens
the estate vests in the person or persons then compre-
hended in the class or answering particular description.''^
Thus where the gift is to a class such as grand-
children, but the right thereto is postponed until the hap-
mond, Johns. 212, n; Baldwin v.
Rogers, 3 De Gex, M. & G. 649;
Devisme v. Mello, 1 Bro. C. C. 537;
In re Winter's Estate, 114 Cal. 186,
189, 45 Pac. 1063; In re Jones' Ap-
peal, 48 Conn. 60; Handberry v.
Doolittle, 38 111. 202, 206; "Walters
V. Crutclier, 15 B. Mon. (54 Ky.) 2,
10; Barnum v. Barnum, 42 Md.
251; Hatfield v. Sohier, 114 Mass.
48; Hall v. Hall, 123 Mass. 120;
Smith V. Rice, 130 Mass. 441;
Nichols V. Denny, 37 Miss. 59, 65;
Yeaton v. Roberts, 28 N. H. 459;
Felt's Exrs. v. Vanatta, 21 N. J.
Eq. 84, 86; Ward v. Tompkins, 30
N. J. Eq. 3; Teed v. Morton, 60
N. Y. 502; Delaney v. McCormack,
88 N. Y. 174 ; Walker v. Johnston,
70 N. C. 576; Richey v. Johnson,
30 Ohio St. 288; Ross v. Drake, 37
Pa. St. 373, 375; Rudebaugh v.
Rudebaugh, 72 Pa. St. 271; Wes-
senger v. Hunt, 9 Rich. Eq. (S. C.)
459, 464; Hamlett v. Hamlett's
Ex'r, 12 Leigh (Va.) 350; Cooper
V. Hepburn, 15 Grat. (Va.) 551,
558.
Compare: Gourdin v. Shrews-
bury, 11 S. C. 1, 2.
Gift of property to a class of
persons, distributable at a time
subsequent to the death of the
testator, ordinarily includes all
persons in being at the time ap-
pointed for the distribution who
belong to the class, whether born
before or after the death of the
testator; but this rule does not
prevail when a different intention
appears from the will. — Matter of
Smith, 131 N. Y. 239, 27 Am. St.
Rep. 586, 30 N. E. 130.
In Pemberton v. Parke, 5 Bin.
(Pa.) 601, 611, 6 Am. Dec. 432, the
testator gave the bulk of his es-
tate "to his widow, during her
life or widowhood, and to the chil-
dren and grandchildren of his
brother Israel Pemberton, to be
equally divided among those of
them who may be then living, two
thousand pounds," and the word,
"then," was agreed to refer to the
death of the widow. It was held
that until the death of the widow
the legacy did not vest, but was
suspended, and was clearly con-
tingent, as to such of the descend-
ants as should survive the widow.
72 Den V. Crawford, 8 N. J. L. 90.
CLASSES OF BENEFICIARIES. 1301
pening of a contingent event subsequent to the testator's
death, every one answering the description of grandchil-
dren at the time fixed for distribution is entitled to share
in the gift, and no others.''^ Under this rule the heirs of
a grandchild who was living at the date of the testator 's
death but who died before the happening of the contin-
gency, take nothing, while a grandchild born after the
testator's death and living at the time of distribution,
shares in the benefits J*
§ 887. Where Right to Share in Benefits Depends Upon Ter-
mination of a Preceding Estate.
Where a particular estate or interest is carved out of
property, with a gift over to a class, such as the children
of the person taking the interest or the children of any
other person, the beneficiaries under the gift to the class
will include not only the members thereof at the date of
the death of the testator, but all others who may subse-
quently come into existence before the period of distribu-
tion.'^^ But in order that those born after the death of the
73 Storrs V. Burgess, 101 Me. 26, wood, 3 Whart. (Pa.) 287, 31 Am.
62 Atl. 730. Dec. 502.
74 Webber v. Jones, 94 Me. 429, Compare: In Olney v. Hull, 21
47 Atl. 903. Pick. (Mass.) 311, 313, the court
As soon as any member of a says: "In this will it Is perfectly
class becomes entitled to a vested clear that the testator intended to
interest in possession, all after- give to his wife the improvement
born members are excluded. — Gil- of his farm during her life or wid-
bert V. Boorman, 11 Ves. Jun. 238. owhood. And, having carved out
76 Ayton V. Ayton, 1 Cox 327; In this estate for her, he gave the
re Jones' Appeal, 48 Conn. 60; remainder to his surviving sons, to
Webster v. Welton, 53 Conn. 183, be equally divided between them.
1 Atl. 633; Handberry v. Doolittle, Had he given generally to his sons,
38 111. 202; Ridgeway v. Under- all who happened to be alive at
wood, 67 111. 419; Teed v. Morton, his decease, viz., all who survived
60 N. Y. 502; Thompson v. Gar- him, would have taken. . . .
1302 COMMENTARIES ON THE LAW OF WILLS.
testator may be admitted to participate as members of
the class, a subsequent time for distribution must be
fixed, and not be left indefinite.''* This rule applies to
gifts of powers, and to gifts in execution of powers.''''^
§ 888. The Doctrine Generally Where Enjoyment of Benefits
Depends Upon a Contingency.
The doctrine may be announced that where there is a
simple devise to a class and the will does not, either
expressly or by necessary implication, fix the time when ,
the objects of the gift are to be ascertained or distribution
made, the law will fix the time as of the date of the tes-l*^
tator's death, that being the time from which the will
speaks. Where the testamentary gift to a class by its
own limitation takes effect in interest at a particular
time, the members of the class who take are those who are
in esse at such time ; and where distribution is deferred
to a subsequent period, the class will open up and take in
those bom before distribution. For' instance, under a
devise of an estate to A for life, to be divided after A's
death among A's children in fee, the children of A living
at the death of the testator take a vested remainder sub-
ject to open up and let in children thereafter bom to A.
The proportions which the members of the class are to
take can not therefore be ascertained until the death of
The time when the estate was to those surviving the death or mar-
be divided among the sons is cer- riage of the widow."
tain and definite. It was when 76 Butter v. Ommaney, 4 Russ.
the intermediate estate terminated 70; Jenkins v. Freyer, 4 Paige
by the death or marriage of the (N. Y.) 47; Swinton v. Legare, 2
tenant. Among whom was it to be McCord Eq. (S. C.) 440.
divided? Not those who survived Compare: Turner v. Patterson,
any prior event, not those who sur- 5 Dana (35 Ky.) 292.
vived the father, but those who 77 Paul v. Compton, 8 Ves. Jun.
survived that particular event, 375; Harvey v. Stracey, 1 Drew. 73.
CLASSES OF BENEFICIARIES. 1303
AJ' The same rule is applicable to like bequests of per-
sonalty.''*
§ 889. The Same Subject: As to After-Bom Members of Class.
The fact that the payment of legacies is postponed by
statute until a year after the decease of the testator, does
not admit members of a class begotten and born after the
testator's death to share in the gift;^" although if the
testator in his will direct a postponement for such period,
the class may be enlarged by the birth of a member dur-
ing such time.®^
The rule admitting after-born children to the class does
not apply in the case where separate legacies of a speci-
fied sum are given to each of the class,, for then the aggre-
gate amount of the gift to the class would be increased
by the admission of new members so that it could not be
ascertained at the time of distribution of the testator's
estate how many legacies of the given amount would be
payable.*^ However, in this, as in all other cases, a clear
expression of an intention to admit after-born members
of the class will prevail ; so, also, where the possession is
postponed, if it be manifest that such was the testator's
78Randoll v. Doe d. Roake, 5 Linton v. Laycock, 33 Ohio St.
Dow 202; Doe v. Perryn, 3 T. R. 128.
484; Doe (Poor's Lessee) v. Con- T9 Halifax t. Wilson, 16 Ves. Jun.
sidine, 6 Wall. (U. S.) 458, 476, 18 1^8; In re Bennett's Trust, 3 Kay
. ,- . o^„ „„r ^ 1 ri & J- 280; Strother v. Dutton, 1 De
L. Ed. 869, 875; Cropley v. Cooper, '
«s ...„„„ ■ ,-j -,„„ Gex & J. 675; Shattuck v. Sted-
19 wall. (TJ. S.) 167. 22 L. Ed. 109; ^ ^.^^ ^^^^^^ ^^^
McCartney y. Osbum, 118 111. 403, «„ Hagger v. Payne, 23 Beav.
9 N. B. 210; Rudolph v. Rudolph, ^,^^
207 111. 266, 99 Am. St. Rep. 211, g^ g^jiey ^ wagner, 2 Strob. Bq.
69 N. B. 834; Dingley v. Dingley, 5 (g, c.) 1.
Mass. 535; Doe v. Provoost, 4 82 Ringrose v. Bramham, 2 Cox
Johns. (N. Y.) 61, 4 Am. Dec. 249; 384; Mann v. Thompson, Kay 638.
1304 COMMENTABIES ON THE LAW OF WILLS.
intent.^' If none of the objects of the gift be in existence
at the death of the testator, or at the time of distribution,
all children, whenever born, may be included, unless a
contrary intention appear in the will as from a gift over
in that event.**
§ 890. Remainder Over to a Class Upon Termination of Life
Estate: Vested and Contingent Remainders.
A bequest or devise to a class of the remainder over
after a life estate vests the title to the estate in remainder
in those of the class in esse at the death of the testator ;
the right of enjoyment of possession, however, is deferred
until the expiration of the preceding estate. The estate
in remainder, when once vested as upon the death of the.
testator, does not lapse by reason of the death of a bene-
ficiary prior to the expiration of the life estate unless the
will so provides, as by a limitation over in the event of the
death of a remainderman before that of the life tenant.*®
But the class will open up and let in those born during
the continuance of the life estate, who belong to the class
designated in the will.*^ This general rule is held to
83 Scott V. Scarborough, 1 Beav. 104, 25 Am. St. Rep. 743, 21 Atl.
154; Brown v. Williams, 5 R. I. 272.
309, 318. 86 Harding v. Glynn, 1 Atk. 470
Si Godfrey v. Davis, 6 Ves. Jun. Haughton t. Harrison, 2 Atk. 329
43. Ellison v. Airey, 1 Ves. Sen. Ill
85 Bullock V. Downes, 9 H. L. Mitchell t. Mitchell, 73 Conn. 303,
Cas. 1; Doe (Poor's Lessee) v. 47 Atl. 325; Sumpter v. Carter, 115
Considine, 6 Wall. (U. S.) 458, 476, Ga. 893, 60 L. R. A. 274, 42 S. E.
18 L. Ed. 869, 875; McArthur v. 324; Thomas v. Thomas, 247 111.
Scott, 113 U. S. 340, 28 L. Ed. 1015, 543, 139 Am. St. Rep. 347, 93 N. B.
5 Sup. Ct. 652; Thaw v. Falls, 136 344; Lynn v. Worthington, 266 III.
U. S. 519, 34 L. Ed. 531, 10 Sup. 414, 107 N. E. 729; Bruce v. Bis-
Ct. 1037; Gates v. Seibert, 157 Mo. sell, 119 Ind. 525, 12 Am. St. Rep.
254, 80 Am. St. Rep. 625, 57 S. W. 436, 22 N. E. 4; Archer v. Jacobs,
1065; In re Tucker's Will, 63 Vt. 125 Iowa 467, 101 N. W. 195; May
CLASSES OP BEINEFICIARIES.
1305
apply particularly to gifts to children as a class, and in
all such cases the estate in remainder vests in such
of them as are living at the time of the death of the tes-
tator and in those horn during the continuance of the life
estate, from the moment of their birth.®''
Where there is a testamentary gift of a particular
estate, Avith remainder over to a class, the estate in
remainder is contingent if there be no one answering the
V. Walter's Ex'rs, 30 Ky. Law Rep.
59, 97 S. W. 423; Minot v. Doggett,
190 Mass. 435, 77 N. E. 629; Doer-
ner v. Doerner, 161 Mo. 399, 61
S. W. 801; Buckner v. Buckner,
255 Mo. 371, 164 S. W. 513; Holme
V. Shinn, 62 N. J. Eq. 1, 49 Atl.
151; Johnson v. Valentine, 4 Sandf.
(N. Y.) 36; Mason v. White, 53
N. C. 421; Tlndal v. Neal, 59 S. C.
4, 36 S. E. 1004; Smith v. Smith,
108 Tenn. 21, 64 S. W. 483.
The testator devised his entire
estate, including slaves and their
increase, to his wife during her
life, and at her death the entire
estate was to be sold and the pro-
ceeds distributed among his slaves
and their increase, each to receive
$200, and the residue to be dis-
tributed equally among them. In
1900 the widow died and the slaves
and their descendants instituted
suit for a construction of the will.
It was held that the clause in the
will was valid and the distribu-
tion should be made per capita
among the slaves who were living
at the time of the testator's death,
and the descendants of the female
slaves. — Miller v. Wilson's Adm'r,
23 Ky. Law Rep. 2130, 66 S. W.
755.
87 Williamson v. Berry, 8 How.
(U. S.) 495, 12 L. Ed. 1170; Beck-
ley v. Lefflngwell, 57 Conn. 163, 17
Atl. 766; Cooper v. Mitchell Inv.
Co., 133 Ga. 769, 29 L. R. A. (N. S.)
291, 66 S. E. 1090; Manner v. Fel-
lows, 206 111. 136, 68 N. E. 1057;
Kilgore v. Kilgore, 127 Ind. 276, 26
N. E. 56; Walters v. Crutcher, 15
B. Mon. (54 Ky.) 2; Stonebraker
V. Zollickoffer, 52 Md. 154, 36 Am.
Rep. 364; Minot v. Purrington, 190
Mass. 336, 77 N. E. 630; Nichols v.
Denny, 37 Miss. 59; Doerner v.
Doerner, 161 Mo. 399, 61 S. W. 801;
Parker v. Leach, C6 N. H. 416, 31
Atl. 19; Holme v. Shinn, 62 N. J.
Eq. 1, 49 Atl. 151; Losey v. Stan-
ley, 147 N. Y. 560, 42 N. E. 8;
Walker v. Johnston, 70 N. C. 576;
In re Wetherill's Estate, 214 Pa.
St. 150, 63 Atl. 406; McGregor v.
Toomer, 2 Strobh. Eq. (S. C.) 51;
Kansas City Land Co. v. Hill, 87
Tenn. 589, 5 L. R. A. 45, 11 S. W.
797; Woodruff v. Pleasants, 81 Va,
37.
1306 COMMENTARIES ON THE LAW OP WILLS.
description at the date of the death of the testator.^* But
upon the birth of any one coming under the description
of the class, there is no longer any contingency because
the condition of the gift has been met and the estate in
remainder becomes vested. The fact that the class may
open up and let in after-born members does not make
the remainder contingent.^® The vesting of the estate in
remainder will defeat a contingent limitation over to take
effect in the event there should be no members of the
class to take. Thus if the testator devises his lands to his
daughter during her lifetime and at her death to her
lawful issue or iu default of such issue then to B, although
such daughter might have no issue at the death of the
testator, yet the birth to her of issue during her lifetime
will defeat the limitation over to B even though such
issue die during the life of the daughter.®"
§ 891. When Word "Siurivor" Is Construed to Mean "Other."
"Words of survivorship used in connection with the des-
ignation of beneficiaries in wills have created no little
conflict in decisions. The early English decisions con-
strued the term ' ' survivor " or " survivors ' ' as meaning
"other" or "others."®^ Thus, in the case of a testa-
mentary gift to several beneficiaries and their issue, but
in the event of any of them dying without issue then his
share to go to the survivors, should "survivors" be con-
88 Keller v. Lees, 176 Pa. St. 402, life estate their interest vests in
35 Atl. 197. their heirs.— Phillips v. Johnson,
89 Phillips V. Johnson, 14 B. Mon. 14 B. Mon. (Ky.) 172.
(Ky.) 172; Wootten v. Shelton, 6 soWootten v. Shelton, 6 N. C.
N. C. 188; Keller v. Lees, 176 Pa. 188; Cooper v. Hepburn, 15 Grat
St. 402, 35 Atl. 197. (Va.) 551.
Where any of the children die 9i Barlow v. Salter, 17 Ves. Jun.
before the determination of the 479.
CLASSES OF BENEFICIARIES. 1307
strued to mean "others," the issue of one of the deceased
beneficiaries would be entitled to partake with the other
actual survivors in the share of any beneficiary dying
without issue.®^ This, however, was a forced and unnat-
ural construction in many cases, and the word should be
interpreted according to the intention of the testator as
derived from the will.^^ But unless construed to mean
"others," in many cases the intention of the testator
would be defeated, as where his evident purpose was to
provide for the children of any of the beneficiaries should
they have issue, the gift over to the survivors being only
in the event of no issue. Such construction would save
to the children the benefit of the provision intended for
them upon the death of their parent.** Likewise where
the gift to the survivors is in the event of the beneficiary
dying without issue, the facts may show that the testator
could not have contemplated that the original members
of the class would stiU be in existence at an indefinite
time in the future when failure of issue could be finally
determined.'® The context of the will may show that the
testator intended to substitute the issue of any benefi-
ciary in his stead so as to take the share which would have
passed to such beneficiary had he lived.®® But where the
92 Wheeler v. Allan, 54 Me. 232; nell v. Barrell, L. R. 20 Eq. 194;
In re Naglee's Appeal, 33 Pa. St. Louisville Driving etc. Assoc, v.
89, 91. Louisville Trust Co., 16 Ky. Law
93 Davidson v. Dallas, 14 Ves. Rep. 689, 29 S. W. 866; Rivenett v.
Jun. 576, 578. Bourquin, 53 Mich. 10, 18 N. W.
94Wilmot V. V^^ilmot, 8 Ves. Jun. 537; Lapsley v. Lapsley, 9 Pa. St.
10; Williams v. James, 20 Week. 131; In re Bacon's Estate, 202 Pa.
R. 1010; Winterton v. Crawfurd, 1 St. 535, 52 Atl. 135.
Russ. & M. 407; Aiton v. Brooks, 7 95 In re Corbett's Trusts, Johns.
Sim. 204; Badger v. Gregory, L. R. 591, 597.
8 Eq. 84; In re Palmer's Settle- 96 Eyre v. Marsden, 4 Myl. & C.
ment Trusts, L. R. 19 Eq. 320; Tuf- 231.
1308 COMMENTAEIES ON THE LAW OP WILLS.
context of tlie will makes no explanation of the meaning
of the term "survivor," it will be given its ordinary lit-
eral meaning and will include those only actually surviv-
ing at the time fixed in the will.*'^
§892. The Same Subject: Where Gift to Survivors Depends
Upon a Contingency.
Where there is a gift to survivors to be effective only
upon a certain contingency, as where they take as sur-
vivors in the event of a beneficiary dying without issue,
and this is followed by a gift over to be effective should
there be no survivors to take, it is inferred that the tes-,
tator used the word "survivors" as synonymous with
"others." By the gift over of the property as a whole
the testator evidently intended to keep the property
together in the hands of the beneficiaries and their
descendants and to allow them the benefits except in the
one contingency named, upon the happening of which
the gift over would become effective.^*' It has been said
97 Davidson v. Dallas, 14 Ves. N. J. L. 223; Skinner v. Lamb, 25
Jun. 576; Crowder v. Stone, 3 Russ. N. C. 155; Bradley v. Richardson,
217; Ranelagh v. Ranelagh, 2 Myl. 62 S. C. 494, 40 S. E. 954.
& K. 441; De Garagnol v. Liardet, ®* ^°^ ^- "Watts v. Wainewright,
32 Beav. 608; Waite v. Littlewood, ^ T. R. 427; Cole v. Sewell, 4 Dru.
L. R. 8 Ch. App. 70; Beckwith v. ^ "^^^^ ^- ^- «• ^ H. L. Cas. 186;
Badger v. Gregory, L. R. 8 Eq. 78.
84; Cooper v. Macdonald, L. R. 16
Eq. 258.
V. Chew, 12 Wheat. (U. S.) 153, 6 t* *i, v « • • 4. , ,, .
' If the beneficiaries take but a
L. Ed. 583; Coleman-Bush Invest- jj^^ .^^^^^^^ ^j^j^ remainder to
ment Co. v. Pigg, 95 Ky. 403, 409, tjjgjj. ig^^g^ ^^^ ^j^^ survivors take
25 S. W. 888; Anderson v. Brown, in the event of a beneficiary dying
84 Md. 261, 35 Atl. 937; Hill v. without issue, "survivors" will not
Safe Deposit etc. Co., 101 Md. 60, be construed as "others" although
4 Ann. Cas. 577, 60 Atl. 446; Law- there may be a gift over should
renee v. Phillips, 186 Mass. 320, 71 all die without issue.— Maden v.
N. E. 541; Seddel v. Wills, 20 Taylor, 45 L. J. Ch. 569, 573.
Beckwith, 46 L. J. Ch. 97; In re
Bilham, (1901) 2 Ch. 169; Jackson
CLASSES OF BENEFICIAKIES. 1309
that in order to construe the word "survivor" to mean
"other," it is necessary that there be an ultimate gift
over, for that supplies the necessary evidence of such an
intention.**
§893. When Gift Is Direct, Words of Survivorship Refer to
Testator's Death.
Words of survivorship may be used in connection with
direct gifts, such as a devise or bequest to the surviving
children of A, or in connection with a gift to take effect
in the future, such as a devise of a remainder at the death
of the life tenant to the surviving children of A. The
decisions have distinguished between the two classes of
cases mentioned. In all cases, however, it should be
borne in mind that the law favors such an interpretation
of a will as permits estates to vest at the earliest possible
moment, and to that end words of survivorship are con-
strued as referring to the death of the testator where the
context does not clearly show that they have reference to
a subsequent date.^ i^nd where the gift is direct, such as
to the "surviving children of A," and no contrary inten-
tion appears from the will, the general rule is that the
period referred to is the death of the testator and the
children who are to take are those surviving at that time.
The effect of such words of survivorship would be to pre-
vent a lapse of the share of one of the children of A who
might die before the testator by passing his share to the
99 Wake V. Varah, 2 Ch. Div. 340, 28 L. Ed. 1015, 5 Sup. Ct. 652;
348 ; Milsom v. Awdry, 5 Ves. Jun. Amos v. Amos, 117 Ind. 37, 19 N. E.
465; Anderson v. Brown, 84 Md. 543; Aspy v. Lewis, 152 Ind. 493, 52
261, 271, 35 Atl. 937. N. E. 756; Taylor v. Stephens, 163
Compare: In re Arnold's Trusts Ind. 200, 74 N. E. 980; Eberts v.
L. R. 10 Eq. 252. Eberts, 42 Mich. 404, 406, 4 N. W.
1 McArthur v. Scott, 113 U S. 172.
1310 COMMENTARIES ON THE LAW OF WILLS.
survivors.^ And words of survivorship will prevent a
lapse in the event of the death of one of the beneficiaries
prior to that of the testator. Where the gift is either to
individuals or to a class, or to the survivors of them,
those living at the death of the testator take the benefits
of the beneficiaries dying before that time.*
§ 894. To What Date Words of Survivorship Refer When Gift
Is Preceded by a Life Estate: English Rule.
AVhere words of survivorship are used in connection
with a remainder over after a life estate, such as a gift to
A for life with remainder over to the surviving children
of B, the decisions are conflicting as to the time at which
such survivors should be determined. The early English
decisions held that such words of survivorship referred
to the death of the testator unless the context of the will
manifested a different intention.* Exceptions were taken
to this rule until now, in England, it may be said that it
does not apply where the gift over to the survivors is
preceded by any particular estate, and that where the sur-
vivors take only after the termination of a prior interest,
those who take are to be determined as of such date;
2 Lord Bindon v. Earl of Suf- 372; Renner v. Williams, 71 Ohio
folk, 1 P. Wms. 96; Smith v. Py- St. 340, 73 N. E. 221.
bus, 9 Ves. Jun. 567; Ashford v. s Lord Bindon v. Earl of Suf-
Haines, 21 L. J. Ch. 496; LIU v. foik^ i p -y^mg 96_
4 Edwards v. Symonds, 6 Taunt.
213; Rose v. Hill, 3 Burr. 1881;
Haws V. Haws, 3 Atk. 524; Lord
Bindon v. Earl of Suffolk, 1
Llll, 23 Beav. 446; Taylor v. Steph-
ens, 165 Ind. 200, 74 N. E. 980;
Carpenter v. Hazelrigg, 103 Ky.
538, 45 S. W. 666; Morton's Guard-
ian V. Morton, 120 Ky. 251, 85
S. W. 1188; Brimmer v. Sohler, 1 P- Wms. 96; Woodstock v. Shll-
Cush. (Mass.) 118; Prendergast v. "*«>. 6 Sim. 416; Perry v. Woods,
Walsh, 58 N. J. Eq. 149, 42 Atl. 3 Ves. Jun. 204; Brown v. Bigg, 7
1049; Stevenson v. Lesley, 70 N. Y. Ves. Jun. 279; Elliott v. Smith, 22
512; Matter of Mahan, 98 N. Y. Ch. Div. 236.
CLASSES OP BENEPICIAEIBS. 1311
this, of course, only where a contrary intention of the
testator does not appear.^ Should the life tenant die
before the testator, the decease of the latter determines
who shall take.^
§895. The Same Subject: American Decisions.
In America the decisions are conflicting, some follow-
ing the earlier and some the later English cases. Each
case, in fact, although apparently recognizing some rule,
is determined according to the particular language in-
volved. The early English rule may be accepted, yet not
followed for the reason that the court finds, from the
provisions of the will, that the testator had a different
intent.'^ The courts favor the vesting of estates at the
earliest possible moment, and also seek to avoid intestacy.
Again, words of survivorship are not always used in their
ordinary sense, but, as has been shown, may mean
"others," in which case the heirs or issue, according to
the provisions of the will, may take in the place of a
deceased beneficiary. The American decisions do not
generally follow the later English cases which hold that
where the gift to the survivors is of a remainder after a
precedent estate, the survivors are to be determined at
6 Browne v. Lord Kenyon, 3 Hesketh v. Magennls, 27 Beav.
Madd. 410, 416; Cripps v. Wolcott, 395; Naylor v. Robson, 34 Beav.
4 Madd. 11; Young v. Robertson, 8 571; Pope t. Whitcombe, 3 Russ.
Jur. N. S. 825; Daniell T. Daniell, 124.
6 Ves. Jun. 297; Jenour v. Jenour, 6 Spurrell v. Spurrell, 11 Hare
10 Ves. Jun. 562, 566; Blewitt v. 54.
StaufEers, 9 L. J. Ch. 209; Howard 7 Branson v. Hill, 31 Md. 181, 1
V. Collins, L. R. 5 Bq. 349; Words- Am. Rep. 40; Kelso v. Lorillard, 85
worth V. Wood, 1 H. L,. Cas. 129
Toaffe V. Conmee, 10 H. L. Cas. 64
Eaton V. Barker, 2 Coll. C. C. 124
Blewitt V. Roberts, 10 Sim. 491
N. Y. 177; Woelpper's Appeal, 126
Pa. St. 562, 17 Atl. 870; Jameson
V. Jameson's Adm'x, 86 Va. 51, 3
L. R. A. 773, 9 S. E. 480.
1312
COMMENTARIES ON THE LAW OF WILLS,
the death, of the tenant of the particular estate. The
mere fact of a precedent estate is not sufficient to post-
pone the vesting of the remainder in the survivors at
the death of the testator, there being nothing in the con-
text of the will to indicate such an intention. In such a
case the words of postponement are presumed to refer to
the beginning of the enjoyment of possession rather than
to the vesting of the remainder in the beneficiaries. Those
in existence at the death of the testator take a vested
interest ; and the rule is that an interest, once vested, is'
not to be divested unless such intent clearly appears from
the will.*
8 Doe V. Considine, 6 "Wall.
(U. S.) 458, 468, 18 L. Ed. 869;
McArthur v. Scott, 113 U. S. 340,
28 L. Ed. 1015, 5 Sup. Ct. 652;
Vickers v. Stone, 4 Ga. 461; Clore
V. Smith, 45 Ind. App. 340, 90 N. B.
917; Alsman v. Walters, (Ind.
App.) 101 N. E. 117; Taylor v.
Stephens, 165 Ind. 200, 74 N. E.
980; Moores v. Hare, 144 Ind. 573,
43 N. B. 870; Aldred v. Sylvester,
184 Ind. 542, 111 N. E. 914; Blanch-
ard V. Blanchard, 1 Allen (Mass.)
223; Pike v. Stephenson, 99 Mass.
188; Moore v. Lyons, 25 Wend.
(N. Y.) 119; Livingston v. Greene,
52 N. Y. 118; Embury v. Sheldon,
68 N. Y. 227; Stevenson v. Lesley,
70 N. Y. 512; Quackenboss v.
Kingsland, 102 N. Y. 128, 55 Am.
Rep. 771, 6 N. E. 121; Ross v.
Drake, 37 Pa. St. 373; Shutt v.
Rambo, 57 Pa. St. 149; In re
Vance's Estate, 209 Pa. St. 561, 58
Atl. 1063; Hansford v. Elliott, 9
Leigh (Va.) 79; Martin v. Kirby,
11 Gratt. (Va.) 67; Allison t. Alli-
son's Ex'rs, 101 Va. 537, 63 L. R. A.
920, 44 S. B. 904; In re Moran's
Will, 118 Wis. 177, 96 N. W. 367.
But see: Matter of Winter's Es-
tate, 114 Cal. 186, 45 Pac. 1063;
Olmstead v. Dunn, 72 Ga. 850, 860;
Crawford v. Clark, 110 Ga. 729, 36
S. E. 404; Nicoll v. Scott, 99 111.
529; Branson v. Hill, 31 Md. 181, 1
Am. Rep. 40; Ridgely v. Ridgely,
100 Md. 230, 59 AO. 731; Slack v.
Bird, 23 N. J. Eq. 238; Holcomb v.
Lake, 24 N. J. L. 686; Cole v.
Creyon, 1 Hill Eg. (S. C.) 311, 26
Am. Dec. 208; Sinton v. Boyd, 19
Ohio St. 30, 2 Am. Rep. 369; Ren-
ner v. Williams, 71 Ohio St. 340, 73
N. B. 221; Swinton v. Legare, 2
McCord Eq. (S. C.) 440; Ballard v.
Connors, 10 Rich. Eq. (S. C.) 389,
392.
"It Is true that the law prefers
vested to contingent remainders,
and this preference may lawfully
and properly influence the mind in
CLASSES OF BENEFICIARIES.
1313
§ 896. The Same Subject: Intention of Testator.
The decisions are so conflicting that it might well be
said there is no fixed rale of interpretation applicable to
words of survivorship, but that construction should be
adopted which upon a consideration of the particular gift
in connection with all other provisions of the will most
nearly effectuates the apparent intention of the testator.*
All rules as to who shall take as survivors readily yield
to an expression of an intent to be gathered from a fair
cases of doubtful construction, but
this can never justify the courts
In making a deed or ■will, or In
straining the language used in
order to make the estate created a,
vested rather than a contingent re-
mainder. In obedience to this dis-
position in favor of vested re-
mainders, this court has held
where the question involved was
the period to which words of sur-
vivorship related, that, in the ab-
sence of the expression of a par-
ticular intent, the survivorship has
relation to the death of the tes-
tator."— Howbert v. Cauthom, 100
Va. 649, 42 S. E. 683.
The fact that a will provides
that, in case of the decease of a
beneficiary to whom a remainder
is given, his share shall "descend"
to the heirs of his body will not
generally be construed to create
an estate tail nor prevent the mem-
bers of the class of beneficiaries
who are to take from being deter-
mined at the time of the testator's
death. Where the testator pro-
vides for a disposition of his es-
tate by will and gives directions
II Com. on Wills — 29
concerning his property his inten-
tion is generally effected by con-
struing the word "descend" to
mean "go to." — Borgner v. Brown,
133 Ind. 391, 33 N. E. 92; Halstead
V. Hall, 60 Md. 209; Dennett v.
Dennett, 40 N. H. 498; Stratton v.
McKinnie, (Tenn. Ch.) 62 S. W.
636.
Where a legacy or devise or res-
iduary bequest given to two or
more persons by name, as tenants
in common, or in severalty, or to
be divided among them share and
share alike, and without any words
indicating an intention of the tes-
tator to give the same over to the
survivors, the shares of such per-
sons respectively will become
lapsed by the death of the legatee
or devisee in the life-time of the
testator. See §§ 749, et seq.; Page
v. Page, 2 Str. 820; Bagwell v. Dry,
1 P. Wms. 700; Ackroyd v. Smith- "
son, 1 Bro. C. C. 503.
9 Inderwick v. Tatchell, (1901) 2
Ch. 738, alfirmed (1903) A. C. 120;
Wren v. Hynes' Adm'r, 2 Mete.
(Ky.) 129.
1314 COMMENTARIES ON THE LAW OF WILLS.
constraction of the whole will.^** Thus where the devise
is to one for life with remainder to Ms children or the sur-
vivor or survivors of them, a contingent remainder is
created to a class consisting of the children of the life
tenant who survive him. In such a case the words ' ' sur-
vivor or survivors of them" modify the preceding word
"children" and are incorporated into the description of
the remaindermen.^^
The intention of the testator may be shown by the
manner in which he directs the division of the gift. Thus
a direct devise or bequest of realty or personalty to a
class subject to a precedent life estate differs from a
devise or bequest to one for life with a direction, ex-
pressed or implied, that at the death of the life tenant the
property shall be divided or distributed among surviving
members of a class. In the latter case the words of sur-
vivorship are presumed to refer to the happening of the
latter event which will render necessary the ascertain-
ment of the members of the class who take.^^ This con-
10 Newton v. Aysoough, 19 Ves. the intention of tlie testator is to
Jun. 536; In re Gregson's Estate, 2 bequeath the money proceeds of
De Gex, J. & S. 428 ; Olney v. Hull, the land only to those of his broth-
21 Pick. (Mass.) 311; Hulburt v. ers and sisters living at the time
Emerson, 16 Mass. 241; Thomson aPPointed in the will for the dis-
V. Ludington, 104 Mass. 193; tribution of the money, the heirs
of any brother or sister who may
die prior to that time are not en-
titled to share in the distribution.
—In re Winter's Estate, 114 Cal.
186, 45 Pac. 1063.
Denny v. Kettell, 135 Mass. 138;
Stone V. Bradlee, 183 Mass. 165, 66
iN. E. 708.
Where a life estate is devised to
the wife of the testator, and the
will provides that the land Is then " ^mith v. Chester, 272 111. 428.
to be sold and the proceeds dl- Ann. Cas. 1917A, 925. 112 N. E.
vided between the surviving broth- ^25.
ers and sisters of the testator, but 12 Perry v. Thomas, 38 R. I. 328.
CLASSES OF BENEFICIABIES. 1315
struction has been applied where the gift to the survivors
is contingent, as a gift to A for life with remainder to his
children if any are living at his death, and in the event of
A 's dying without children, then to the surviving children
of the testator. The interest of the surviving children
last mentioned is contingent upon A's dying without
issue and those who take in such event are those who sur-
vive the life tenant.^*
§ 897. Accrued Interest of One Survivor Generally Does Not
Pass at His Death to Remaining Survivors.
Where a testamentary gift is to several beneficiaries
and in the event of the death of any, then to the survivors,
any interest which may accrue to any survivor by reason
of the death of a beneficiary does not pass at his death
to those surviving him. Under such a gift only the orig-
inal share of the beneficiary will pass to the survivors,
because of his death, not that portion acquired by reason
of survivorship.^* But if the testator express an inten-
tion that accrued shares shall pass equally with original
shares to the survivors, then such intention will be en-
forced.^^ This may be shown by the creation of a trust
95 Atl. 776; In re Moran's Will, 118 13 Olmstead v. Dunn, 72 Ga. 850,
Wis. 177, 96 N. W. 367. 860; Crawford v. Clark, 110 Ga.
An expression in a will that 729^ 35 s. E. 404; Bigelow v. Clap,
property in which a life estate is ^gg ^^^^^ gg_ 43 jj_ ^ j^^g^. ^aw-
given be owned by the children at ^^^^^ ^ Phillips, 186 Mass. 320, 71
the decease of the life tenant does j, „ _ ._
not in Itself evince a purpose on
the part of the testator to post- " Pa'° ^- Benson, 3 Atk. 78, 80;
pone the vesting of the remainder ^'"^^^^ v- Gu"lernard, 12 Sim. 88;
until after the termination 6f the ^x parte West, 1 Bro. C. C. 575.
particular estate. — Taylor v. Steph- I6 Byre v. Marsden, 2 Keen 564.
ens, 165 Ind. 200, 74 N. B. 980.
1316
COMMENTARIES ON THE LAW OF WILLS.
and keeping the aggregate fund intact/® by stating that
the whole is to be paid to the survivor.^''
leWorlidge v. Churchill, 3 Bro.
C. C. 465.
17 Sillick V. Booth, 1 You. &
C. C. C. 117, 121.
Where the gift over to the sur-
vivors carries with it the "share
and interest" ot a beneficiary dy-
ing, it has been held to carry with
it accrued interest. — Douglas v.
Andrews, 14 Beav. 347.
The same rule has been applied
where the gift over was of the ben-
eficiary's "share or shares." — Wil-
mott V. Flewitt, 11 Jur. N. S. 820.
A gift to the survivor of a num-
ber of persons without any prev-
ious gift, vests absolutely in the
one last alive. He is the survivor
on the death of all the others, al-
though he can not be the survivor
of himself. — Maden v. Taylor, 45
li. J. Ch. 569; Anderson v. Brown,
84 Md. 261, 35 Atl. 937.
CHAPTEE XXXI.
EULE IN SHELLEY 's CASE.
§ 898. Rule in Shelley's Case defined.
§ 899. Purpose of the rule.
§ 900. Reasonableness of the rule.
§ 901. A rule of law and property, not of construction.
§ 902. Circumstances under which the rule is applicable.
§ 903. Limitation must be to heirs of first taker, in their capacity
as such heirs.
§ 904. Effect of a limitation to the heirs of the heirs.
§ 905. The rule as applied to equitable estates.
§ 906. The same subject : Estates in trust.
§ 907. "Where the remainder is vested or contingent.
§ 908. The rule as applicable to gifts of personalty.
§ 909. Effect of words of limitation and of purchase.
§ 910. * ' Heirs " as a word of limitation.
§ 911. Rule does not apply where the limitation is to particular
heirs.
§ 912. The same subject: "Heirs" as meaning "children."
§ 913. "Children" as a word of purchase.
§ 914. "Children" as a word of limitation.
§ 915. Where the limitation is to " issue " or " issue of the body. ' '
§ 916. Burden of proof.
§ 917. Where rule in Shelley's Case prevails, and where abol-
ished by statute.
§ 898. Rule in Shelley's Case Defined.
In Shelley's Case the rule was laid down as a rule of
law, that where the ancestor by any gift or conveyance
takes an estate of freehold and in the game gift or con-
veyance an estate is limited either mediately or immedi-
(1317)
1318
COMMENTARIES ON THE LAW OP WILLS.
ately to Ms heirs in fee or in tail, the word "heirs" is a
word of limitation and not of purchase.*
This rule is called the "rule in Shelley's Case," but it
is evidently in some degree a misnomer since the rule was
recognized as being well established when Shelley's Case
was argued. Counsel for Henry Shelley gave the rule as
being then well known, in the very words used by later
writers to define it.
There are an untold number of cases wherein the rule
may be found to be stated in varying ways, and the reader
is referred to the footnote for the cases from the different
jurisdictions. In some of the decisions the word "free-
hold" is used to describe the ancestor's estate, while in
others it is described as a "life estate." This latter is
considered the most accurate.^
1 Shelley's Case, 1 Coke 93b,
104a.
"No question connected with,
the law has elicited more learning
and discussion than that which
relates to the nature and opera-
tion of this rule, as a principle of
law for the interpretation of wills
and deeds; and none occupies a
more prominent place in the his-
tory of the law of real property."
— ^Ware v. Richardson, 3 Md. 505,
56 Am. Dec. 562.
2 Daniel v. Whartenby, 17 Wall.
(U. S.) 639, 21 L. Ed. 661; Ewing
V. Standefer, 18 Ala. 400; Good-
rich V. Lambert, 10 Conn. 448;
Jones V. Jones, 20 Ga. 699; Lord
V. Comstock, 240 111. 492, 88 N. E.
1012; Haight v. Royce, 274 111.
162, 113 N. E. 71; Lee v. Lee, 45
Ind. App. 645, 91 N. E. 507; Zav-
itz V. Preston, 96 Iowa 52, 64
N. W. 668; Calmes v. Carruth, 12
Rob. (La.) 660; Hall v. Gradwohl,
113 Md. 293, 29 L. R. A. (N. S.)
954, 77 Atl. 480; Sands v. Old Col-
ony Trust Co., 195 Mass. 575, 12
Ann. Cas. 837, 81 N. E. 300;
Fraser v. Chene, 2 Mich. 81; Tes-
son V. Newman, 62 Mo. 198; Den-
nett V. Dennett, 40 N. H. 498;
Brown v. Wadsworth, 168 N. Y.
225, 61 N. E. 250; Perry v. Hack-
ney, 142 N. C. 368, 115 Am. St.
Rep. 741, 9 Ann. Cas. 244, 55 S. E.
289; Crandell v. Barker, 8 N. D.
263, 78 N. W. 347; Peirce v. Hub-
bard, 152 Pa. St. 18, 25 Atl. 231;
Buist V. Dawes, 4 Rich. Eq. (S. C.)
421, 423; Polk v. Faris, 9 Yerg.
(Tenn.) 209, 30 Am. Dec. 400;
Chipps v. Hall, 23 W. Va. 504.
RULE IN Shelley's case.
1319
§899. Purpose of the Rule.
The rule is venerable for its antiquity and has received
the sanction of the highest courts in England as far back
as the 18th year of Edward II, and is based on their
authority as found in the year books of that and subse-
quent reigns.^ The conditions for which it was intended
to operate as a remedy are mere matters of conjecture.
It has been said to have been established in feudal times
to save to the lord the profits of his feudal rights, for if
the heir took as a purchaser under the conveyance with-
out claiming anything from his ancestor, the lord would
have been deprived of the rights of wardship and mar-
riage of the heir.*
3 Sir Wm. Blackstone In Perrin
V. Blake, 4 Burr. 2579; Harg. L.
Tracts, 501.
4 In Perrin v. Blake, 4 Burr.
2579, 1 W. Bl. 672, 1 Coll. Jur.
283, Harg. L. Tracts, 489, this
view was favored by several of
the judges.
See, also, Turman v. White's
Heirs, 14 B. Mon. (Ky.) 560, 570.
Sir William Blackstone, in Per-
rin V. Blake, 4 Burr. 2579, is in-
clined to doubt this theory, and
gives as his own Idea that it was
to obviate the mischief of put-
ting the inheritance in abeyance
or suspense, and upon "a desire
to facilitate the alienation of land
and throw it back into the track
of commerce, one generation
sooner, by vesting the inheritance
in the ancestor, than if he con-
tinued as a tenant for life and
the heir was declared a pur-
chaser."
Mr. Petersdorff in his Abridg-
ment states the reasons to be,
that "If the construction had
been made according to the strict
meaning of the words A would
have taken only an estate for
life, and the remainder to the
heirs, etc., of A would have been
considered as words of purchase,
giving a contingent remainder to
the heirs, etc., of A, according
to the rule of the law that nemo
est hEeres viventls; but such a
construction would have been
attended with these inconve-
niences: 1. The lord of the fee
would have been deprived of the
wardship and marriage of the
heir; because. In that case, the
heir would have taken as a pur-
chaser, without claiming anything
from his ancestor by descent. 2.
The remainder to the heir or
heirs of the body being contin-
gent until the death of the ten-
1320
COMMENTAEIES ON THE liAW OP WILLS.
§ 900. Reasonableness of the Rule.
The controversies regarding tMs rule have been long
and bitter.^ Whatever its origin may have been, it was
obviously consistent with public policy and commercial
convenience, otherwise it would scarcely have survived
for a period of some five hundred years.® It became
ant for life, the inheritance would
have been in suspension or abey-
ance, which was never allowed
but in cases of absolute neces-
sity; because the abeyance of the
inheritance created a suspension
of various operations of law, par-
ticularly of the remedies for the
recovery of land by real actions.
3. If the remainder in those cases
had been construed to be contin-
gent, no alienation could have
taken place In the lifetime of the
ancestor." — See SicelofC v. Red-
man's Adm'r, 26 Ind. 251.
Another reason assigned for the
rule Is "That the rule In Shelley's
Case is a part of an ancient policy
of the law to guard against the
creation of estates of inheritance
with qualities, incidents, and re-
strictions foreign In their nature,
and to preserve the marked dis-
tinction between the acquisition
of a title by descent and by pur-
chase and to prevent the former
from being stripped of its proper
incidents and disguised with the
qualities of the latter, whereby
the estate would become a com-
pound of descent and purchase —
an amphibious species of inheri-
tance or freehold, with unlimited
succession to the heirs without
the properties of Inheritance." —
Hargrave's Law Tracts, 489, 551.
"Whatever reasons may have
induced the rule in its origin, It
has ever been regarded by many
of the ablest jurists, even in Eng-
land, where it originated, with
disapprobation, as productive of
injustice, and especially in its ap-
plication to devises, by casting
the estate in fee upon the tenant
for life, and thereby defeating the
remainder to the heirs, in viola-
tion of the clearly expressed in-
tention of the testator." — SIceloff
v. Redman's Admr., 26 Ind. 251.
5 One of the most famous cases,
that of Perrin v. Blake, 4 Burr.
2579, 1 W. Bl. 672, extended in
litigation for more than thirty
years and resulted in the dismem-
berment of the court of King's
Bench where Lord Mansfield, in
delivering the opinion of the
court, used sarcastic language
which gave offense to his asso-
ciate Justice Yates, who there-
upon resigned.
6 Doyle V. Andis, 127 Iowa 36,
40, 4 Ann. Gas. 18, 69 L. R. A. 953,
102 N. W. 177; Polk v. Paris, 9
Yerg. (Tenn.) 209, 30 Am. Dec.
400.
RULE IN SHELLEY S CASE.
1321
firmly established as a rule of law and not of construction,
for it has more commonly defeated than carried into
effect the intention of the testator. The rule was always
regarded in England as an artificial one, tending to
defeat the testator's purpose, and in many of the Ameri-
can states there has been considerable hesitation in accept-
ing and applying it to the fullest extent/ However, it has
been accepted as a rule of the common law, and some
decisions deny it is arbitrary, but on the contrary uphold
it as logical and apparently necessary.^
7 Goodtitle v. Herring, 1 East
264; Long v. Laming, 2 Burr. 1100,
1111, 1112; Legate v. Sewell, 1
P. Wms. 87; Papillon v. Voice, 2
P. Wms. 471; King v. Melling, 1
Vent. 225; Jones v. Rees, 6 Penn.
(Del.) 504, 16 L. R. A. (N. S.) 734,
69 Atl. 785; Ridgeway v. Lan-
phear, 99 Ind. 251; Henderson v.
Henderson, 64 Md. 185, 1 Atl. 72;
Webb Y. Sweet, 187 N. Y. 172, 79
N. E. 1024; Blake v. Stone, 27 Vt.
475; Smith v. Hastings, 29 Vt.
240.
See, also, Daniel v. Whartenby,
17 Wall. (U. S.) 639, 21 L. Ed.
661; Clarke v. Boorman's Ex'rs,
18 WaU. (U. S.) 493, 21 L. Ed.
904.
8 Turman v. White's Heirs, 14
B. Men. (Ky.) 560.
"It is a rule or canon of prop-
erty which, so far from being at
war with the genius of our insti-
tutions or with the liberal and
commercial spirit of the age —
which alike abhor the locking up
and rendering inalienable real es-
tate and other property — seems to
be in perfect harmony with both.
It is owing perhaps to this cir-
cumstance that the rule — a Gothic
column found among the remains
of feudality — ^has been preserved
in all its strength, to aid in sus-
taining the fabric of the modern
social system." — Polk v. Faris, 9
Yerg. (Tenn.) 209, 30 Am. Dec.
400.
"In its substance the rule is
not arbitrary, but logical and ap-
parently necessary to any system
of law which is self-consistent;
for the distinction between de-
scent and purchase is radical and
fundamental; and while a group
of individuals, though they be
heirs of another, "may take by
purchase the same as those who
are not his heirs, yet they can
not as heirs take otherwise than
by descent; and to take by de-
scent at all, they must take from
him whose heirs they are, and not
from him who conveyed the prop-
erty and nominated them to suc-
ceed in its ownership." — Smith v.
Collins, 90 Ga. 411, 17 S. B. 1013.
"No rule of common law has
undergone the exhaustive investi-
1322
COMMENTARIES ON THE LAW OF WILLS.
§ 901. A Knle of Law and Fropert7, Not of Construction.
The rule in Shelley's Case is a rule of law,* or of prop-
erty,^** not of construction. Where the testamentary gift
is in such language as to bring it within the rule, the rule
applies irrespective of the intent of the testator. While
the intention may confessedly have been to give to the
first taker but a life estate, the rule converts such estate
into a fee by treating the terms of the gift over to the
heirs as a limitation of the estate.^^
The rule is not intended as a means of discovering the
intention of the testator ; that is a matter of construction.
gation, thorough discussion, and
severe criticism to which the rule
in Shelley's Case has been sub-
jected; and yet it has survived
600 years of controversy in Eng-
land, and has been generally ac-
cepted by the courts of this coun-
try as a part of that rich inheri-
tance of common law upon which
our jurisprudence is founded." —
Doyle V. Andis, 127 Iowa 36, 40, 4
Ann. Cas. 18, 69 L. R. A. 953, 102
N. W. 177.
9 Jones V. Rees, 6 Penn. (Del.)
504, 16 L. R. A. (N. S.) 734, 69
Atl. 785; Tantum v. Campbell, 83
N. J. Eq. 361, 91 Atl. 120; Stout v.
Good, 245 Pa. St. 383, 91 Atl. 613;
McBlwain v. Whitacre, 251 Pa. St.
279, 96 Atl. 655.
"The rule In Shelley's Case Is a
rule of positive law and not of
construction where, upon the con-
struction of a grant or devise, the
rule is found to be applicable, it
can not be controlled by any ex-
pression of a contrary intent." —
Martling v. Martling, 55 N. J. Eq.
771, 39 Atl. 203.
10 Hall V. Hankey, 174 Fed. 139,
98 C. C. A. 173; Daniel v. Whar-
tenby, 17 Wall. (U. S.) 639, 21
L. Ed. 661; Vogt v. Vogt, 26 App.
D. C. 46; Goodrich v. Lambert, 10
Conn. 448; Smith v. Collins, 90
Ga. 411, 17 S. E. 1013; Lord v.
Comstock, 240 111. 492, 88 N. B.
1012; Teal v. Richardson, 160 Ind.
119, 66 N. E. 435; Cook v. Coun-
cilman, 109 Md. 622, 72 Atl. 404;
Lytle V. Beveridge, 58 N. Y. 592;
Crandell v. Barker, 8 N. D. 263, 78
N. W. 347; King v. Beck, 15 Ohio
559; Hess v. Hess, 67 Pa. St. 119;
Duckett V. Butler, 67 S. C. 130, 45
S. E. 137; Brooks v. Evetts, 33
Tex. 732.
11 Travers v. Wallace, 93 Md.
507, 49 Atl. 415; Robeson v.
Moore, 168 N. C. 388, L. R. A.
1915D, 496, 84 S. E. 351; Reeves v.
Simpson, (Tex. Civ. App.) 182
S. W 68.
EUiE IN Shelley's case. 1323
The first question is -whether or not the terms of the will
bring the estate within the operation of the rule, and if
so, the rule controls the intention in so far as the intention
may be repugnant to the rule.^^ The intention of the tes-
tator is a matter of construction and should not be con-
fused with the rule. It may be necessary for the court
to construe the will in order to determine whether the
word "heirs" or a similar expression was intended to
designate, as the takers of the remainder, those bearing
that technical relationship to the first taker. Such deter-
mination is a matter of construction. If the word ' ' heirs ' '
or a like term has not been used to designate, in a legal
sense, the "heirs" of the first taker to whom the estate is
limited in fee or in tail after the first taker's death, the
rule does not apply. But if the provisions of the will
properly construed clearly show that the testator in-
tended, by the terms used, although the word "heirs"
may not have been employed, to limit the estate of the
first taker to his "heirs" in their capacity as such, the
rule will prevail.^*
12 Perrin v. Blake, 4 Burr. 2579, tended as a means of discovering
1 W. Bl. 672, quoted in Deemer v. the intention of the grantor or
Kessinger, 206 111. 57, 69 N. B. 28; testator. This was left to be
Daniel v. Whartenby, 17 Wall, otherwise discovered. But When
(U. S.) 639, 21 L. Ed. 661; Bwing ^^^ Intention had been ascer-
tained, this rule controlled the in-
tention so far as it was repugnant
V. Barnes, 156 111. 61, 68, 40 N. B.
325; Warner v. Sprigg, 62 Md. 14;
Trumbull v. Trumbull, 148 Mass.
200, 4 L. R. A. 117, 21 N. E. 366;
Wool V. Fleetwood, 136 N. C. 460,
to the public policy." — Chlpps v.
Hall, 23 W. Va. 504.
13 Martllng v. Martllng, 55
N. J. Bq. 771, 39 Atl. 203; In re
67 L. R. A. 444, 47 S. E. 785; Cran- Guthrie's Appeal, 37 Pa. St. 9;'
dell V. Barker, 8 N. D. 263, 78 ghapley v. Dlehl, 203 Pa. St. 566,
N. W. 347; Hastings v. Bngle, 217 53 Atl. 374; Stout v. Good, 245 Pa.
Pa. St. 419, 66 Atl. 761. St. 383, 91 Atl. 613; Ahl v. Lig-
"The rule was obviously not in- gett, 246 Pa. St. 246, 92 Atl. 202.
1324
COMMENTARIES ON THE LAW OP WILLS,
There are decisions, however, holding that the inten-
tion of the testator will control irrespective of the rule,
or in other words, the rule is held not to overthrow the
expressed intent of the testator." Some of such decis-
ions, however, have been subsequently disapproved.^^
§ 902. Circumstances Under Which the Rule Is Applicable.
In order that the rule in Shelley's Case may be applica-
ble, several conditions must exist. The gift to the an-
cestor and the limitation to the heirs must be contained
in the same instrument.^* The ancestor must be given a
i4Belslay v. Bngel, 107 111. 182;
Hull V. Seals, 23 Ind. 25; Mlllett
V. Ford, 109 Ind. 159, 8 N. E. 917;
Earnhart v. Barntiart, 127 Ind.
397, 22 Am. St. Rep. 652, 26 N. E.
895; Indiana Rev. Stats., (1881)
§ 2567; Slemmer v. Crampton, 50
Iowa 302; Wescott v. Binford, 104
Iowa 645, 654, 65 Am. St. Rep.
530, 74 N. W. 18; Harlan v. Man-
ington, 152 Iowa 707, 133 N. W.
3C7; Findlay's Lessee v. Riddle,
3 Binn. (Pa.) 139, 5 Am. Dec. 355.
In Millett v. Ford, 109 Ind. 159,
8 N. E. 917, where the word
"heirs" was used as synonymous
with "children," the first devisee
took but a life estate. (This
would not affect the rule, since
"heirs" in a technical sense was
not intended.)
In Indiana the word "heirs" has
been construed to mean "kins-
men" or "children" because no
cne can be the heir of a living
person; and a further distinction
has been made in the following
language: "It should be remem-
bered that there is a material
and controlling distinction be-
tween a devise of an estate to a
person named and his lawful heirs
and a devise to the lawful heirs
of a person named." — Conger v.
Lowe, 124 Ind. 368, 9 L. R. A.
165, 24 N. E. 889.
15 Carpenter v. Van Olinder,
(Van Olinda v. Carpenter) 127 III.
42, 11 Am. St. Rep. 92, 2 L. R. A.
455, 19 N. E. 868; Ewing v.
Barnes, 156 111. 61, 68, 40 N. E.
325; Teal v. Richardson, 160 Ind.
119, 66 N. E. 435; Grimes v. Shirk,
169 Pa. St. 74, 87, 32 Atl. 113.
16 "About the only method by
which the donor can give a life
estate to another with a re-
mainder to the heirs of the donee
and feel reasonably sure that his
purpose will not be judicially
thwarted, is to create the life
estate and the remainder by sep-
arate instruments; and this
method is probably not open to
one who wishes to pass the estate
by will Instead of by deed." —
EULE IN SHELLEY S CASE,
1325
freehold estate or the rule can not be applied.^'' If no
estate of freehold be given the ancestor or if he be dead at
the time of the gift, the heirs can not tate by descent
since the ancestor never had in him any descendible
estate. It is the same if the ancestor take only a chattel
interest, for if there be a vested estate of freehold inter-
posed between the term of the ancestor and the estate
limited to his heirs, the latter can take only by way of an
executory devise ; and if there be such a vested estate, the
contingent remainder to the heirs is supported by the
intermediate estate and not by the chattel interest of the
ancestor.^*
Inasmuch as the heirs must take by way of remainder,
the rule applies only where an estate of freehold is given
with a remainder either mediately or immediately to the
Doyle V. Andis, 127 Iowa 36, 4
Ann. Cas. 18. 69 L. R. A. 953, 102
N. W. 177.
Weaver, J., in commenting on
this feature says: "It is but lit-
tle short of the ludicrous to find
that this rule, to which its adher-
ents have for ages invited atten-
tion as the product of profound
wisdom and as an indispensable
safeguard of property rights and
promoter of wise public policy, is,
when reduced to its lowest terms,
a simple declaration that you
shall not, by a single written in-
strument, do that which you may
lawfully and effectually accom-
plish by two." — Doyle v. Andis,
127 Iowa 36, 4 Ann. Cas. 18, 69
L. R. A. 953, 102 N. W. 177.
IT Coape V. Arnold, 2 Smal. &
G. 311; Starnes v. Hill, 112 N. C.
1, 22 L. R. A. 598, 16 S. E. 1011.
The rule is not applicable where
the estate of the ancestor is for a
term of years only. Where the
will provided for the lease of a
piece of land for a named period
with a renewal for the same per-
iod, the net income to be divided
equally between the testator's
two daughters during their life
and at their decease to their law-
ful heirs, the daughters, after
having passed sixty and being be-
yond the child-bearing period and
whose nieces and nephews were
their heirs presumptive, had an
estate in the land for a term of
years only and did not take a fee.
— Tyndale v. McLaughlin, 84 N. J.
Ea. 652, 95 Atl. 117.
18 4 Kent's Com. 221; Matter of
Stumpenhousen, 108 Iowa 555, 79
N. W. 376; Harlan v. Manington,
152 Iowa 707, 133 N. W. 367.
1326 COMMENTARIES ON THE LAW OF WILLS.
heirs.^' And it is also necessary that an estate of inheri-
tance be given to the heirs, for if no inheritable estate be
given them, they can not take by descent as heirs.^"
§903. Limitation Must be to Heirs of First Taker, in Their
Capacity as Such Heirs.
The rule can apply only where the remainder over is to
the heirs or heirs of the body of the first taker, that is
the one taking the freehold estate. Thus a life estate to
A with remainder to A's heirs is within the rule, for the
life estate to A is capable of being enlarged by the subse-
quent words being construed as words of limitation.^^
An estate to A for life with a remainder to the heirs of
B is not within the rule, and B 's heirs would take as pur-
chasers. If the limitation is to the heirs of the testator, '
such heirs would take the reversionary interest upon the
termination of the life estate rather than the remainder.^^
A limitation to the heirs or heirs of the body of the
person taking the freehold estate must be to them in their
capacity as heirs ; the limitation must not be to the heirs
as a mere descriptio personarum, comprehending sons,
children, or the like. The heirs must be named to take as
a class or denomination of persons, not as individuals.^'
19 Berry v. Williamson, 11 B. L. Ed. 827, 17 Sup. Ct. 461; Bels-
Mon. (50 Ky.) 245. lay v. Bngel, 107 111. 182; Granger
20 Van Grutten v. Foxwell, 77 v. Granger, 147 Ind. 95, 36 L. R. A.
L. T. N. S. 170, (1897) A. C. 658. 186, 44 N. E. 189, 46 N. E. 80;
. 21 Nelson v. Davis, 35 Ind. 474; Handy v. McKim, 64 Md. 560, 4
Clagett V. Worthlngton, 3 Gill Atl. 125; Wool v. Fleetwood, 136
(Md.) 83; Hennessy v. Patterson, N. C. 460, 67 L. R. A. 444, 48
85 N. Y. 91. S. E. 785; Clemens v. Heckscher,
22 Robinson v. Blankenshlp, 116 185 Pa. St 476, 40 Atl. 80; Kes-
Tenn. 394, 92 S. W. 854. terson v. Bailey, 35 Tex. Civ. App.
23 Van Grutten v. Foxwell, 235, 80 S. W. 97.
(1897) A. C. 658; De Vaughn v. If the Intention of the testator
Hutchinson, 165 U. S. 566, 41 be that the remaindermen shall
BULE IN Shelley's case. 1327
§ 904. Effect of a Limitation to the Heirs of the Heirs.
If the estate is not only limited to the heirs of the life
tenant, but the remainder is also limited to the heirs of the
remaindermen designated as heirs, as a gift "to A for
life and to his heirs and their heirs," the courts are
divided regarding the applicability of the rule. The doc-
trine that the rule applies finds support under some
authorities,^* while the majority of the decisions favor
holding the rxde inapplicable, the reason being that by the
use of such words a purpose is evinced of creating in the
heirs of the first taker an estate in fee simple.^*
§ 905. The Rule as Applied to Equitable Estates.
The rule in Shelley's Case applies alike to equitable and
to legal estates.^® Both estates, however, that to the first
taker and that limited to the heirs, must be of the same
character, either both legal or both equitable.^'^ If the
take as heirs of the grantee or derson, 1 Strob. Bq. (S. C.) 344,
devisee of the particular freehold 47 Am. Dec. 537.
instead of themselves becoming 26 Philips v. Brydges, 3 Ves.
the root of a new succession, the 121, 127; Croxall v. Shererd, 5
rule is applicable even though it Wall. (U. S.) 268, 18 L. Ed. 572;
may defeat the manifest inten- Mathieson v. Craven, 228 Fed.-
tion of the testator that the first 345; Cannon v. Barry, 59 Miss.
taker should have but a life es- 289; Cushing v. Blake, 30 N. J.
tate. —In re Guthrie's Appeal, 37 Eq. 689 ; Brown v. Wadsworth, 32
Pa. St. 9. App. Div. 423, 53 N. Y. Supp. 215;
24 Jarman, Wills, (6th Am. Ed.) Austin v. Payne, 8 Rich. Eq. '
Vol. 2, *1205; Andrews v. Low- (S. C.) 9; Reeves v. Simpson,
throp, 17 R. I. 60, 20 Atl. 97. (Tex. Civ. App.) 182 S. W. 68.
25 De Vaughn v. Hutchinson, 27 Van Grutten v. Foxwell,
165 U. S. 566, 41 L. Ed. 827, IJ (1897) A. C. 658; Mathieson v.
Sup. Ct. 461; Smith v. Collins, 90 Craven, 228 Fed. 345; Edmondson
Ga. 411, 17 S. E. 1013; Brown v. v. Dyson, 2 Ga, 307; Baker v.
Brown, 125 Iowa 218, 67 L. R. A. Scott, 62 111. 86; Glover v. Con-
629, 101 N. W. 81; Shreve v. dell, 163 111. 566, 588, 35 L. R. A.
Shreve. 43 Md. 382; Myers v. An- 360, 45 N. B. 173; Doyle v. Andis,
1328
COMMENTARIES ON THE LAW OF WILLS,
prior estate is an eqiiitable or trust estate the subsequent
limitation is a legal estate ; the two do not unite an estate
of inheritance in the ancestor.^* Nor does the rule apply
where the first estate is the subject of an active trust and
there is a limitation over of the estate discharged of the
trust.^*
§ 906. The Same Subject: Estates in Trust.
The rule in Shelley's Case is applicable to trust estates
where both the freehold estate and the remainder are of
the same quality.*" But it is limited to those cases where
the trust is executed, not where it is executory.*^ The
rule is not applicable to executory limitations because if
the limitations to the ancestor and to the heirs are both
executory, they would not be parts of the same estate, but
would be distinct and independent dispositions of the
subject.*^
127 Iowa 36, 4 Ann. Cas. 18, 69
L. R. A. 953, 102 N. W. 177;
Harlan v. Manington, 152 Iowa
707, 133 N. W. 367; Mercer v.
Hopkins, 88 Md. 292, 309, 41
Atl. 156; Loring v. Eliot, 16
Gray (82 Mass.) 568; Cannon
V. Barry, 59 Miss. 289; Brown v.
Wadsworth, 168 N. Y. 225, 235, 61
N. E. 250; Reeves v. Simpson,
(Tex. Civ. App.) 182 S. W. 68.
The application of the rule does
not depend upon the quantity of
the estate intended to be given
but upon the nature or quality of
the estate to be given to the
heirs. — Deemer v. Kessinger, 206
111. 57, 69 N. B. 28.
28 Glover v. Condell, 163 111. 566,
35 L. R. A. 360, 45 N. E. 173; Ap-
peal of Reading Trust Co., 133
Pa. St. 342, 19 Atl. 552.
29 Mathieson v. Craven, 228
Fed. 345.
30 Croxall v. Shererd, 5 Wall.
(U. S.) 268, 18 L. Ed. 572; Baker
V. Scott, 62 111. 86; Williams v.
Williams, 11 Lea (79 Tenn.) 652.
31 Edmondson v. Dyson, 2 Ga.
307; Hanna v. Hawes, 45 Iowa
437; Griffith v. Plummer, 32 Md.
74; Cushing v. Blake, 30 N. J. Eq.
689; In re Gerhard's Estate, 160
Pa. St. 253, 28 Atl. 684; Cowing v.
Dodge, 19 R. I. 605, 35 Atl. 309.
32 Chipps v. Hall, 23 W. Va. 504.
Where an estate is devised to A
for life and then to the heirs of
his body, an executory devise of
the estate to other parties, in the
RULE IN Shelley's case. 1329
§ 907. Where the Remainder Is Vested or Contingent.
A devise of property to one person and after Ms death
to his heirs or the heirs of his body brings the case
squarely within the rule in Shelley's Case and vests in the
first taker an estate in fee even though there is a limita-
tion over in the event of his dying without heirs or heirs
of his body.^"" The fact that the remainder may be
affected by some contingency does not prevent the opera-
tion of the rule where the remainder vests.^* If the
remainder to the heirs is not vested, but is purely con-
tingent, the rule does not apply.®*
§ 908. The Rule as Applicable to Gifts of Personalty.
The courts are not in accord as to whether the rule in
Shelley's Case applies to personal property. In the same
jurisdictions there are sometimes conflicting and irrecon-
cilable decisions. Strictly speaking, the rule has refer^
event of the death of A without S. B. 450; McCann v. Barclay, 204
such issue living at the time of Pa. St. 214, 53 Atl. 767; McNeal
his death is void. — Travers v. Wal- v. Sherwood, 24 R. I. 314, 53 Atl.
lace, 93 Md. 507, 49 Atl. 415. 43.
33 Broadhurst v. Morris, 2 B. & Under a devise to the testator's
Ad. 1; Marshall v. Grime, 28 Beav. daughter "to have and to hold
375; Williams v. Williams, 51 during her natural life, with
L. T. N. S. 779; Griffith v. Der- power to my said daughter to sell
ringer, 5 Harr. (Del.) 284; Swing and convey the same in fee simple
V. Barnes, 156 111. 61, 40 N. B. in case it becomes necessary to
325; Bonner v. Bonner, 28 Ind. do so, and the remainder after
App. 147, 62 N. B. 497; Teal v. her death to the heirs of her body
Richardson, 160 Ind. 119, 66 N. B. in fee simple," there is vested. in
435; Bassett v. Hawks, 118 Pa. the daughter an estate in fee sim-
St. 94, 11 Atl. 802; McCann v. pie. — Teal v. Richardson, 160 Ind.
Barclay, 204 Pa. St. 214, 53 Atl. 119, 66 N. B. 435.
767. 35 Harlan v. Manington, 152
34 Crockett v. Robinson, 46 Iowa, 707, 133 N. W. 367; Tantum
N. H. 454; Tyson v. Sinclair, 138 v. Campbell, 83 N. J. Eq. 361, 91
N. C. 23, 3 Ann. Cas. 397, 50 Atl. 120.
II Com. on Wills— 30
1330
COMMENTAKIES ON THE LAW OP WILLS.
ence to real estate alone, yet it is often applied to grants
of personalty by way of analogy for the purpose of con-
struction, and when so applied yields more readily to the
apparent intention of the testator than it does in grants
of realty.*® It is a general rule that where there is a gift
of personalty to A and his heirs, A will take the absolute
interest, although in the strictest sense the term "heirs"
or "heirs of his body" does not apply to personal prop-
erty.*'' The application of the rule to chattels is dis-
tinctly admitted in some cases.*^
Some decisions, while saying that the rule in Shelley's
Case does not, by its terms, apply to personalty, have
adopted a rule which practically amounts to the same
thing, and that is that if personalty be given in language
which if applied to realty would create an estate tail, it
36 Glover v. Condell, 163 111. 566,
35 L. R. A. 360, 45 N. E. 173;
Home V. Lyeth, 4 Harr. & J.
(Md.) 431; Sands v. Old Colony
Trust Co., 195 Mass. 575, 12 Ann.
Cas. 837, 81 N. B. 300; Powell v.
Brandon, 24 Miss. 343; Evans v.
Weatherhead, 24 R. I. 502, 53 Atl.
866.
In Evans v. Weatherhead, 24
R. I. 502, 53 Atl. 866, it was held
that the rule in Shelley's Case
applies hy analogy to personalty,
unless a contrary intent appears.
37 Elton V. Eason, 19 Ves. Jun.
73, .78; Mason v. Pate's Ex'r, 34
Ala. 379; Glover v. Condell, 163
III. 566, 587, 35 L. R. A. 360, 45
^. E. 173; Hughes v. Nlcklas, 70
Md. 484, 14 Am. St. Rep. 377, 17
Atl. 398; Cocklns & Harper's Ap-
peal, 111 Pa. St. 26, 2 Atl. 363.
38 Mason v. Pate's Ex'r, 34 Ala.
379; Edmondson v. Dyson, 2 Ga.
307; Home v. Lyeth, 4 Harr. & J.
(Md.) 431; Seeger v. Leakln, 76
Md. 500, 25 Atl. 862; Klser v.
Kiser, 55 N. C. 28; Appeal of
Cockins & Harper, 111 Pa. St.
26, 2 Atl. 363; Scott's Creditors v.
Scott, 1 Bay (S. C.) 504, 1 Am.
Dec. 625; Polk v. Faris, 9 Yerg.
(17 Tenn.) 209, 30 Am. Dec 400.
Sanction seems to he given to
the proposition by strong implica-
tion from the language of Chan-
cellor Kent where, after discuss-
ing the effect of the rule as to
real estate, he says: "If the rule
be applied to personal property, it
makes the tenant for life abso-
lute owner instead of being a
mere usufructuary without any
power over the property beyond
the enjoyment of it for life." — 1
Kent, Com. • 226.
RULE IN SHELLEY S CASE.
1331
vests absolutely in him who, if the property were realty,
would be the immediate donee in tail.** In some jurisdic-
tions, however, the courts have refused to extend the rule
to personal property, either directly or by analogy.*"
In England there is a diversity of opinion as to whether
the rule applies to personalty, the older cases applying the
rule in such cases,*^ while the later cases seem to deny
it.*^ In Illinois it had been held that the rule applies by
analogy to gifts of personalty,** but a later case has over-
ruled these decisions, and the rule is now held not to
apply.** In Indiana it has been held that the rule applies
to real estate only and not to personalty j*^ however, in a
39 Tucker v. Adams, 14 Ga. 548.
In Keys' Estate, 4 Pa. Dist. R.
134, the court says: "The rule in
Shelley's Case does not, of course,
apply to limitations of personal
estate, but by analogy to it, under
the rule that words which create
an estate tail where the subject
is realty, confer an absolute es-
tate where the subject is person-
alty."
40 Gross V. Sheeler, 7 Houst.
(Del.) 280, 31 Atl. 812; Mason v.
Baily, 6 Del. Ch. 129, 14 Atl. 309.
"We are not inclined to extend
the rule to personal property. We
think that both reason and author-
ity are against such extension.
Unquestionably the trend of mod-
ern decisions and legislation is
altogether the other way." — Jones
V. Rees, 6 Penn. (Del.) 504, 16
L. R. A. (N. S.) 734, 69 Atl. 785.
41 Garth v. Baldwin, 2 Ves. Sen.
646; Elton v. Eason, 19 Ves. Jun.
73, 78; Comfort v. Brown, L. R.
10 Ch. Div. 146.
42 Herrick v. Franklin, L. R. 6
Eq. Cas. 593; Smith v. Butcher,
L. R. 10 Ch. Div. 113; Re Cullen,
(1907) 1 Ir. Ch. 73.
In Powell V. Boggis, 35 Beav.
535, 541, the court says: "It is
said that the word 'heirs' in a
will of personalty is never a word
of limitation. That is quite true,
and it is quite true that the rule
in Shelley's Case is a technical
rule and applies only to real es-
tate."
43 Glover v. Condell, 163 111. 566,
35 L. R. A. 360, 45 N. E. 173; Ben-
nett V. Bennett, 217 111. 434, 4
L. R. A. (N. S.) 470, 75 N. E. 339.
44 Lord V. Comstock, 240 111. 492,
88 N. E. 1012.
"An authority and reason the
rule In Shelley's Case should not
be held to apply to gifts of per-
sonalty."— Lord V. Comstock, 240
111. 492, 88 N. E. 1012.
45 SIcelofl V. Redman's Adm'r,
26 Ind. 251.
1332 COMMENTARIES ON THE LAW OF WILLS.
later case the rule was held to be applicable to a bequest of
money.**
§ 909. Effect of Words of Limitation and of Purchase.
The word "limitation" has two well-known and dis-
tinct meanings. In its primary sense it signifies a mark-
ing out of the bounds or limits of the estate created, and
in the other sense it means simply the creation of an
estate.*'' The word "heirs" as a word of limitation indi-
cates the character of the estate transferred.** It may
well be said that words of limitation are simply words of
description. They measure the duration and define the
extent of the estate taken by the ancestor.*^
Words of purchase are such as give the estate originally
to the heirs, and not through the medium of, or by descent
from, the ancestor. Words of limitation are such as do
not give the estate imported by them originally to the
heirs described, but only extend the ancestor's estate to
an estate of inheritance descendible to the heirs men-
tioned.^"
§ 910. " Heirs " as a Word of Limitation.
The word ' ' heirs ' ' is primarily a word of limitation and
will always be so construed unless the intent of the testa-
tor is so plain as to preclude a misunderstanding that he
intended to use it in other than its ordinary legal sense.^^
46 Smith V. McCormick, 46 Ind. so Ball v. Payne, 6 Rand. (Va.)
135. 73.
47 Starnes v. Hill, 112 N. C. 1, Words of purchase point out
22 L. R. A. 598, 16 S. B. 1011. and designate the objects and
4S FuUagar v. Stockdale, 138 limit the scope of the conveyance
Mich. 363, 101 N. W. 576. or gift of the remainder.— Doyle
40 Doyle V. Andis, 127 Iowa 36, t. Andis, 127 Iowa 36, 4 Ann. Cas.
4 Ann. Cas. 18, 69 L. R. A. 953, 102 18, 69 L. R. A. 953, 102 N. W. 177.
N. W. 177. 51 Fischer v. Steepler, 152 Ky.
EULE IN SHELLEY S CASE.
1333
Where either the term "heirs" or "heirs of his body"
is used in a will, there is a presumption that such term is
intended in its technical sense and as one of limitation
defining the quantity of the estate devised, rather than
as a term of purchase. This presumption can be over-
come only by some qualifying or explanatory word or
expression indicating that the testator intended to use
the term in a popular rather than in a technical sense.^^
The use in a devise of such adjectives as "nearest,"
"legal," "lawful," or other similar expressions, to qual-
ify the word "heirs," without other words of limitation,
does not convert the word "heirs" from one of limita-
tion to one of purchase."^^
The word ' ' descendants ' ' does not comprehend heirs at
law generally, and is not a technical word of limitation.^*
317, 15 S. W. 420; Nesbit v. Skeld-
ing, 213 Pa. St. 487, 62 Atl. 1062.
The words "and their heirs" are
words of Inheritance inserted for
greater precaution to define the
extent of the estate devised, and
not to qualify the interest of the
devisees. In other words, they
are terms of limitation and not of
purchase. — Matter of Allen, 151
N. Y. 243, 45 N. E. 554.
"Heirs" who take in remainder
as such must take according to
the course of descent established
by law. — Perry v. Hackney, 142
N. C. 368, 115 Am. St. Rep. 741, 9
Ann. Cas. 244, 55 S. E. 289.
If the intention of the testator
be that the remaindermen desig-
nated as heirs should take as the
heirs of the devisee of the par-
ticular freehold, the rule in Shel-
ley's Case applies even though it
may defeat the manifest intention
of the testator that the first taker
should have but a life estate. — In
re Guthrie's Appeal, 37 Pa. St. 9.
52 Gibson v. Brown, (Ind. App.)
110 N. E. 716; Bundy v. Bundy,
38 N. Y. 410.
In Tyson v. Sinclair, 138 N. C.
23, 3 Ann. Cas. 397, 50 S. E. 450,
where the devise was to a grand-
son "during the term of his nat-
ural life, then to the lawful heirs
of his body in fee simple, on fail-
ing of such lawful heirs of his
body, then to his right heirs in
fee," it was held that the rule in
Shelley's Case applied and that
the grandson took an estate in fee
simple.
63 Deemer v. Kessinger, 206 111.
57, 69 N. B. 28.
54 Bates V. Gillett, 132 111. 287,
1334 COMMEfffTARIBS ON THE LAW OF WILLS.
The word "heirs'' is not synonymous with the term
"nearest blood relative," and a testamentary gift to one
"to have and to hold during his natural life and at his
death to his nearest blood relative," conveys but a life
estate and not a fee simple under the rule in Shelley's
Case.^°
§ 911. Rule Does Not Apply Where the Limitation Is to Par-
ticular Heirs.
The rule in Shelley's Case applies where the limitation'
over is to the heirs of a person generally or to the heirs
of his body; it does not apply where the limitation over
is to a particular heir or to a class of heirs to the exclu-
sion of those above mentioned.^*
While the word "heirs" has a well-settled meaning, it
is sometimes used in wills to describe children or some
particular class of heirs. How the word is used is a ques-
tion of intention depending upon the terms of the will
construed as a whole according to the rules governing the
interpretation of such instruments. Where there is noth-
ing in the will which plainly shows that the term ' * heirs ' '
or "his heirs" is used in any other than its technical
sense, the case is brought within the application of the
rule.^^ But where it is manifest that the intention of the
testator in using the word "heirs" was to make it synony-
298, 24 N. E. 611; Lee v. Sanson, V. S. 566, 41 L. Ed. 827, 17 Sup. Ct.
245 Pa. St. 392, 91 Atl. 611. 461; Miller v. Harding, 167 N. C.
55 Miller v. Harding, 167 N. C. 53, 83 S. E. 25; Rowe v. Moore, 89
53, 83 S. E. 25. S. C. 561, 72 S. E. 468.
As to those included in the term As to those included in the term
"relatives" or "relations," see "heirs," see §§ 860-852.
§ S56. 57 King v. Johnson, 117 Va. 49,
66 De Vaughn v. Hutchinson, 165 83 S. B. 1070.
RULE IN Shelley's case. 1335
moTis witli "cMldren," the rule "will not be applied to
overturn the intention of the testator.^*
§912. The Same Subject: "Heirs" as Meaning "Children."
There is some confusion in decisions as to the effect
which may be given to the intention of the testator.
Where a life estate is given to one with a limitation to his
heirs generally, and nothing appears in the will to further
indicate the testator 's intention, the life estate in the first
taker is converted into a fee under the rule. But the tes-
tator may by following and connected provisions of his
will affix a different meaning to the word "heirs" from
that given it by law. Thus where the context of the will
indicates that the testator did not use the word " heirs ' ' in
its technical sense, but meant thereby "children" and
intended them to take as purchasers, the will is so con-
strued. Indiana has gone further in this regard than
58 Conger v. Lowe, 124 Ind. 368, It was held that the superadded
9 L. R. A. 165, 24 N. E. 889. words showed that the testator
In Thompson v. Crump, 138 intended to make the words "law-
N. C. 32, 107 Am. St. Rep. 514, 50 *"1 lieirs" a designatio person-
S. B. 457, under a devise to the ^™™-
testator's son "for and during his ^"^ ^^^^^ ^- talker, 214 Pa. St.
440, 63 Atl. 1011, where property
natural life and after his death to
his lawful heirs, born of his wife,
and In case he shall have no such
was devised to a son or his law-
ful heirs, but if he should die with-
out any lawful heirs to go to the
heirs to take the estate, in that children of the brother of the tes-
case it is my will and desire that tator, it was held that "or" should
it shall go to" other persons men- i,e construed "and" and that "law-
tioned, it was held that the words ful heirs" meant "heirs of the
"born of his wife" qualified and body." Therefore the devise was
explained the words "his lawful in fee tail and enlarged by the act
heirs" so as to confine the re- of 1855 into a fee simple; and that
mainder to the children of his the rule in Shelley's Case did not
wife and thus prevent the opera- apply for the gift to the son was
tlon of the rule In Shelley's Case, without limit as to duration.
1336
COMMENTAEIES ON THE LAW OF WILLS.
other states, but in no case will the word "heirs" be con-
strued to mean "children," unless the provisions of the
will which modify the term "heirs" are clear and decis-
ive so as to leave no doubt as to the intention of the tes-
tator.^^ It therefore becomes necessary to determine the
meaning which the testator attached to the word "heirs"
or "heirs of the body." If he meant to designate those
persons who in law would be entitled to inherit the prop-
erty from the first taker, as being in the line of descent
from him, then the estate given is a fee simple. But if by
the use of such words the testator meant to designate
"children" simply, then the estate in the first taker is but
a life estate, with remainder to the children.""
59 Jesson V. Wright, 2 Bligh 1,
56 ; Doe d. Gallini v. Gallini, 5 Barn.
& Adol. 621 ; Lees v. Mosly, 1 You.
Sr. C. 589; Thornhill v. Hall, 2 CI.
& F. 22; Lambe v. Eames, L. R.
10 Eq. 267; Myrick v. Heard, 31
Fed. 241; Allen v. Craft, 109 Ind.
476, 58 Am. Rep. 425, 9 N. E. 919;
Star Glass Co. v. Morey, 108 Mass.
570; Roseboom v. Roseboom, 81
N. Y. 356; Clarke v. Leupp, 88
N. Y. 228; Freeman v. Coit, 96
N. Y. 63; Hileman v. Bouslaugh,
13 Pa. St. 344, 53 Am. Dec. 474;
In re Guthrie's Appeal, 37 Pa. St.
9; Powell v. Board of Domestic
Missions, 49 Pa. St. 46, 53; Robins
V. Quinliven, 79 Pa. St. 333.
Indiana Rule: Ind. Rev. Stats.
(1881) §2567; Doe v. Jackman, 5
Ind. 283; Jones v. Miller, is Ind.
337; Hull v. Bealls, 23 Ind. 25;
Siceloff V. Redman's Adm'r, 26
Ind. 251; Rapp v. Matthias, 35 Ind.
332; Helm v. Prisbie, 59 Ind. 526;
McMahan v. Newcomer, 82 Ind.
565; Shimer v. Mann, 99 Ind. 190,
50 Am. Rep. 82; Ridgeway v. Lan-
phear, 99 Ind. 251; Hadlock v.
Gray, 104 Ind. 596, 4 N. E. 167;
Bailey v. Sanger, 108 Ind. 264; 9
N. E. 159; Hochstedler v. Hoch-
stedler, 108 Ind. 506, 9 N. E. 467;
Millett V. Ford, 109 Ind. 159, 8
N. E. 917; Allen v. Craft, 109 Ind.
476, 58 Am. Rep. 425, 9 N. E. 919;
Granger v. Granger, 147 Ind. 95,
36 L. R. A. 186, 44 N. E. 189, 46
N. E. 80; Teal v. Richardson, 160
Ind. 119, 66 N. E. 535.
See § 901, n. 15.
60 North V. Martin, 6 Sim. 266;
Jordan v. Adams, 9 Com. B. N. S.
483; Granger v. Granger, 147 Ind.
95, 36 L. R. A. 186, 44 N. E. 189,
46 N. E. 80; Star Glass Co. v.
Morey, 108 Mass. 570; Scott v.
Guernsey, 48 N. Y. 106; King v.
Beck, 15 Ohio 559; tTrich's Ap-
RULE IN SHELIiEY S CASE.
1337
Where the word "heirs" is coupled with the word
"children," it is fair to presume that the testator in-
tended to have the one word qualify or explain the other,
and thus create an estate tail.®^ Prima facie the word
"children" is one of purchase and not of limitation, and
uncontrolled by the context must be so construed ;®2 but
where it clearly appears to have been used in the sense of
"heirs" or "heirs of the body," the intention of the tes-
tator prevails and it is treated as a word of limitation.^*
§ 913. ' ' Children " as a Word of Purchase.
The word "children," both technically and generally,
is regarded as a word of description of persons, and in
its technical sense is a word of purchase and not of limi-
tation.** The word does not ordinarily mean heirs, and
peal, 86 Pa. St. 386, 27 Am. Rep.
707.
In Pennsylvania, where the gift
was to three nieces "share and
share alike during their natural
lives, and at their deaths to go to
their heirs, In equal amount to
all heirs living at the time of
their deaths," It was held to vest
a fee simple in the nieces. — In re
Cockin's & Harper's Appeal, 111
Pa. St. 26, 2 Atl. 363.
A devise to three daughters "to
have and to hold during their nat-
ural lives, and after their deaths
then to the lawful Issue of said
three daughters and the heirs and
assigns of such Issue," has been
construed within the rule and to
confer only an estate of inheri-
tance upon the issue. — Carroll v.
Bums, 108 Pa. St. 386.
"The great merit of the rule In
Shelley's Case is that it frus-
trates and Is intended to frustrate
unreasonable restriction upon
titles; for when an estate Is de-
clared to be a fee-simple or fee-
tail, it is at once made subject to
a limitation in its proper form, no
matter how clear may be the tes-
tator's Intention to the contrary."
— Walker v. Vincent, 19 Pa. St.
369.
61 Asper V. Stewart, 246 Pa. St.
251, 92 Atl. 133.
e2Kirby's Estate, 235 Pa. St.
542, 84 Atl. 455.
63 Hastings v. Engle, 217 Pa. St.
419, 66 Atl. 761.
64 Hanes v. Central Illinois Util-
ities Co., 262 111. 86, 104 N. E. 156;
In re Guthrie's Appeal, 37 Pa. St.
9; Collins v. "Williams, 98 Tenn.
525, 41 S. W. 1056; Bass v. Surls,
(Tex. Civ. App.) 153 S. W. 914.
1338
COMMENTARIES ON THE LAW OF WILLS.
the rule in Shelley's Case applies only to limitations in
which the word "heirs" is used unless it can be ascer-
tained that the testator, though using other words, meant
"heirs. "^^ The word "children" does not point to her-
itable succession, but is employed in contradistinction to
the terms "issue" and "heirs of the body." The word
' ' children ' ' is one of personal description, and is therefore
a word of purchase.®* Wiere the limitation is unquali-
fiedly to the "children," the rule in Shelley's Case does
not apply.*'^ For example, where a devise is to one for
and during his natural life, with remainder to his child
or children in fee, the rule has no application. The gen-
eral rule may be laid down to be that the word "children"
in a devise is a word of purchase and not of limitation
unless a different intent clearly appears in the will.®^ It
upon the death of the ancestor,
but was used to signify that his
children, if he left children sur-
viving, should succeed immedi-
ately to the possession of the
lands upon his death. — Hanes v.
Central Illinois Utilities Co., 262
111. 86, 104 N. B. 156.
67 Hanes v. Central Illinois Util-
ities Co., 262 111. 86, 104 N. E.
156; Collins v. Williams, 98 Tenn.
B25, 41 S. W. 1056.
«s Re Buckmaster, 47 L. T. N. S.
514; Biggs v. McCarty, 86 Ind. 352,
44 Am. Rep. 320; Conover v. Cade,
184 Ind. 604, 112 N. E. 7; Smith v.
Smith, 119 Ky. 899, 85 S. W. 169,
1094; Reilly v. Bristow, 105 Md.
326, 66 Atl. 262; Steward v.
Knight, 62 N. J. Eq. 232, 49 Atl.
535; Keim's Appeal, 125 Pa. St.
4S0, 17 Atl. 463; Oyster v. Oyster,
100 Pa. St. 538, 45 Am. Rep. 388;
As to those included under a
gift to children, see §§ 840, 841.
As to children en ventre sa
mere, see § 842.
As to illegitimate children, see
§§ 843-846.
As to adopted children, see
§847.
65 Hanes v. Central Illinois Util-
ities Co., 262 111. 86, 104 N. E. 156;
Bass v. Surls, (Tex. Civ. App.) 153
S. W. 914.
06 Forest Oil Co. v. Crawford, 77
Fed. 106, 23 C. C. A. 55; Hoover
V. Strauss, 215 Pa. St. 130, 64 Atl.
333.
In a devise of a life estate to A
with remainder "to descend" to
his children it was held that the
word "descend" was not used in
the sense of passing land by suc-
cession, as where an estate vests
by operation of law in the heirs
RULE IN Shelley's case.
1339
is not, however, construed as a word of purchase if no
such children are in being at the date of the will or at the
death of the testator.®'
§ 914. ' ' Children' ' as a Word of Limitation.
While ordinarily the word "children" is not a word of
limitation because it does not point to heritable succes-'
sion, yet the courts have sometimes construed it as such
where it is clearly manifest that the testator intended to
Bowers v. Bowers, 4 Heisk. (51
Tenn.) 293; Wills v. Foltz, 61
W. Va. 262, 12 L. R. A. (N. S.)
283, 56 S. E. 473.
A bequest of all the testator's
estate to his "daughter A and her
children, In their exclusive right,"
gives to the daughter a life estate
in the whole with remainder to
the children. — ^Adams v. Adams,
20 Ky. Law Rep. 655, 47 S. W,
335.
Where the testator gave prop-
erty to a son and two daughters
with the right of survivorship to
the one last living, after • which
the property was "to go to be di-
vided between the children the
lawful heirs of my aforesaid chil-
dren," it was held that the rule in
Shelley's Case did not apply. —
Reilly v. Brlstow, 105 Md. 326, 66
Atl. 262.
The testator, after a devise to
his grandson, provided that "after
the death of my said grandson I
give and devise the house and the
lot of ground above described
unto his children, to have and to
, hold the above described prop-
erty with the appurtenances, unto
his children, their heirs and as-
signs forever." In a later clause
he referred to the devisees, "their
heirs or legal representatives,"
It was held that the word "chil-
dren" is primarily a word of pur-
chase, and the words "heirs and
assigns," and "heirs or legal rep-
resentatives" did not refer to the
grandson, but to his children, to
indicate that they were to take in
fee. — Hoover v. Strauss, 215 Pa.
St. 130, 64 Atl. 333.
Where the whole will disposing
of the property consisted in the
following: "I leave to my dear
wife and our sweet little children
all that I possess," a joint estate
in the wife and children in equal
portions was created. — Fitzpatriok
V. Fltzpatrick, 100 Va. 552, 93 Am.
St. Rep. 976, 42 S. E. 306.
69 Carr v. Estill, 16 B. Mon. (55
Ky.) 309, 313, 63 Am. Dec. 548;
Grieve v. Grieve, 36 L. J. Ch. N. S.
932; Oyster v. Knull, 137 Pa. St.
448, 21 Am. St. Rep. 890, 20 Atl.
624; Moon v. Stone's Ex'r, 19
Gratt. (Va.) 130. See §§ 952-956.
See, also, D9.VIS v. Sanders, 123
Ga. 177, 51 S. E. 298.
1340
COMMENTARIES ON THE LAW OP WILLS.
place such a construction upon it.''" Where, for example,
the bequest was "unto my sister A, for the benefit of her-
self and her own children, the sum of $25,000 in trust,"
the word was held to be one of limitation.''^ The ruling is
the same under a devise "to A and to her children, heirs,
and assigns, "■'^ or a devise "to them and their children
forever ";^^ or a devise "to her and her children for-
ever."^*
When the word "children" is used as a word of limita-
tion, it will be construed to mean descendants generally if *:
such appears from the will to have been the intention of f
the testator.''^ i,
70 steward v. Knight, 62 N. J.
Eq. 232, 49 Atl. 535.
In Mason v. Ammon, 117 Pa. St.
127, 11 Atl. 449, -where the devise
was to "said sister, and at her
death to her child, children, or
other lineal descendants," the
court says: "It is admitted that
Y/hilst 'child' or 'children' will
not, per se, be construed to he a
word of limitation, yet when
coupled with other expressions of
the testator showing that they
were used as a nomen coUecti-
vum, signifying 'heirs of the
body,' the rule in Shelley's Case
has been applied." The court
held that the words, "or other
lineal descendants" indicated the
nature of the estate intended to
be given to the successors of the
sister as one he meant they
should take by descent from her.
In Shapley v. Diehl, 203 Pa. St.
566, 53 Atl. 374, where the grant
was to a son for life, then "to his
children or heirs," it was held to
vest a fee in the son, the court
saying: "Suppose he had omitted
'children' and said 'heirs' only,
the precise case for the rule (in
Shelley's Case) would have been
presented, yet the meaning would
have been exactly the same, and
the children would have come in
as first in line of inheritance."
71 Rich V. Rogers, 14 Gray (80
Mass.) 174.
72 Leiter v. Sheppard, 85 111.
242.
73 Lachland's Heirs v. Down-
ing's Ex'rs, 11 B. Mon. (50 Ky.)
32.
74 Merryman v. Merryman, 5
Munf. (Va.) 440.
75 Steward v. Knight, 62 N. J.
Eq. 232, 49 AO. 535.
RULE EST Shelley's case. 1341
§915. Where the Limitation Is to "Issue" or "Issue of the
Body."
The language of the rule in Shelley's Case confines it
to cases where the ancestor takes an estate of freehold and
there is a limitation over "to his heirs in fee or in fee
tail. " It is an extension of the rule to apply it to a limi-
tation to "issue," or "issue of the body," or "bodily
issue" which are not ex vi termini within the rule.''® Tech-
nically the terms "issue," "bodily issue," and "issue of
the body" mean the same thing. The words "issue of the
body" are more flexible than the words "heirs of his
body," and courts more readily interpret the former as
a synonym of "children" and a mere descriptio person-
arum than the latter.'^'^ But "issue" prima facie means
"heirs of the body."''* It is sometimes used as a word of
purchase and also as a word of limitation, but should
always be construed according to the intention of the tes-
tator.''*
76 Daniel y. Whartenby, 17 Wall. legitimate issue of my said sons or
(U. S.) 639, 21 L. Ed. 661; Ti- either of them, then I give the
manus v. Dugan, 46 Md. 402; Ford said tract ... to the surviv-
V. McBrayer, 171 N. C. 420, 88 ing brother and sisters of the
S. E. 736. whole blood in fee simple for-
As to those included in the term ever." It was held the rule in
"issue," see §§ 848, 849. Shelley's Case did not apply. —
Where the testator gave to his Trimble v. Rice, 204 Fed. 407, 122
two sons, a certain described C. C. A. 658.
piece of property to hold "during „ j^^^^j^j ^ whartenby, 17 Wall,
their natural lives and no longer, (u. S.) 639, 21 L. Ed. 661, quoted
and to the survivor during his j^ p^j.^ ^ McBrayer, 171 N. C.
life and no longer, and after the ^20 88 S E 736
death of my said sons or either
of them, then to the legitimate is
Tspeirce v. Hubbard, 152 Pa.
sue of the son having such issue, ^*- ^^' ^^ ^"- ^^^■
■whether the said son be living or 79 Smith v. Chapman, 1 Hen.
deceased. On the failure of such M. (Va.) 240.
1342 COMMENTARIES ON THE LAW OF WILLS.
§ 916. Burden of Proof.
Whenever in a testamentary gift a word appears wHch
is not strictly one of limitation, if the rule in Shelley's
Case is sought to be applied by analogy, the burden rests
upon him who claims such word to be the equivalent of
"heirs" or "heirs of his body," to demonstrate from the
language of the will that it was so intended.^" For exam-
ple, where the word "heirs" is not used but the word em-
ployed is "descendants,"^^ or " children, "^^ the one
asserting that the testator thereby intended his heirs in
their capacity as such, has the burden of proving such
contention.
§ 917. Where Rule in Shelley's Case Prevails, and Where Abol-
ished by Statute.
The rule in Shelley's Case is in full force as a rule of
property in England today,^* as it is also in Canada.**
Among these United States where it is still a part of the
common law and in force are Arkansas,*® Delaware,*®
District of Columbia," Florida,** Georgia,** Illinois,*"
so stout V. Good, 245 Pa. St. 383, 85 Hardage v. Stroope, 58 Ark.
91 Atl. 613; Lee v. Sanson, 245 303, 310, 24 S. W. 490.
Pa. St. 392, 91 Atl. 611. 86 Griffith v. Derringer, 5 Harr.
81 Lee V. Sanson, 245 Pa. St ^^^^-^ ^^*-
392, 91 Atl. 611. *'' Sims v. Georgetown College,
1 App. Gas. (D. C.) 72, 80.
82 Stout V. Good, 245 Pa. St
383, 91 Atl. 613.
88 Russ V. Russ, 9 Fla. 105.
89 Smith V. ColUns, 90 Ga. 413,
83 Van Grutten v. Foxwell, 15 g g 552
(1897) A. C. 658.
84 King V. Bvi
Ct 356. 86 N. E. 139.
90 Baker v. Scott 62 111. 86, 93;
84 King V. Evans, 24 Can. Sup. McFall v. Klrkpatrlck, 236 111. 281,
EULB IN SHELLEY S CASE.
1343
Indiana,^! lowa,''^ Maryland,®* North Carolina,®* Penn-
sylvania,®' South Carolina,®® and Texas.®''
In some states snch as Kentucky the rule never was
adopted,®* while in many others it has either been abro-
91 Andrews v. Spurlin, 35 Ind.
262; Biggs v. McCarty, 86 Ind.
352, 44 Am. Rep. 320; Shimer v.
Mann, 99 Ind. 190, 50 Am. Rep.
82; Rldgeway v. Lanphear, 99 Ind.
251; Fountain County Coal etc.
Co. V. Becklehelmer, 102 Ind. 76,
52 Am. Rep. 645, 1 N. E. 202;
Hochstedler v. Hochstedler, 108
Ind. 506, 9 N. B. 467; Allen v.
Craft, 109 Ind. 476, 58 Am. Rep.
425, 9 N. E. 919; Taney v. Fahn-
ley, 126 Ind. 89, 25 N. B. 882.
92 Doyle V. Andis, 127 Iowa 36,
4 Ann. Cas. 18, 69 L. R. A. 953.
102 N. W. 177.
93 Josetti V. McGregor, 49 Md.
202, 210; Warner v. Sprigg, 62 Md.
14; Cook V. Councilman, 109 Md.
622, 72 Atl. 404.
In Maryland, it has been held
that a devise to trustees in gen-
eral terms to pay the rents and
profits to a devisee, coupled with
a power to him to dispose of the
property by will would seam to
give a life estate only, hut that a
further provision that on the
deatii of the first taker the prop-
erty should go to his heirs at law
brought the case within the rule,
and conferred upon him the fee. —
Warner v. Sprigg, 62 Md. 14.
But it has been said in Mary-
land the rule in Shelley's Case
has not been applied with the
same rigidity as in other jurisdic-
tions; and in that state, where
the testator manifests an inten-
tion to give the first taker only
an estate for life, and uses the
words "issue," "sons," "chil-
dren," or "descendants," the ease
will be withdrawn from the oper-
ation of the rule. — Home v. Lyeth,
4 Har. & J. (Md.) 431; Lyles v.
Digges' Lessee, 6 Har. & ,T. (Md.)
364, 14 Am. Dec. 281; Dickson v.
Satterfield, 53 Md. 317, 320; Hen-
derson V. Henderson, 64 Md. 185,
1 Atl. 72.
94 Tyson v. Sinclair, 138 N. C.
23, 3 Ann. Cas. 397, 50 S. E. 450.
The rule is recognized in North
Carolina, but there is a disposi-
tion on the part of the courts to
restrict rather than enlarge its
operation in order to effectuate
the intention of the testator when
practicable. — Ford v. McBrayer,
171 N. C. 420, 88 S. B. 736.
95 In re Guthrie's Appeal, 37 Pa.
St. 9, 21; In re Huber's Appeal,
80 Pa. St. 348; List v. Rodney, 83
Pa. St. 483; Shapley v. Diehl, 203
Pa. St. 566, 53 Atl. 374.
96 Davenport v. Eskew, 69 S. C.
292, 104 Am. St. Rep. 798, 48 S. B.
223.
97 Seay v. Cockrell, 102 Tex.
280, 115 S. W.- 1160.
08 Lane v. Lane, 106 Ky. 530, 50
S. W. 857.
.1344
COMMENTARIES ON THE LAW OP WILLS.
gated or abolished by statute, as is the case in Alabama,®*
California,^ Connecticut,^ Idaho,® Kansas,* Maine,^ Massa-
chusetts,® Michigan,'' Minnesota,* Mississippi," Missouri,^''
Montana,^^ New Hampshire,^^ New Jersey,^® New York,^*
Ohio,^^ Ehode Island,^" Tennessee,^'' Virginia,^* West Vir-
ginia,^" and Wisconsin.^"
In Nebraska, while it can not be said that the rule is
abolished, it is better to say that it exists in a restricted
sense and would be enforced in instances where not in con-
flict with the otherwise expressed intention of the instru-
ment.^^ In Vermont the rule is regarded as of no special
force,^^ and in some cases is held not to apply.^*
99 § 1025 Civil Code, Ala.
1 § 779 Civil Code, Cal.
2 Gen. Stat. Conn. (1902) § 4028.
3 § 3076 Rev. Codes, Idaho.
4 Gen. Stat. Kan. (1897) c. 110,
§52.
5 Rev. Stat. Maine, (1903) c. 73,
§6.
0 Rev. Laws Mass. (1902) c. 134,
§4.
7 Mich. Comp. Laws, (1897)
§ 8810.
8 Minn. Stat. (1894) §4389.
9 Miss. Code, (1892) §2446.
10 Mo. §18 Stat, of Wills of
1825.
11 Mont. Civ. Code 1895, § 1228.
12 N. H. Pub. Stat. (1891) c.
186, § 8.
13 N. J. § 1 of Act of June 13,
1820, Rev. Laws 774.
14 N. Y. Stat. 1830.
15 Ohio Stat. § 47 of Wills, Act
of 1840.
16 R. I. Gen. Laws, (1896) c. 201,
§6.
IT Tenn. Stat, in 1852, c. 91, § 1,
Code § 2008.
isVa. Code, (1887) §2423.
19 Code W. Va., c. 71, § 11, Code
1860.
20 Wis. Stat. (1898) § 2052.
21 See § 53, c. 73, Neb. Comp.
Stat. (Anno. Stat. 10256) ; Albin v.
Parmele, 70 Neb. 740, 98 N. W. 29.
22 Smith V. Hastings, 29 Vt. 240.
23 Blake v. Stone, 27 Vt. 475,
CHAPTER XXXIL
DEVISES OP ESTATES IN PEE SIMPLE WORDS OP LIMITATION.
§ 918. Common law rule as to words of limitation.
§ 919. The same subject: The word "heirs" unnecessary.
§ 920. Context may show intent to pass the fee.
§921. The same subject : Effect of use of word "estate."
§ 922. The sam,e subject: Effect of use of such words as "prop-
erty" or "real effects."
§ 923. The same subject: Effect of use of such words as "for-
ever," "absolutely" or "exclusively."
§ 924. Where devise is upon conditions, or in trust.
§ 925. Where devisee is charged with payment of debts.
§ 926. Devise of life estate with no gift over.
§ 927. Devise coupled with power of disposition.
§ 928. The same subject.
§ 929. The same subject : Where devise is limited to a life estate,
or power of disposition is restricted.
§ 930. Gift over of what remains unexpended by devisee.
§ 931. Where fee is devised, rights of devisee can not be limited.
§ 932. As to cutting down a devise in fee by subsequent pro-
visions in the will.
§ 933. The same subject.
§ 934. The same subject: Where the expressions are of doubt-
ful meaning.
§ 935. Statutory changes regarding words of limitation.
§ 936. The same subject : Creation of estates generally : Lim-
ited to those recognized by law.
§ 918. Common Law Rule as to Words of Limitation.
The rule of the common law is that a devise of lands
without words of limitation gives to the devisee only an
estate for life, or in other words, where the devise is
n Com. on wills— 31 (1345)
1346
COMMENTARIES ON THE LAW OF WILLS.
made in terms from whicli the law implies an estate for
life and no words of Umitation are added, the devisee
takes only a life estate.^ A simple devise in general terms
of messuages, lands, tenements, or hereditaments, with no
designation of the quantity of the interest to be taken
by the devisee, confers a life estate only.^
With respect to personal property, a bequest in general
terms, under the common law rule, is sufficient to pass
absolute title.^
§919. The Same Subject: The Word
The rule of the common
inter vivos, requires the use
Heirs" Unnecessary.
law, with regard to grants
of the word "heirs" in order
1 Mulvane v. Rude, 146 Ind. 476,
45 N. E. 659; Varney v. Stevens,
22 Me. 331; Farrar v. Ayres, 5
Pick. (22 Mass.) 404; Ferris v.
Smith, 17 Johns. (N. Y.) 221;
Steele v. Thompson, 14 Serg. &
R. (Pa.) 84; Backenstoe v. Hun-
sicker, 244 Pa. St. 295, 90 Atl. 641;
Mooberry v. Marye, 2 Munf. (Va.)
453.
Lord Mansfield, in Doug. 734,
says: "I verily believe that, in
almost every case where by law
a general devise of lands is re-
duced to an estate for life, the
intent of the testator is thwarted;
for ordinary people do not distin-
guish between real and personal
property. The rule of law, how-
ever, is established and certain,
that express limitation, or words
tantamount, are necessary to pass
an inheritance; 'all my estate' or
'all my Interest' will do; but 'all
my lands lying in such a place,'
is not sufficient; such words are
considered as descriptive of the
local situation, and only carry an
estate for life; nor are words tend-
ing to disinherit the heir at law
sufficient to prevent his taking,
unless the estate is given to some
one else."
2 Canning v. Canning, Mos. 240,
242; Wright v. Denn, 10 Wheat.
(U. S.) 204, 6 L. Ed. 303; Owings
V. Reynolds, 3 Har. & J. (Md.)
141; Sargent v. Towne, 10 Mass.
303, 307; Jackson v. Embler, 14
Johns. (N. Y.) 198; Steele v.
Thompson, 14 Serg. & R. (Pa.) 84;
Hall V. Goodwyn, 2 Nott. & McC.
(S. C.) 383.
A bequest of personalty in such
terms confers the whole Interest
therein absolutely. — Newton v.
Griffith, 1 Har. & G. (Md.) Ill;
Hawley v. Northampton, 8 Mass.
3, 5 Am. Dec. 66; Wheaton v.
Andress, 23 Wend. (N. Y.) 452.
3 Gibson v. Brown, (Ind. App.)
110 N. E. 716.
DEVISES IN PEE SIMPLE. 1347 1
to limit an estate in fee simple. Thus to pass the fee by
deed it had to run to the grantee "and his heirs."* With
regard to devises of lands, the technical word "heirs" is
not required since the intention to create an estate in fee
simple in the devisee may be shown by other forms of
expression.^
One dominant feature in connection with the construc-
tion of wills is to determine from the language of the
instrument the intention of the testator and to give effect
to such intention whenever it can be done without vio-
lating some rule of law. The whole scope and plan of
the testator's disposition of his property must be con-
sidered, and the various provisions of his will must be
compared one with another, construing them so that all
may stand if possible. The testator's intention is not to
be gathered from one clause alone, but from all the pro-
visions of the will. While the rule of the common law
is that a devise of real estate in general terms, unac-
companied by words of inheritance or other language lim-
iting or defining the quantity of the estate devised, gives
to the devisee only a life estate, yet where the will con-
tains expressions or provisions indicating an intention
4 Coke Lltt. 8b; 4 Kent Com. *6; Admrs., 101 Ky. 252, 40 S. W. 776;
Wilder v. Wheeler, 60 N. H. 351; Baker v. Bridge, 12 Pick. (29
Adams v. Ross, 30 N. J. L. 505, Mass.) 27; Godfrey v. Humphrey,
511, 82 Am. Dec. 237; Ford V.John- 18 Pick. (35 Mass.) 537, 29 Am.
son, 41 Ohio St. 366; Oyster v. Dec. 621; Bassett v. Nlckerson/
Knull, 137 Pa. St. 448, 21 Am. St. 184 Mass. 169, 68* N. E. 25; Gan-
Rep. 890, 20 Atl. 624. non v. Albright, 183 Mo. 238, 105
5 2 Bl. Com. *108; Rutherford v. Am. St. Rep. 471, 67 L. R. A. 97,
Greene, 2 Wheat. (U. S.) 196, 4 81 S. W. 1162; Jackson v. Housel,
L. Ed. 218; White v. White, 62 17 Johns. (N. Y.) 281; Irvine v.
Conn. 518; Haight v. Royce, 274 Irvine, 69 Ore. 187, 136 Pac. 18.
111. 162, 113 N. E. 71; Fenster- As to the rule in Shelley's Case,
maker v. Holman, 158 Ind. 71, 62 where the devise is to "A and his
N. E. 699; Young v. Kinkhead's heirs," see §§898, 910.
1348
COMMENTARIES ON THE LAW OF WILLS,
to devise an estate in fee, tlie courts will give effect to
sucli intention.®
It is not necessary to employ the words "heirs," "as-
signs," or other words of inheritance/ Any other apt ex-
pressions denoting an intention to devise an estate in fee
simple are sufficient for such purpose.* There must, how-
ever, be either words of inheritance or other provisions
which, according to the settled rules of construction, show
an intention on the part of the testator to pass the fee.®
e Re De la Hunt, 57 L. T. N. S. that it was the Intention of the
874; Reeder v. Antrim, (Ind. App.)
112 N. E. 551; Harper v. Blean,
3 Watts (Pa.) 471, 27 Am. Dec.
367; McAUister v. Tate, 11 Rich. L.
(S. C.) 509, 73 Am. Dec. 119; Will-
lams V. Jones, 2 Swan (32 Tenn.)
620.
7 Merritt v. Abendroth, 24 Hun
(N. Y.) 218; Kirk v. Richardson,
32 Hun (N. Y.) 434; In re Kane's
Estate, 11 Phlla. (Pa.) 72; Davis
V. Williams, S5 Tenn. 646, 4 S. W. 8.
8 Holmes v. Williams, 1 Root
(Conn.) 335, 1 Am. Dec. 49; Rob-
inson V. Randolph, 21 Fla. 629, 58
Am. Rep. 692; Walker v. Pritch-
ard, 121 111. 221, 12 N. E. 336;
Chamberlain v. Owlngs, 30 Md.
447.
In Baker v. Bridge, 12 Pick. (29
Mass.) 27, 30, Shaw, C. J., says:
"We take the rule now to be well
established as well in equity as in
law, that in a will, words of lim-
itation are not necessary to create
an estate In fee; but that where
the words of the devise, according
to their natural and fair import,
construed in connection with other
parts of the will, manifestly show
testator to give an estate in fee,
and where the general purpose
and the particular intent of the
testator as expressed or gathered
by fair and plain Implication from
the will itself, can not be carried
into effect without such construc-
tion, whatever may be the words
in which the devise is expressed,
the law holds that it passes an
estate in fee."
9 Ferris v. Smith, 17 Johns.
(N. Y.) 221.
Chancellor Kent, 4 Kent Com.
*535, says: "It does not require
the word 'heirs' to convey a fee;
but other words denoting an inten-
tion to pass the whole interest of
the testator, as a devise of all my
estate, all my interest, all my
property, my whole remainder, all
I am worth or own, all my right,
all my title, or all I shall be pos-
sessed of, and many other expres-
sions of like Import, will carry an
estate of inheritance, if there is
nothing in the other parts of the
will to limit or control the opera-
tion of the words."
The win of an old illiterate man
DEVISES IN FEE SIMPLE.
13i9
Where a devise of realty in general terms is coupled with
a general bequest of personalty, such fact is sufficient
to indicate an intention to devise the lands in fee.^"
§ 920. Context May Show Intent to Pass the Tee.
The intention of the testator to devise a fee may be
indicated by limitations expressed, as where there is a
devise over in the event of a certain contingency. The
gift over in only one event is indicative of an intention
on the part of the testator that the devisee shall take the
whole estate absolutely in all other events.^^ The devise
was ■written by an old neighbor
wbo possessed slight knowledge of
the meaning and relation of words.
All of the testator's realty was in
absolute terms devised to his sis-
ter in the first part of the will.
This was followed by a bequest of
all his personalty "to have and to
hold during her natural life." Con-
cluding the instrument, he said:
"I also vill and devise that my
sister Ellen be not required to give
bond but hold the same without
let or hindrance same as I have
done." This will was held to pass
a fee and not merely a life estate.
—Boston Safe Dep. & Tr. Co. v.
Stich, 61 Kan. 474, 59 Pac. 1082.
The use of the unnecessary
word "heirs" in conveying or de-
vising an estate or inheritance
does not evince a lack of con-
fidence in the force of the words
previously used and does not cast
a doubt on the meaning. "It is
doubtful whether any competent
or skillful conveyancer ever dis-
penses with them in conveying a
fee. Why should the use of words
so long approved and so absolutely
necessary at common law to ef-
fectuate such a purpose indi-
cate a different purpose merely
because the statute permits other
and less words to have the same
effect? Notwithstanding our stat-
ute has dispensed with the word
'heirs' in devising a fee, this court
has often commended their use."^
Gannon v. Albright, 183 Mo. 238,
105 Am.. St. Rep. 471, 67 L. R. A.
97, 81 S. W. 1162.
10 Gibson v. Brown, (Ind. App.)
110 N. E. 716.
11 Doe V. Cundall, 9 East 400;
Marshall v. Hill, 2 Maule & S. 608;
Burke v. Annis, 11 Hare 232.
As to the meaning and effect of
words of limitation, see § 909.
This implication arises most fre-
quently from devises over in the
event of the devisee dying with-
out heirs. — Tomlinson v. Nickell,
24 W. Va. 148.
A testator gave his "entire prop-
erty" to his three children, with a
1350
COMMENTARIES ON THE LAW OP WILLS.
of the rents or income of an estate is held to pass the
fee in the same manner as a devise of the estate itself .^-
The same is true of a gift of the proceeds of a fund, \ntli-
out limit as to time,^^
A provision that the property ' ' shall descend to A and
her children after her,"^* or that a farm shall "belong
to" the devisee,^^ is sufficient to create an estate in fee.
An estate in fee will pass by a devise of "the remain-
der,"^® of the "reversion,"^'' or of the " residue, "^^
where there is no limitation over. So a fee will be con-
provision that if none of them
should leave Issue the property?
should be divided equally among
the children of a brother and sis-
ter. The executors were author-
ized to manage the estate during
the minority of his children with
power to sell, and sundry other
personal bequests were made in
the will. The will was construed
to give the real estate to the testa-
tor's children in fee, and the gift
to his brother's and sister's chil-
dren in case his own children died
without issue was construed as
referring to their death before his'
own. — White v. White, 52 Conn.
518.
Where the testator, after giving
a particular piece of land and
money in trust for his son until
he shall have attained his ma-
jority, fails to devise the fee, but
directs in a later clause that in
case the son dies without lawful
issue before majority, all the prop-
erty both real and personal "which
is hereby bequeathed to him" shall
go to the trustee Individually or
his heirs, there arises an implied
devise to the son of the fee of the
land upon attaining his majority.
— Culhane v. Fitzgibbons, 42 Misc.
Rep. (N. Y.) 331, 86 N. Y. Supp.
710.
12 Gulick's Exrs. v. Gulick, 25
N. J. Eq. 324.
13 Gulick's Exrs. v. Gulick, 25.
N. J. Eq. 324.
14 Lennen v. Craig, 95 Ind. 167.
15 Patterson v. Nixon, 79 Ind.
251.
16 French v. Campbell, 2 Mackey
(D. C.) 321; Norton v. Ladd, 1
Lutw. 755; Baker v. Wall, 1 Ld.
Raym. 185.
17 Bailis V. Gale, 2 Ves. Sen. 48.
18 McConnel v. Smith, 23 111. 611;
Mitchell V. Morse, 77 Me. 423, 52
Am. Rep. 781, 1 Atl. 141; Eliot v.
Carter, 12 Pick. (29 Mass.) 436;
Bullard v. Goffe, 20 Pick. (37
Mass.) 252, 257, 259; Lincoln v.
Lincoln, 107 Mass, 590; Rath-
bourne V. Dyckman, 3 Paige Ch.
(N. Y.) 9.
DEVISES IN FEE SIMPLE.
1351
veyed by a devise of all "right," "title," or "interest, "^^
or of the testator's "moiety," "part," or " share. "^^
§ 921, The Same Subject: Effect of Use of Word "Estate."
The use of the word " estate, "^^ or " estates, "^^ or
"my estate," at or in a certain place,^^ or of a certain
name,^* or designated as bought of a certain person,^^
will operate to create a fee-simple. The word "estate"
is supposed to refer to the testator's title,^® and will
operate to pass whatever title may be in him. This pre-
sumption prevails, although the word "estate" be asso-
ciated with locality, or be used in conjunction with words
of express limitation in fee in the same will.^''
If the word ' ' estate ' ' occurs in the sentence creating a
Ufe estate, and a devise in remainder is described by some
less comprehensive term, it will not carry an estate in
19 Sharp V. Sharp, 6 Bing. 630;
Andrew v. Southouse, 5 Term Rep.
292.
20 Doe V. Fawcett, 3 Com. B. 274;
Montgomery v. Montgomery, 3
Jones & La T. (Ir.) 47; Green v.
Marsden, 1 Drew. 646, 653; Stew-
art V. Garnett, 3 Sim. 398.
21 Reeves v. Winnington, 3 Mod.
45.
A devise of "all my real estate,"
without words of limitation or in-
heritance, passes the fee simple. —
See Snodgrass v. Brandenhurg, 164
Ind. 59, 71 N. B. 137, 72 N. B. 1030;
Boston Safe Deposit Co. v. Stich,
61 Kan. 474, 59 Pac. 1082; God-
frey V. Humphrey, 18 Pick.
(Mass.) 537, 29 Am. Dec. 621; For-
saith V. Clark, 21 N. H. 409 ; Sharp
V. Humphreys, 16 N. J. L. 25;
Frame v. Stewart, 5 Watts • (Pa.)
433; Carr v. Jeaimerett, 2 McCord
(S. C.) 66.
22Macaree v. Tall, Amb. 181;
Fletcher v. Smiton, 2 Term Rep.
656.
23 Ibbetson v. Beckwith, Cas. t.
Talb. 157; Barry v. Edgeworth, 2
P. Wms. 523; Pettiward v. Pres-
cott, 7 Ves. Jun. 541, 546.
24 Chichester v. Oxendon, 4
Taunt. 176; Roe v. Wright, 7 East
259.
25 Bailis V. Gale, 2 Ves. Sen. 48.
20 Randall v. Tuchin, 6 Taunt.
410.
2T Wilkinson v. Chapman, 3
Russ. 145; Johns Hopkins Univer-
sity V. Garrett, 128 Md. 343, 97
Atl. 640; Godfrey v. Humphrey, 18
Pick. (35 Mass.) 537, 29 Am. Deo.
621.
1352 COMMENTAEIES ON THE LAW OP WILLS.
fee.^* The word "estate" will not be construed to con-
vey a fee where it would result in cutting off subsequent
limitations.^® And where the word "estate" is not an
operative word or is used merely in the introductory
part of the will in expressing the testator's intention to
dispose of all his worldly property^ or where it is by ref-
erence restrained by an antecedent word, it will not carry
an estate in fee.*"
§922. The Same Subject: Effect of Use of Such Words as
"Property" or "Real Effects."
The words "property"'^ and "real effects"*^ have the
same effect in passing a fee as the word "estate."
The word "property" in its strict and proper sense re-
lates solely to the quantity of the estate and unless
restraining words are used, it refers to the whole inter-
est.** Therefore, where the testator devises his "prop-
erty" or "all his property," it is held to convey an estate
in fee simple.**
28 Roe V. Blackett, Cowp; 235. Macnamara v. Whitworth, G.
29 Key V. Key, 4 De Gex, M. & Coop. 241.
G. 73; Martin v. McCausland, 4 Ir. 33 Fogg v. Clark, 1 N. H. 163.
L. R. 340. 34 Donovan's Lessee v. Donovan,
See, also. Doe v. Roper, 11 East 4 Harr. (Del.) 177; Robinson v,
518. Randolph, 21 Fla. 629, 58 Am. Rep
30 Robinson v. Randolph, 21 Fla. 692; Morgan v. McNeely, 126 Ind
629, 58 Am. Rep. 692. 537, 26 N. E. 395; Mudd v. Mulll-
31 Patton V. Randall, 1 Jacob & can, 11 Ky. L. Rep. 417, 12 S. W
W. 189; Roe v. Pattison, 16 East 263, 385; Cook v. Couch, 100 Mo
221; Doe v. Roberts, 11 Ad. & B. 29, 13 S. W. 80; Roseboom v. Rose
1000; NlchoUs v. Butcher, 18 Ves. boom, 15 Hun 309, affirmed in 81
Jun. 193; Footner v. Cooper, 2 N. Y. 356; Piatt v. Sinton, 37 Ohio
Drew. 7; Bentley v. Oldfield, 19 St. 353; Foster v. Stewart, 18 Pa.
Beav. 225. St. 23; Mayo v. Carrington, 4 Call
S2Hogan v. Jackson, Cowp. 299; (Va.) 472, 2 Am. Dec. 580.
DEVISES IN FEE SIMPLE. 1353
§923. The Same Subject: Effect of Use of Such Words as
"Forever," "Absolutely" or "Exclusively."
A devise of property to a person and his heirs or his
children forever, passes the fee. A limitation to a devisee
by name coupled with the word forever, which is a word
of inheritance, will vest the f ee.^^ Where realty is devised
to a person absolutely, he will take an estate in fee;^"
and the rule is the same where the devise is to one exclu-
sively.^'' A devise of realty to one for his exclusive use is
unlimited and tantamount to a devise of the land in fee.*^
§ 924. Where Devise Is Upon Conditions, or in Trust.
A devise upon conditions which can not be performed
"without an absolute ownership of the property will con-
fer a fee upon the devisee.*® A devise to one simply, pro-
vided that if he "or his heirs" alien the property the
devise shall be void, confers a fee by force of the words
of the condition, although the condition itself is void.*"
Where the fulfillment of a trust is imposed upon a
devisee which he can not perform unless vested with title
in fee, a fee will be implied.*^ A devise in fee to trustees
35 Hood V. Dawson, 98 Ky. 285, 40 Barnard's Lessee v. Bailey, 2
33 S. W. 75; Toman v. Dunlop, 18 Har. (Del.) 56; Holliday v. Divon,
Pa. St. 72. 27 111. 33; Gleason v. Fayer-
„„ _ , .-, ,. A weather, 4 Gray (70 Mass.) 348 ;
36 Schneer v. Greenbaum, 4 , j \
Boyce (Del.) 97, 86 Atl. 107; An.
ders V. Gerhard, 140 Pa. St. 153;
Walker v. Vincent, 19 Pa. St. 369;
In re Naglee's Appeal, 33 Pa. St.
89; In re Kepple's Appeal, 53 Pa.
21 Atl. 253. gj 211; Fewell v. Fewell, 6 Rich.
37 Roskrow V. Jewell, 154 Iowa Eq. (S. C.) 138.
634, Ann. Cas. 1914B, 63, 135 N. W. ^^ ge^^g ^ Russell, 8 Gray (74
^- • Mass.) 86, 89; Angell v. Rosen-
38 Moore v. Moore, 84 N. J. Bq. bury, 12 Mich. 241, 266; Fisher v.
39, 92 Atl. 948. Fields, 10 Johns. (N. Y.) 495, 505;
39 White T. White, 52 Conn. In re Koenig's Appeal, 57 Pa. St.
518. 252.
1354
COMMENTARIES ON THE LAW OF WILLS.
for the use of a person indefiBitely confers a beneficial
interest in fee upon the cestui que trust where the pur-
pose of the trust requires the legal estate in fee to he in
the trustees.*^
§ 925. Where Devisee Is Charged With Payment of Debts.
Where the debts of the testator are charged upon a
particular devisee, a fee passes without words of limita-
tion or inheritance, there not being sufficient personal
property passing to the devisee to satisfy the charges and
the estate given the devisee is not expressly limited.*^
The reason of the exception just mentioned is that if the
devisee tates an estate for life only, he might be injured
by the termination of his interest before he could be
reimbursed for his expenditures.** Where it is expressly
stated what the devisee's estate shall be, the charge will
42 Knight V. Selby, 3 Man. & G.
92 ; Moore v. Cleghom, 12 Jur. 591.
See, also, Lemen v. McComas,
63 Md. 153.
43 Gaukler v. Moran, 66 Mich.
353, 33 N. W. 513; Curtis v. Fow-
ler, 66 Mich. 696, 33 N. W. 804;
In re Hinkle's Appeal, 116 Pa. St.
490, 9 Atl. 938; Backenstoe v. Hun-
sicker, 244 Pa. St. 295, 90 Atl. 641;
Couch V. Eastham, 29 W. Va. 784,
3 S. E. 23.
The disparity in the amount
charged upon the devisee to the
value of the land makes no dif-
ference. Where, however, the
charge Is upon the land so de-
vised and not upon the devisee
personally, the indefinite devise is
not enlarged from a life estate into
a fee. — Robinson v. Randolph, 21
Fla. 629, 58 Am. Rep. 692.
44 Coke, Litt. 9b; Robinson v.
Randolph, 21 Fla. 629, 58 Am. Rep.
692; Korf v. Gerichs, 145 Ind. 134,
44 N. E. 24; Wait v. Belding, 24
Pick. (41 Mass.) 129; Jackson v.
Bull, 10 Johns. (N. Y.) 148, 6 Am.
Dec. 321; Mooberry v. Marye, 2
Munf. (Va.) 453.
It has been held that a charge
upon the land only did not enlarge
the estate. — See Denn v. Mellor, 5
T. R. 558 ; Doe v. Garlick, 14 Mees.
& W. 698 ; Fairfax v. Heron, Prec.
Ch. 67; Burton v. Powers, 3 Kay &
J. 170.
See, however, Doe v. Richards,
3 Term Rep. 356; Gully v. Exter,
12 Moore ^ J. B. 591; s. c, 4 Bing.
290. But, see, Britton v. Thorn-
ton, 112 U. S. 526, 28 L. Ed. 816, 5
Sup. Ct. 291; Carr v. Effinger, 78
Va. 197.
DEVISES IN FEE SIMPLE. 1355
not enlarge it to a fee.*^ And where the charge is made
on the estate alone, and not on the devisee, and there
are no words of limitation, the devisee takes a life estate
only. In fact, where the charge is upon the devisee, he
will take the fee only where the testator's intentions are
in doubt and the devise is indefinite.*^
§ 926. Devise of Life Estate With No Gift Over.
A devise for life to the testator's heir, with no gift
over, will vest in him the fee, for the life estate taken
under the will and the reversion by descent together con-
stitute a fee-simple.*^ Likewise where an estate was
given the testator 's widow for life with no gift over, and
she was constituted residuary devisee, the two provisions
together operated to confer upon her the fee.**
§ 927. Devise Coupled With Power of Disposition.
A devise coupled with a power to sell or dispose of the
property will create a fee in realty,*^ and an absolute in-
terest in personalty. '^^ Thus, a gift of property for life,
with a power to dispose of a half thereof, confers a fee
simple estate in half of the subject of devise.^^ So a be-
quest of the interest of a fund, "the principal not to be
touched unless necessary," will confer an absolute inter-
45 Gaukler v. Moran, 66 Mich. 49 Bradley v. Westcott, 13 Ves'.
353, 33 N. W. 513; In re Hlnkle's Jun. 445; Howard v. Carusi, 109
Appeal, 116 Pa. St. 490, 9 Atl. 938; U. S. 725, 27 L. Ed. 1089, 3 Sup. Ct.
Couch V. Eastham, 29 W. Va. 784, 3 575; Chase v. Salisbury, 73 Ind.
S. E. 23. 506; Roy v. Rowe, 90 Ind. 54; Pet-
46 Backenstoe v. Hunsicker, 244 tingell v. Boynton, 139 Mass. 244,
Pa. St. 295, 90 Atl. 641. 29 N. E. 655; Canedy v. Jones, 19
47 Herbert's Guardian v. Her- S. C. 297, 45 Am. Rep. 777.
bert's Exr., 85 Ky. 134, 2 S. W. so Kendall v. Kendall, 36 N. J.
682. Eq. 91.
48 Warner v. Willard, 54 Conn. 6i Turner v. Durham, 12 Lea (80
470, 9 Atl. 136. Tenn.) 316.
1356 COMMENTARIES ON THE LAW OF WILLS.
est in the principal in the absence of any gift over.'^ A
testamentary gift to one, generally or indefinitely, with
power of disposition, carries the entire estate, and the
beneficiary takes not a simple power, but the property
absolutely. Any limitation over is void for repugnancy.^*
§ 928. The Same Subject.
A power to dispose of the property as absolute owner
includes both the right to sell and to devise,^* and a gift
over in such a case can not take effect even as an execu-
tory devise.^^ This would seem to follow as of course
where the first gift is limited ia fee. Thus, a devise in
words purporting a fee, with power to sell or dispose of
by will, and with a gift over should the devisee die with-
out issue, was held to vest the fee absolutely; and it was
decided that the limitation over was void, even though
the prior devisee died intestate.^®
52McMlchael v. Hunt, 83 N. C. 707; Brolim v. Berner, (N. J. Eq.)
344. 77 Atl. 517; Jennings v. Conboy,
53 Bradley v. Westoott, 13 Ves. 72 N. Y. 230; Bass v. Bass, 78
Jun. 445; Howard v. Carusl, 109 N. C. 374; Hoxie v. Chamberlain,
XJ. S. 725, 27 L. Ed. 1089, 3 Sup. Ct. 228 Pa. St. 31, 76 Atl. 423; John-
575; Mayo v. Harrison, 134 Ga. son v. Johnson, 48 S. C. 408, 26
737, 68 S. E. 497; Marklllie v. Rag- S. E. 722; Hansbrough v. Trustee
land, 77 111. 98; Burke v. Burke, of Presbyterian Church, 110 Va.
259 111. 262, 102 N. E. 293; Mulvane 15, 65 S. B. 467.
V. Rude, 146 Ind. 476, 45 N. E. 659; 54 Wead v. Gray, 78 Mo. 59.
Luckey v. MoCray, 125 Iowa 691, But, see, John v. Bradbury, 97
101 N. W. 516; Clay v. Chenault, Ind. 263.
108 Ky. 77, 55 S. W. 729; Welsh v. 65 Hoxsey v. Hoxsey, 37 N. J.
Gist, 101 Md. 606, 61 Atl. 665; Eq. 21; Van Home v. Campbell,
Bassett v. Nickerson, 184 Mass. 100 N. Y. 287, 53 Am. Rep. 166, 3
169, 68 N. E. 25; Kemp v. Kemp, N. E. 316, 771; Read v. Watkins, 11
223 Mass. 32, 111 N. E. 673; Roth Lea (79 Tenn.) 158.
V. Rauschenbusch, 173 Mo. 582, 61 56 Combs v. Combs, 67 Md. 11, 1
L. R. A. 455, 73 S. W. 664; Loos- Am. St. Rep. 359, 8 Atl. 757.
Ing V. Loosing, 85 Neb. 66, 25 There are cases, however, in
L. R. A. (N. S.) 920, 122 N. W. which the gift over follows so
DEVISES IN PEE SIMPLE.
1357
The circxmistance that the testator, in making an ao-
solute gift of property, grants to the beneficiary the
power to will or dispose of the property at death, does
not impair the absolute estate given, but merely expresses
an incident of its enjoyment.-'"'^
§929. The Same Subject: Where Devise Is Limited to a Life
Estate, or Power of Disposition Is Restricted.
Under a will devising an estate in general terms, with-
out specifying the nature of the estate, and giving the
devisee a power of disposition over the property, the
devisee takes a fee if the power of disposal is uncondi-
tional, and any limitation over will be void.®^ Especially
is this the effect where the gift over is only of so much as
may remain undisposed of by the prior devisee.^^ But
where an estate is devised to a person expressly for life
closely the devise to the first taker
"and his heirs," that strong as
these words are they must yield to
the evident general Intent of the
testator, and he will take a base or
conditional fee, subject to defeas-
ance upon dying without heirs, or
the occurrence of other contingen-
cies, and the gift over may take
effect as an executory devise. —
O'Brien v. O'Leary, 64 N. H. 332,
10 Atl. 697; In re New York, L. &
W. Ry. Co., 105 N. Y. 89, 59 Am.
Rep. 478, 11 N. B. 492.
See §§ 866, 867.
57 Byrne v. Weller, 61 Ark. 366,
33 S. W. 421; Goldsmith v. Peter-
sen, 159 Iowa 692, 141 N. W. 60.
58 In re Stringer's Estate, L. R.
6 Ch. Div. 1; In re Hutchinson,
L. R. 8 Ch. Div. 540; White v.
Hlght, L,. R. 12 Ch. Div. 751; How-
ard V. Carusl, 109 U. S. 725, 27
L. Ed. 1089, 3 Sup. Ct. 575; State
V. Smith, 52 Conn. 557; Shaw v.
Hussey, 41 Me. 495; Jones v.
Bacon, 68 Me. 34, 28 Am. Rep. 1;
Starr v. McEwan, 69 Me. 334;
Jones V. Leeman, 69 Me. 489;
Stuart V. W^alker, 72 Me. 145, 39
Am. Rep. 311; Ayer v. Ayer, 128
Mass. 575; Wead v. Gray, 78 Mo.
59; Burleigh v. Clough, 52 N. H.
267, 13 Am. Rep. 23; Jackson v.
Robins, 16 Johns. (N. Y.) 537.
59 Howard v. Carusi, 109 U. S.
725, 27 L. Ed. 1089, 3 Sup. Ct. 575;
State V. Smith, 52 Conn. 557;
Davis V. Mailey, 134 Mass. 588.
See, also, McKim v. Harwood,
129 Mass. 75; Williams v. Parker,
84 N. C. 90.
See §930.
1358 COMMENTARIES ON THE LAW OF WILLS.
with a power of disposition, qualified or imqualified, an-
nexed to the life estate, the devisee takes but a life estate
notwithstanding the gift of the power of disposal."" If a
life estate only is given, the fact that the beneficiary has
the power of disposition during his lifetime which he
does not exercise, does not enlarge the estate into a f ee."^
The testator may evince an intention that the devisee
take but a life estate. A limited power of disposition is
repugnant to the idea of a devise in fee simple siace such
estate is consistent only with the unlimited right to con-
vey or devise.*^ If a devisee takes the property with but
a restricted power of disposition, as where he could only
sell for reinvestment on the same terms under which
the original property is held, he does not take an abso-
lute interest.**
§ 930. Gift Over of What Remains Unexpended by Devisee.
A gift over of what remains unexpended upon the death
of a legatee will not cut down an absolute gift of person-
alty.** When real estate is given absolutely to one per-
son with a gift over to another of such portion as may
eoMulvane v. Rude, 146 Ind. 430; Bass v. Bass, 78 N. C. 374,
476, 45 N. E. 659; Ramsdell v. 378 ; Patrick v. Morehead, 85 N. C.
Ramsdell, 21 Me. 288; Pickering v. 62, 39 Am. Rep. 684; In re Hinkle's
Langdon, 22 Me. 413; Shaw v. Appeal, 116 Pa. 490, 9 Atl. 938.
Hussey, 41 Me. 495; Fox v. Rum- ^^ g^^^^ ^ Gaughan. 124 Ark.
ery, 68 Me. 121; Warren v. Webb, g^g ^g^ g ^ g^g
68 Me. 133; Stuart v. Walker, 72
Me. 145, 39 Am. Rep. 311; Nash t. '' Brookover v. Branyan, (Ind.)
Simpson, 78 Me. 142, 3 Atl. 53; ^^^ ^- ^- '^^^■
Welsh V. Gist, 101 Md. 606, 61 Atl. *^ Waller v. Martin, 106 Tenn.
665; Gre£fet v. Willman, 114 Mo. 341, 82 Am. St. Rep. 882, 61 S. W.
106, 21 S.' W. 459; Burleigh v. ^3.
Clough, 52 N. H. 267, 13 Am. Rep. «4 McKim v. Harwood, 129 Mass.
23; Benz v. Fabian, 54 N. J. Eq. 75; Bradley v. Warren, 104 Maine
615, 35 Atl. 760; Jackson v. Rob- 423, 72 Atl. 173; Galligan v. Ma-
ins, 16 Johns. (N. Y.) 537; Alex- Donald, 200 Mass. 299, 86 N. E.
ander v. Cunningham, 27 N. C. 304.
I<^EVISES IN FEE SIMPLE. 1359
remain -undisposed of by the first taker at his death, the
gift over is void as repugnant to the absolute estate
first given. This is necessarily so because after an estate
in fee simple has vested in the first taker, there remains
nothing to pass over as a remainder; and the limita-
tion being inconsistent with the power of disposition
given or necessarily implied by the will, the gift over is
void as an executory devise.®^
§ 931. Where Fee Is Devised, Rights of Devisee Can Not Be
Limited.
No one can create an estate that in law constitutes a
fee, and then deprive the owner of those essential rights
and privileges which the law annexes to it, without re-
serving a reversion to himself or to some one in whom
the right to insist upon the condition is vested.®* Where
there is a valid devise of a fee with an attempted invalid
qualification or limitation, the devise must be construed
as a fee simple.*^
65 4 Kent, Com. *270; Bull y. (N. Y.) 19; Tuerk v. Schueler, 71
Kingston, 1 Merlv. 314, 35 Bng. N. J. L. 331, 60 Atl. 357; Newton
Repr. 690; State v. Smith, 52 v. Odom, 67 S. C. 1, 45 S. E. 105;
Conn. 557; Mulvane v. Rude, 146 Cole v. Cole, 79 Va. 251.
Ind. 476, 45 N. B. 659; Tarbell v. Where a testator devised land to
Smith, 125 Iowa 388, 101 N. W. his son "to have and to hold the
118; Irvine v. Putnam, 28 Ky. L. same to him, his heirs and assigns ,
Rep. 465, 89 S. W. 520; Dorsey v. forever; and if he shall die not
Dorsey, 9 Md. 31; Roth v. Rausch- having disposed of the same," then
enbusch, 173 Mo. 582, 61 L. R. A. over, the son took an estate in fee ^^
455, 73 S. W. 664; Moran V. Moran, simple. — Damrell v. Hart, 137''
143 Mich. 322, 114 Am. St. Rep. Mass. 218.
648, 5 L. R. A. (N. S.) 323, 106 66 Conger v. Lowe, 124 Ind. 368,
N. W. 206; Foster v. Smith, 156 9 L. R. A. 165, 24 N. E. 889.
Mass. 379, 31 N. B. 291; Spencer 67Reeder v. Antrim, (Ind. App.)
V. Scovil, 70 Neb. 87, 96 N. W. 112 N. E. 551; SChwren v. Falls,
1016; Jackson v. Bull, 10 Johns. 170 N. C. 251, 87 S. B. 49.
1360 COMMENTARIES ON THE LAW OF WILLS.
Where the limitation over is void, the precedent estate
becomes absolute; as for example, where the limitation
offends the doctrine of perpetuities,** or is a restraint on
alienation,** or there is a void devise to pious uses.'"*
§932. As to Cutting Down a Devise in Fee by Subsequent
Provisions in the Will.
When an absolute estate is given in one part of a will
in clear and decisive terms, such estate can not be cut
down or limited to a life use by subsequent provisions of
the will unless that part providing for a life estate-
is expressed in as clear and decisive language as the part
giving the estate in fee.'^^ Thus, a testator can not devise-
his estate in fee to his wife and then undertake to direct
what shall be done with any portion of it which she may
leave at her decease.'^^ Nor can a testator devise an abso-
lute estate to one and then vest a remainder in the same
property in others.'''
68 Post V. Rohrbach, 142 111. 600, cate an intention to cut it do-wn."'
32 N. E. 687; Huxford v. Milligan, —Pitts v. Campbell, 173 Ala. 604^
50 Ind. 542. 55 So. 500, quoted in O'Connell v..
69 Scli-wren v. Falls, 170 N. C. O'Connell, (Ala.) 72 So. 81.
251, 87 S. B. 49. "Where the words that create, im
TO Horn. v. Foley, 13 App. Cas. the first place, an estate in fee in
(D. C.) 184. one and vests him -with full titl&
71 Eaton V. Eaton, 88 Conn. 269, and power of alienation, any later
91 Atl. 191; Taylor v. Reid, 144 expression which would destroy,.
Ga. 437, 87 S. E. 469; Langman v. nullify, or expunge that which has-.
Marbe, 156 Ind. 330, 58 N. E. 191; been done must be held ineffect-
Roberts v. Crume, 173 Mo. 572, 73 ual, because they both can not.
S. W. 662; Lemp v. Lemp, 264 stand. A thing can not be and
Mo. 533, 175 S. W. 618; Banzer v. not be at the same time."— Cana-
Banzer, 156 N. Y. 429, 51 N. E. day v. Baysinger, 170 Iowa 414,.
291; Criner v. Geary, (W. Va.) 89 152 N. W. 562.
S. E. 149. 72 Jones v. Bacon, 68 Me. 34, 28:
"A clear gift is not to be cut Am. Rep. 1.
down by anything which does not 73 in re Condon's Estate, 167'
with reasonable certainty, indl- Iowa 215, 149 N. W. 264.
DEVISES m FEE SIMPLE.
1361
The rule aTsove mentioned, however, should be carefully
applied where it manifestly conflicts with the expressed
intention of the testator. ''* And although an estate in fee
is given, yet if subsequent passages in the will unequiv-
ocally show that the testator meant that the beneficiary
should take a life interest only, the gift should be re-
stricted accordingly.'^''
§933. The Same Subject.
When the will has clearly given an estate in fee-simple
in realty or an absolute interest in personalty, the tes-
tator is not to be presumed to have intended by sub-
sequent expressions and limitations to cut the estate or
interest down to one for life unless the words employed
clearly indicate such an intention f^ although, of course,
an absolute devise must be construed with a subsequent
T4 Hopkins v. Keazer, 89 Me.
347, 36 Atl. 615.
76 Griffin v. Morgan, 208 Fed.
660; McClintock v. Meehan, 273
111. 434, 113 N. E. 43; Freeman v.
Maxwell, 262 Mo. 13, 170 S. W.
1150; Richardson v. Paige, 54 VL
373.
In Kurtz v. "Wiechmann, 75 App.
Div. (N. Y.) 26, 77 N. Y. Supp.
964, the testator in one paragraph
provided that "all the residue and
remainder of my estate, both real
and personal, I give, devise and be-
queath, unto my beloved wife
M. W., to be hers in fee simple
absolutely and forever, with full
power to sell and convey, buy and
discharge any and all matters as
she sees fit." In the next parar
graph he provided: "After the
II Conj, on Wills — 32
death of my said wife, the re-
mainder of my estate is to be di-
vided in halves, one-half to be di-
vided between the legal heirs on
my side, and the other half be-
tween the legal heirs of my wife's,,
share and share alike." It was
held that the rule in no way inter-
fered with the construction that
the widow did not take a fee sim-
ple absolute, but only a life estate
in the property.
76 Jamison v. Craven, 4 Del. Ch.
311; Wallace v. Hawes, 79 Me. 177,
8 Atl. 885; Fairfax v. Brown, 60
Md. 50; Damrell v. Hartt, 137
Mass. 218; Rhodes v. Rhodes, 137
Mass. 343; Parker v. lasigi, 138^
Mass. 416; Kerr v. Bryan, 32 Hua
(N. Y.) 51; Campbell v. Beaumont,
91 N. Y. 464.
1362 COMMENTARIES ON THE LAW OF WILLS.
clause whicli modifies its effect/'^ Conversely an estate
clearly devised for life or for widowhood will not be en-
larged by the mere use of the word " fee-simple. "''^^
Grenerally, superadded words which merely describe or
specify the incidents of the estate, created by such words
of limitation as "heirs," do not cut down the interest of
the devisee.''^ Thus, a fee clearly given will not be im-
paired by a subsequent appointment of a guardian to
manage an estate on account of the physical infirmity
of the devisee,®" nor by reason of restrictions upon the
expenditure of the income.®^ But a clause in a will which,
standing entirely alone, will pass an absolute title in
fee, may be so restrained and limited by subsequent
clauses as to pass a life estate only, or conditions may be
imposed by which, upon certain contingencies, the estate
may be entirely defeated.®^ Thus, an estate in fee simple
does not pass where there is a limitation providing that in
case the devisee dies before arriving at a specified age,**
or before marriage,** the estate shall go to other heirs
of the testator ; so, also, where the limitation over is that
77 Stevens v. Miller, 2 Demarest Iowa 643, 105 N. W. 161; Anderson
(N. Y.) 597. V. Hall's Admr., 80 Ky. 91; Hop-
See, also, Baldwin v. Taylor, 37 kins v. Keazer, 89 Me. 347, 36
N. J. Bq. 78. Atl. 615; Shalter v. Ladd, 141 Pa.
78 In re Appeal of McGuire, St. 349, 21 Atl. 596; In re Willis'
(Pa. St.) 11 Atl. 72. WiU, 25 R. I. 332, 55 Atl. 889;
79 Shimer v; Mann, 99 Ind. 190, Hurt v. Brooks, 89 Va. 496, 16
50 Am. Rep. 82. S. E. 358.
80 In re Shoemaker's Appeal, 91 88 limas v. Neidt, 101 Iowa 348,
Pa. St. 134. 70 N. W. 203; Wheeler v. Long, 128
81 Fairfax v. Brown, 60 Md. 50. Iowa 643, 105 N. W. 161; Howe v.
82 Smith V. Bell, 6 Pet. (U. S.) Fuller, 19 Ohio 51.
68, 8 L. Ed. 322; Siegwald v. Sieg- 84 Bennett v. Packer, 70 Conn,
wald, 37 111. 430; Bowser v. Matt- 357, 66 Am. St. Rep. 112, 39 Atl.
ler, 137 Ind. 649, 35 N. E. 701, 36 739; Brook's Will, 125 N. C. 136,
N. E. 714; Wheeler v. Long, 128 34 S. E. 265.
DEVISES nsr fee simple. 1363
in the event of testator's children dying without heirs,
the property shall go to another named person. ^^ And a
subsequent provision in a will may limit the enjoyment of
the thing granted or the right to control or enjoy it for a
limited period, as where the property is to be held intact
and not sold imtil the youngest son shall arrive at his ma-
jority, or in case of his death before that time, that it
shall not be sold before a certain date.^''
Where an estate otherwise than an estate in fee sim-
ple is devised in one clause of a will in clear and decisive
terms, and the subsequent proAdsions clearly and dis-
tinctly show an unmistakable intention upon the part of
the testator to give an estate less than a fee simple, such
later intention must control.^''
§934. The Same Subject: Where the Expressions Are of
Doubtful Meaning.
A clearly expressed intention in one part of the will can
not yield to a doubtful construction in another.**
An intent to cut down an estate once granted abso-
85 Pratt's Lessee v. Flamer, 5 vine v. Irvine, 69 Ore. 187, 136
Harr. & J. (Md.) 10. Pac. 18.
86 Elberts v. Elberts, 159 Iowa Where a fee simple was plainly
332, 141 N. W. 57. given in one clause, and was fol-
87 Hayes v. Martz, 173 Ind. 279, lowed by a later clause declaring;
89 N. B. 303, 90 N. B. 309. "If any of my children should de-
88 Morrison v. Schorr, 197 111. part this life leaving a child or
554, 64 N. E. 545; Hayes v. Martz, children, such child or children ars
173 Ind. 279, 89 N. E. 303, 90 N. E. to be entitled to the father op
309; Lohmuller V. Mosher, 74 Kan. mother's share, which I hereby
751, 11 Ann. Cas. 469, 87 Pac. 1140; give them and their heirs under
Gannon v. Albright, 183 Mo. 238, the provisions of this will," the
105 Am. St. Rep. 471, 67 L. R. A. court held that the devisee took a
97, 81 S. W. 1162; Mee v. Gordon, fee simple as the contingency pro-
187 N. Y. 400, 116 Am. St. Rep. 613, vided for was the death of the
10 Ann. Cas. 172, 80 N. E. 353; Ir- devisee in the lifetime of the tss-
1364 COMMENTARIES ON THE LAW OP WILLS.
lutely must be manifested clearly and unmistakably, and
where the expression relied upon be doubtful, the doubt
must be resolved in favor of the absolute estate.®^
In case of doubt as to whether an estate in fee or a
lesser estate has been created by the words used by the
testator, the law favors the fee in preference to the lesser
estate.^" The reason for this rule is that the law favors
the vesting of the estate at the earliest possible period,
and in the absence of a clear manifestation of the inten-
tion of the testator to the contrary, the court will construe
the will with that end in view.*^
§ 935. Statutory Ghanges Regarding Words of Limitation.
The rule of the common law requiring words of limita-
tion has been abolished by statute in England,^^ and in
most of these United States. Thus a devise of realty
without words of limitation is construed to pass an estate
in fee simple or the whole interest in the property which
the testator could devise, unless a contrary intention ap-
pears from the context of the will.®^ The spirit of the
tator. — Peyton v. Perklnson, 98 Va. shall be devised to any person
215, 35 S. B. 450. without any words of limitation,
89 McClellan v. Mackenzie, 126 such devise shall be construed to
Fed. 701, 61 C. C. A. 619 ; Birney v. pass the fee simple, or other the
Richardson, 5 Dana (Ky.) 424; whole estate or interest which the
Benson v. Corbin, 145 N. Y. 358, testator had power to dispose of
40 N. E. 11; Meachara v. Graham, by will in such real estate, unless
98 Tenn. 190, 39 S. W. 12. a contrary intention shall appear
90 Putbrees v. James, 162 Iowa by the will."
618, 144 N. W. 607; Hardin's Exr. As to the meaning and effect of
V. Hardin, 170 Ky. 736, 186 S. W. words of limitation, see § 909.
893. 93 See state statutes generally.
91 Putbrees v. James, 162 Iowa Cal. Civ. Code, §§1072, 1329; §24,
618, 144 N. W. 607. Del. Rev. Code, 640; 111. Rev. Stat.,
92 Stat. 1 Viet, eh. 26, §28, ch. 30, §13; Burns' Ann. Stat, of
reads: "Where any real estate Ind., (1914) § 3123; Kan. Gen. Stat.,
DEVISES IN FEE SIMPLE. IdbO
statutes and the disposition of the courts, as a matter
of public policy, are to adopt such a construction of the
will as will give an estate of inheritance to the first
donee.^* Where the common law does not prevail, it is
not necessary to resort to construction to give a larger
estate than would pass under the strict rules of the com-
mon law ; the statute gives the largest estate which a tes-
tator could give by will unless the provisions of such in-
strument show a contrary intention."®
The result of the statutory enactments is to reverse
the rule of the common law under which a general devise
without words of limitation operates to pass a life estate
only. The modern rule is that where an estate is devised
to a person without the use of words of limitation or in-
heritance, the devisee takes an estate in fee simple pro-
vided that a lesser estate is not limited by operation of
law or by express provisions in another portion of the
will.««
(1897) ch. 110, §54; Gen Stats., Kane, 102 Va. 547, 46 S. B. 312,
(1899) § 7634; Ky. Stats., (1903) 681.
§2342; Md. Code, §327, art. 93; 9* Strawbridge v. Strawbridge,
Mass. Rev. L., ch. 127, § 24; Minn. 220 111. 61, 110 Am. St. Rep. 226, 77
Gen. Stats., ch. 40, § 4; Mo. Rev.
Stats., (1879) §4004; Neb. C. S.,
(1893) ch. 73, § 49, 50, ch. 23, § 124;
N. E. 78.
95 Davis V. Ripley, 194 111. 399,
62 N. E. 852.
96 O'Connell v. O'Connell, (Ala.)
N. J. Gen. Stats., p. 3763; 1 N. Y. ^^ g^ g^. ^.^^ ^ ^.^^^ 3^5 j,I
Rev. Stat. 748, §1; Code W. Va., ^^^^ ^^ j^^ j, gg. srookover v.
(1891) ch. 71, §8; Ore. Misc. Laws, Branyan, (Ind.) 112 N. E. 769;
ch. 64, § 29. Kepllnger v. Keplinger, (Ind.) 113
See, also, Smith v. Greer, 88 Ala. N. B. 292; Dalmazzo v. Simmons,
414, 6 So. 911; Shirey v. Clark, 72 25 Ky. L. 1532, 78 S. W. 179; Johns
Ark. 539, 81 S. W. 1057; Teany v. Hopkins University v. Garrett, 128
Mains, 113 Iowa 53, 84 N. W. 953; Md. 343, 97 Atl. 640; Roth v.
Ball V. Woolfolk, 175 Mo. 278, 75 Rauschenbusch, 173 Mo. 582, 61
S. W. 410; Grain v. VS^right, 114 L. R. A. 455. 73 S. W. 664; Feit v.
N. Y. 307, 21 N. E. 401; Flanary v. Richards, 64 N. J. Eq. 16, 53 Atl.
1366 COMMENTAEIES ON THE LAW OF WILLS.
§ 936, The Same Subject: Creation of Estates Generally: Lim-
ited to Those Recognized by Law.
Where the common law rule has been abolished by stat-
ute, it is a cardinal rule of construction that the court
will seek to discover and give effect to the testator's in-
tention as to the character of the estate given his bene-
ficiaries.^^ If the testator possesses an estate in fee sim-
ple and devises the whole of his estate, though by words
not technically descriptive of an interest in fee simple,
it will be held to convey such estate and to pass not only ,
the whole quantity of the testator's property, but also
the whole of his interest therein.*^ '
The testator can not create by will such an estate as
by the rules of the common law he could not in his life-
time create by deed.®* He can not create an estate or
inheritance unknown to the law. A will which seeks to in-
troduce a tenure or estate which the law does not recog-
nize or enforce, is void.^
824; Morrison v. Clarksburg Coal the words "for a home" held not
& Coke Co., 52 W. Va. 331, 43 to qualify the absolute gift to the
S. E. 102. wite and as not sufficient to re-
Examples. A testamentary gift s*"''* " ^° ^ 1"^ estate. The
widow therefore took an estate in
fee simple. — Wilkinson v. Cham-
bers, 181 Pa. St. 437, 37 Atl. 569.
97 Mace V. Mace, 95 Me. 283, 49
ture,- gives to the widow an es- ^j, ^^^^, ^^.^^ ^ ^^^.^^^ ^^ ^^^
tate in fee, and the fact that there jg^ 136 Pac 18
is added the words "to hold and to ss Steward v. Knight, 62 N. J.
use as she may see fit and proper," gq. 232, 49 Atl. 535; King v.
does not qualify and limit the fee Miller, 11 Lea (79 Tenn.) 633.
so as to cut down the absolute 99 Mullany v. Mullany, 4 N. J.
title to a life estate.— In re Cro- gq ^g, 31 Am. Dec. 238.
foot's Will, 137 N. Y. Supp. 430. j c^^e, Litt. 27; Succession of
Where the devise was, "I give McCan, 48 La. Ann. 145, 19 So. 220;
to my wife for a home," etc., and Johnson v. Whiton, 159 Mass. 424,
the testator had other real estate, 34 N. E. 542.
as follows: "I give and bequeath
unto my beloved wife C. C. all my
property of every kind and na-
CHAPTER XXXin.
ESTATES TAIL BY DEVISE.
§ 937. Estates tail defined.
§ 938. The same subject : As to personalty.
§ 939. Effect of the statute de donis on conditional fees.
§ 940. Converting estates tail to fees simple hy fine or common
recovery.
§ 941. Estates tail in the United States : Statutory regulations.
§ 942. "Words sufficient to create an estate tail.
§ 943. The same subject.
§ 944. The same subject : Statutory requirements.
§ 945. Adding words of inheritance.
§ 946. "Issue" as a word of limitation or of purchase.
§ 947. Creation of estates tail by implication : Gift over if devi-
see "die without issue."
§ 948. "Die without issue": At common law meant indefinite
failure of issue.
§ 949. The same subject : Statutory changes.
§ 950. The same subject : Eeferring to death of first devisee.
§ 951. The same subject : Referring to death of testator.
§ 952. "Children" as a word of purchase.
§ 953. ' ' Children " as a word of limitation.
§ 954. Children not in being: Rule in Wild's Case.
§ 955. The same subject.
§956. The same subject : "Will speaks as of date of testator's
death.
§ 937. Estates Tail Defined.
An estate tail is an estate in real property granted
to one and the heirs of his body, such heirs tak-
(1367)
1368 COMMENTARIES ON THE LAW OF WILLS.
ing by descent and not by purchase. If limited to
the heirs of his body generally, it is designated as gen-
eral; if to particular heirs of his body only, it is special;
if to male heirs of his body, it is male; and if to female
heirs of his body, it is female. It is a life estate to
the first taker, enlarging to a fee in the heirs designated
upon their coming into existence and surviving the ten-
ant in tail, but shrinking to a life estate upon the possi-
bility of heirs becoming extinct. The grantor holds the
fee simple expectant on the failure of the described heirs
of the body of the grantee.^
§ 938. The Same Subject: As to Personalty.
Estates tail do not pertain to personalty or chattel in-
terests.^ Where personal property or any interest in real
property less than a freehold is bequeathed by words
which at common law, if applied to lands, would cre-
ate an estate tail, an absolute interest passes to the first
1 Wilmans v. Robinson, 67 Ark. termined only on the failure of
517, 55 S. W. 950; Den v. Pierson, such Issue, and its descent to lin-
16 N. J. L. 181. eal and not collateral heirs. — Con-
An estate tail is one of inherit- over v. Cade, (Ind.) 112 N. E. 7.
ance descendible to some particu- An estate in fee tail is a "feo-
lar heirs of the devisee or grantee dum talliatum," that is a fee from
and not to his heirs generally. Its which the general heirs are
character is not changed by its de- "taille" — cut off. — Paterson v. El-
scent through any number of gen- Us' Exrs., 11 Wend. (N. Y.) 259,
erations. It is particularly distin- 277.
guished as being measured by the 2 2 Blackstone Com. 'US; Pater-
continuance of issue of the body son v. Ellis' Exrs., 11 Wend,
of the donee and its existence de- (N. Y.) 259.
ESTATES TAIL BY DEVISE.
1369
taker.^ Any construction which seems to give an estate
tail in personal property should be avoided.*
§ 939. Effect of the Statute De Donis on Conditional Fees.
At a very early date it became the custom in Eng-
land to limit estates to one and some particular class
of his heirs, as the heirs of the body of the grantee, or
the heirs male of his body, other heirs being excluded.
If the first taker died -without leaving an heir of the
class to which the estate was limited, the estate reverted
to the grantor. But if heirs of the kind specified came
into being during the lifetime of the first taker, the con-
3 Ex parte Wynch, 1 Sm. & G.
427; Crawford v. Trotter, 4 Madd.
361, 20 Rev. Rep. 312; Williamson
V. Daniel, 12 Wheat. (TJ. S.) 568,
6 L. Ed. 731; Machen v. Macben,
15 Ala. 373; Bethea's Exr. v.
Smith, 40 Ala. 415; Moody v.
Walker, 3 Ark. 147; Jones v. Sot-
horon, 10 Gill & J. (Md.) 187; Hall
V. Priest, 6 Gray (72 Mass.) 18;
Albee V. Carpenter, 12 Cush. (66
Mass.) 382; Chism's Admr. v. Will-
iams, 29 Mo. 288; Fairchlld v.
Crane, 13 N. J. Eq. 105; Paterson
V. Ellis' Bxrs., 11 Wend. (N. Y.)
259; MofCatt's Exrs. v. Strong, 10
Johns. (N. Y.) 12; Jackson v. Bull,
10 Johns. (N. Y.) 19; Matthews t.
Daniel, 3 N. C. 346; King v. Beck,
12 Ohio 390; In re Smith's Appeal,
23 Pa. St. 9; Cox v. Marks, 27
N. C. 361; Dunlap v. Garlington,
17 S. C. 567; Duncan v. Martin, 7
Yerg. (Tenn,) 519, 27 Am. Dec.
525; Clark v. Clark, 2 Head (39
Tenn.) 336; White v. White, 21 Vt.
250; Doty v. Chaplin, 54 Vt. 361;
Deane v. Hansford, 9 Leigh (Va.)
253; Williamson v. Ledbeeter, 2
Munf. (Va.) 521.
Compare: Knight v. Ellis, 2 Bro.
C. C. 570; Heather v. Winder, 3
L. J. Ch. N. S. 41; Ex parte Wynch,
1 Sm. & G. 427.
In Smith's Appeal, 23 Pa. St. 9,
it is said: "How can it be other-
wise? Chattels can not be inher-
ited. They pass to one set of rep-
resentatives and land to another.
The personal representatives can
not take land by descent, nor the
real representatives, chattels."
4 Fulton V. Fulton, 2 Grant Cas.
(Pa.) 28.
But see, Talbot v. Snodgrass, 124
Iowa 681, 100 N. W. 500, wherein
the court said: "It is no doubt true
that personal property may be be-
queathed in fee tail or on condi-
tion, but such a construction
should not be put on the provisions
of a will giving a legacy unless the
language clearly and explicitly re-
quires it."
1370 COMMENTARIES ON THE LAW OF WILLS.
dition of the estate was fulfilled and the grantee could
pass the title in fee simple to another, the subsequent
death of the particular heir or heirs not affecting the
title alienated.^ If no such transfer was made by the first
taker during the life of the particular heirs, their deaths
before that of the first taker would, at the latter 's death,
cause the estate to revert as if such heirs had never come
into existence.
To prevent such alienation by the grantee, the stat-
ute de donis conditionalibus was enacted.** Under this
statute the right of alienation was taken away although
heirs of the particular class were in being, the estate
being limited to such heirs at the death of the first taker,
and in default of such heirs the title reverted to the
grantor.'^ This conditional fee was then called an estate
tail. It had all the characteristics of an estate in fee
simple except the tenant in tail could not alienate the
fee ; he was not, however, chargeable with waste.*
§ 940. Converting Estates Tail to Fees Simple by Fine or Com-
mon Recovery.
Although the statute de donis precluded the tenant in
tail from cutting off the particular heirs by a conveyance
of the property during their lifetime, yet this restraint
on alienation became so burdensome that a means was
devised to overcome it. This was effected by a fine or
common recovery. Common recovery was a fictitious suit
5 Coke, Lltt 19a; 2 Bl. Com. 8 Coke, Litt. 224a; 2 Bl. Com.
♦Ill; Nevil's Case, 7 Coke, 33a, *115; Jervia v. Bruton, 2 Vern.
34b. 251.
6 Known also as Statute of West-, The tenant in tail could not en-
minster 2, 13 Edw. 1, oh. 1 (A. D, cumber the inheritance or charge
1285). it with his debts. — Wharton v.
7 2 Bl. Com. **112-116. Wharton, 2 Vern. 3.
ESTATES TAIL BY DEVISE. 1371
brought by an intending purchaser and not resisted by
the tenant in tail. This became the common method by
which the tenant in tail might pass title in fee simple and
thus bar the heirs.^ Estates tail therefore were reduced
to almost the same state, even before the heirs of the
particular class came into being, as were conditional es-
tates at common law after the condition was performed by
birth of such heirs.^"
§941. Estates Tail in the United States: Statutory Regfula-
tions.
Estates tail were introduced in America with other
parts of English jurisprudence, and the heirs could like-
wise be cut off by a fine or common recovery. Such ac-
tions, however, though once recognized, are now prac-
tically abolished.^^
Estates tail are not generally recognized in the various
jurisdictions in these United States. In many of the
states they have been absolutely abolished and converted
into estates in fee simple.^^ Accordingly in these states
9 1 Washburn, Real Prop. **70, (Pa.) 322; Taylor v. Taylor, 63 Pa.
71; 4 Kent. Com. *13; 2 Bl. Com. St. 481, 485, 3 Am. Rep. 565.
•*116, 117. 12 Ala.— Clay's Dig., 1812, p. 157,
10 2 Bl. Com. *119; 4 Kent Com. § 37; Wallace v. Hodges, 160 Ala.
*13. 276, 49 So. 312; Terry v. Hood, 172
11 4 Kent Com. **14, 15; 1 W.asi- Ala. 40, 55 So. 423.
burn. Real Prop. *83; Croxall v. Ga.— Act of Dec. 21, 1821; Hertz
Shererd, 5 Wall. (U. S.) 268, 18 v. Abrahams, 110 Ga. 707, 50 Am.
L. Ed. 572; Gilkle v. Marsh, 186 St. Rep. 361, 36 S. E. 409.
Mass. 336, 71 N. E. 703; McGregor Ind.— Burns' Ann. St., §3994;
V. Comstock, 17 N. Y. 162. Teal v. Richardson, 160 Ind. 119,
Never recognized in Missouri, 66 N. E. 435; Conover v. Cade,
see Moreau v. Detchemendy, 18 (Ind.) 112 N. E. 7.
Mo. 522, 527. Ky.— Ky. Stats., §2343; Wright
Recognized in Pennsylvania, see v. Curry, 163 Ky. 683, 174 S. W. 1.
Lyle V. Richards, 9 Serg. & R. Mich. — 3 Comp. Laws, §8785;
1372
COMMENTARIES ON THE LAW OP WILLS,
a grant or devise in terms whicli at common law would
create a fee tail, now operates to confer a fee simple.^^
Rhodes v. Bouldry, 138 Mich. 144,
101 N. W. 206.
Miss.— Code, 1906, §2765; Jor-
dan V. Roach, 32 Miss. 481; Nichol-
son V. Fields, 111 Miss. 638, 71 So.
900.
Mo.— R. S., 1909, § 578, § 2872.
N. H. — Merrill v. American Bap-
tist Missionary, 73 N. H. 414, 111
Am. St. Rep. 632, 6 Ann. Cas. 646,
3 L. R. A. (N. S.) 1143, 62 Atl. 647.
N. Y.— Nellis v. Nellls, 99 N. Y.
505, 3 N. B. 59.
Pa.— Act of April 27, 1855; Pifer
V. Locke, 205 Pa. St. 616, 55 Atl.
790.
Tenn. — Kirk v. Furgerson, 6
Cold. (46 Tenn.) 479.
Va. — ^Allen v. Parham, 5 Munf.
(Va.) 457.
See, also, Stimson's Am. Stat.
Law, § 1313, citing statutes of Ala-
bama, California, Dakota, Florida,
Georgia, Indiana, Kentucky, Michi-
gan, Minnesota, Mississippi, New
York, North Carolina, Tennessee,
Virginia, West Virginia, and Wis-
consin.
The statute which changes an
estate tail into a fee simple estate
is not based upon the intention of
the testator, but upon the public
policy which forbids the creation
of such estate, though so intended.
—Terry v. Hood, 172 Ala. 40, 55
So. 423.
An "estate tail male" is not with-
in the meaning of the term "fee
tail general" as employed in the
statutes converting the latter into
fee simple estates. The result of
this construction is to save such
estates from lapsing. — Pennington
V. Pennington, 70 Md. 418, 3
L. R. A. 816, 17 Atl. 329.
In South Carolina the statute de
donis has not been recognized as a
part of the common law, and the
common law conditional fee exists. '
—3 Stat. Large (S. C.) 341; Pow-
ers V. Bullwinkle, 33 S. C. 293, 11 ■
S. E. 971. And see, also, Rudkin
V. Rand, 88 Conn. 292, 91 Atl. 198.
13 Smith V. Greer, 88 Ala. 414, 6
So. 911; Butler v. Ralston, 69 Ga.
485; Ewing v. Shropshire, 80 Ga.
374, 7 S. E. 554; Hertz v. Abra-
hams, 110 Ga. 707, 50 L. R. A. 361,
36 S. E. 409; Tipton v. La Rose, 27
Ind. 484; Allen v. Craft, 109 Ind.
476, 58 Am. Rep. 425, 9 N. B. 919;
Johnson v. Johnson, 2 Mete. (59
Ky.) 331; Fraser v. Chene, 2 Mich.
81; Coe v. De Witt, 22 Hun (N. Y.)
428; Grout v. Townsend, 2 Denio
(N. Y.) 336; Van Rensselaer v.
Boucher, 5 Denio (N. Y.) 35; Bur-
net V. Denniston, 5 Johns. Ch.
(N. Y.) 35; Wendell v. Crandall, 1
N. Y. 491; Sanders v. Hyatt, 8
N. C. (1 Hawks) 247; Folk v.
WhiUey, 30 N. C. (8 Ired. L.) 133;
Leather v. Gray, 101 N. C. 162, 9
Am. St. Rep. 30, 7 S. B. 657; Criley
V. Chamberlain, 30 Pa. St. 161;
Reinhart v. Lantz, 37 Pa. St. 488;
Haldeman v. Haldeman, 40 Pa. St.
89 ; Curtis v. Longstreth, 44 Pa. St.
ESTATES TAIL BY DEVISE.
1373
In a few other states, estates tail are made life estates
in the first donee with remainder in fee simple to the
person to whom the estate would pass at common law at
the death of the first donee,^* or with remainder in fee
simple to the children of the first donee as tenants in
common, or to the children of deceased children by rep-
resentation.^^ And in some of the states an estate tail
is good if not conveyed, but the tenant in tail may convey
it in fee simple.^*
297; Bingham v. Weller, 113 Tenn.
70, 106 Am. St. Rep. 803, 69 L. R. A,
370, 81 S. W. 843; Callis v. Kemp,
11 Gratt. (Va.) 78; Doe v. Craigen,
8 Leigh (Va.) 449; Hill v. Burrow,
3 Call (Va.) 342; Atkinson v. Mc-
Cormlck, 76 Va. 791, 799.
14 Stimson's Am. Stat. Law,
§ 1313, citing statutes of Arkansas,
Colorado, Illinois, Missouri, and
Vermont.
Ark. — KIrby's Digest, §735;
Horsley v. Hilburn, 44 Ark. 458;
Black V. Webb, 72 Ark. 336, 80
S. W. 367; Gist v. Pettus, 115 Ark.
400, 171 S. W. 480.
Illinois Conveyance Act, § 6, Rev.
Stat. 1874, p. 273; Lehndorf v.
Cope, 122 111. 317, 13 N. B. 505;
Peterson v. Jackson, 196 111. 40, 63
N. E. 643; Spencer v. Spruel, 196
111. 119, 63 N. E. 621; Kolmer v.
Miles, 270 111. 20, 110 N. E. 407;
Utter V. Sidman, 170 Mo. 284, 70
S. "W. 702; Gannon v. Pauk, 200
Mo. 75, 98 S. W. 471; Missouri
Rev. Stat., 1855, ch. 32, § 5; Brown
V. Rogers, 125 Mo. 392, 28 S. W.
630.
15 Stimson's Am. Stat. Law, § 1313,
citing statutes of Connecticut, New
Jersey, New Mexico, and Ohio;
Croxall V. Shererd, 5 Wall. (U. S.)
268, 18 L. Ed. 572; Conn. Gen. Stat.,
1902, § 4627; St. John v. Dann, G6
Conn. 401, 34 Atl. 110; Weart v.
Cruser, 49 N. J. L. 475, 13 Atl. 36;
Doty V. Teller, 54 N. J. L. 163, 33
Am. St. Rep. 670, 23 Atl. 944; Dun-
gan V. Kline, 81 Ohio St. 371, 90
N. E. 938.
But in New Jersey the widow of
the donee has dower and the hus-
band curtesy. — ^Revision of N. J.,
"Descent," §11; Kennedy v. Ken-
nedy, 29 N. J. L. 185.
16 By an ordinary deed in Dela-
ware, Maine, Maryland, Massachu-
setts, Pennsylvania, and Rhode
Island, or by a deed acknowledged
before a special commissioner or
before a Supreme or Superior
Court, or by will in Rhode Island.
—Stimson's Am. Stat. Law, § 1313.
See, also, Posey's Lessee v.
(Budd, 21 Md. 477; Coombs v. An-
derson, 138 Mass. 376; Gilkie v.
Marsh, 186 Mass. 336, 71 N. E. 703;
Xiawrence v. Lawrence, 105 Pa. St.
B35; Stouch v. Zeigler, 196 Pa. St.
1374 COMMENTARIES ON THE LAW OF WILLS.
In all cases, by reason of varying legislation regarding
estates tail, the statutes must be consulted. And although
converted into estates in fee simple, the rules applicable
to estates tail are still important in determining the na-
ture of the estate attempted to be devised.
§ 942. Words Sufficient to Create an Estate Tail.
An estate tail may be created by will without any for-
mal language, and any expression showing an intention
to devise a fee descendible to lineal heirs is sufficient to
create it by the rule of the common law.^'' In deeds, in
designating the heirs, the words "of the body" or some
words of procreation are necessary.^^ But in wills, where
the intention of the testator controls, words technically
correct are not required. It is sufficient if the construction
of the will shows that the testator intended to limit the
estate either to general or special heirs of the body of the
489, 46 Atl. 486; Cooper v. Cooper, of tlie estate — a privilege bestowed
6 R. I. 261, 264. by the statute upon a tenant in
A person having a legal or tail which he may or may not as-
equitable estate or right in fee se^t.-In re Reeves, (Del.) 94 Atl.
, ., . . . ^ 511.
tail, in possession, remainder, or
, J . X IT Kolmer v. Miles, 270 111. 20,
reversion in any lands, tenements, ^rixico, ^lu ^i±. ^v,
110 N. E. 407.
Where the testator declares that
the estate devised shall be de-
scendible only to the heirs of his
eluding the power at his own will children of his blood, he means his
to convert it into an absolute es- uneal heirs, since no other heirs
tate, both by the common law and co^ld be heirs of his blood.— Kol-
by the statute. — Del. Rev. Code, mgr y. Miles, 270 111. 20, 110 N. E.
1893, §§26 and 27, c. 83; In re 497,
Reeves, (Del.) 94 Atl. 511; Hoi- is 2 Bl. Com. *114; Doty v.
land v. Cruft. 3 Gray (69 Mass.) Teller, 54 N. J. L. 163, 33 Am. St.
162, 182. Rep. 670, 23 Atl. 944; Mclntyre v.
The right to bar an estate tail Ramsey, 23 Pa. St. 317; Jones v.
is not property; It is an incident Jones, 201 Pa. St. 548, 51 Atl. 362.
or hereditaments has an actual
vested estate attended with the
usual incidents of full freedom, in-
ESTATES TAIL BY DEVISE. 1375
devisee. And "vvords of inlieritanee are not necessary to
create an estate tail, a devise to A. and his "issue," or
"descendants," or "seed," or "offspring" may suffice if
the testator's intention to that end is apparent.^® A de-
vise "to J during his natural life, and after his death
to his issue," will confer an estate tail,^° the word "is-
sue ' ' being prima facie a word of limitation equivalent to
"heirs of the body," but more flexible than these, and
more easily restricted in its meaning.^^ The word "off-
spring" is synonymous with "issue" and the use thereof
may create an estate tail.^^
§943. The Same Subject.
The- words "heirs of the body," "bodily heirs," or
"heirs lawfully begotten," are appropriate words of limi-
tation to create an estate tail.^* A devise to a woman
"and such heirs of her body, or children such as she
shall have living at the time of her death, ' ' creates a like
estate. The addition of the word children merely makes
the description cumulative f* it adds a qualification as to
the second takers, but does not alter the words of limita-
tion of the devise.^^
19 2 Bl. Com. *114; Young v. Ga. 77; King v. Savage, 121 Mass.
Davis, 2 Dr. & Sm. 167; Lucas v. 303; In re Guthrie's Appeal, 37 Pa.
Goldsmid, 29 Beav. 657; Rudliin v. St. 9; Robins v. Quinliven, 79 Pa.
Rand, 88 Conn. 292, 91 Atl. 198. St. 333.
The provision "and I do not want 22 Barber v. Pittsburgh, P. W. &
it to get away from my heirs to C. R. Co., 166 U. S. 83, 41 L. Ed.
outside parties" does not denote 925, 17 Sup. Ct. 488; Allen v. Mar-
an Intention to create an estate kle, 36 Pa. St. 117.
tail.— Conover v. Cade, (Ind.) 112 23 Wright v. Curry, 163 Ky. 683,
N. E3. 7. 174 S. W. 1.
20 Roe V. Davis, 1 Yeates (Pa.) 24 Boyd v. Weber, 193 Pa. St.
332. 651, 44 Atl. 1078.
21 Bradley t. Cartwright, L. R. 2 25 Hiester v. Yerger, 166 Pa. St.
Com. P. 511; O'Byrne v. Feeley, 61 445, 31 Atl. 122.
1376 COMMENTARIES ON THE LAW OF WILLS.
A devise to one ' * and his oldest male heir forever, ' ' ^®
or to a person "and to Ms male heir (in the singular),
conferred at common law an estate in tail male upon the
devisee, and the issue took by 'descent and not by pur-
chase.^'^ A devise to a man ' ' and to the heirs of his body, ' '
operated with a like effect to pass an estate tail; and
if it descended from the devisee in taU, the heirs of his
body took in succession, the eldest son and his issue, the
second son and his issue, and so on.^®
§944. The Same Subject: Statutory Requirements.
In the creation of an estate tail the usual form of limi-
tation is to one and "the heirs of his body," and this is
denominated an estate tail generaU^ But in most jur-
isdictions where estates tail are still recognized, they
will be created by the use of any language which would
create an estate tail at common law.'" However, in some
jurisdictions where estates tail are permitted by statute,
the act has prescribed the words necessary to create the
estate as, for example, the use of the words "in tail" or
"heirs of the body."*^
26Cuffe6 V. Milk, 10 Mete. (51 L. Rep. 97, 92 S. W. 562; Riggs
Mass.) 366. v. Sally, 15 Me. 408; Ralston
27 Osborne v. Shrieve, Fed Cas. v. Truesdell, 178 Pa. St. 429, 35
No. 10598, 3 Mason 391. Atl. 813; In re Tillinghast's Ac-
28 Welles V. Olcott, Klrby count, 25 R. I. 338, 55 Atl. 879; Du
(Conn.) 118; Hawley v. Inhabi- Pont v. Du Bos, 52 S. C. 244, 29
tants of Northampton, 8 Mass. 3, 5 S. E. 665; Giddlngs v. Smith, 15 Vt,
Am. Dec. 66; Bender v. Pleurle, 2 344.
Grant Cas. (Pa.) 345; Giddlngs v. A devise "not only to A but to
Smith, 15 Vt. 344. the heirs of his body" creates an
29Pearsol v. Maxwell, 76 Fed. estate tail general.— Rhodes v.
428, 22 C. C. A. 262; Wilmans v. Bouldry, 138 Mich. 144, 101 N. W.
Robinson, 67 Ark. 517, 55 S. W. 206.
950; In re Reeves, (Del.) 92 so Rudkln v. Rand, 88 Conn. 292,
Atl. 246, affirmed in 94 Atl. 91 Atl 198.
511; Watkins v. Pfeiffer, 29 Ky. si Gen. Laws R. I., cap. 202, | 21;
ESTATES TAIL BY DEVISE, 13/7
§ 945. Adding Words of Iniieritance.
Inasmuch as the very nature of an estate tail is to
pass the property by descent to a limited class of heirs,
where the clause, "their heirs and assigns," is added
after the creating of an estate tail, the words of inher-
itance must be held to mean heirs of the limited class
capable of taking such estate, in other words, heirs in
tail f^ and such words do not enlarge the devise to a fee
simple either to the devisee or to the heirs of his body.^^
The word "heirs" in a superadded clause of limitation
can not have the effect of changing former words and
diverting their meaning from the object of an estate
tail.**
§ 946. "Issue" as a Word of Limitation or of Purcbase.
There has been some conflict of authority in regard to
whether the word "issue" was one of purchase or bf
limitation.*'* Ordinarily, it is true, a simple devise to
a person and his issue, or to one for life and after his
death to his issue,*® or a devise to one and his issue "liv-
ing at his death,"*'' or to a person and his issue and
the heirs or heirs and assigns of such issue forever,*^ or
to a person and his male issue and the heirs male of the
In re Tillinghast's Account, 25 R. I. 36 Shelley's Case, 1 Coke 93b;
338, 55 Atl. 879. King v. Melling, 1 Vent. 225, 232; '
32 VS^ight V. Thayer, 1 Gray (67 Shaw v. Weigh, 2 Strange 798.
Mass.) 284; Hall v. Thayer, 5 Gray 3T University of Oxford v. Clif-
(71 Mass.) 523. ton, 1 Eden 473; Jenkins v.
33 Buxton V. Inhabitants of Ux- Hughes, 8 H. L. Cas. 571, 585.
bridge, 10 Mete. (51 Mass.) 87. S8 Denn d. Webb v. Puokey, 5
34Kingsland t. Rapelye, 3 Edw. Term Rep. 299; Franklin v. Lay,
Ch. (N. Y.) 1. 6 Madd. 258; King v. Burchell, 1
35 As to who are Included In the Eden 424, distinguishing Lodding-
word "issue," see §§ 848. 849. ton v. Kime, 1 Salk. 224.
n Com. on WlUs— 33
1378 COMMENTARIES ON THE LAW OF WILLS.
body of such issue/® will confer an estate tail upon the
devisee ; and the issue, if they receive any benefit at all,
will take by descent and not by purchase.
But the context naay often restrict the general legal
effect of the word "issue," as where there is a direction
for an equal division among the issue in fee after the
decease of the devisee ;*" or where there is a devise sim-
ply to one "for life, and after his decease to and amongst
his issue," with words appropriate to confer upon them
a fee;*^ or where there is a remainder to the issue in fee
in such proportion as the devisee should by will ap-
point;*^ or where there is a remainder to the issue,
"share and share alike, as tenants in common and to
the heirs of such issue ";*^ or where there is a devise
to children and the survivors or survivor for life, and
then to their lawful issue and the heirs of the body of
such issue, with cross-remainders between the issue.**
Accordingly it may be laid down as a general rule that
wherever words which direct the manner of distribution,
together with words which would carry an estate in fee
39 Roe V. Grew, 2 Wilson K. B. & P. 215; Jacobs v. Amyatt, 4 Bro.
322, overruling Backhouse v. C. C. 542.
Wells, 1 Bq. Cas. Abr. 184, pi. 27. See, also, Clanton v. Estes
See, also, Frank v. Stovin, 3 (Vason v. Estes), 77 Ga. 352, 1
East 548. S. E. 163; Lenz v. Prescott, 144
40 Doe V. Applin, 4 Term Rep. Mass. 505, 11 N. E. 923.
82; Hockley v. Mawbey, 1 Ves. 42 Lees v. Mosley, 1 You. & C.
Jun. 143; Moore v. Parker, 34 N. C. 589; Crozier t. Crozier, 3 Dru. &
(12 Ired. L.) 123. War. 353.
See, however, Kavahagh v. Mor- See, however, Croly v. Croly,
land, Kay 16; Doe v. Rucastle, 8 Batty 1.
Com. B. 876; Heather v. Winder, 43 Greenwood v. Rothwell, 5
3 L. J. Ch. N. S. 41. Man. & G. 628; Slater v. Danger-
41 Doe V. Applin, 4 Term Rep. field, 15 Mees. & W. 263.
82; King v. Burchell, 1 Eden 424. 44 Parker v. Clarke, 3 Sra. & G.
Contra: Burnsall v. Davy, 1 Bos. 161, 6 De Gex, M. &. G. 104.
ESTATES TAIL BY DEVISE. 1379
or in tail, are annexed to the gift to the issue, the ances-
tor takes an estate for life only, and the issue will take
a remainder by purchase.*®
§ 947. Creation of Estates Tail by Implication : Gift Over if
Devisee "Die Without Issue."
An estate in fee tail may be created by implication.
Thus an estate devised to "A and his heirs" passes the
fee if not otherwise limited ; but if the devise further pro-
vides that if A dies without issue the estate shall pass .
to B, the estate is reduced to a fee tail by implication.
The reference to the heirs of the first devisee is construed .
as intending the heirs of his body, and the provision for-
the gift over implies that the testator did not intend that
the issue of the first devisee should be deprived of the
gift, should there be any to take.*® Thus under the rule
of the common law an estate tail is created by implica-
tion from a gift over "in default of issue" of the first
devisee, or in the event of his dying "without heirs born
of his body," or "dying without issue," or any expres-
sion importing either a want or failure of issue.*'^ Among
45 Parker v. Clarke, 3 Sm. & G. B. Mon. (47 Ky.) 616; Hall v. Priest,
161, 6 De Gex, M. & G. 104; Roddy 6 Gray (72 Mass.) 18; Hayward v.
V. Fitzgerald, 6 H. L. Cas. 823; Howe, 12 Gray (78 Mass.) 49, 71
Clifford V. Koe, L. R. 5 App. Cas. Am. Dee. 734; Albee v. Carpenter,
447; Kavanagh v. Morland, Kay 12 Cush. (66 Mass.) 382; Williams
16. r. Hichborn, 4 Mass. 189; Hawley
See §§ 871, 872. v. Inhabitants of Northampton, 8
46 Turrill v. Northrop, 51 Conn. Mass. 3, 5 Am. Dec. 66; Shoemaker
33, 35; Nightingale v. Burrell, 15 v. Huffnagle, 4 Watts & S. (Pa.)
Pick. (32 Mass.) 104. 437; Eichelberger v. Barnitz, 9
47 Turrill v. Northrop, 51 Conn. Watts (Pa.) 447; Shoofstall v.
33; Waples' Lessee v. Harman, 1 Powell, 1 Grant. Cas. (Pa.) 19;
Har. (Del.) 223; Roach v. Mar- Hall's Lessee v. Vandergrlft, 3
tin's Lessee, 1 Har. (Del.) 548, 28 Binn. (Pa.) 374; Lapsley v. Laps-
Am. Dec. 746; Deboe v. Lowen, 8 ley, 9 Pa. St. 130; Hansel v. Hub-
1380
COMMENTARIES ON THE LAW OF WILLS.
such expressions are the words "lawful heirs," which
are construed as equivalent to "lineal descendants," or
"issue."*® Under the American statutes abolishing es-
tates tail, such expressions operate to create a fee simple,
defeasible upon death without issue.**
§948.
"Die Without Issue": At Common Law Meajit In-
definite Failure of Issue.
The established rule at common law was that where a
devise was made with a gift over in the event of the
devisee "dying without issue," or words of like import,
and there was nothing in the context of the wlU to the
contrary, such words were construed to refer to an in-
bell, 24 Pa. St. 244; Doyle v. Mul-
lady, 33 Pa. St. 264; Lawrence v.
Lawrence, 105 Pa. St, 335; Whlt-
worth V. Stuckey, 1 Rich. Eq.
(S. C.) 404; Tate v. Tally, 3 Call
(Va.) 354; Wright v. Cahoon, 12
Leigh (Va.) 370; Willis v. Bucher,
Fed. Cas. No. 17769, 3 Wash. C. C.
369.
Where the clause passing a feei
simple is immediately followed by
a provision that in case of the
death of the devisee without law-
ful heirs of his body the estate
shall go to another, the first devi-
see takes an estate tail by impll-
catfon. — Chesebro v. Palmer, 68
Conil. 207, 36 All. 42; In re Reeves,
(Del.) 92 Atl. 246.
Where the residue of the testa-
tor's real and personal property
is given to A, "provided that at
A's death the proceeds of the same
shall be paid to" an ecclesiastical
society, "always provided that the
said A leave no issue," A takes an
estate tail by implication. — Hor-
ton V. XTpham, 72 Conn. 29, 43 Atl.
492.
A devise to A for her separate
use, and in case she has no issue,
to B, is a devise limited upon an
indefinite failure of issue, and cre-
ates an estate tail by implication.
— Hertz v. Abrahams, 110 Ga. 707,
50 L. R. A. 361, 36 S. E. 409.
An estate by implication, how-
ever, is not created by a will which
gives land to a testator's sons,
their heirs and assigns forever,
with a provision that if either of
them should die without issue the
testator's surviving heirs should
have the property. — Gannon v. Al-
bright, 183 Mo. 238, 105 Am. St.
Rep. 471, 67 L. R. A. 97, 81 S. W.
1162.
48Titzell V. Cochran, (Pa.) 10
Atl. 9.
49 See § 867.
ESTATES TAIL BY DEVISE.
1381
definite failure or extinction of issue, at any future pe-
riod.°** To create an estate tail by implication the limi-
tation over had to be upon a general indefinite failure of
issue, and not a failure at the death of the first taker.^^
Thus, where a devise was to one in fee, followed by a pro-
viso that if he "die without issue," or "without leaving
issue," or "have no issue," or other words of like im-
port, then over to another in fee, the estate in the first
taker was a fee tail which, if he left issue, passed to them
by descent as tenants in tail.^^
§949. The Same Subject: Statutory Changes.
The ulterior limitation over after death without issue,
being a remainder contingent upon an indefinite failure of
issue of the prior devisee, would now be void generally
for remoteness. However, the construction has been
50 Tongue's Lessee v. Nutwell,
13 Md. 415; Huxford v. Milligan,
50 Ind. 542; Hall v. Priest, 6 Gray
(72 Mass.) 18; Allen v. Trustees
of Ashley School Fund, 102 Mass.
262, 264; Hall v. Chaffee, 14 N. H.
215; Ladd v. Harvey, 21 N. H. 514,
526; IngersoU's Appeal, 86 Pa. St.
240; Burrough v. Foster, 6 R. I.
534; Arnold v. Brown, 7 R. I. 188;
Addison v. Addison, 9 Rich. Bq.
(S. C.) 58; Randolph v. Wendel, 4
Sneed (36 Tenn.) 646.
As to personal property, see
Edelen v. Middleton, 9 Gill (Md.)
161; Alhee v. Carpenter, 12 Cush.
(66 Mass.) 382.
51 Hertz V. Abrahams, 110 Ga.
707, 50 L. R. A. 361, 36 S. B. 409;
Gable v. Ellender, 53 Md. 311;
Perry v. Kline, 12 Cush. (66 Mass.)
118; Davies' Admr. v. Steele's
Admr., 38 N. J. Eq. 168; Mlddles-
warth's Admr. v. Blackmore, 74
Pa. St. 414; Lawrence v. Liaw-
rence, 105 Pa. St. 335; Burrough
V. Foster, 6 R. I. 534; Mangum v.
Piester, 16 S. C. 316; Kirk v. Fur-
gerson, 6 Cold. (46 Tenn.) 479.
. 52 Barber v. Pittsburgh, F. W. &
C. R. Co., 166 U. S. 83, 41 L. Ed.
925, 17 Sup. Ct. 488; Watkins v.
Pfeiffer, 29 Ky. L. Rep. 97, 92
S. W. 562; Riggs v. Sally, 15 Me.
408; Gilkie v. Marsh, 186 Mass.
336, 71 N. E. 703; Eichelberger v.
Barnitz, 9 Watts (Pa.) 447.
A devise over in the event of a
married woman "dying without off-
spring by her husband," is equiva-
lent to a devise in the event of her
"dying without issue."^ — 'Barber v.
Pittsburgh, F. W. & C. R. Co., 166
U. S. 83, 41 L. Ed. 925, 17 Sup. Ct.
4SS.
Where the devise was to G and
his heirs forever, followed by the
clause, "It is my will notwithstand-
1382 COMMiaSTTAEIES ON THE LAW OP WTLLS.
changed by statute. While the words ''die without is-
sue," or similar words, import an indefinite failure of
issue if there be no other provisions in the will denoting
a contrary intent, this meaning has so often done violence
to the real intention of the testator that in England^*
and in many of these United States^* statutes have been
enacted declaring that such words shall be construed to
mean not an indefinite failure of issue, but a want or fail-
ure of issue in the lifetime or at the death of the person
referred to.
§ 950. The Same Subject: Referring to Death of First Devisee.
The construction at the present day which is given to
a devise to one in fee with a limitation over should he
"die without issue," applicable in all cases except where
the courts are fettered by precedent, is that the words
refer prima facie to failure of issue at the death of the
first taker.^^ Such construction eliminates, in such cases,
the creation of estates tail by implication.^®
ing, that if G shall die without is- Gannon v. Albright, 183 Mo. 238,
sue who can inherit, the estate 105 Am. St. Rep. 471, 67 L. R. A.
shall go in equal shares to my 97, 81 S. W. 1162.
brothers and sisters," etc., G took Anderson v. Jackson, 16 Johns,
.an estate tail.— Turrill v. North- (N. Y.) 382, 8 Am. Dec 330; Bb-
rop, 51 Conn. 33. betts v. Quick, 66 How. Pr. (N. Y.)
53 Statute of 1 Victoria, ch. 26, 184.
§ 29. 55 Gibson v. Hardaway, 68 Ga.
See § 866. 370; Morgan v. Morgan, 5 Day
54 Ga. Code, (1861) § 2231; Gib- (Conn.) 517, where the gift over
son V. Hardaway, 68 Ga. 370. was upon the death of the prior
Mass. — R. L., ch. 134, § 5. Stone taker without "children."
V. Bradlee, 183 Mass. 165, 66 N. B. See, also. Couch v. Gorham, 1
708. Conn. 36; Hudson v. Wadsworth, 8
See § 867. Conn. 348; Bullock v. Seymour, 33
"Dying without issue" means Conn. 289.
heirs or issue living at the death As to who are included in the
of the person named as ancestor. — term "issue," see §§848, 849.
Mo.— Statute of 1845, §§ 5 and 6. 66 Middlesex Banking Co. v.
ESTATES TAIL BY DEVISE.
1383
The gift over will be saved from failure and the inten-
tion of the testator be given effect, whenever the court
can find anything in the context of the will to favor such
construction, by construing it as an executory devise,^^
ds where the gift over is to the "survivor" of several
devisees,^* the force of the word " survivor " being to ren-
der the phrase "dying without issue" equivalent to the
words "dying without issue living at the time of the prior
taker's death. "^^ The same construction is given where
"death without issue" is coupled with another contin-
gency, such as the death of the first taker before arriving
at a certain age,"" or where the gift over is upon death
Field, 84 Miss. 646, 37 So. 139;
Yocum V. Siler, 160 Mo. 281, 297,
61 S. W. 208; Clarke v. Leupp, 88
N. Y. 228.
57 Powell V. Board of Domestic
Missions, 49 Pa. St. 46, 56; In re
Sheets' Estate, 52 Pa. St. 257, 268.
5S Jackson v. Chew, 12 Wheat.
(U. S.) 156, 6 L. Ed. 583; Allen v.
Trustees of Ashley School Fund,
102 Mass. 262, 264; Cutter v.
Doughty, 23 Wend. (N. Y.) 513;
Lovett V. Buloid, 3 Barb. Ch.
(N. Y.) 137; Anderson v. Jackson,
16 Johns. (N. Y.) 382, 8 Am. Dec.
330: Wilkes v. Lion, 2 Cowen
(N. Y.) 333 ; Waldron v. Gianini, 6
Hill (N. Y.) 601; Norris v. Beyea,
13 N. Y. 273, 280; Miller v. Emans,
19 N. Y. 384; Oilman v. Redding-
ton, 24 N. Y. 9.
See, however, Heffner v. Knep-
per, 6 Watts (Pa.) 18; Rapp v.
Rapp, 6 Pa. St. 45; Caskey v.
Brewer, 17 Serg. & R. (Pa.) 441;
Wall V. Maguire, 24 Pa. St. 248.
As to survivorship, see §§ 891-
897.
59 Abbott V. Essex Co., 18 How.
(U. S.) 202, 15 L. Ed. 352; s. c.
Fed. Cas. No. 11, 2 Curt. 126;
Williams v. Graves, 17 Ala. 62;
Powell V. Glenn, 21 Ala. 458 ; Will-
iams V. Pearson, 38 Ala. 299; Ed-
wards V. Bibb, 54 Ala. 475; s. c, 43
Ala. 666; Russ v. Russ, 9 Fla. 105;
Duryea v. Duryea, 85 111. 41; Hart
V. Thompson's Admr., 3 B. Mon.
(42 Ky.) 482, 486; Deboe v. Lowen,
8 B. Mon. (47 Ky.) 616; Bright-
man V. Brightman, 100 Mass. 238;
Allen V. Trustees of Ashley School
Fund, 102 Mass. 262, 264; Groves
V. Cox, 40 N. J. L. 40; Cutter v.
Doughty, 23 Wend. (N. Y.) 513;
In re Bedford's Appeal, 40 Pa. St.
18, 23; McCorkle v. Black, 7 Rich.
Eq. (S. C.) 407.
eoNeal v. Cosden, 34 Md. 421;
Carpenter v. Boulden, 48 Md. 122;
Den V. Taylor, 5 N. J. L. 413;
Adams v. Chaplin, 1 Hill Eq.
1384
COMMENTAEIES ON THE LAW OF WIIiLS.
"without issue alive, "^^ or is affected by the use of the
words "leaving" and "behind," as "without leaving is-
sue behind, "*2 or by the word "leaving" alone, where
the gift is of personalty."^
§951. The Same Subject: Referring to Death of Testator.
Where the gift is first to more than one devisee with
a limitation over in the event of any of them dying with-
out issue, reason points to holding the reference to be to
failure of issue at the death of the testator.®* Some courts
adhere to this rule,®^ and it is only where the language
used clearly requires it that such words are construed
to mean a failure of issue at the death of the first devi-
*® The statutory rule that "death without issue" re-
see.
(S. C.) 265, 267; Paterson v. Bills'
Exrs., 11 Wend. (N. Y.) 259; Nor-
ris V. Beyea, 13 N. Y. 273; In re
Doebler's Appeal, 64 Pa. St 9;
Berg V. Anderson, 72 Pa. St. 87;
Massle v. Jordan, 1 Lea (69 Tenn.)
646.
As to gifts to those of a class
who attain a certain age, see
§§ 882-885.
61 Den V. Schenck, 8 N. J. L. 29.
62 Eichelberger v. Barnitz, 9
Watts (Pa.) 447, 450.
63 Bethea's Exr. v. Smith, 40
Ala. 415; Blscoe v. Biscoe, 6 Gill &
J. (Md.) 232; Edelen v. Middleton,
9 Gill (Md.) 161; Tongue's Lessee
V. Nutwell, 13 Md. 415, 425; Albee
V. Carpenter, 12 Gush. (66 Mass.)
382; Hall v. Priest, 6 Gray (72
Mass.) 18; Downing v. Wherrin,
19 N. H. 9, 49 Am. Dec. 139; Ladd
V. Harvey, 21 N. H. 514, 527; Theo-
logical Seminary v. Kellogg, 16
N. Y. 83; King v. Diehl, 9 Serg. &
R. (Pa.) 409; Eichelberger v. Bar-
netz, 17 Serg. & R. (Pa.) 293; In
re Bedford's Appeal, 40 Pa. St. 18;
Mazyck v. Vanderhorst, Bail. Eq.
(S. G.) 48.
64 This is covered under gifts to
a class, see English rule, § 866,
and American decisions, § 867.
65 Edwards v. Bibb, 43 Ala. 666;
Bullock V. Seymour, 33 Gonn. 289 ;
Ghesebro v. Palmer, 68 Conn. 207,
36 Atl. 42; Harris v. Smith, 16 Ga.
545; Armstrong v. Armstrong, 14
B. Mon. (53 Ky.) 333; Niles v.
iGray, 12 Ohio St. 320.
66 Gee V. Corporation of Man-
chester, 17 Ad. .& E. N. S. Q. B.
737; Ware v. Watson, 7 De Gex,
M. & G. 248 ; Da Costa v. Keir, 3
Russ. 360; Home v. Pillans, 2 Myl.
& K. 15; Edwards v. Edwards, 15
Beav. 357; Slaney v. Slaney, 33
Beav. 631; Lifford v. Sparrow, 13
ESTATES TAIL BY DEVISE.
1385
f ers to the death of the first taker will yield to a contrary
intention expressed by the testator, and some of the stat-
utes have expressly so provided.^^
§ 952. ' ' Children" as a Word of Purchase.
The word "children" in its natural import is a word
of purchase, and is to be construed as one of limitation
only to comply with the intention of the testator, where
the words used would otherwise fail to have any effect
whatever.** Thus, under a devise to one and his children.
East 359; Bullock v. Seymour, 33
Conn. 289; Pennington v. Van
Houten's Exrs., 8 N. J. Eq. 272;
s. c, 8 N. J. Eq. 745; Williamson
V. Chamberlain, 10 N. J. Eq. 373;
Baldwin v. Taylor, 37 N. J. Eq. 78 ;
Denise's Exrs. v. Denlse, 37 N. J.
Eq. 163, 169.
67 Stimson's Am. Stat. Law,
§ 1415, citing statutes of Maryland
New Jersey, North Carolina, Ten
nessee, and Virginia, and § 2800
citing statutes of California, Da-
kota, and Montana.
There is a long line of authori-
ties referring "death without Is-
sue" to so dying in the testator's
lifetime. — Edwards v. Bibb, 43 Ala.
666; s. c, 54 Ala. 475; Hudson v.
Wadsworth, 8 Conn. 348, 359; Har-
ris V. Smith, 16 Ga. 545; Griswold
V. Greer, 18 Ga. 545, 550 (person-
alty); Bailey v. Ross, 66 Ga. 354;
Armstrong v. Armstrong, 14 B.
Mon. (53 Ky.) 333; Daniel v.
Thompson, 14 B. Mon. (53 Ky.)
663; Harris v. Berry, 7 Bush (70
Ky.) 113; Hall v. Chaffee, 14 N. H.
215; Kerr v. Bryan, 32 Hun (N. Y.)
51; Leonard v. Kingsland, 67 How.
Pr. (N. Y.) 431; Vanderzee v.
Slingerland, 103 N. Y. 47, 57 Am.
Rep. 701, 8 N. B. 247; Parish's
Heirs v. Ferris, 6 Ohio St. 563;
Niles V. Gray, 12 Ohio St. 320;
Baker v. McGrew, 41 Ohio St. 113 ;
Reams v. Spann, 26 S. C. 561, 2
S. E. 412; Vaughn v. Cator, 85
Tenn. 302, 2 S. W. 262.
68 Buffar V. Bradford, 2 Atk. 220;
Paine v. Wagner, 12 Sim. 184; Doe
V. Vaughan, 5 Bam. & Aid. 464; Re
Buckmaster, 47 L. T. 514;' Forest
Oil Co. V. Crawford, 77 Fed. 106,
23 C. C. A. 55; Nimmo v. Stewart,
21 Ala. 682; Caulk's Lessee v.
Caulk, 3 Penn. (Del.) 528, 52 Atl.
340; Schaefer v. Schaefer, 141 111.
337, 31 N. B. 136; Conover v. Cade,
(Ind.) 112 N. B. 7; Biggs v. Mc-
Carty, 86 Ind. 352, 44 Am. Rep.
320; Meftord v. Dougherty, 89 Ky.
58, 25 Am. St. Rep. 521, 11 S. W.
716; Stonebraker v. Zollicker, 52
Md. 154, 36 Am. Rep. 364; Murphy
V. Harvey, 4 Edw. Ch. (N. Y.) 131;
Cole T. Robinson's Exrs., 23 N. C.
541; Williams v. Knight, 18 R. I.
1386
COMMENTARIES ON THE LAW OF WILLS.
if there be children living at the time of the testator's
death, or at the date of the will, they will ordinarily take
under such a devise with their parent as joint tenants."^
With respect to personalty, the courts are averse to con-
struing "children" as a word of limitation, whether or
not there be children in esse at the time of the devise.''**
And wherever there seem to be in the context reasonable
grounds for construing the bequest as to the parent for
life with remainder to the children, the courts will adopt
that construction,''* although, of course, if there be noth-
ing in the context upon which the court may lay hold
A gift to a wife and children
333, 27 Atl. 210; Bowers v. Bowers,
4 Heisk. (51 Tenn.) 293; Wills v.
Foltz, 61 W. Va. 262, 12 L. R. A.
(N. S.) 283, 56 S. E. 473.
"CMldren" as a word of pur-
chase, see § 913.
"Children" as a word of limita-
tion, see § 914.
As to the statutory rights of
pretermitted, after-born, and post-
humous children, see §§ 630-633.
As to who are included in the
term "children," see §§ 840, 841.
As to children en ventre sa
mere, see § 842.
As to illegitimate children, see
§§ 843-846.
As to adopted children, see
§§ 847-849.
"The word 'children' is properly
a word of purchase and not of lim-
itation; and is invariably so con-
strued unless it be used in such
connection or be so controlled by
other words as to show clearly
that it was intended as a word of
limitation." — Stubbs v. Stubbs, 11
Humph. (30 Tenn.) 43.
without other words vests a joint
estate in the wife and children in
equal portions. — Eltzpatrick v.
Fitzpatrick, 100 Va. 552, 93 Am.
St. Rep. 976, 42 S. E. 306.
69 Gates V. Jackson, 2 Strange
1172; In re Estate of Utz, 43 Cal.
200; Lord v. Moore, 20 Conn. 122;
Hoyle V. Jones, 35 Ga. 40, 89 Am.
Dec. 273; Hamilton v. Pitcher, 53
Mo. 334; Allen v. Claybrook, 58
Mo. 124; Graham v. Flower, 13
Serg. & R. (Pa.) 439.
See, also, Jeffery v. Honywood, 4
Madd. 398.
70 Buffar V. Bradford, 2 Atk. 220;
Audsley v. Horn, 1 De Gex, F. & J.
226.
71 Morse v. Morse, 2 Sim. 485 ;
Vaughan v. Headfort, 10 Sim. 639;
Combe v. Hughes, L. R. 14 Eq. 415 ;
Ogle v. Corthorn, 9 Jur. 325; Gar-
den V. Pulteney, Amb. 499; Daw-
son V. Bourne, 16 Beav. 29; Auds-
ley V. Horn, 26 Beav. 195; Arm-
strong V. Armstrong, U R. 7 Eq.
518, 522.
ESTATES TAIL BY DEVISE. 1387
as favoring such a construction, tlie parent and child will
take concurrently. '^^
§ 953. ' ' Children' ' as a Word of Limitation.
While the word "children" is not synonymous with
issue, it may be used in that sense and will be so con-
strued where it appears that such was the intention of
the testator, and the will would be inoperative unless
such construction were given. Thus the word "children"
may be one of limitation.''* The context of the will may
likewise lend to the word the same meaning as " heirs, "''^
or "heirs of the body,"''^ and may require a devise over
to the eldest son to be construed as conferring an estate
tail upon the parent"
The words "child," "son," and "daughter," when
used in the singular tense as nomina collectiva, are words
of limitation.'^'' As in the case of a devise to one for life,
and after his decease to "such son as he should have law-
fully to be begotten," it is held that by necessary impli-
72 Crockett v. Crockett, 2 Phil- 75 Parrish v. Burkley, 152 Ky.
lim. 553, 556; Newill v. Newill, 730, 154 S. W. 11; Chambers v.
L. R. 7 Ch. App. 253, where the Union Trust Co., 235 Pa. St. 610,
authorities will be found discussed. §4 ^^j 512.
73 Robert V. West, 15 Ga. 124; 76 Forsbrook v. Forsbrook, L. R.
Leiter v. Sheppard, 85 111. 242; „ „. , no t • t^ , 10
^ 3 Ch. App. 93; Lewis v. Puxley, 16
Lachland's Heirs v. Downing's
. „o X,- T, Mees. & W. 733; Jenkins v.
Exrs., 11 B. Mon. (Ky.) 32; Rich
■r, .. , ^ /on TA^ „ \ ir,^ HugbBS, 8 H. L. Ces. 571.
V. Rogers, 14 Gray (80 Mass.) 174;
Jones' Exrs. v. Jones, 13 N. J. Eq. " Andrew v. Andrew, 1 Ch. Div.
236; McKee's Appeal, 104 Pa. St. 410; King v. Melling, 1 Vent. 225,
^11 231, and Byfield's Case there cited;
See § 914 Miller v. Robinson, 1 Moore 682,
74 Schaefer v. Schaefer, 141 111. Pl- 939.
337, 31 N. E. 136; Keim's Appeal, _As to "heir" in the singular, see
125 Pa. 480, 17 Atl. 463; Smith v. Osborne v. Shrieve, Fed. Cas. No.
Fox's Admr., 82 Va. 763, 1 S. E. 10598, 3 Mason 391; Hall's Lessee
200. V. Vandergrift, 3 Binn. (Pa.) 374.
1388 COMMENTARIES ON THE LAW OP WILLS.
cation to effectuate the manifest general intention of the
testator, the first devisee must be deemed to take an estate
tail male.'^* Where the word "son" or "daughter" is
used to designate the male or female descendants, it is
manifest that the testator intends to give an estate tail
and not to create an executory deviseJ*
§954. Children Not in Being: Rule in Wild's Case.
In the report of Wild's Case*" it is said that if A de-
vises his lands to B and to his children or issue, and B has
no child or issue at the time of the devise, he takes an
estate tail, for the intent of the devisor is manifest and
certain that B's children or issue should take, and as
immediate devisees they can not take because they are
not in rerum natura, and by way of remainder they can
not take for that was not the testator's intent, for the
gift is immediate. Therefore such words shall be. taken
as words of limitation.^^ But it was also resolved that
if a man devises land to a husband and wife and after
78 Robinson v. Robinson, 1 Burr. 8i Seale v. Barter, 2 Bos. & P.
38; s. c, 2 Ves. Sen. 225; s. c, 1 485; Broadhurst v. Morris, 2 Barn.
Keny. 298; s. c, 3 B. P. C. Toml. & Adol. 1; McCroan v. Pope, 17
180; Doe v. Cooper, 1 East 235; Ala. 612; Nimmo v. Stewart, 21
Denn d. Webb v. Puckey, 5 Term Ala. 682; Vanzant v. Morris, 25
Rep. 299, 303; Doe v. Smith, 7 Ala. 285; Beacroft v. Strawn, 67
Term Rep. 533; Doe v. Halley, 8 111.28,33; Carr v. Estill, 16 B. Mon.
Term Rep. 5. (Ky.) 309, 63 Am. Dec 548; Nigbt-
79 Mellish V. Melllsh, 2 Barn. & ingale v. Burrell, 15 Pick. (32
C. 520. Mass.) 104; Akers' Exrs. v. Akers,
To the same effect, see Doe v. 23 N. J. Eq. 26; Rogers v. Rogers,
Garrod, 2 Bam. & Adol. 87; Doe v. 3 Wend. (N. Y.>) 503, 20 Am. Dec.
Davies, 4 Barn. & Adol. 43. 716; Chrystie v. Phyfe, 19 N. Y.
See, also, Seaward v. Wellock,_ 5 344, 354; In re Guthrie's Appeal,
East 198. 37 Pa. St. 9, 21; Haldeman v.
80 6 Coke 17, (1599) 77 Bng. Re- Haldeman, 40 Pa. St. 29; Moon v.
print 277. Stone's Exr., 19 Gratt. (Va.) 130.
ESTATES TAIL BY DEVISE. 1389
their decease to their children, or the remainder to their
children, in sucli case, although they have no child at the
time, yet every child which they shall have thereafter
may take by way of remainder, according to the rule of
law.*^
The rule in Wild 's Case is one of construction and not
one of property, wherein it differs materially in its ap-
plication from the rule in Shelley's Case.*^ Inasmuch as
it is only a rule for construing wills, resorted to in spe-
cific cases to carry out the manifest intention of testator,
it can only have weight as a judicial precedent.^* But the
rule, although announced in a case involving lands, ap-
plies equally to bequests of personalty.^®
§955. The Same Subject.
According to the rule in Wild's Case, under a devise to
"A and his children," and A has none living at the date
of the will, the Avord "cliildren" will be construed as
equivalent to "heirs of his body," thus vesting in A an
82 Wild's Case, 6 Coke 16b, 17a. 12 Ga. 357, 360,- "That the inten-
83 Conover v. Cade, (Ind.) 112 tlon of testators In ninety-nine
N. E. 7; Turner v. Ivie, 5 Heisk. cases out of a hundred, would
(52 Tenn.) 222. have been furthered by adopting
84 In regard to this rule it was the suggestion of the Irish chan-
suggested in Heron v. Stokes, 1 cellor, instead of adhering to the
Dr. & W. (Ir. Ch.) 76, by Sir Ed- rule of construction in Wild's
ward Sugden, that the more nat- Case, we entertain no doubt, still
ural construction of a gift to one we feel ourselves bound to decide
and his children, where there were in conformity with this often rec-
no children in esse at the time, ognized rule, which has been con-
and that which he would have stantly followed as law from Lord
adopted in the absence of author- Coke's day down to the present
ity the other way, would be to period."
hold it to be a good gift to the 8b Heron v. Stokes, 12 Clark & F.
parent for life, with remainder to 161, 181-183; Byng v. Byng, 10
the children. It was said by Lump- H. C. L. 171 ; State v. Welch, 175
kin J. in Miller's Lessee v. Hurt, Mo. App. 303, 162 S. W. 637.
1390 COMMENTARIES ON THE LAW OF WILLS.
estate tail. This construction, however, will not be had
where it appears that the testator intended A to take a
life estate only, with an executory gift in favor of the
children.*^
In Wild's Case, such children were in existence when
the devise was made, so the rule stated is obiter dictum;
but it has been consistently followed and is a recognized
rule of construction. Thus the word "children" in a de-
vise to one and his children, and there are none in being
when the devise is made, strictly construed is a word of
limitation.^'' Even where there are children in existence
at the date of the devise, the word will be construed as
one of limitation if the intention of the testator, as shown
by the context, would otherwise be defeated.**
§956. Tlie Same Subject: Will Speaks as of Date of Testator's
Death.
The rule in Wild's Case has reference to no children
living at the date of the unll. If the testator intends that
86 Wood V. Baron, 1 East 259; re McKee's Estate, 104 Pa. St. 571;
Davie v. Stevens, 1 Doug. 321; Smith v. Fox's Admr., 82 Va. 763,
Wharton v. Gresham, 2 W. Bl. 1 S. E. 200.
1093; Nimmo v. Stewart, 21 Ala. 87 Shuttle & Weaver Land &
682; Sandford v. Sandford, 58 Ga. Imp. Co. v. Barker, 178 Ala. 366,
260; Lofton v. Murchlson, 80 Ga. 60 So. 157; Wiley v. Smith, 3 Ga.
391, 7 S. E. 322; Moore v. Gary, 551; Lofton v. Murchison, 80 Ga.
149 Ind. 51, 48 N. E. 630; Schaefer 391, 7 S. E. 322; Moore v. Gary,
v. Schaefer, 141 111. 337, 31 N. E. 149 Ind. 51, 48 N. E. 630; Nightin-
136; Williams v. Duncan, 92 Ky. gale v. Burrell, 15 Pick. (32 Mass.)
125, 17 S. E. 330; Nightingale v. 104; Jenkins v. Hall, 57 N. C. 334;
Burrell, 15 Pick. (32 Mass.) 104; Renwick v. Smith, 11 S. C. 294.
Akers' Exrs. v. Akers, 23 N. J. Eq. 88 Wood v. Baron, 1 East 259;
26; Hannan v. Oabom, 4 Paige Webb v. Byng, 2 Kay & J. 669; Ty-
Ch. (N. Y.) 336; Chrystie v. Phyfe, rone v. Waterford, 1 De Gex, F. &
19 N. Y. 344; Silliman v. Whita- J. 613; Roper v. Roper, 36 L. J.
ker, 119 N. C. 89, 25 S. B. 742; In Com. P. N. S. 270.
ESTATES TAIL BY DEVISE. 1391
the children shall take equally with the parent or the re-
mainder after the parent's death, then the word is one of
purchase under the latter part of the rule of Wild's
Case.^" If the children are to take as purchasers, their
rights attach at the death of the testator or upon the
happening of some contingency, according to the provi-
sions of the will.®" The time from which a will speaks
is now generally regulated by statute, it being prescribed
that a will speaks as of the date of the testator's death.®^
Although such statutes refer principally to the subject
matter of testamentary gifts rather than to the benefi-
ciaries,®^ thus passing property acquired after the exe-
cution of the will,"^ yet a will is ambulatory and not effec-
tive until the testator 's death, and this fact, in connection
with the statutes,®* has the general effect of limiting the
rule in Wild's Case to one where the children are not liv-
ing at the death of the testator.
89 See § 954. 93 See §§ 229-234.
90 See §§ 880-890. ®* ^ee §§ 237-239.
„T.„ ^ ,i /.^ ^,. -r^ n/.n This Is especially so as to gifts
91 Wills V. Foltz, 61 W. Va. 262, \ ^^^ ^^ ^^
to a class such as children, broth-
12 L. R. A. (N. S.) 283, 56 S. E. ., ,., . „_„
ers, or the like, see § 272.
479
As to what law governs the in-
See §§ 235, 236. tention of the testator, see §§ 272-
92 See § 237. 274.
CHAPTER XXXIV.
TESTAMBNTABY GIFTS OF LIFB ESTATES.
§ 957. Life estates defined.
§ 958. Common law rule and statutory changes.
§ 959. Words suiRcient to create life estates.
§ 960. Effect of the use of the word "loan," or "lend."
§ 961. Gift of rents, issues, profits, income, etc., of land.
§ 962. Gift of the right of use, enjoyment and occupation.
§ 963. Gift of a "home" on certain property.
§ 964. Devise "during widowhood," or "until marriage," con-
fers a life estate.
§ 965. Creation of estates by implication.
§ 966. The same subject : Exceptions.
§ 967. Creation of life estate by implication.
§ 968. The same subject : Devise to A upon death of B.
§ 969. The same subject: Gift over if first taker "die without
issue."
§ 970. The same subject: Where devise to first taker is a life
estate.
§ 971. The same subject : Where devise to first taker is in fee.
§ 972. Apparent devise of fee limited by additional provisions-
to a life estate.
§ 973. Life estate coupled with absolute power of disposition.
§ 974. The same subject : Statutory regulations.
§ 975. Life estate with limited power of disposition.
§ 976. Where power of disposition is not exercised.
§ 977. Express devise not affected by subsequent doubtful ex-
pressions.
§ 978. Life estate in personalty : Money.
§ 979. Gift of income of personal property.
§ 980. Life estate in personalty with power of disposition.
§ 981. Personalty consumable in its use : Specific and general
or residuary bequests distinguished.
(1392)
LIFE ESTATES. 1393
§ 982. Compelling security from life tenant of personalty.
§ 983. Eespeetive rights of life tenant and remainderman.
§ 984. The same subject : Extraordinary dividends from stock.
§ 985. The same subject : English rule.
§986. The same subject: Massachusetts rule.
§ 987. The same subject : Pennsylvania rule.
§ 988. The same subject : Kentucky rule.
§957. Life Estates Defined,
A life estate is a freehold estate not of inheritance.*
Any estate that may last for a life or lives, that is not
inheritable, and that is not at will or for any fixed period
of time, is a life estate.^ Such an estate may be for the
life of the tenant, in which case it expires at his death ;
or it may be pur autre vie, being for the life of another
called the cestui que vie. If the interest of the tenant
ceases with his life, such interest is not devisable;^ if the
interest of the tenant continues during the life of another
who survives him, it may be disposed of by his will.*
A testator may create successive life estates in the same
property, as where he gives first to his wife for life, then
to his daughter for life, with remainder over in fee to
others;^ or as where he devises an estate to his mother
for life on certain conditions, and thereafter a life estate
to his wife with remainder over to another.®
1 1 HllUard's Abridgment 36, 2 Dlsley v. Dlsley, 30 R. I. 366,
§1; 1 Lomax's Digest 32, §1; 75 Atl. 481.
Williams v. Ratcllff, 42 Miss. 145; ^ ^®® § ^*^-
4 See § 246.
Cummings v. Cummings, 76 N. J.
5 Monarque v. Monarque, 80
Eq. 568, 75 AU. 210; Robb v. New ^j ^ ^^0. reversing 19 Hun 332.
York & C. Gas Coal Co., 216 Pa. e Todd v. Armstrong, 213 Pa. St.
418, 65 Atl. 938. 570, 62 Atl. 1114.
II Com. on Wills— 84
1394 COMMENTARIES ON THE LAW OF "WILLS.
§ 958. Common Law Rule and Statutory Changes.
At common law a devise in general terms, without
words of limitation denoting the quantity of the estate
conferred, was construed to create a life estate only,
unless a contrary intention was manifested in the will.'^
This rule, however, has been reversed by modern legisla-
tion both in England,* and in America,® and as the law
now is, such a devise confers a fee unless a contrary inten-
tion appear in the will. But a devise or bequest in such
general terms as, standing alone, would confer an estate
in fee-simple, will be construed to give an estate for life
only where an intention so to limit the gift clearly appears
from the will taken as a whole.^" For these statutes
merely change the common-law presumption that unless
words of inheritance, or other words indicating an inten-
tion to give an estate in fee-simple, are employed by the
testator, a life estate only will be deemed to pass. They
7 Wright V. Denn, 10 Wheat. As to common law rule regard-
(U. S.) 204, 6 L. Ed. 303; Mc- ing words of limitation, see §918
Aleer v. Schneider, 2 App. Gas. et seq.
(D. C.) 461; Conoway's Lessee v. g Statute of 1 Victoria, ch. 26.
Piper, 3 Har. (Del.) 482; Gibson
V. Brown, (Ind. App.) 110 N. B.
716; Mulvane v. Rude, 146 Ind.
128.
9 See § 935 and n.
476, 45 N. E. 659; Keplinger v. B"* ^o™® statutes have prac-
Keplinger, (Ind.) 113 N. E. 292; tically re-enacted the common law
Wait V. Beldlng, 24 Pick. (41 so that only a life estate will pass
Mass.) 129; Cook v. Holmes, 11 to the devisee unless it afflrma-
Mass. 528; Van Derzee v. Van tively appears that a greater es-
Derzee, 30 Barb. (N. Y.) 331; tate was intended. — Indiana,
Jackson v. Martm, 18 Johns. Bums Stats., 1901, § 2737; Fenster-
(N. Y.) 31; Wheaton v. Andress, maker v. Holman, 158 Ind. 71, 62
23 Wend. (N. Y.) 452; Mesick v. N. E. 699; Pate v. Bushong, 161
New, 7 N. Y. 163; Barnet v. Bar- Ind. 533, 100 Am. St. Rep. 287, 63
net, 15 Serg. & R. (Pa.) 72, 16 I- R- A. 593, 69 N. B. 291.
Am. Dec. 516; Calhoun v. Cook, lo Jossey v. White, 28 Ga. 265;
9 Pa. St. 226. Jones' Exrs. v. Stltes, 19 N. J. Eq.
LIFE ESTATES. 1395
do not exclude, in a proper case, a consideration of the
testator's surroundings in determining Ms intent.^^
Estates for life arise also under the modem statutes
abolishing the rule in Shelley's Case. In all those states
in which these statutes have been enacted, the words of
the testator are now allowed to have their legitimate
effect, and a devise to one for life, with a limitation over
upon his decease to his heirs or the heirs of his body or to
his issue, does not as formerly vest in the ancestor a fee-
simple or fee-tail, but confers upon him a life estate only,
with remainder to the persons designated by the terms
"heirs" and "issue," according to the intention of the
testator.^^
§ 959. Words Sufficient to Create Life Estates,
In the creation of life estates no particular form of
words is necessary, as always the intention of the tes-
tator must prevail. The question is, what kind of an
estate did the testator intend that the devisee should
have? The law does not require that the term "life
estate" should be employed, any appropriate or equiva-
lent words are sufficient.^* The use of the words "as
324; Cantine v. Brown, 46 N. J. L. 13 Cross v. Hoch, 149 Mo. 325, 50
599; Corby v. Corby, 85 Mo. 371. S. W. 786.
11 Dew V. Kuehn, 64 Wis. 393, in Kentucky a devise to the tes-
25 N. W. 212. tator's "wife and children" con-
12 See § 917; Mason v. Pate's fers on the wife a life estate with
Exr., 34 Ala. 379; Borden v. Kings- remainder to the children. — ^Na-
bury, 2 Root (Conn.) 39; Bowers yille v. American Machinery Co.,
V. Porter, 4 Pick. (21 Mass.) 198; 145 Ky. 344, 37 L. R. A. (N. S.)
Chiles V. Bartleson, 21 Mo. 344; 153, 140 S. W. 559; Houchens'
Barstow v. Goodwin, 2 Bradf. Guardian v. Houchens, 158 Ky.
(N. Y.) 413. 190, 164 S. W. 791.
1396
COMMENTARIES ON THE LAW OF WILLS.
long as he lives, "^* or "during Ms natural life,"^® or
"during his life,"^* or "for the full term of her natural
life,"" or "life tenants,'"* creates a life estate.
§ 960. Effect of the Use of the Word "Loan," or "Lend."
The word "lend" will be construed to mean "give,
bequeath, or devise, ' ' and under a will providing that the
testator loans or lends to the devisee certain property for
life, the devisee will take a life estate therein.^^ No dis-
tinction is made as to the meaning of the words "lend"
and "loan," whether the gift be of personalty or of
realty. In each instance the words are held to be equiva-
lent to "give, bequeath, or devise."^**
Where the testator lent his niece one negro girl and
14 Modlin V. Kennedy, 53 Ind.
267; Succession of Weller, 107 La.
466, 31 So. 883.
"To hold jointly during their
lives" are words which create a
life estate. — Harrison v. Foote, 9
Tex. Civ. App. 576, 30 S. W. 838.
15 Pendley v. Madison's Admr.,
83 Ala. 484, 3 So. 618; Peckham
V. Lego, 57 Conn. 553, 14 Am. St.
Rep. 130, 7 L. R. A. 419, 19 Atl.
392; Smith v. Runnels, 97 Iowa
55, 65 N. W. 1002; Austin v. Hynd-
man, 119 Mich. 615, 78 N. W. 663;
McClure v. Melendy, 44 N. H. 469.
10 Young V. Morehead, 94 Ky.
608, 23 S. W. 511; Sheafe v. Gush-
ing, 17 N. H. 508.
17 Sillcocks V. Slllcocks, 50 N. J.
Eq. 25, 25 Atl. 155.
18 Howe V. Gregg, 52 S. C. 88,
29 S. E. 493, wherein the court
says: "This expression 'life ten-
ants' is repeated again and again.
But I apprehend that this is not
the crucial test of the will, so far
as the creation of these life es-
tates is concerned."
19 Holt V. Pickett, 111 Ala. 362,
20 So. 432; Britt v. Rawlings, 87
Ga. 146, 13 S. E. 336; May v.
Lewis, 132 N. C. 115, 43 S. E. 550;
Glover v. Harris, 4 Rich. Eq.
(S. C.) 25; Robertson v. Hardy's
Admr., (Va.) 23 S. E. 766.
20 As to personalty:
Ewing V. Standefer, 18 Ala. 400;
Pournell v. Harris, 29 Ga. 736;
Myers v. Pickett, 1 Hill Eq. (S. C.)
35.
As to realty:
Holt V. Pickett, 111 Ala. 362, 20
So. 432; Sessoms v. Sessoms, 144
N. C. 121, 56 S. E. 687; Faison v.
Moore, 160 N. C 148, 75 S. E. 993;
Callis V. Kemp, 11 Gratt. (Va.) 78,
As to both personalty and
realty:
Glover v. Harris, 4 Rich. Eq.
(S. C.) 25.
LIFE ESTATES. 1397
her increase during the niece's life and at her death to
lier lawful issue, a life estate was created in the niece.^^
An absolute estate was vested in A where the testator
provided, "I lend to A during her natural life five neg-
roes, these five negroes, with all their increase I will to
the lawful begotten heirs of A to be equally divided
among them at her death. "^^
Whore the will provided: "I lend to my loving wife
during her natural life the use of one-half of my land
and five negroes, ' ' the wife took only a life estate in the
negroes.^^
A provision in the will, "I do at my death loan the
tract of land on which I at present reside to my beloved
wife during her natural life, ' ' gave the wife an estate for
life.^*
§ 961. Gift of Bents, Issues, Profits, Income, Etc., of Laud.
At common law every indefinite devise of the "rents
and profits" or the "income" of land passed an estate
for life only. By reason of statutory enactments whereby
the testator passes all his estate in property devised
unless a contrary intent appear from the context of the
Avill, this rule has been changed. But where, by the ex-
press terms of the will, a life estate only is given, the
fee does not pass; and a gift of " rents, "^^ "profits," 2"
Where the will stated that the 22 Ewing v. Standefer, 18 Ala.
testator "lends" lands to a devi- 400.
see, and provided that in case he 23 Glover v. Harris, 4 Rich. Bq.
arrived at manhood and begat (S. C.) 25.
heirs he should take in fee, but if 24 Robertson v. Hardy, (Va.) 23
not then over, it was held he took S. E. 766.
a life estate subject to be en- 25 Commons v. Commons, 115
larged to a fee upon the happening Ind. 162, 16 N. E. 820, 17 N. B. 271;
of the prescribed contingency. — Gidley v. Lovenberg, 35 Tex. Civ.
Telton V. Billups, 21 N. C. (1 Dev. App. 203, 79 S. W. 831.
& B. Eq.) 584. 26 Mather v. Mather, 103 III.
21 Bryan V. Diircan, 11 Ga. 67. 607; Succession of Skipwith, 15
1398
COMMENTARIES ON THE LAW OF WILLS.
"rents and profits, "^^ "rents, income, and profits," "in-
come,"^^ "net income,"^* "use, income, and control for
life,"^" "use and improvement,"^^ or "income and inter-
est, "^^ limited to the beneficiary for life, confers only a
life estate.
It must be remembered, however, that it is a general
rule that a bequest of income of land is a devise of the
land itself when there are no overruling words in the Avill
establishing the contrary.^' This rule supplanted the old
La. Ann. 209; Van Driele v. Kot-
vis, 135 Mich. 181, 97 N. W. 700.
A gift of the proceeds of real
estate for life vests a life estate
in the realty itself. — ^Wilson v. Mc-
Keehan, 53 Pa. St. 79.
27 Handberry v. Doolittle, 38 111.
202; Nelson v. Nelson, 2 Ky. L.
Rep. 63; Cooke v. Husbands, 11
Md. 492.
28 Thompson v. Schenck, 16 Ind.
194; Mayes v. Karn, 115 Ky. 264,
72 S. W. 1111; Stone v. North, 41
Me. 265; Hopkins v. Keazer, 89
Me. 347, 36 Atl. 615; Hooper v.
Smith, 88 Md. 577, 41 Atl. 1095;
Brombacher v. Berking, 56 N. J.
Eq. 251, 39 Atl. 134; In re Vree-
land, 66 N. J. Bq. 297, 57 Atl. 903;
Durfee v. Pomeroy, 154 N. Y. 583,
49 N. E. 132; In re Nevins, 192 Pa.
St. 258, 43 Atl. 996; Simmons v.
Morgan, 25 R. I. 212, 55 Atl. 522.
"The gift of the income . . .
to his daughters for life was equiv-
alent to a devise to them of a life
estate in the land." — Monarque v.
Monarque, 80 N. Y. 320.
29 Mather v. Mather, 103 111.
007; Morrison v. Schorr, 197 111.
554, 64 N. B. 545; Hopkins v.
Keager, 89 Me. 347, 36 Atl. 615.
30 Fogler V. Titcomb, 92 Me. 184,'
42 Atl. 360.
31 Fay V. Fay, 1 Cush. (55
Mass.) 93.
32 Blanchard v. Brooks, 12 Pick.
(29 Mass.) 47, 63.
A devise of the proceeds of real
estate for life vests a life estate
in the realty itself. — ^Wilson v.
McKeehan, 53 Pa. St. 79.
A devise to the testator's widow,
with directions that the property
be kept together during her life
for the maintenance of herself and
the children, each of whom on
coming of age is to receive such a
portion of the property on hand
as the widow may choose to give,
confers upon the widow a life es-
tate only. — Weir v. Smith, 62
Tex. 1.
33 Mannox v. Greener, L. R. 14
Eq. 456; Smith v. Dunwoody, 19 Ga.
237; Sampson v. Randall, 72 Me.
109, 111; Brombacher v. Berking,
56 N. J. Eq. 251, 39 Atl. 134; Perry
v. Hackney, 142 N. C. 368, 115 Am.
St. Rep. 741, 9 Ann. Cas. 244, 55
LIFE ESTATES. 1399
common law rule and is by virtue of statutes in the vari-
ous jurisdictions. The reason for the rule is obviously
that a use of income or rents necessarily includes the
corpus of the realty.
§ 962. Gift of the Right of Use, Enjoyment and Occupation.
A gift for life of the right to use, occupy, or possess
named property vests in the devisee an estate for life.**
There is no substantial difference between a gift of real
estate for life and a gift of the %ise of the same property
for life. The distinction, if any, is in words and not in
meaning, and the construction is the same.^^ Thus a life
estate is passed by a gift of a dwelling house and the use
of all improvements for life;^® a testamentary gift of
property to be enjoyed by the donee as long as he lives,
and that no one shall have the power to prevent such
enjoyment as long as it is his pleasure to continue the
same, creates a life estate.^''
A devise of the use and occupancy of land does not, as a
S. E. 289; Estate of Slddall, 180 35 Lewis v. Palmer, 46 Conn.
Pa. St. 127, 36 Atl. 570; Gidley v. 454.
Lovenberg, 35 Tex. Civ. App. 203, gg cochran v. Hudson, 110 Ga.
79 S. W. 831. 762, 36 S. E. 71.
See § 920.
34 Davidson v. Koehler, 76 Ind.
398; Rowe v. Howe, 120 Iowa 17,
94 N. W. 258; Wilson v. Curtis, 90
Me. 463, 38 Atl. 365; Faxon v.
Faxon, 174 Mass. 509, 55 N. E.
316; Austin v. Hyndman, 119 Mich.
615, 78 N. W. 663 ; Brendel v. Han-
sen, 127 Mich. 396, 86 N. W. 951;
Reeve v. Troth, (N. J. Eq.) 42 Atl.
571; Place v. Burlingame, 75 Hun
432, 27 N. Y. Supp. 674; affirmed
149 N. Y. 617, 44 N. E. 1128; Mc-
Kee V. McKee, (Tenn.) 52 S. W. " Crowley v. Crouch, 114 Ga.
320; Nason v. Blaisdell, 17 Vt. 216. 135, 39 S. E. 904.
Where the will provided as fol-
lows: "I leave and bequeath all
the property, movable and immov-
able of which I may die possessed,
to my said wife; this legacy is
made in usufruct and during the
lifetime of my said wife, at her
death the whole of which will re-
vert to the children," etc., the
widow took a life estate in the
land. — Newman v. Willetts, 52 111.
98.
14UU COMMENTARIES ON THE LAW OF WILLS.
general rule, restrict the use and occupation to the devisee
personally, but it passes an estate in the property which
he may let or assign.^^ But a gift over, if the donee
ceases to occupy a house, shows that the testator contem-
plated a personal use.'^
§ 983. Gift of a " Home' ' on Certain Property.
A will which provides that a devisee, during his nat-
ural life, shall have a home on a certain tract of land,
creates a life estate in the property.*** If the direction is
that the devisee shall have a home untU otherwise pro-
vided for, the devisee takes a life estate determinable
upon such provision being made.*^ Where the wiU makes
no direct gift to a beneiiciary but only a devise in trust
with the direction that the devisee shall "live on the prop-
erty free of rent, ' ' only a life estate is created.*^ Should
the testator direct, in connection with a gift of the right
to live in a designated home, that the beneficiary should
enjoy the same privileges as he was enjoying at the date
ssRabbetli v. Squire, 19 Beav. 42 Nevins' Estate, 192 Pa. St.
70; Mannox v. Greener, L. R. 14 258, 43 Atl. 996.
Eq. 456; Wilson v. Curtis, 90 Me. Where the parents of a benefic-
463, 38 Atl. 365. lary under a trust were given the
Where the testator bequeaths all Privilege of a home for them-
his property with the qualification selves and minor children so long
that it Is to be "used, enjoyed, ^s any female child of the mother
and occupied" during the natural "^^^ unmarried, a life estate was
life of the legatee, nothing but the created in the parents.— Webster
usufruct of the property is de- ""■ Brown, (Ky.) 72 S. W. 774.
vised.— Succession of Law, 31 La. Where the testator provided that
Ann. 456. ^^ unmarried daughters should
not be deprived of a home on the
property devised so long as they
remained single, they had a right
to live on the homestead but not
40 Willett V. Carroll, 13 Md. 459. to maintenance from the rents and
41 Williams v. Ratcliff, 42 Miss, profits.— Nelson v. Nelson, 19 Ohio
145. 282.
39 MacLaren v. Stainton, 27 Law
J. Ch. 442; Reeve v. Troth, (N. J.
Eq.) 42 Atl. 571.
liEPE ESTATES. 1401
of the will, the extent of such privileges may be proved
by parol in order to give effect to the gift.*^
§964. Devise "During Widowhood," or "Until Marriage,"
Confers a Life Estate.
A devise of property to one who is unmarried, fol-
lowed by a gift over in the event the devisee should marry,
confers a life estate only determinable upon the mar-
riage of the devisee.** Estates which may extend during
life but which must terminate at death, while they exist
are life estates. Such is an estate by devise "during wid-
owhood."*'' A devise of real estate by a testator to his
widow during her widowhood confers on her a life estate,
subject to be defeated should she remarry.** So a devise
by a wife to her husband so long as he shall remain un-
married, gives him an estate for life, determinable should
he again marry.*'' A devise by the testator to his widow
"during the term of her widowhood" means the same as
' ' so long as she remains my widow, ' ' and implies a con-
43 Maeck v. Nason, 21 Vt. 115, baum v. McDonell, 29 Mich. 78, 18
52 Am. Dec. 41. Am. Rep. 61; Schminke v. Sin-
44 Furnish v. Rogers, 154 111. 569, clair, 100 Neb. 101, 158 N. W. 458 ;
39 N. B. 989 ; Ridgely v. Bond, 18 Cooper v. Cooper, 56 N. J. Eq. 48,
Md. 433; Hankin's Estate, 4 Watts 38 Atl. 198; Dubois v. Van Valen,
& S. (Pa.) 300. 61 N. J. Eq. 331, 48 Atl. 241;
45 Ga. Code, 1911, §3665; Rose Miller v. Gilbert, 144 N. Y. 68, 38
V. Hale, 185 111. 378, 56 N. E. 1073. N. E. 979; In re Brook's Will, 125
46 Evan's Appeal, 51 Conn. 435; N. C. 136, 34 S. E. 265; Sink v.
Rose V. Hale, 185 111. 378, 76 Am. Sink, 150 N. C. 444, 64 S. E. 193;
St. Rep. 40, 56 N. E. 1073; Leven- Nimmons v. Westfall, 33 Ohio St.
good V. Hoople, 124 Ind. 27, 24 213; Appeal of Brotzman, 133 Pa.
N. E. 373; Brunk v. Brunk, 157 St. 478, 19 Atl. 564; Disley v. Dis-
lowa 51, 137 N. W. 1065; Price v. ley, 30 R. I. 366, 75 Atl. 481; Sea-
Ewell, 169 Iowa 206, 151 N. W. 79; board Airline Ry. v. Garrett, 85
Clements v. Reese, (Ky.) 74 S. W. S. C. 543, 67 S. E. 903; Lane v.
1047; Mansfield v. Mansfield, 75 Crutchfield, 3 Head. (Tenn.) 452.
Me. 509; Fuller v. Wilbur, 170 47 Stivers v. Gardner, 88 Iowa
Mass. 506, 49 N. E. 916; Mandle- 807, 55 N. W. 516.
1402 COMMENTARIES ON THE LAW OP WILLS.
tinuance of the estate during widowhood, but no longer,
and can not extend beyond her life.*^
A distinction, however, has been made where the lan-
guage of the devise is to the wife and her heirs, or in
words importing a fee, followed by the words "so long
as she remains my widow." It has been said that the
provision last mentioned was merely equivalent to saying,
' ' provided she remains my widoAv, ' ' and instead of cutting
down the estate in fee deA'ised, merely attached a condi-
tion which made it defeasible upon marriage.*^ But the
weight of authority is that the entire will should be con-
sidered, and a limitation that the devisee shall hold the
property only while she remains the widow of the testa-
tor or until she remarry, confers only a defeasible life
estate.^*
§ 965. Creation of Estates by Implication.
An estate in a beneficiary in certain property devised
may be created by implication, there being no direct gift
in his favor. The intention of the testator should con-
trol, to be gathered from the provisions of the will. The
true rule to be followed in all cases is that the intention
of the testator should be given effect provided it does not
contravene any positive demand of the law or rule of pub-
lic policy. No technical rule of construction should be
blindly followed; such rules serve simply to guide the
court and to indicate the probabilities in the absence of
48 King V. Phillips, 1 Houst Airline Ry. Co. v. Garrett, 85 S. C.
(Del.) 349; Rose v. Hale, 185 111. 543, 67 S. E. 903.
378, 76 Am. St Rep. 40, 56 N. B. 49 Scott v. Murray, 218 Pa. St.
1073 ; Kearney v. Kearney, 17 N. J. 186, 67 Atl. 47.
Eq. 59 ; Crosby v. Wendell, 6 Paige 50 Bennett v. Packer, 70 Conn.
Ch. (N. Y.) 548; Sink v. Sink, 150 357, 66 Am. St. Rep. 112, 39 AU.
N. C. 444, 64 S. E. 193; Craig v. 739; Rose v. Hale, 185 111. 378, 76
Watt, 8 Watts (Pa.) 498; Seaboard Am. St. Rep. 40, 56 N. E. 1073.
LIFE ESTATES. 1403
countervailing considerations ; rather than to restrict and
constrain the judicial mind.^^
Any reasonable construction should be adopted, con-
sistent with the terms of the will, so as to dispose of the
entire estate ; but if no such intention is shown, the result
may be partial intestacy.^^ Devises by implication are
recognized, but are given effect only in cases of necessity,
as where the will leaves no reasonable doubt as to what
the testator intended. All estates created by implication
are founded upon the supposed intention of the testator.
There must be something more than mere conjecture ; the
implication must be necessary or at least highly probable,
and the whole will, taken together, must produce the con-
viction that the testator intended to create the estate im-
plied.^*
A gift by implication must be founded upon some ex-
pression in the will ; it can not be inferred from mere si-
51 Engelthaler v. Engelthaler, 433; Welsh v. Gist, 101 Md. 606, 61
196 111. 230, 63 N. E. 669; Matter Atl. 665; Ball v. Phelan, 94 Miss.
of Vowers, 113 N. Y. 569, 21 N. E. 293, 23 L. R. A. (N. S.) 895, 49 So.
690; In re Donges' Estate, 103 Wis. 956; Barlow v. Barnard, 51 N. J.
497, 74 Am. St. Rep. 885, 79 N. W. Eq. 620, 28 Atl. 597; Brown v.
786. Quintard, 177 N. Y. 75, 69 N. E.
52Minkler v. Simons, 172 111. 225; Shaner v. Wilson, 207 Pa. St.
323, 50 N. E. 176; Craw v. Craw, 550, 56 Atl. 1086; Sutherland v.
210 111. 246, 71 N. E. 450. Sydnor, 84 Va. 880, 6 S. E. 480;
53 Wilkinson v. Adams, 1 Ves. & Coberly v. Earle, 60 W. Va. 295, 54
B. 422; Chamberlain v. Springfield, S. E. 336.
L. R., (1894) 3 Ch. 603; Hatch v. "In construing a will, conjecture
Ferguson, 57 Fed. 966; Relnhardt's must not be taken for implica-
Estate, 74 Cal. 365, 16 Pac. 13; tion; but necessary implication
Connor v. Gardner, 230 111. 258, 15 means, not natural necessity, but
L. R. A. (N. S.) 73, 82 N. E. 640; so strong a probability of inten-
Bond V. Moore, 236 111. 576, 19 tlon that an intention contrary to
L. R. A. (N. S.) 540. 86 N. E. 386; that which is imputed to the tes-
Young V. Quimby, 98 Me. 167, 56 tator can not be supposed." —
Atl. 656; Ridgely v. Bond, 18 Md. Coryton v. Helyar, 2 Cox 340.
1404 COMMENTARIES ON THE LAW OP WILLS.
lence.^* The courts will liberally construe the words
of the testator so as to carry out his intention, but they
can not introduce words in order to make the provisions
of a will more reasonable or to supply a gift not found in
the will.®^ Nor is a court justified in declaring a devise
by implication if such construction violates public policy
or the settled rules of law.°® And if the intention is dis-
covered to accomplish two purposes so inconsistent that
both caji not stand, there must be a failure as to one of
them.^'^
§ 966. The Same Subject: Exceptions.
Although a devise in general terms, not indicating the
quantity of the estate conveyed, will be construed to con-
fer a fee where debts or legacies are charged upon the
devisee, an estate expressly devised for life can not be
thus enlarged by implication f^ nor where a testamentary
gift is expressly limited to the donee for life, will a super-
added power to sell and appropriate the proceeds enlarge
the interest into an absolute estate.^^ Nor is a devise
clearly expressed to be for life enlarged to a fee by a
54 In re Reinhardt, 74 Gal. 365, 58 Gernet v. Lynn, 31 Pa. St. 94;
16 Pac. 13 ; Bond v. Moore, 236 111. Moore t. Dimond, 5 R. I. 121.
576, 19 L. R. A. (N. S.) 540, 86 See § 925.
N. E. 386; In re Nebinger's Es- A charge upon a life tenant to
tate, 185 Pa. St. 399, 39 Atl. 1049; provide for others "while they re-
O'Hearn v. O'Hearn, 114 Wis. 428, main single women in said house,"
58 L. R. A. 105, 90 N. W. 450. confers upon the latter an interest
55 Ranelagh v. Ranelagh, 12 pur autre vie only. — Loring v. Ar-
Beav. 200; Neighbour v. Thurlow, nold, 15 R. I. 428, 8 Atl. 335.
28 Beav. 33; Seymour v. Kilbee, 59 Russell v. Eubanks, 84 Mo.
L. R. 3 Ir. 33. 82; Tompkins v. Fanton, 3 Dem-
50 Ball V. Phelan, 94 Miss. 293, arest (N. Y.) 4; Rhode Island
23 L. R. A. (N. S.) 895, 49 So. 956. Hospital Trust Co. v. Commercial
57 Ramsdell v. Rarasdell, 21 Me. Nat. Bank, 14 R. I. 625.
288; Bradley v. Warren, 104 Me. See § 973.
423, 72 Atl. 173. As to a devise coupled with a
LIFE ESTATES. 1405
power to sell or to appoint by deed or will f but a deed
made by such devisee, purporting to convey the fee, may
take effect at his death,*^ although he has no power to
alien during life.''^ A devise of money and real estate for
life, Avith power to dispose of enough for the devisee's
support, confers only a life estate with a conditional
power of disposition."* Neither will a gift over of "what
may remain" enlarge the life estate by implication.®*
Nor will the absence of a gift over imply a gift of a
larger estate where the devise is clearly for life.®®
§ 967. Creation of Life Estate by Implication.
A life estate may be created without the use of direct
words, but by implication from the various provisions of
the will.®" "Words, expressions or clauses, inferential
only in import, disposing in general or indefinite terms
of real or personal property, with a limitation over after
the death of the first taker, are sufficient to create in the
first taker an estate for life.®'^ Where the testator directs
that certain land shall not be sold until his wife's death,
power of disposition, see §§ 927- But see Shaw v. Hussey, 41 Me.
929. 495.
eoFairman v. Beal, 14 III. 244; See §930.
Andrews v. Brumfleld, 32 Miss. 65 In re Evans' Appeal, 51 Conn.
107; Dean v. Nunnally, 36 Miss. 435.
358; Troy v. Troy, 60 N. C. 624. See § 926.
61 Pulliam V. Christy, 19 111. 331. 66 Gibson v. Brown, (Ind. App.)
62 Christy v. Ogle's Exrs., 33 111. 110 N. E. 716; Burnett v. Burnett,
295. 244 Mo. 491, 148 S; W. 872; Done-
es And the real estate can not be hue v. McNIchol, 61 Pa. St. 73.
sold under the power so long as 67 Glore v. Scrogglns, 124 Ga.
any of the money is available for 922, 53 S. E. 690; Hill v. Gianelli,
the support of the devisee.— Mor- 221 111. 286, 112 Am. St. Rep. 182,
ford V. Dieffenbacker, 54 Mich. 593, 77 N. E. 458; Rice v. Moyer, 97
20 N. W. 600. Iowa 96, 66 N. W. 94; Van Driele
64 Naundorf v. Schumann, 41 v. Kotvis, 135 Mich. 181, 97 N. W.
N. J. Eq. 14, 2 Atl. 609. 700; Armor v. Frey, 226 Mo. 646,
1406
COMMENTAEIES ON THE LAW OF WILLS.
and that notes due him shall be collected and the pro-
ceeds remain in her hands until her demise, a life estate
is created in the Avidow in both the land and the pro-
ceeds of the notes, by necessary implication.''^
Although the will does not in terms specify the particu-
lar estate which is to pass, yet if property be given to one
with the proviso that it is to be sold at the beneficiary's
death and the proceeds divided among named heirs, a life
estate only is given."'®
§ 968. The Same Subject: Devise to A Upon Death of B.
A devise to A upon the death of B is by implication a
devise of a life estate to B, otherwise there would be in-
testacy until B 's death.'^" A direction for the division of
126 S. W. 483; Carson v. Carson,
115 Tenn. 37, 88 S. W. 175.
6S Eaton v. Broaderick, 101 Miss.
26, 57 So. 298.
See, also, Donohue v. McNichol,
61 Pa. St. 73.
If a will devise the same prop-
erty to two difEerent persons, to
the first with words of Inheritance,
and to the second without words
denoting the quantity of the es-
tate, the latter gift will not de-
stroy the former, but will be con-
strued as a life estate only, with
reversion to the heirs of the first
devisee. — Jones v. Doe, 1 Scam. (2
111.) 276.
"I bequeath to my son-in-law
J. McM. the lot of ground in Ir-
win's place, and that J. McM. will
have to pay $150 still yet to pay
on said lot, and said lot Is to be
given to Wm. McM. as the first
son of the above," is a devise of a
life estate to J. MoM. charged
with the payment of $150, with re-
mainder to Wm. McM. in fee. The
word "bequeath" implies an In-
tention to grant an interest to
J. McM., and a life estate Is the
least interest which will satisfy
the terms employed. — McMuIlIn v.
Leslie, 29 Pa. St. 314.
Compare: The fact that the tes-
tator directs that other legacies
are not payable until after the
death of his widow except with
her consent, or that her legacy is
not given in lieu of dower, is not
sufficient to create an estate by
implication. — McCoury's Exrs. v.
Leek, 14 N. J. Eq. 70.
69 Canaday v. Bay singer, 170
Iowa 414, 152 N. W. 562.
70 Blackwell v. Bull, 1 Keen 176
Smith's Trusts, L. R. 1 Eq. 79
Blake's Trusts, L. R. 3 Eq. 799
Masterson v. Townshend, 123 N. Y.
458, 10 L. R. A. 816, 25 N. E. 928.
2 Bl. Com. *381 gives as an exam-
LIFE ESTATES. 1407
property among the children of the testator after the
death of his widow will confer upon her by implication a
life estate.''^ This rule is genei'ally applied where the gift
after B 's death is to those who would succeed to the tes-
tator's estate in the event of intestacy, it being presumed
he did not intend them to take the property sooner than
the will provides. Should it be held that B did not take
a life estate, then partial intestacy would result and the
beneficiaries whose enjoyment of the gift is postponed
by the terms of the will, would be immediately benefited.
This being contrary to the expression of the will, B is held
to take a life estate. But if those who take after B's death
are strangers, the same reasoning does not apply since
they can receive no benefit during the life of B. In such
a case it has been held that B does not take a life estate,
but partial intestacy results by which the heirs are fa-
vored.'^^
§ 969. The Same Subject: Gift Over If First Taker "Die With-
out Issue. ' '
There is an apparent irreconcilable conflict in the de-
cisions as to the interest taken by the various persons
named, either individually or as a class, where the devise
provides for a gift over in the event the first taker shall
"die without issue." Herein we will deal with those cases
pie, "as where a man devises land
to his heir at law, after the death
of his wife: here, though no es-
tate is given to the wife in express
terms, yet she shall have an estate
for life by implication; for the in-
tent of the testator is clearly to
postpone the heir till after her 72 Ralph v. Carrick, L. R. 11 Ch.
death, and if she does not take it, Div. 873; In re Springfield, (1894)
nobody else can." — Quoted and ap- 3 Ch. 603.
plied
in Nicholson v.
Drennan
, 35
S. C.
333, 14
S. E. 719, and
Mc-
Coury
's Exrs.
V. Leek,
14 N. J.
Eq.
70.
71 Kelly V.
Stinson, 8 Blackf.
(Ind.)
387.
1408 COMMENTARIES ON THE LAW OF WILLS.
where there is no direct gift to the issue, the question
being whether a limitation over upon the death of the
first taker without issue can by implication allow such
issue to take as purchasers.
Scarcely any two wills can be found identical in terms
and based upon the same facts, therefore each case really
stands as the determination of the court as to the in-
tention of the testator.'^' The general rules of construction
are recognized, but are applied with more or less force
according to the circumstances. In some cases certain
rules of construction may have been brought to the at-
tention of the court while the saine rules may have been
overlooked in other cases. Practically every will is dic-
tated under the influence of family relationship, and the
courts, in construing wills, lay hold of slight circum-
stances to raise a gift in favor of children rather than
impute to the testator the intention of leaving them un-
provided for.'^* Yet an absolute gift to a parent may
naturally be on the assumption that if he have issue, he
will provide for them.'^^ In every instance all the facts
and the provisions of the will are to be considered, and
the intention of the testator will prevail if not contrary
to the established principles of law and public policy, and
such intention is at least inferentially expressed. But
even to avoid intestacy the court can not, by construction,
make the will for the testator.'^®
73 Rice T. Moyer, 97 Iowa 96, 66 See § 867.
N. W. 94; Andrews v. Schoppe, 84 T5 DowUng v. Dowling, L. R. 1
Me. 170, 24 AU. 805. Ch. App. 612; Doe d. Barnfleld v,
74 Ball V. Phelan, 94 Miss. 293, Welton, 2 B. & P. 324; Bollng v.
23 L. R. A."(N. S.) 895, 49 So. 956; Miller, 133 Ind. 602, 33 N. B. 354;
Vanderzee v. Slingerland, 103 Baker v. McLeod's Estate, 79 Wis.
N. Y. 47, 54, 57 Am. Rep. 701, 8 534, 48 N. W. 657,
N. E. 247. 76 See § 965.
LIFE ESTATES.
1409
§970. The Same Subject: Where Devise to First Taker Is a
Life Estate.
A testator may make a devise to one either with or
without words of limitation, followed by a proviso that
if the beneficiary shall ' ' die without issue, ' ' then the prop-
erty shall be divided among other designated devisees.
The question arises as to whether or not there is a re-
mainder created by implication in the issue so that the
estate to the first taker is limited to a life estate. Where
a devise is made to a beneficiary for life, with a proviso
that if he die without issue, or die without children, the
remainder shall go to others, the general rule is that such
provisions do not by implication create an estate in re-
mainder in the issue or children. This seems to be the
established rule in England,'^'^ but in the United States
the decisions are conflicting, some favoring the English
rule,^® some denying it.'^''
TT Greene v. Ward, 1 Russ. 262;
In re Hayton's Trust, 4 New Rep.
55; Ranelagh. v. Ranelagh, 12
Beav. 200; Sparks v. Restal, 24
Beav. 218; Neighbour v. Thurlow,
28 Bear. 33; Scale v. Rawlins,
L. R. (1892) App. Cas. 342; In re
Rawlins' Trusts, L. R. 45 Ch. Dlv.
299; Kinsella v. Caffrey, 11 Ir. Ch.
154.
See, also, § 866.
Compare: The rule stated in
the text was denied in Ex parte
Rogers, 2 Madd. 449, the vice-
chancellor in his decision referring
to Crowder v. Clowes, 2 Yes. Jun.
449 ; Wainewright v. Wainewright,
3 Ves. Jun. 558, and Harman v.
Dickenson, 1 Bro. C. C. 91. But
the case of Ex parte Rogers,
11 Com. on Wills— 35
supra, was overruled in Dowling v.
Bowling, L. R. 1 Ch. App. 612.
TSBond V. Moore, 236 111. 576,
19 L. R. A. (N. S.) 540, 86 N. E.
386; Turner v. Withers, 23 Md.
18; Hoopes' Estate, 185 Pa. St.
172, 39 Atl. 888.
See, also, § 867.
Compare: Stisser v. Stisser, 235
111. 207, 85 N. E. 240.
79 Ball V. Phelan, 94 Miss. 293, '
23 L. R. A. (N. S.) 895, 49 So. 956;
Sturges V. Cargill, 1 Sandf. Ch.
(N. Y.) 318; Lytle V. Beveridge, 58
N. Y. 592; Beilstein v. Beilstein,
194 Pa. St. 152, 75 Am. St. Rep.
692, 45 Atl. 73.
See, also, § 867.
A direction that a house should
"become the property of" a cer-
1410 COMMENTARIES ON THE LAW OP WILLS.
§971. The Same Subject: Where Devise to First Taker Is iia
Fee.
"Where a devise to the first taker is in fee, either by di-
rect expression or because the gift is unlimited so that
the language used imports that the first taker shall have
the fee, and then is followed by a proviso that if the bene-
ficiary "die without issue" the property shall be distrib-
uted to others, there is a conflict of authority as to the
estate conferred. The general rule is that the first taker
is not limited to a life estate, but at the least takes a qual-
ified or conditional fee with an executory devise in favor
of those who take at the termination of such qualified or
conditional fee upon the happening of the condition upon
which it is limited. The fact that the event upon which
the estate of the first taker is to terminate is his death
without issue does not give such issue a gift by implica-
tion.*" On the other hand some decisions hold that where
tain person, not to be subject to — PlersoU v. Roop, 56 N. J. Eq.
sale or mortgage, but to descend 739, 40 Atl. 124.
to his children free and unencum- A bequest of "personal" estate
bered, and in the event of his hav- to a devisee for life with re-
ing no children then over to an- mainder to his children and de-
other, vested a life estate only in scendants, and if he die without
the first devisee. — ^In re Grim's issue, remainder over to others
Appeal, 1 Grant Cas. (Pa.) 209. named, vests a life estate in the
To the same effect, see Walker devisee, and if he die childless, his
V. Milligan, 45 Pa. St. 178. widow and next of kin can not
Personalty. Where "person- share in its distribution. — Tingley
alty" is given to a daughter for v. Harris, 20 R. I. 517, 40 Atl. 346.
life and on her death to her chil- so Smith v. Kimbell, 153 111. 368,
dren, and if she should die unmar- 38 N. B. 1029 ; Fifer v. Allen, 228
ried and without lawful Issue then 111. 507, 81 N. E. 1105; Halsey v.
over to her surviving brothers and Gee, 79 Miss. 193, 30 So. 604; Ball
sisters, the gift over becomes ef- v. Phelan, 94 Miss. 293, 23 L. R. A.
fective should the daughter not (N. S.) 895, 49 So. 956; In re New
marry or not leave lawful issue York L. & W. Ry. Co., 105 N. Y.
surviving at the time of her death. 89, 59 Am. Rep. 478, 11 N. E. 492;
LIFE ESTATES, 1411
the will provides that in case a devisee shall "die without
issue" and then makes another disposition of the same
property, such a provision indicates an intention on
the part of the testator that the first taker shall have only
a life estate.^^
§ 972. Apparent Devise of Fee Limited by Additional Provi-
sions to a Life Estate.
The general rule may be said to be that where an estate
is given to A in language which would convey a fee sim-
ple, but is followed by a provision that at his death the
property shall vest in another, the estate to A -will be
construed to be a life estate only.*^ An apparent de-vise
of the fee may be restricted by subsequent words and thus
limited to a life estate. Thus where the devise to the
first taker is uncertain, a gift over or a limitation upon
the gift may have the effect of restricting the estate to
one for life only.^*
Piatt V. Sinton, 37 Ohio St. 353; sijohnson v. Johnson, 98 111.
Collins V. Collins, 40 Ohio St. 353; 564; Nowland v. Welch, 88 Md.
Cassell V. Cooke, 8 Serg. & R. 48,- 40 Atl. 875; Simonds v. Si-
(Pa.) 268, 11 Am. Dec. 610; Can- V. monds, 112 Mass. 157; Cross v.
Porter, 1 McCord Bq. (S. C.) 60; Hoch, 149 Mo. 325, 50 S. W. 786;
Manigault v. Deas' Admrs., Bailey Kendall v. Kendall, 36 N. J. Bq.
Eq. (S. C.) 298; Addison v. Addi- 91; Eagle Fire Ins. Co. v. Cammet,
son, 9 Rich. Eq. (S. C.) 58. 2 Edw. Ch. (N. Y.) 127; Crandell
See, also, § 867. v. Barker, 8 N. D. 263, 78 N. W.
Contra: Anderson v. Messinger, 347; Noble's Estate, 182 Pa. St.
146 Fed. 929, 7 L. R. A. (N. S.) 188, 37 Atl. 852; Robert v. Ellis,
1094, 77 C. C. A. 179; Wetter v. 59 S. C. 137, 37 S. E. 250; Doty v.
United Hydraulic Cotton Press Co., Chaplin, 54 Vt. 361.
75 Ga. 540; Close v. Farmers' Loan 82 Hill v. Gianelli, 221 111. 286,
& Trust Co., 195 N. Y. 92, 87 N. E. 112 Am. St. Rep. 182, 77 N. E. 458;
1005; Shaw v. Hoard, 18 Ohio St. McCllntock v. Meehan, 273 111. 434,
227. 113 N. E. 43.
As to creation of estates tail by 83 Healy t. Eastlake, 152 111. 424,
implication upon first taker "dying 39 N. E. 260 ; Gruenewald v. Neu,
without Issue," see §§ 948-951. 215 111. 132, 74 N. E. 101; Fenster-
1412 COMMENTAEIES ON THE LAW OP WILLS.
The authorities, however, are not harmonious. It is
hardly worth while to review and point out the differences
between the words used in those devises which were held
to pass an estate in fee simple, and the words used in
devises held to pass only a life estate to the first devisee,
with remainder over. While the cases are not entirely
consistent, they may possibly be reconciled by careful
attention to the language employed in the particular will
construed. "It has been well said that it is extremely
difficult to construe one will by the light of the decisions
upon other wills framed in different language. Unless
the words used are very similar they are more likely to
mislead than to assist in coming to a correct conclu-
sion. "«*
As a general proposition when the estate given to the
first doAdsee has been regarded as a fee simple, it will be
found either that it was given unqualifiedly and by
proper technical words to the first taker as an estate in
fee simple, and in a later part of the will there was an
attempt to cut down the fee to a life estate and limit a
maker v. Holman, 158 Ind. 71, 62 Young v. Mutual Life Ins. Co., 101
N. E. 699; Rice v. Moyer, 97 Iowa Tenn. 311, 47 S. W. 428; Sprinkle
96, 66 N. W. 94; Loeb v. Struck, v. Leslie, 36 Tex. Civ. App. 356, 81
19 Ky. L. 935, 42 S. W. 401; Hatch S. W. 1018; In re Keniston, 73 Vt.
V. Caine, 86 Me. 282, 29 Atl. 1076; 75, 50 Atl. 558; In re Stuart, 115
Kent V. Morrison, 153 Mass. 137, Wis. 294, 91 N. W. 688.
25 Am. St. Rep. 616, 10 L. R. A. Where land was devised in gen-
756, 26 N. B. 427; Estate of Mai- eral terms without words of limi-
lary, 127 Mich. 119, 86 N. W. 541, tation, and in another part of the
89 N. W. 348; Pratt v. Saline Val- will the testator referred thereto
ley Ry. Co., 130 Mo. App. 175, 108 as having been given for life, it
S. W. 1099; Langley v. Tilton, 67 was decided that only an estate for
N. H. 88, 36 Atl. 610; Matter of life was conferred. — Fearing v.
Talmage, 32 App. Div. 10, 52 N. Y. Swift, 97 Mass. 413.
Supp. 710; affirmed in 160 N. Y. 84 Andrews v. Schoppe, 84 Me.
704, 57 N. E. 1125; Noble's Es- 170, 24 Atl. 805, quoted in Rice v.
tate, 182 Pa. St. 188, 37 Atl. 852; Meyer, 97 Iowa 96, 66 N. W. 94.
LIFE ESTATES. 1413
remainder over, which can not be done -without explicit
words or an unmistakable intention on the part of the tes-
tator ;^^ or it will be found that, though terms were used
which might, if standing alone, import only a life estate
in the first devisee, there were united Avith these words
other words conferring the power to dispose of the en-
tire estate, an authority incompatible with a life estate
Qjjly.86 Qj. gigg some phrase was used which clearly im-
ported that the entire fee was devised.*''
§ 973. Life Estate Coupled With Absolute Power of Disposi-
tion.
Where the devise, either in express terms or by neces-
sary implication, is to the beneficiary for life, there is
some diversity of opinion as to whether or not an added
power of disposition enlarges the estate to a fee simple.
The general rule is that a power to dispose of the fee an-
nexed to a devise for life does not enlarge the estate
given. Where the devisee is given a life estate only, a
later clause granting such devisee the power to dispose
of the fee is governed by the former provision, and the
express limitation for life will control the operation of
the power so as to prevent it from enlarging the estate
first devised.**
85 See §931. der, 21 App. Gas. (D. C.) 424;
86 See §§ 927-929. MorfEew v. San Francisco & S.
87 See §§ 920-926. R. R. Co., 107 Cal. 587, 40 Pac.
As to cutting down a devise by 810; Mansfield v. Shelton, 67 Conn.
fee by subsequent provisions in 390, 52 Am. St. Rep. 285, 35 Atl.
the will, see §§ 932-934. 271; Nort v. Healy Real Estate Co.,
88 In re Sanford, L. R. (1901) 1 136 Ga. 287, 71 S. E. 471; Kirkpat-
Gh. Div. 939, 84 L. T. N. S. 456; rick v. Kirkpatrick, 197 111. 144, 64
Lucas V. McNeill, 231 Fed. 672, 145 N. E. 267; Forbes v. Forbes, 261
C. C. A. 558; Brant v. Virginia 111. 424, 104 N. B. 1; Mulvane v.
Coal & Iron Co., 93 TJ. S. 326, 23 Rude, 146 Ind. 476, 45 N. E. 659;
L. Ed. 927; Kennedy v. Alexan- Eeatson v. Bowers, (Ind. App.) 88
1414
COMMENTARIES ON THE LAW OF WILLS.
There are authorities to the contrary which lay down
the rule that where a devise of a life estate is coupled
N. E. 966; Paxton v. Paxton, 141
Iowa 96, 119 N. W. 284; Lingo v.
Smith, (Iowa) 156 N. W. 402;
Greenwalt v. Keller, 75 Kan. 578,
90 Pac. 233; Morgan v. Christian,
142 Ky. 14, 133 S. W. 982; Park v.
McCombs, 146 Ky. 327, 142 S. W.
401; Richards v. Morrison, 101
Me. 424, 64 Atl. 768; Benesch v.
Clark, 49 Md. 497; Marden v.
Leimbach, 115 Md. 206, 80 Atl. 958;
Bassett y. Nickerson, 184 Mass.
169, 68 N. B. 25; Ware v. Minot,
202 Mass. 512, 88 N. E. 1091; Par-
lin V. Sanborn, 161 Mich. 615, 137
Am. St. Rep. 525, 126 N. W. 634;
In re Moor, 163 Mich. 353, 128
N. W. 198; Semper v. Coates, 93
Minn. 76, 100 N. W. 662; Dean v.
Nunnally, 36 Miss. 358; Murdoch
V. Murdoch, 97 Miss. 690, 53 So.
684 ; Grace v. Perry, 197 Mo. 550, 7
Ann. Cas. 948, 95 S. W. 875; Armor
V. Frey, 226 Mo. 646, 126 S. W.
483; Loosing v. Loosing, 85 Neb.
66, 25 L. R. A. (N. S.) 920, 122
N. W. 707; Weston v. Second
Orthodox Congregational Soc, 77
N. H. 576, 95 Atl. 146; Cory's Exr.
V. Cory's Admr., 37 N. J. Eq. 198;
Parker v. Travers, 74 N. J. Eq.
812, 71 Atl. 612; Dodin v. Dodin,
116 App. Div. 327, 101 N. Y. Supp.
488; alfirmed, 191 N. Y. 530, 84
N. B. 1112; Matter of Cager, 111
N. Y. 343, 18 N. B. 866; Patrick v.
Moorehead, 85 IST. C. 62, 39 Am.
Rep. 684; Helfferich v. Helfferich,
11 Ohio Dec. 303; Hobson v.
Lower, 30 Ohio C. C. 225; Hlnkle's
Appeal, 116 Pa. St. 490, 9 Atl. 938;
Allen V. Hirlinger, 219 Pa. St. 56,
123 Am. St. Rep. 617, 13 L. R. A.
(N. S.) 458, 67 Atl. 907; Fiske v.
Fiske's Heirs and Devisees, 26
R. I. 509, 59 Atl. 74 ; Dye v. Beaver
Creek Church, 48 S. C. 444, 59 Am.
St. Rep. 724, 26 S. E. 717; Cannon
V. Baker, 97 S. C. 116, 81 S. E. 478 ;
Cockrill V. Maney, 2 Tenn. Ch. 49 ;
Jones V. Jones, 66 Wis. 310, 57 Am.
Rep. 266, 28 N. W. 177; Perkinson
V. Clarke, 135 Wis. 584, 116 N. W.
229.
See § 929.
As to a devise generally, coupled
with a power of disposition, see
§§ 927, 928.
Chancellor Kent, in Jackson v.
Robins, 16 Johns. (N. Y.) 537,
says: "We may lay it down as an
incontrovertible rule that, where
an estate is given to a person gen-
erally or indefinitely with a power
of disposition, it carries a fee, and
the only exception to the rule is
where the testator gives to the
first taker an estate for life only
by certain and express words, and
annexes to it a power of disposal.
In that particular and special case
the devisee for life will not take
an estate in fee, notwithstanding
the distinct and naked gift of a
power of disposition of the rever-
sion. This distinction Is carefully
marked and settled in the cases."
LIFE ESTATES. 1415
witli an absolute and unlimited power of disposition,
everything is comprehended within the power with the
result that an estate in fee simple is created, since a lesser
estate would be inconsistent with the right of disposi-
tion.«»
In both instances the courts recognize the rule that the
intention of the testator should prevail. The apparent
conflict of authority may be reconciled by the fact that
the courts construed the intention of the testator in such
a manner as in one instance to create a fee, while in the
other the estate was limited to one for life.®"
§974. The Same Subject: Statutory Regulations.
In some jurisdictions it is provided by statute that a
devise; is presumed to pass the fee simple unless it clearly
appears that a less estate is intended; and where an
absolute power of disposition is given, not accompanied
by any trust, and no remainder is limited over on the
estate devised to the donee of the power, an estate in fee
simple is created; and every power of disposition is
deemed absolute if by means thereof the donee is enabled
Where a power of disposal ac- Hardaker's Estate, 204 Pa. St. 181,
companies a bequest or devise of 53 Atl. 761; Hair v. Caldwell, 109
a life estate, such power is only co- Tenn. 148, 70 S. W. 610; McKnight
extensive with the estate which v. McKnight, (Tenn.) 107 S. W.
the devisee takes, and means such 682; Davis v. Heppert, 96 Va. 775,
32 S. E. 467; Brown's Guardian v.
disposal as a tenant for life could
make, unless there are other
words clearly Indicating that a
Strother's Admr., 102 Va. 145, 47
S. E. 236; Randall v. Harrison's
Exr., 109 Va. 686, 64 S. E. 992;
larger power was intended.-Met- g^.^j^ ^ Schlegel, 51 W. Va. 245,,
zen V. Schopp, 202 111. 275, 67 N. B. ^^ g j, ^gj. Morgan v. Morgan, 60
36- W. Va. 327, 9 Ann. Cas. 943, 55
See §§ 1011, 1012. g e. 389; Newman v. Newman, 60
89 Bolman v. Lohman, 79 Ala. -w. Va. 371, 7 L. R. A. (N. S.) 370,
63; Hale v. Marsh, 100 Mass. 468; 55 S. E. 377.
Cummings v. Shaw, 108 Mass. 159 ; 90 See § 929, § 933, n. 87.
1416 COMMENTAEIES ON THE LAW OP WILLS.
in his lifetime to dispose of the entire fee for his own ben-
efit.9i
Some of the statutes provide that where an absolute
power of disposition, not accompanied by any trust, is
given to the donee of the particular estate for life or for
years, such an estate is enlarged to a fee simple as to
the rights of creditors and purchasers, but is subject to
any future estate limited thereon in case the power is not
executed or the lands are not sold for the satisfaction of
debt during the continuance of the particular estate.®^
§ 975. Life Estate With Limited Power of Disposition.
Where the devisee takes property with but a limited
power of disposition, such power is consistent only with
a life estate.®^ As to whether or not the power is limited
to specific purposes depends upon the intention of the tes-
tator, and such intention must be ascertained and, if pos-
sible, given effect. Such power of disposition is limited
91 Code of Alabama, §§ 1020, As to statutory regulations re-
1048, 1049. garding words of limitation, see
Under such statutory provisions, §§ 935, 936.
where the wife gave her husband 92 Hood v. Bramlett, 105 Ala.
her home "for the use of himself 660, 17 So. 105; Hershey v. Meeker
and children as a home, with the County Bank, 71 Minn. 255, 73
right and power in him to sell and N. W. 967; Hume v. Randall, 141
convey the same at his discre- N. Y. 499, 36 N. E. 402.
tion," the husband took an estate See, also. Civil Code, 1907, Ala.,
in fee.— Smith v. Phillips, 131 Ala. §§3423-3426; Howell's Mich. Stats.,
629, 30 So. 872. §§10764-10768; Gen. Stats., Minn., ■
Under the Kentucky statute, a 1913, §§6735-6739; Real Property
devise to the testator's wife of all Law, N. Y., §§129-133; Comp.
his estate for "her lifetime, to Laws, Okla., 1909, §§ 7324-7327;
manage and dispose of as she may Stats. 1913, Wis., §§ 2108-2112.
see cause," and there was no gift 93 See § 929, n. 62, 63.
over, was held to convey an es- Whether interest in remainder
tate in fee.— Alsip v. Morgan, 33 is vested or contingent, see §§ 1011,
Ky. L. 72, 109 S. W. 312. ioi2.
LIFE ESTATES. 1417
where the devisee, although given the right to sell the
property at his discretion, is further required to reinvest
the proceeds in other lands, taking a deed for the same to
himself for life with remainder over as provided by the
testator's will.®* A power may also be limited to condi-
tions as where there must exist a necessity to provide
funds for the support of the devisee."® But the right to
sell at any time when, in the judgment of the devisee, a
sale is necessary for his comfort or convenience, makes
the devisee the sole criterion of the exercise of the power
and makes such power practically without limitation.®"
Although a limited power of disposition be coupled with
a life estate, as the right to sell and use the proceeds
for the use, comfort and support of the devisee, the entire
property may be sold during the devisee's life for the spe-
cific purposes mentioned, and thus the rights of the re-
mainderman may be defeated.®'^ If the right to exercise
a power of disposition depends upon a certain condition
or the happening of a certain contingency, such condition
or contingency must exist at the time of disposition ; but
unless otherwise restricted by the terms of the devise, it
is not necessary that the donee of the power secure an
94 Waller v. Martin, 106 Tenn. Where the testator manifested
341, 61 S. W. 73. the Intention of charging his en-
35 Cox V. Wills, 49 N. J. Eq. 130, tire estate with the burden of the
22 Atl. 794; Bradway v. Holmes, support and maintenance of his
50 N. J. Eq. 311, 25 Atl. 196. wife, and gave her a power of sale
Where the will gave a sister a and reinvestment to that end, the
life estate with power "to sell and power could only be exercised by
dispose of so much ... as will the wife for the particular purpose
ensure her a comfortable living," mentioned. — Gadd v. Stoner, 113
she Is limited to the right to sell Mich. 689, 71 N. W. 1111.
only in order to ensure her such 96 Wills v. Wills, 73 N. J. Bq.
living.— Morse v. Inhabitants of 733, 69 Atl. 256.
Natick, 176 Mass. 510, 57 N. E. 97 Rowe v. Rowe, 120 Iowa 17,
996. 94 N. W. 258.
1418 COMMENTARIES ON THE LAW OP WILLS.
order of court to dispose of the property. Proof of the
actual existence of the condition or contingency is suffi-
cient.®^ If the. power to sell requires the approval of
others, as where the widow can dispose of real estate only
with the approval of the adult children of the testator,
the widow, having only a life estate, can not dispose of
the property without the consent of such children,®*
§ 976. Where Power of Disposition Is Not Exercised.
Where the testator gives a life estate to one coupled
with a power of distribution, with remainder over to an-
other in the event the property is not disposed of, the
gift over creates a remainder which vests at the death of
the testator, subject to be defeated by the exercise of the
power.^ Where the power of distribution is not exercised
it leaves both the life estate and the remainder over un-
affected by the grant of the power ; and of course where
such power is exercised, it defeats the remainderman as
to the property disposed of .^
§ 977. Express Devise Not Affected by Subsequent Doubtful
Expressions.
In the interpretation of every will aU technical rules of
construction must give way to the intention of the tes-
tator when such intention can be fairly ascertained ; but
clear expressions will not be controlled by those which are
doubtful. Where a life estate has been created in clear
98Bartlett v. Buckland, 78 Conn. S. W. 353; Burleigh v. Clough, 52
517, 63 AU. 350. N. H. 267, 13 Am. Rep. 23.
99 Schneider v. Schneider. 124 ^^ ^"^ ^ ^ift over of what re-
Wls. Ill, 102 N. W. 232. "'^'''^ "undisposed of by the devi-
see, see § 930.
1 McCullough's Admr. v. Ander- 2 Grace v. Perry, 197 Mo. 550,
son, 90 Ky. 126, 7 L. R. A. 836, 13 7 Ann. Cas. 948, 95 S. W. 875.
LIFE ESTATES. 1419
and unequivocable terms, no expressions or words there-
after used in the will, short of plain and explicit terms
to the contrary, will be deemed to have enlarged the life
estate into a fee. A life estate clearly expressed can not
be converted by a later clause into an absolute estate in
favor of the same person on the theory that where two
testamentary dispositions are antagonistic, the latter
must stand as the last expression of intention, unless the
later clause is as clear as the first and can not be recon-
ciled therewith, and the real intent of the testator can
not be gathered from the general scope of the will. If
there be no doubt as to the meaning of the earlier clause
while doubt exists regarding the later so that either of
two constructions is possible, that construction will be
adopted which will give effect to both. But doubt as to
the meaning of the last clause, instead of destroying the
limitation in the former clause, confirms it. An express
limitation will not be affected by subsequent expressions
of doubtful meaning.-'*
This does not mean that words which, standing alone
and unmodified by other clauses of the will, would create
an estate for life, can not be preceded or followed by
clauses which change the nature of the estate given.* But
3 Doe V. Biddle, 2 Houst. (Del.) A provision that the widow may
402; Johnson v. Johnson, 98 111. have the privilege of a home in a
564 ; Cecil v. Cecil, 161 Ky. 419, 170 house devised to the son is not
S. W. 973; Vaughan v. Bunch, 53 necessarily inconsistent with an
Miss. 513; Adams v. Massey, 184 intention to invest her with a life
N. y. 62, 76 N. E. 916; In re ^^^^^^ j^ ^„ ^^^ testator's prop-
erty so long as she remains un-
married.— Clough V. Clough, 71
Souder, 203 Pa. St. 293, 52 Atl. 177;
Ellis V. Birkhead, 30 Tex. Civ. App.
529, 71 S. W. 31.
' . , ^ .,, ^ X, . N. H. 412, 52 Atl. 449.
A devise In fee will not be cut '
down by doubtful expressions, see 4 Cruse v. Kidd, 195 Ala. 22, 70
§ 954. So. 166.
1420 COMMENTAEIES ON THE LAW OF WILLS.
an estate for life can not be defeated or cut down because
of a doubt raised by other clauses in the will, but only by
express and explicit words or by clear and undoubted im-
plication.^
§ 978. Life Estate in Personalty : Money.
The law authorizes the creation of the same interests,
in effect, in personal property as are permitted with re-
gard to real property, and life estates, with remainders
over, may be created in personalty.® Personal property,
including money, may be bequeathed for life with remain-
der over.'' Even successive life estates in personalty are
allowed.*
Where an estate in personal property is given for life
with remainder over in general terms and not specifically,
the property is to be converted and invested by the exec-
utor and the income only paid to the life tenant. This
rule of construction must always prevail unless a con-
trary intention is indicated in the will tbat the tenant for
life is to enjoy the possession of the property in specie.^
A life estate may be created in money as well as in
land.^" A bequest of money does not always vest in the
beneficiary an absolute estate, for a trust may be created
so that he has only a right to the interest or income, the
5 Montgomery V. Brown, 25 App. Hatcti, 28 N. H. 331; Van Wag-
Cas. (D. C.) 490. oner's Estate, (N. J. Eq.) 97 Atl.
6 French v. Hatch, 28 N. H. 331;
Matter of Ryder, 41 App. DIv.
(N. Y.) 247, 58 N. Y. Supp. 635.
893; Westcott v. Cady, 5 Johns.
Ch. (N. Y.) 334, 346; Davis' Ap-
peal, 100 Pa. St. 201.
8 Matter of Ryder, 41 App. Div.
7 Dickinson v. Griggsville Nat. (N. Y.) 247, 58 N. Y. Supp. 635.
Bank, 111 111. App. 183; Webb v. 9 Van Wagoner's Estate, (N. J.
Webb, 130 Iowa 457, 104 N. W. Eq.) 97 Atl. 893; Ott v. Tewks-
438; Merrin v. Emery, 10 Pick. (27 bury, 75 N. J. Eq. 4, 71 Atl. 302.
Mass.) 507; Hitchcock v. Clenden- lo Conover v. Cade, (Ind.) 112
nln, 6 Mo. App. 99; French v. N. E. 7.
LIFE ESTATES. 1421
fund being kept intact for the remainderman.^^ "Where
the beneficiary takes but a life estate in money he is en-
titled to the interest or income only, and the principal is
retained by the trustee or executor.^^
§ 979. Gift of Income of Personal Property.
A bequest of the income of personal property is a gift
of a life estate.^^ In the gift of a mere life estate in per-
sonalty, with remainder over, there is no implication that
the beneficiary may spend or diminish the principal. A
gift of the income is absolute so far as the income is con-
cerned, unless its use be limited.^* If the use of the income
be not limited, it belongs to the legatee absolutely; and
in the fund he has a life estate but without the right to
expend it.^^
§ 980. Life Estate in Personalty With Power of Disposition.
A testator may confer a life estate in personalty with
remainder over, coupled with the power in the life tenant
to make an absolute disposition of the property. The rule
is the same whether the property be real or personal.^®
11 "It is not true, as argued by Wagoner's Estate, (N. J. Eq.) 97
counsel for tlie defendant in er- Atl. 893.
ror, that a bectuest of money will i3 Bradbury v. Jackson, 97 Me.
always vest an absolute estate In 449, 54 Atl. 1068.
the beneficiary on the theory that 14 Huston v. Dodge, 111 Me. 246,
the enjoyment means the destruc- gg Atl. 888.
tion. A trust may be created so is Sampson v. Randall, 72 Me.
that the beneficiary may have only 109 ; Huston v. Dodge, 111 Me. 246,
the right to the interest or income 88 Atl. 888.
of a fund and the fund itself kept le Webb v. Webb, 130 Iowa 457,
intact for remaindermen." — ^Wixon 104 N. W. 438; Crodshalk v. Akey,
v. Watson, 214 111. 158, 73 N. E. 109 Mich. 350, 67 N. W. 336; Woos-
306. ter v. Cooper, 53 N. J. Eq. 682, 3S
12 Harrison's Exr. v. Stockton's Atl. 1050.
Exr., 19 N. J. Eq. 235, 243; Van See § 973.
1422 COMMENTARIES ON THE LAW OF WILLS.
Thus it is held that a bequest of personalty for life only
is not converted into an absolute gift by reason of being
coupled with the power of absolute disposition.^'' What is
really given is a life estate coupled with a power and
not an absolute gift.^^ As with realty, however, the au-
thorities are conflicting, and some hold that a bequest of
personalty for life ^vith an unlimited power of disposition
conveys an absolute interest.^** Other authorities hold that
the power of disposal by the life tenant in personalty is
only co-extensive with the estate which he takes under the
will and means only such disposal as a tenant for life
could make.^**
Where but a life estate in personalty is created with
remainder over, although a power of disposition be
granted, if it be not exercised the property will pass to the
remainderman at the death of the life holder.^^
Where the testator authorizes ceive how she can have an abso-
hls wife to sell and dispose of his lute power of disposition." — Gou-
personal estate as she may see fit, die v. Johnston, 109 Ind. 427, 10
for her own support according to N. E. 296.
her condition in life and for the is Dallinger v. Merrill, 224 Mass.
benefit of his estate so far as she 534^ 113 n. B. 279.
may deem proper, a life estate is 19 patty v. Goolsby, 51 Ark. 61,
created therein.— Cresap v. Ore- 9 g. ^ 846; ^ells v. Doane 3
sap, 34 W. Va. 310, 12 S. E. 527. Qray (69 Mass.) 201; Matthis' v.
iTBradly v. Westcott, 13 Ves. Rhea, 23 N. C. 394; Mercur's Es-
Jun. 446, 450; Boyd v. Strahan, 36 tate, 151 Pa. St. 49, 24 Atl. 1094;
111. 355, 357; Copeland v. Barron, Davis v. Richardson, 10 Yerg.
72 Me. 206; Wooster v. Cooper, 53 (Tenn.) 290, 31 Am. Dec. 581.
N. J. Bq. 682, 33 Atl. 1050; Matter See § 973.
of French, 52 Hun 303, 5 N. Y. 20 Dickinson v. Griggsvilie Nat.
Supp. 249. Bank, 111 111. App. 183.
"If the property is for her use 21 Webb v. Webb, 130 Iowa 457,
during her natural life, it is dif- 104 N. W. 438.
flcult. If not Impossible, to con- See § 976.
LIFE ESTATES.
1423
§ 981. Personalty Consumable in Its Use : Specific and General
or Residuary Bequests Distin^shed.
Certain articles of personalty are of such a nature that
their use amounts to their consumption. They are em-
braced under the description of articles quce ipso usu con-
sumimtur.^^ As to testamentary gifts of such personalty,
there is a distinction between specific bequests, and gen-
eral or residuary bequests. It is the general rule that a
specific bequest of any article quce ipso usu conswrmmtur,
although expressly limited to the legatee for life with a
remainder over, confers on the legatee the absolute prop-
erty in the chattel bequeathed. To give such articles. as
wine, com, sheep or cattle for life, is to give the absolute
property if the legatee is to have any use of it, since its
22 The following articles have
been determined to be articles
"quae ipso usu consumuntur":
Corn and other provisions, wines,
fruits, and live stock (Healey v.
Toppan, 45 N. H. 243, 86 Am. Dec.
159) ; hogs, grain, and liquor (Ap-
peal of Holman, 24 Pa. St
174) ; corn, wheat, and provisions
(Chrlstler's Exr. v. Meddis, 6
B. Men. (45 Ky.) 35) ; machinery
in newspaper plant (Seabrook v.
Grimes, 107 Md. 410, 126 Am. St.
Rep. 400, 16 L. R. A. (N. S.) 483, 68
Atl. 883) ; wheat, oats, horses,
cows, wagons, farming utensils,
and lumber on a farm (Walker v.
Pritchard, 121 111. 221, 12 N. E.
336) ; growing crops, manure,
seeds, oxen, pigs, and sheep (Bry-
ant V. Easterson, 5 Jur. N. S. 166) ;
hogs, bacon, and wool (Gentry v.
Jones, 6 J. J. Marsh (Ky.) 148);
horses, cattle, and farming tools
(Rapalye v. Rapalye, 27 Barb.
(N. Y.) 610).
On the other hand, farming stock
and implements of husbandry have
been held not to be articles "quse
ipso usu consumuntur," Groves v.
Wright, 2 Kay & J. 347.
The contention that money
given for life is an article con-
sumed in its use and therefore an
absolute gift was denied. — Field
V. Hitchcock, 17 Pick. (34 Mass.)
182, 28 Am. Dec. 288.
Where there is a specific be-
quest to one for life, with re-
mainder over, of particular per-
sonalty of a non-perishable nature
but liable to be worn out and to
deterioration in value from use,
such as household furniture and
farming utensils, then the life ten-
ant takes the use only. — Healey v.
Toppan, 45 N. H. 243, 86 Am. Dec,
159.
1424 COMMENTAEIES ON THE LAW OP WILLS.
consummaticn is inseparable from its use.*' The fore-
going general rule is in full force in some jurisdictions
with a proviso that the life tenant lives to consume them,,
but should he die before the specific articles are con-
sumed, any portion remaining at his death will go to the
remainderman and not to those who would succeed to his
personal property.^'
When articles q^ue ipso tisu consumuntur are included in
a general or residuary bequest with other articles of a
different nature, in favor of a beneficiary for life with a
remainder over, such articles must be sold by the executor
and the interest only goes to the beneficiary, the princi-
pal being reserved for the remainderman. This rule ap-
plies most strongly with regard to residuary bequests,
since the residue is first liable for the payment of the
debts of the testator and it is natural that he presumed
that merely the use of the net balance should go to the
life tenant. And where articles of a different class are-
associated in the same gift with those which are con-
sumed by use, the whole must go together ; for the testa-
tor must intend that the remainderman should receive
some benefit, and as he is entitled to have his interest
conserved in other articles, it is assumed that the tes-
tator intended that he should likewise have his interest
23 Randall v. Russell, 3 Men man's Admrs. t. Vreeland's Exr.,
190, 194; Breton V. Mockett, L. R. 14 N. J. Eq. 23; Rapalye v. Rap-
9 Ch. Div. 95; Christler's Exr. v. ' alye, 27 Barb. (N. Y.) 610; Smith.
Meddis, 6 B. Mon. (45 Ky.) 35; v. Barham, 17 N. C. 420, 25 Am.
Evans v. Iglehart, 6 Gill & J. Dec. 721; Robertson v. Collier, 1
(Md.) 171; Seabrook v. Grimes, Hill Eq. (S. C.) 370; Henderson
107 Md. 410, 126 Am. St. Rep. 400, v. Vaulx, 10 Yerg. (18 Tenn.) 30;
16 L. R. A. (N. S.) 483, 68 Atl. 883; Bartlett v. Patton, 33 W. Va. 71, &
Merrill v. Emery, 10 Pick. (27 L. R. A. 523, 10 S. B. 21.
Mass.) 507; Healey v. Toppan, 45 24 Healey v. Toppan, 45 IN. H.
N. H. 243, 86 Am. Deo. 159; Acker- 243, 86 Am. Dec 159.
LIFE ESTATES. 1425
conserved in those articles which might be consumed if
allowed to pass into the possession of the first taker.^°
The foregoing rules as to specific and general or re-
siduary bequests for life of personalty consumable in
its use MT.11 prevail unless there be in the will an indica-
tion of a contrary intention.^® Where the contrary is
claimed, the burden is upon him who asserts a contention,
and the mere absence of any direction in the will is not
sufficient to overthrow the rule.^'^
§ 982. Compelling Security From Life Tenant of Personalty.
A life tenant of personal property or of money, chat-
tels not consumable in their use, is entitled to its posses-
sion and can not be required as a matter of course to give
security for its return either to the remainderman or
those entitled to the reversion, but only in the sound dis-
cretion of the court exercised according to the circum-
stances.^* When there appears danger that the money or
property may be wasted or put out of the Avay, security
may be required.^® The practice is to require from the
first taker an inventory of the goods specifying that they
belong to him for the particular period only and after-
25 Ackerman's Admrs. v. Vree- titled to the original stock. —
land's Exr., 14 N. J. Eq. 23; Gov- Saunders v. Haughton, 43 N. C.
ehhoven v. Shuler, 2 Paige Ch. 217, 57 Am. Dec. 581.
(N. T.) 122, 21 Am. Dec. 73; Smith 26 Ackerman's Admrs. v. Vree-
V. Barham, 17 N. C. 420, 25 Am. land's Exr., 14 N. J. Eq. 23; Healey
Dec. 721; Saunders v. Haughton, v. Toppan, 45 N. H. 243, 86 Am.
43 N. C. 217, 57 Am. Dec. 581; Dec 159.
Bartlett v. Patton, 33 W. Va. 71, 5 27 Healey v. Toppan, 45 N. H.
L. R. A. 523, 10 S. E. 21. 243, 86 Am. Dec. 159.
Whenever the chattels are not 28 Houser v. Ruffner, 18 W. Va.
sold but the property is delivered 244.
to the tenant for life, the increase, 29 Frazer's Admr. v. Bevill, 11
such as of cattle, belongs to him^ Gratt. (Va.) 9; Mortimer v. Mof-
and the remainderman is only en- fatt, 4 Hen. & M. (Va.) 503.
II Com. on Wills— 36
1426 COMMENTARIES ON THE LAW OF WILLS.
ward to another in remainder. Security is not required
from the first taker unless there is danger that the arti-
cles will be wasted or otherwise lost to the remainder-
man.^" It has been held that a tenant for life is not
bound to give a receipt or sign an inventory unless there
is reason to believe that the property wiU be destroyed
or disposed of, in which case the executor may refuse to
deliver it without security, or the remainderman may,
after delivery, file his bill to compel security.'^
§ 983. Respective Bights of Life Tenant and Remainderman.
Where property is given to one person for life with
remainder to another, the former is entitled to the uste
for the period limited and the latter to the corpus after
that time. Neither may encroach upon the right of the
other. The life tenant may not diminish the corpus nor
the remainderman the use, and what they may not do
themselves, others may not do for them. The life tenant
may not be deprived of the use to augment the corpus^
nor the remainderman of the corpus to augment the use.
The right to the use of the property entitles the life ten-
ant to its net income. As applied to land, it entitles him
30 It seems that if at the termin- him is to do. Some have thought
ation of the life estate the articles that the property must be turned
are not in as good condition as into money and the interest only
when received by the life tenant, P^*^ t° ^^^ legatee; others have
he must make good the deficiency, thought this would be a very rigid
construction; and it is now set-
tled, that the tenant for life Is to
— Robertson v. Collier, 1 Hill Eq.
(S. C.) 370, 373; Covenhoven v.
Shuler, 2 Paige Ch. (N. Y.J 122, 21
Am. Dec. 73.
have the possession and is not to
be compelled to give security but
only to exhibit an inventory." —
"There seems to have been Weeks v. Weeks, 5 N. H. 326.
much doubt among judges, what a si Foley v. Burnell, 1 Bro. C. C.
person having a limited use of 274, 279 ; Smith v. Barham, 17 N. C.
personal property bequeathed to 420, 25 Am. Dec. 721.
LIFE ESTATES.
1427
to the crops or rent; as applied to money or bonds, it
entitles him to the interest; and as applied to corporate
stock, it should upon the same reasoning entitle him to
the net earnings. ^^
Persons to whom personal property is limited in re-
mainder have the right to be protected and secured
against probable danger of its destruction or against
more than ordinarj'- deterioration, or hazard of the title.®^
But if a beneficiary is given the "use" of personal prop-
erty during his life and at his death the "unused por-
tion" is to go to others, the first taker has a life interest
in all the property given and may consume it in any way
consistent with "his use," even to the extent of entirety.
Such "use," however, is personal and does not confer
the right to dispose of the corpus by gift during life nor
by will at death.''*
32 Bryan v. Aikin, (Del.) 86 Atl.
674, reversing (Del.) 82 Atl. 817;
Pritcliitt V. Nashville Trust Co.,
96 Tenn. 472, 33 L. R. A. 856, 36
S. W. 1064.
One entitled only to a life use
can not make a mortgage of the
property that will be valid as
against the remainderman. — Myar
V. Snow, 49 Ark. 125, 4 S. W. 381.
Parties who have an interest in
personal property in the nature of
a remainder may maintain a suit
against the life tenant to protect
their interests. — Goudie v. John-
ston, 109 Ind. 427, 10 N. B. 296.
A remainderman may mortgage
his interest in real property dur-
ing the life of the first tenant, and
this, too, although by the provi-
sions of the win there has been
an equitable conversion of the
realty into personalty. — Andress'
Estate, 14 Phila. (Pa.) 240.
Where slaves were left to one
legatee for life, and after his
death over to another, and some
of them died, and some were sold
by the first taker, and the others
were emancipated by a general
emancipation proclamation, the
life tenant was held liable to the
remainderman for the slaves
which he had sold, although had
he not so disposed of them they
would by reason of the general
emancipation have been valueless
to the remainderman. — Petty-
john's Bxr. V. Woodroofs Exr., 77
Va. 507.
33 Henderson v. Vaulx, 10 Yerg.
(18 Tenn.) 30.
34 Hardy v. Mayhew, 158 Cal.
1428 COMMENTAEIES ON THE LAW OF WILLS.
§984. The Same Subject: Extraardinary Dividends Prom
Stock.
The income from stock may be given to one for life,
with remainder of the corpus to another. But extraor-
dinary dividends in stock or in cash may be declared.
When the question is settled as to whether such dividends
belong to the income or to the corpus, the respective
rights of the life tenant and the remainderman are read-
ily determined. The difficulty arises as to such determi-
nation. There is much conflict of authority, the English
rule having been changed and now agreeing with the
Massachusetts rule. Under the American decisions there
are three distinct lines of cases, known as the Massachu-
setts rule, the Pennsylvania rule, and the Kentucky rule.
All of these doctrines recognize the fact that whether a
dividend declared by a corporation during the continu-
ance of a life estate is to be regarded as income or capital
is primarily a question of construction to ascertain the
testator's intention. The difficulty arises when the will
merely directs the payment of the "earnings" or "in-
come " or " dividends ' ' to the life tenant, and is not suffi-
ciently clear to guide the court where the corporate dis-
tribution arising from stock holdings is of an unusual or
extraordinary nature.
§ 985. The Same Subject : English Rule.
The early English rule, adopted at the end of the six-
teenth century, held all extraordinary or unusual divi-
dends declared during the life estate, whether in stock
95, 139 Am. St. Rep. 73, 110 Pac. As to gift of what "remains un-
113. disposed of by devisee of fee not
As to gifts for, life of the rents, limiting estate to one for life, see
Income, use, etc., of realty, see § 930.
§§961, 962.
LIFE ESTATES. 1429
or in cash, to belong to the corpus and not to the in-
eome.^^ But this rule has been changed and is now prac-
tically the same as that hereinafter referred to as the
Massachusetts rule.^®
§986. The Same Subject: Massachusetts Rule.
Under this rule all cash dividends are regarded as
income and stock dividends are regarded as capital.^^ It
makes no difference when the dividend was earned, pro-
vided it was declared out of the net earnings during the
life tenancy. The Massachusetts rule has been substan-
tially followed by the Supreme Court of the United
States,^^ and by the courts of Connecticut, Illinois, Ohio,
and Ehode Island.*^
§ 987. The Same Subject : Pennsylvania Rule.
The Pennsylvania ride, as declared in Earp's Appeal,*"
is this : Net earnings when declared as dividends, whether
in stock or in cash, belong to the life tenant, provided
that such earnings have been made, or have accumulated,
since the stock in question was held as part of the trust
estate. This rule differs from the Massachusetts rule in
this : It makes no difference whether the dividend is de-
clared in stock or cash; and it does make a differ-
ence when the earnings were made or accrued, for the
35 Brandon v. Brandon, 4 Ves. 39 Smith v. Dana, 77 Conn. 543,
Jun. 800. 107 Am, St. Rep. 51, 69 L. R. A.
36 In re Hopkins' Trusts, 18 76, 60 Atl. 117; De Koven v. Alsop,
L. R. Eq. 696; Jones v. Evans, 107 205 111. 309, 63 L. R. A. 587, 68
L. T. R. (Ch. Div.) 604. j^ g 93q. wilberdlng v. Miller,
37 Minot V. Paine, 99 Mass. 101, gg ^j^.^ g^ g^g^ L. R. A. 1916A,
108, 96 Am. Dec. 705.
38 Gibbons v. Mahon, 136 U. S.
549, 34 L. Ed. 525, 10 Sup. Ct. R.
1057.
718, 106 N. E. 665; In re Brown,
14 R. I. 371, 51 Am. Rep. 397.
40 Earp's Appeal, 28 Pa. 368.
1430 COMMENTAEIES ON THE LAW OF WILLS.
dividend does not go to the life tenant unless declared
out of net earnings made or accrued during the existence
of the life tenancy.
The Pennsylvania rule has been substantially followed
in Delaware, Iowa, Maine, Maryland, Mississippi, Minne-'
sota, New Hampshire, New Jersey, New York, South
Carolina, Tennessee, Vermont and Wisconsin.*^
§988. The Same Subject: Kentucky Bule.
This rule was formerly known as the New York and.
Kentucky rule, but in a late New York case*^ the highest
court in that state receded from its former position and'
adopted the apportionment feature of the Pennsylvania
rule. While the Kentucky rule is like unto the Pennsyl-
vania rule in that it makes no distinction between cash
and stock dividends declared out of surplus earnings,
it differs therefrom in holding that dividends, whether
cash or stock, are non-apportionable and are considered
as accruing in their entirety as of the date when they are
declared.*^
41 See Bryan v. Alkln, (Del.) 86 L. R. A. (N. S.) 510, 103 N. B. 723,
Atl. 674, reversing (Del.) 82 Atl. 823; Wallace v. Wallace, 90 S. C.
817; Kalbach v. Clark, 133 Iowa ei, 72 S. E. 553; Pritchitt v. Nash-
215, 12 Ann. Cas. 647, 12 L. R. A. ^i^^^ ,j,j.yg(. ^^^ _ gg .p^^j^ ^.^g, 33
(N. S.) 801, 110 N. W. 599; Gilkey ^_ ^ ^ g^g^ gg g ^_ ^^g ^^ ^^
V. Paine, SO Me. 319, 14 Atl. 205;
Beaton's Estate, 89 Vt. 550, 96
Atl. 21; Soehnlein v. Soelinlein,
146 Wis. 330, 131 N. W. 739.
Thomas v. Gregg, 78 Md. 545, 44
Am. St. Rep. 310, 28 Atl. 565;
Goodwin V. McGaughey, 108 Minn.
248, 122 N. W. 6; Holhrook v. Hoi- 42 In re Osborne, 209 N. T. 450,
brook, 74 N. H. 201, 12 L. R. A. Ann. Cas. 1915A, 298, 50 L. R. A.
(N. S.) 768, 66 Atl. 124; Van Doren (N. S.) 510, 103 N. E. 723, 823.
V. Olden, 19 N. J. Eq. 176, 97 Am. 43 Kite's Devisees v. Kite's Exr.,
Dec. 650; In re Osborne, 209 N. Y. 93 Ky. 257, 40 Am. St. Rep. 189,
450, Ann. Cas. 1915A, 298, 50 19 L. R. A. 173, 20 S. W. 778.
CHAPTEE XXXV.
TESTED AND CONTINGENT INTEBESTS.
§ 989. Vested and contingent interests generally.
§ 990. Effect of expressions of contingency.
§ 991. Where the contingency occurs during lifetime of testator.
§ 992. Contingency that beneficiary be living at a designated
time.
§ 993. Gift "payable" when beneficiary attains a certain age.
§ 994. Gift upon attaining a certain age.
§ 995. Effect of intermediate gift of income of principal which
is to pass to beneficiary at a certain age.
§ 996. Where payment is postponed for the convenience of the
estate.
§ 997. Divesting of vested estates : Interest contingent upon sur-
viving termination of preceding estate.
§ 998. The same subject.
§ 989. Vested and Contingent Interests Generally.
A conditional or contingent devise or legacy may lapse
because of the non-performance of a specified condition
or the failure of some designated contingency.^ An un-
conditional devise or legacy which has once vested, can
not be divested. Once the title has passed to the bene-
ficiary, it can not revert.^ But as will be shovra later, a
conditional devise or legacy may vest, but thereafter be
divested either in part or in whole. No interest, of course,
can be acquired in any property devised or bequeathed,
prior to the death of the testator ; but at that time a bene-
ficiary may take an immediate interest with the right to
1 See § 757.
2 Succession of Vance, 39 La. Ann. 371, 2 So. 54. See § 895.
(1431)
-l432 commentaries on the law of wills.
both title and possession, or he may be vested with the
title with the right to possession or enjoyment postponed
until some future date, or he may take neither the title
nor right to possession, both being dependent upon the
happening of some contingency. Upon the determination
of the character of the gift, therefore, depend the benefits
M^iich a devisee or legatee will receive. A vested interest
or remainder is the subject of sale, and a conveyance
thereof is valid in equity.^ A contingent remainder is
not liable to levy and sale under an execution, and a pur-
chaser at an execution sale prior to the event upon which
the vesting depends will take nothing.*
§ 990. Effect of Expressions of Contingency.
A cardinal principle of construction is to so construe
a testamentary gift that it may vest at the earliest pos-
sible moment, the law favoring vested rather than con-
tingent interests.® The fact that the testator directs the
3 Grayson v. Tyler's Admr., 80 N. Y. 340, 66 N. E. 975, 1101;
Ky. 358; Griffin v. Shepard, 40 Arnot v. Arnot, 75 App. Div.
Hun (N. Y.) 355. (N. Y.) 230, 78 N. Y. Supp. 20;
4 Roundtree t. Roundtree, 26 Manhattan Real Estate Assn. v.
S. C. 450, 2 S. B. 474. Cudllpp, 80 App. Div. (N. Y.) 532,
5 Realty.— Duffield v. Duffleld, 3 8 N. Y. Supp. 993; Allison v. Alll-
Bligh N. S. 260, 331; Doe v. Con- son's Exrs., 101 Va. 537, 63 L. R. A.
sidine, 6 Wall. (U. S.) 458, 18 920, 44 S. E. 904; Smith v. Smith,
L. Ed. 869; Olmstead v. Dunn, 72 116 Wis. 570, 93 N. W. 452.
Ga. 850, 859; Fields v. Lewis, 118 Personalty. — McArthur v. Scott,
Ga. 573, 45 S. E. 437; Chapin v. 113 tJ. S. 340, 28 L. Ed. 1015,
Crow, 147 111. 219, 37 Am. St. Rep. 5 Sup. Ct. 652; Campbell v. Weak-
213, 35 N. E. 536; Boatman v. Boat- ley, 121 Ala. 64, 25 So. 694; Mitch-
man, 198 111. 414, 65 N. B. 81; ell v. Mitchell, 73 Conn. 303, 47
Heilman v. Heilman, 129 Ind. 59, Atl. 325; Clark v. Shawen, 190 111.
28 N. E. 310; Nelson v. Nelson, 47, 60 N. B. 116; Moore v. Gary,
(Ind. App.) 72 N. B. 482; Mc- 149 Ind. 51, 48 N. E. 630; Taylor
Laughlin v. Penney, 65 Kan. 523, v. Taylor, 118 Iowa 407, 92 N. W.
70 Pac. 341; Lewis v. Howe, 174 71; Robinson v. Palmer, 90 Me.
VESTED AND CONTINGENT INTERESTS. 1433
property be "set apart," or payment be made at a future
time, does not prevent the vesting of tbe estate at the
time of the death of the testator." A devise in trust with
direction to convey the fee to the beneficiary upon her
marriage to a worthy person with the consent of the trus-
tee,'^ or at the discretion of the trustee when the benefi-
ciary becomes of age or marries,* does not raise a con-
dition precedent to the vesting of the estate.
When the will fixes no time for a defeasible estate to
become absolute, the date of the testator's death will
usually be preferred by the courts to the time of the devi-
see's decease. But, of course, if there be an interme-
diate time to which it is apparent that the contingency
refers, this time must be selected.^ When the expressions
used in the will clearly import a contingency, they mil
be so construed, however absurd may be the conse-
quences, and however inconsistent with what may be con-
jectured would have been the testator's actual meaning
if his attention had been drawn to those consequences.^"
246, 38 AO. 103; Webb v. Webb, 7 Brazill v. Toner, 67 Iowa 369,
92 Md. 101, 84 Am. St. Rep. 499, 56 Am. Rep. 346, 25 N. W. 287.
48 Atl. 95; Clark v. Cammann, 160 8 Weatberhead v. Stoddard, 58
N. Y. 315, 54 N. B. 709; Connelly Vt. 623, 5 Atl. 517.
V. O'Brien, 166 N. Y. 406, 60 N. E. 9 Burton v. Conigland, 82 N. C.
20; Snyder's Estate, 180 Pa. St. 99; Murchison's Exrs. v. Whitted,
70, 36 Atl. 420; Crew's Admr. v. 87 N. C. 465; Price v. Johnson, 90
Hatcher, 91 Va. 378, 381, 21 S. E. N. C. 592.
811; Neilson v. Brett, 99 Va. 673, lO Madison v. Chapman, 4 Kay
40 S. B. 32. & J. 709; Lenox v. Lenox, 10 Sim.
6 Iliggins V. Waller, 57 Ala. 396; 400; Clarke v. Butler, 13 Sim. 401;
Dale V. White, 83 Conn. 294. See, Dicken v. Clarke, 2 You. & C. 572;-
however, Tillman v. Sullivan, 63 Parsons v. Parsons, 5 Ves. Jun.
How. Pr. (N. Y.) 355; Jones v. 578; Shuldham v. Smith, 6 Dow.
Massey, 9 S. C. 376. 22; Vick v. Sueter, 3 Bl. & B. 219;
Compare: Chamberlain v. Wingrave v. Palgrave, 1 P. Wms
Young's Exxr., 9 Ky. L. 270, 5 S. W. 401 ; Radclyffe v. Bagshaw, 6
380. Term. Rep. 512.
1434 COMMENTARIES ON THE LAW OF WILIiS.
When the language of the will clearly indicates that the
testator intended to defer the vesting of the gift, his in-
tention must prevail, and it is unnecessary to search for
the reasons governing his action.^^
If holding the devise to be contingent would defeat
the declared object of the testator, the courts will not ad-
here to the letter of the will.^^ Where a testator in pre-
vious parts of his will seemed to consider the "vesting"
of an estate as synonymous with enjoyment of "posses-
sion," and devised a parcel of land to a devisee for life,
"and at her death the same to be vested in and belong
to ' ' another, the quoted clause will be considered to have
been intended to denote the time when the devisee should
take possession, and that the title vested upon the death
of the testator.**
§ 991. Where the Contingency Occurs During Lifetime of Tes-
tator.
If an estate be limited upon an event which occurs be-
fore the death of the testator, the title thereto will vest
immediately upon his decease, and the devisee mil at the
same time enter into enjoyment of the possession.** As
for example, where a testator directed his executors to
11 Blanchard v. Maynard, 103 355; Barnet v. Barnet, 29 Beav.
111. 60; Biddle's Appeal, 99 Pa. St. 239; Taylor v. Frobislier, 5 De Gex
525; Barger's Appeal, 100 Pa. St. & Sm. 191; Haughton v. Harrison,
239- 2 Atk. 330; Berkeley v. Swln-
12 Bradford v. Foley. 1 Doug. 63; ^^^^^ ^g g^^ g^g
QuickC V. Leach, 13 Mees. & W.
218. See, also, Frank v. Frank,
14 Brown v. Hlggs, 4 Ves. Jun.
3 Maule & S. 25. '^08' '^^''- H^^^"- ^- Mohn, 37 N. J.
isRalley v. Milam, 9 Ky. L. '^I- *32; Crozier v. Bray, 39 Hun
409, 5 S. W. 367. See, also, Poole (^- ^-^ ^^l.
V. Bott, 11 Hare 33; Walker v. Contra: Harris v. Davis, 1 ColL
Simpson, 1 Kay & J. 713; Army- C. C. 416.
tage V. Wilkinson, 3 App. Cas. See § 884.
VESTED AND CONTINGENT INTERESTS. 1435
pay a certain sum of money to his son upon Hs coming
of age, and did not die until after the minority of his
son, the latter was entitled to the fund upon his father's
death. ^^ And under a will directing that the bequest to
a child should go to the testator's widow in the event of
the child dying before her, where the child died during
the lifetime of the testator, the widow took the bequest
to the child upon the testator's death.^® So, also, prop-
erty directed to be divided between the testator's chil-
dren upon the death of his wife, must be so divided upon
his own decease where she died during his life.^'^ Like-
wise, where property is left to a person in fee, and by a
codicil a remainder is limited upon it, the title will vest
in the remainderman upon the death of the testator, the
first devisee having died before that time.^®
§ 992. Contingency That Beneficiary Be Living at a Desig-
nated Time.
Where the existence of a beneficiary at a designated
time is a part of the contingency, and he dies before
that time, the title in the estate can not descend to his
representatives or heirs ;^'' and if assigned by him, his
assignee vsdll take the title, subject to the contingency
15 Eisner V. Koehler, 1 Demarest 744; Robinson's Estate, 13 Phlla.
(N. Y.) 277. ' (Pa.) 299; Roundtree v. Round-
16 Wager v. Wager, 96 N. Y. 164. tree, 26 S. C. 450, 2 S. E. 474. See,
See, also, Clark v. Clark, 19 S. C. also, Cheney v. Teese, 108 111. 473.
345. Where a bequest was made to a
17 Bell V. Towell, 18 S. C. 94. person for life, with remainder to
isCrozier v. Bray, 39 Hun his children, If any, but if none,
(N. Y.) 121. then over to another, and the life
19 Taylor v. Meador, 66 Ga. 230;- tenant died after the testator with-
White V. Rowland, 67 Ga. 546, 44 out issue, it was held that an
Am. Rep. 731; Winslow v. Good- assignment in bankruptcy by the
win, 7 Mete. (48 Mass.) 363; Colby remainderman before the death of
V. Duncan, 139 Mass. 398, 1 N. E. the life tenant conveyed no inter-
1436
COMMENTARIES ON THE LAW OF WIUJS.
of the beneficiary dying before the specified time.^" Thus,
under a devise to a woman for her life, and at her death
to her children "who may be then living," no estate vests
in a child dying before its mother.^^
There is, however, a long line of cases in which the
words "if," "when," "as soon as," and the like, have
been held from the context not to import a contingency
in the sense of a condition precedent to the vesting, but
to mean a proviso or condition subsequent, operating as
a defeasance of an estate vested.^^ When followed by a-
est in the bequest to the as-
signees. — Bristol V. Atwater, 50
Conn. 402.
And under a devise to one of the
testator's daughters for life, with
remainder to her children, but if
none, remainder to his other
daughters, the latter did not take
vested interests until the death of
the former without children. —
Olmstead v. Dunn, 72 Ga. 850.
If a remainder be made contin-
gent upon the death of the partic-
ular tenant without issue surviv-
ing him, the estate in remainder
does not vest at the death of the
testator. — Leroy v. Charleston, 20
S. C. 71.
Where there was a bequest to a
person to be paid when he should
marry, and the income to be paid
him when he should renounce the
Romish priesthood, with a pro-
vision that If he should die before
marriage the property should go
to another, and the original lega-
tee by a sealed instrument, in
which he declared his determina-
tion never to renounce the priest-
hood nor to marry, conveyed his
interest to the second, the latter
took an immediate right to the be-
quest, which would pass to his
executors upon his decease. —
Kenyon v. See, 29 Hun (N. Y.)
212.
20 Dunn v. Sargent, 101 Mass.
336; Putnam v. Story, 132 Mass.
205.
See, also, Dodd v. Winship, 144
Mass. 461, 11 N. E. 588.
21 White V. Rowland, 67 Ga. 546,
44 Am. Rep. 731; Teets v. Weise,
47 N. J. L. 154; Wilhelm v. Cal-
der, 102 Iowa 342, 71 N. W. 214;
Paget V. Melcher, 156 N. Y. 399, 51
N. E. 24; McBride v. Smyth, 54
Pa. St. 245; Delbert's Appeal, 83
Pa. St. 462.
See, also, Davidson v. Koehler,
76 Ind. 398.
22 Andrew v. Andrew, 1 Ch. Div.
410.
See, also, Chaworth v. Hooper, 1
Bro. C. C. 82; Green v. Pigot, 1
Bro. C. 0. 103; Benyon v. Maddi-
son, 2 Bro. C. C. 75, 78; Walcott v.
Hall, 2 Bra C. C. 305; Kerlin's
VESTED AND CONTINGENT INTERESTS. 1437
gift over in the event the beneficiary should die before
the specified time, it is presumed that the testator in-
tended thereby to make the gift become absolute when
such period is reached, and in the meantime title vests
in the beneficiary, possession only being postponed.^^
This rule applies to legacies of personalty as well as to
devises of realty.^* Thus, a devise to B in trust for C for
life, remainder to C's children, or if C leaves none, then
to D, vests a remainder in D on the testator's death, sub-
ject to the possibility of C's having a child, so that if C
dies childless and D having died, D 's heir takes.^®
A provision in favor of a woman, to become absolute
in the event of her surviving her husband, but in case she
does not survive him then to pass to her children, vests
the remainder in the children subject to be divested by
the death of the husband before that of the wife.^® And
Lessee v. Bull, 1 Dall. (U. S.) 175, 463, 465; Piatt v. Sinton, 37 Ohio
1 L. Ed. 88; Doe v. Considine, 6 St. 353; McCall's Appeal, 86 Pa.
Wall. (U. S.) 458, 18 L. Ed. 869; St. 254; Carstensen's Estate, 196
Shattuck V. Stedman, 2 Pick. (19 Pa. St. 325, 46 Atl. 495; Wither's
Mass.) 468; Scott v. Price, 2 Serg. Admrs. v. Sims, 80 Va. 651.
& R. (Pa.) 59, 7 Am. Dec. 629; See, also, Dewar v. Brooke, 14
O'Driscoll V. Koger, 2 Desaus. Bq. Ch. Div. 529, distinguishing Fox v.
(S. C.) 295; Bunch v. Hurst, 3 Fox, L. R. 19 Eq. 286.
Desaus. Eq. (S. C.) 273, 286, 5 Compare: Planner v. Scuda-
Am. Dec. 551. more, 2 Bos. & P. 289; Price v.
23 Smither v. Willock, 9 Ves. Hall, L. R. 5 Eq. 399.
Jun. 233; Peyton v. Bury, 2 P. 24 Carver v. Burgess, 18 Beav.
Wms. 626; Murkin v. Phillipson, 3 641, 551; Thomas v. Wilberforce,
Myl. & K. 257; Edwards v. Ham- 31 Beav. 299; Whitter v. Brem-
mond, 3 Lev. 132; Hunt v. Moore, ridge, L. R. 2 Eq. 736; In re Bax-
14 East 601; Roake v. Nowell, 1 ter's Trusts, 10 Jur. N. S. 845.
Maule & S. 327; Pearson v. Dol- 25 Vandewalker v. Rollins, 63
man, L. R. 3 Eq. 315, 322; Hughes N. H. 460, 3 Atl. 625.
V. Hughes, 12 B. Men. (51 Ky.) 117; 26 Security Co. v. Hardenburgh,
In re Cogswell, 4 Demarest (N. Y.) 53 Conn. 169, 2 Atl. 391.
248; Roome v. Phillips, 24 N. Y. Where a testatrix left separate
1438 COMMENTARIES ON THE LAW OP WILLS.
under a devise in trust for the testator's two daughters
for life, "then in trust for the child or children of my
said daughters, share and share alike, ' ' the children took
a vested estate upon the testator's death, subject to re-
open and let in children subsequently bom.^^
§993. Gift "Payable" When Beneficiary Attains a Certain
Age.
A bequest "payable'.' or "to be paid" to a person
"at" or "when" he shall attain a certain age, or at the
end of any other certain determinable time, is construed
to have been intended to confer upon him a vested inter-
est immediately upon the death of the testator, which
shall be transmissible to his executor or administrator;
for the words "payable" or "to be paid" are supposed
to eliminate the factor of time from the gift itself, and
to cause it to attach to the enjoyment of possession
raerely.^^ Directions for a division or distribution at a
estate to her husband for life, with main to the use and benefit of his
power of appointment by will, and daughter," the title in remainder
in default of exercise of the power will vest in the daughter upon her
then to her own heirs at law, the father's death. — Curtis v. Fowler,
title vested in the latter, subject to 66 Mich. 696, 33 N. W. 804.
be divested by the execution of 27 Olmstead v. Dunn, 72 Ga. 850.
the power given the husband. — ■ See, also, McArthur v. Scott, 113
Grosvenor v. Bowen, 15 R. I. 549, U. S. 340, 28 L. Ed. 1015, 5 Sup.
10 Atl. 589. Ct. 652; Ballentine v. Wood, 42
It is provided by statute in Mich- N. J. Eq. 552, 9 Atl. 582.
igan (Stats. 1882, §5557), that 28 Dawson v. Killet, 1 Bro. C. C.
where an expectant estate is ere- 119, 123; Barnes v. Allen, 1 Bro.
ated by devise, the death of the C. C. 182; Jackson v. Jackson, 1
testator shall be deemed the time Ves. Sen. 217; Wadley v. North, 3
of its creation. Accordingly, Ves. 364; Edmunds v. Waugh, 4
under a devise to a wife of all her Drew. 275; Williams v. Clark, 4 De
husband's real estate for her use Gex & S. 472; Harvey v. Harvey, 2
and benefit, and at her decease, P. Wms. 21; Chaifers v. Abell, 3
"all said real estate to be and re- Jur. 578; Lister v. Bradley, 1 Hare
VESTED AND CONTINGENT INTERESTS. 1439
future timie, added to a gift whicii without them would
confer an immediate interest, do not postpone the vest-
ing ;^^ and it matters not whether the direction to pay-
or the words of division precede those of the bequest
or follow them.^" Thus, where a bequest was made to a
legatee "if he shall arrive at the age of twenty years,
then to be paid over to him by my executor," his inter-
est was vested and not contingent upon his attaining ma-
jority.^i
§ 994. Gift Upon Attaining a Certain Age.
A gift to one in the event of his attaining a certain age
differs from one where payment only is postponed.^-
Where the gift is not made in express terms, but is to be
inferred from a clause which provides for the fund being
kept until certain persons attain a specified age, and
then distributed, time is of the essence of the gift, and the
estate will not vest until the expiration of the period
10; Rofe v. Sowerby, Tarn. 376; See, however, Shum v. Hobbs, 3
Cloberry v. Lampen, 2 Gas. Cb. Drew. 93.
155 ; Stapleton v. Cheales, 2 Vern. As to gifts to a class when they
673; s. c. Free. Ch. 317; Sidney v. attain a certain age, see §§882,
Vaughan, 2 B. P. C. Toml. 254; 883.
Caldwell's Exrs. v. Kinkead, 1 B. 29 May v. Wood, 3 Bro. C. C. 471.
Mon. (Ky.) 228, 231; Roberts' 30 In re Bartholomew, 1 MacN.
Exrs. V. Brinker, 4 Dana (34 Ky.) & G. 354; King v. Isaacson, 1
570; Johnson v. Baker, 7 N. C. 318, Smale & G. 371; Livesey v. Live-
9 Am. Dec. 605; Reed v. Buckley, 5 sey, 3 Russ. 287, 542.
Watts & S. (Pa.) 517, 40 Am. Dec. 31 purness v. Cox, 1 Cush.
531; Corbin v. Wilson, 2 Ashm. (Mass.) 134, 48 Am. Dec. 593.
(Pa.) 178; Pechln's Estate, 13 32 Murray v. Tancred, 10 Sim.
Phila. (Pa.) 323; Brocklebank v. 465; Gardiner v. Slater, 25 Beav.
Johnson, 20 Beav. 205. 509; Locke v. Lamb, L. R. 4 Eq.
See, also, Fisher v. Johnson, 38 372.
N. J. Bq. 46. See § 882.
1440
COMMENTARIES ON THE LAW OF WILLS,
named.^* If the words "payable" or "to be paid" are
omitted, and the legacy be given "at" a certain age, or
"if," "when," "in case," or "provided" the legatee
attain a designated age, or to any other definite future
time, his right to the enjoyment of the bequest will de-
pend upon his being alive at that time, and if he die in
the interim his representatives will not be entitled to re-
ceive the legacy in his stead.^*
Where no conditions are annexed to the gift itself, but
the time of payment thereof is postponed until the leg-
atee attain a certain age, or until the expiration of any
definite period of time, the title will vest immediately
upon the death of the testator, notwithstanding that the
enjoyment of possession may be deferred.*^ For all es-
tates, both legal and equitable, are regarded as vesting
33 Smith V. Edwards, 23 Hun
(N. Y.) 223.
34 Booth V. Booth, 4 Ves. Jun.
399; Breedon v. Tugman, 3 Myl. &
K. 289; Vize v. Stoney, 2 Dru. &
Walsh 659; Watson v. Hayes, 9
Sim. 500; Bruce v. Charlton, 13
Sim. 65; Smell v. Dee, 2 Salk. 415;
In re Wrangham's Trust, 1 Drew.
& S. 358; Cruse v. Barley, 3 P.
Wms. 20; Onslow v. South, 1 Eq.
Cas. Abr. 295, pi. 6; Butcher v.
Leach, 5 Beav. 392; Hickling v.
Fair, L. R. (1899) A. C. 15; In re
Wintle, L. R. (1896) 2 Ch. 711;
Heberton v. McClaln, 135 Fed.
226; Kibler's Admr. v. Whiteman,
2 Har. (Del.) 401; Caldwell v. Kin-
kead, 1 B. Mon. (40 Ky.) 228, 231;
Dohn V. Dohn, 110 Ky. 884, 62
S. W. 1033, 64 S. W. 352; Shattuck
V. Stedman, 2 Pick. (19 Mass.) 468;
Clapp V. Stoughton, 10 Pick. (27
Mass.) 463; Dusenberry v. John-
son, 59 N. J. Eq. 336, 45 Atl. 103;
Marsh v. Wheeler, 2 Edw. Ch.
(N. Y.) 156; Jackson v. Winne, 7
Wend. (N. Y.) 47, 22 Am. Dec. 563;
Matter of Murphy, 144 N. Y. 557,
39 N. E. 691; Perry v. Rhodes, 6
N. C. 140; Moore v. Smith, 9
Watts (Pa.) 403; Yost's Estate,
134 Pa. St. 426, 19 Ati. 692; Chest-
nut V. Strong, 1 Hill Eq. (S. C.)
123; Bunch v. Hurst, 3 Desaus.
(S. C.) 273, 286, 5 Am. Dec. 551.
35 Williams v. Williams, 73 Cal.
99, 14 Pac. 394; Bushnel v. Car-
penter, 28 Hun (N. Y.) 19; s. c.
92 N. Y. 270; Paterson v. Ellis, 11
Wend. (N. Y.) 259; In re Mahon,
98 N. Y. 372.
See, also, Hall v. David, 67 Ga.
72.
See §§ 882-885.
VESTED AND CONTINGENT INTERESTS. 1441
immediately upon the death of the testator, imless an
intention to the contrary be clearly manifested in the
will.*® Legacies payable at a future time, certain to ar-
rive, are deemed vested when there is a person in being
at the date of the testator 's death capable of taking when
the time arrives, notwithstanding that his interest is lia-
ble to be defeated by his own death, or to be diminished
by future births.*^
§995. EflFect of Intermediate Gift of laoome of Principal
Which Is to Pass to Beneficiary at a Certain Age.
Although by the use of the word "when," or by the
peculiar phraseology of the will, it might be inferred that
the vesting of the title was intended to be made condi-
tional upon the beneficiary living to the specified time,
yet if the testator directs the interest or income of the
legacy to be applied for the benefit of the legatee, it will
overcome this presumption, and the principal will be
deemed to have vested.** The reason of this rule seems
36 Hutcheon v. Mannington, 1 Stapleton v. Charles,. 2 Vern. 673 ;
Ves. Jun. 366; Miller v. Colt, 32 Walcott v. Hall, 2 Bro. C. C. 305;
N. J. Eq. 6; s. c, 33 N. J. Eq. 362; Hanson v. Graham, 6 Ves. Jun.
Joseph T. TJtitz, 34 N. J. Eq. 1; 239; Lane v. Goudge, 9 Ves. Jun.
Scott V. West, 63 Wis. 529, 24 225; Knight v. Cameron, 14 Ves.
N. W. 161, 25 N. W. 18. Jun. 389; In re Hart's Trusts, 3
As to members of a class, see De Gex & J. 195; Stuart v. Wrey,
§ 880. L. R. 30 Ch. Div. 507; Scoteny v. ,
37 McArthur v. Scott, 113 TJ. S. Lomer, L. R. 31 Ch. Dlv. 380, 386; '
340, 379, 28 L. Ed. 1015, 5 Sup. Ct. Dale v. White, 33 Conn. 294; New--
652; Doe v. Considine, 6 Wall, bury v. Hinman, 49 Conn. 130;-
(U. S.) 458, 476, 18 L. Ed. 869; Knowlton v. Sanderson, 141 Mass."
Blanchard v. Blanchard, 1 Allen 323, 6 N. E. 228; Toms v. Will-
(83 Mass.) 223; Moore v. Lyons, 25 iams, 41 Mich. 552, 565, 2 N. W.
Wend. (N. Y.) 119, 144; Scott v. 814; Robinson's Estate, 13 Phila.
West, 63 Wis. 629, 24 N. W. 161, (Pa.) 299; Pleasanton's Appeal, 99
25 N. W. 18. Pa. St. 362; Rogers v. Rogers, 11
38 Elton T. Elton, 3 Atk. 504; R. I. 38; Sammls v. Sammis, 14
II Com. on Wills— 37
1442 COMMENTAEIES ON THE LAW OP WILLS.
to be that, inasmuch as interest is a payment of money
in consideration of the forbearance of a creditor to de-
mand the payment of a principal snm to which he has
a right, or title, the direction that the interest be paid
the beneficiary is an indication by the testator that he
intended to confer upon the legatee an absolute title in
the principal, yet at the same time to purchase his for-
bearance to demand immediate payment thereof, which
otherwise he would be entitled to do. Accordingly an al-
lowance for maintenance of a sum less than the interest,
or a discretion given to trustees to pay for the legatee 's
support so much of the income as they may think fit, does
not effect a vesting of the principal.**
Wherever the gift of interest or maintenance is dis--
tinct, and the direction is to pay or transfer the principal
sum at the specified time upon the condition named, the
legacy is contingent.*" But the effect of a direction that
the interim income be paid to the beneficiary is not varied
R. I. 123; Weatherhead v. Stod- income of property, real or per-
dard, 58 Vt. 623, 5 Atl. 517. sonal, is given by will to a person
See, also, In re Lapham's Will, or in trust for him for life, or
37 Hun (N. Y.) 15. until the happening of a contin-
Where power was given to trus- gent event, he is entitled to the
tees in their discretion to devote enjoyment thereof from and after
the whole principal to the use of the death of the testator, unless
a legatee, to whom the interest otherwise provided in the will. —
thereon had been left for life, with Mass. Pub. Stats., (1882) eh. 136,
remainder over to another, and §24; La. Rev. Code, (1875) §1631.
the first beneficiary died during the 39 Barker v. Barker, L. R. 16 Ch.
life of the testator, the remainder- Div. 44, distinguishing Fox v. Fox,
man took upon the death of the L. R. 19 Eq. 286.
testator, unaffected by the power See, also, Fonereau v. Fonereau,
given the trustees. — Sauter v. 3 Atk. 645; Leake v. Robinson, 2
MuUer, 4 Demarest (N. T.) 389. Mer. 363 ; In re Grlmshaw's Trusts,
Under the statutes of Massachu- L. R. 11 Ch. Div. 406.
setts and Louisiana, where an an- 40 Pleasanton's Appeal, 99 Pa.
nuity, or the interest, use, rent, or St 362.
VESTED AND CONTINGENT INTERESTS. 1443
by the mere addition of the words "for his maintenance,' *
where there is no reason to suppose that the testator in-
tended less than the whole income to be so paid.*^ A gift
of the interest operates to vest the legacy as well when
it is to a class as when it is to an individual, provided
that each member of the class has a distinct title to the
interest of his own share,*- but not where all the mem-
bers of a class enjoy the interest as a common fund for
their maintenance until they reach a specified age.**
The inference from a gift of interest may be entirely -
overthrown by an expression of a contrary intention in^
the will,** or by the payment of the interest itself being;
clearly made to depend upon the same contingency as thei
principal.*^ "Where the interest given is not to the legatee
himself, but is expressly disposed of to another, his title
is in the nature of a remainder, and will vest immedi-
ately.*®
41 Isaacson v. Webster, L. R. 16 Vorley v. Richardson, 8 De Gex,
Ch. Div. 47; Hoathv. Hoath, 2Bro. M. & G. 126; In re Hunter's
C. C. 3; Field v. Burbridge, 19 Ky. Trusts, L. R. 1 Eq. 295, 298; Biclc-
L. 1131, 42 S. W. 912; Plaenker v. ford v. Chalker, 2 Drew. 327; San-
Smith, 95 Md. 389, 52 Atl. 606; ders v. Miller, 25 Beav. 156.
Safe Deposit etc. Co. v. Wood, 201 44 jn re Bulley's Estate, 11 Jur.
Pa. St. 420, 50 Atl. 920. n. S. 847.
A gift of the interest operates 45 in re Thruston, 17 Sim. 21;
to vest the legacy as well when it Morgan v. Morgan, 4 De Gex & S.
is to a class as when It is to an i64; Chance v. Chance, 16 Beav.
individual, provided that each 572; Knight v. Knight, 2 Sim. &
member of the class has a distinct gt. 490.
title to the Interest of his own ^^ ^ane v. Goudge, 7 Ves. Jun.
share. — In re Grove's Trusts, 3
225.
^'^- ^''^- See, also, Boraston's Case, 3
42 In re Grove's Trusts, 3 GifC. Coke 16a.
575. Contra: A dictum In Laxton v.
43 Loyd V. Loyd, 3 Kay & J. 20; Eedle, 19 Beav. 321, 323.
1444 COMMENTABIES ON THE LAW OF WILLS.
§996. Where Payment Is Postponed for the Convenience of
the Estate.
With respect to legacies payable out of real estate, the
rule is that if the time of payment be postponed with ref-
erence to the circumstances or condition of the legatee,
as for example, until he attain a specified age or until
he should marry, the vesting of the title is contingent,
and the legacy will lapse if the beneficiary die before the
time of payment arrives,*'^ notwithstanding that interest
be given in the interim.*^ But where the payment is post-
poned with respect to the convenience of the person
charged with the legacy or on account of the circum-
stances of the testator 's estate, and not on account of the
age, condition, or circumstances of the legatee, the title
will vest, and the legacy must be paid to the executor or
administrator of the legatee if he be dead at the time of
payment.**
The general rule is that if, from the whole will, it ap-
pears that payment of any devise or legacy was merely
for the convenience of the estate or the one charged with
such payment, the beneficiary takes a vested interest at
47Pliipps V. Mulgrave, 3 Ves. 16 Ves. Jun. 171; Blamire v. Gel-
Jun. 613; Gawler v. Standerwicke, dart, 16 Ves. Jun. 314; Marshall
2 Cox 15; Harrison v. Naylor, 3 v. Bentley, 1 Jur. N. S. 786;
Bro. C. C. 108. Baynes v. Prevost, 8 Jur. 578 ; In
48 Parker v. Hodgson, 30 L. J. re Wilson, 14 Jur. 263; Strother v.
Ch. 590; Pearce v. Loman, 3 Ves. Button, 1 De Gex & J. 675; Sal-
Jun. 135. mon v. Green, 11 Beav. 453; In re
49 Smith V. Palmer, 7 Hare 225; Bright's Trust, 21 Beav. 67; Mc-
Bromley v. Wright, 7 Hare 334; Lachlan v. Taltt, 28 Beav. 407;
Homer v. Gould, 1 Sim. N. S. 541; Shrimpton v. Shrimpton, 31 Beav.
Watson V. Watson, 11 Sim. 73; 425.
Brown v. Wooler, 2 You. & C. Ch. Contra: Beck v. Burn, 7 Beav.
134; Dawson v. Killet, 1 Bro. C. C. 492; Chevaux v. Aislabie, 13 Sim.
119, 124; Medlicott v. Bowes, 1 71; Davidson v. Proctor, 19 L. J.
Ves. Sen. 207; Hallifax v. Wilson, Ch. 395.
VESTED AND CONTINGENT INTERESTS. 1445
the death of the testator.^" Nor is the vesting deferred
where payment is postponed until the testator's debts
are satisfied,^^ or an outstanding security gotten in,^^ or
until certain property be sold,^^ or until money directed
by the will to be laid out in the purchase of land is so
laid out.^* Likewise a provision directing that none of the
devises or legacies shall be executed or take effect until a
certain hall shall be completely finished and paid for out
of the estate, was considered not to suspend the vesting,
but only the payment of the legacies and devises.^'
§997. Divesting of Vested Estates: Interest Contingent Upon
Surviving Termination of Preceding Estate.
There are cases in which conditional devises or legacies
may, after having vested, be liable to open up and let in
other beneficiaries,"' or even be divested entirely. This
occurs when the contingency upon which they are limited
soMcArthur v. Scott, 113 U. S. cer, 1 Ves. Sen. 142; Small v.
340, 378, 28 L. Ed. 1015, 5 Sup. Ct Wing, 5 B. P. C. Toml. 66; Ducker
652; Harvard College v. Balch, 171 v. Burnham, 146 ni. 9, 10, 37 Am.
111. 275, 49 N. E. 543; McLaughlin St. Rep. 135, 34 N. E. 558.
V. Penney, 65 Kan. 523, 70 Pac. 52 ^ood v. Penoyre, 13 Ves. Jun.
341; Dohn's Exr. v. Dohn, 110 Ky. 325,
884, 62 S. W. 1033, 64 S. W. 352;
Bowker v. Bowker, 9 Gush. (63
Mass.) 519; Cook v. McDowell, 52
N. J. Eq. 351, 30 Atl. 24; Matter
of Embree, 154 N. Y. 778, 49 N. E.
1096; Matter of Crane, 164 N. Y. ^^^^^ ^67; Whiting v. Force, 2
53 Stuart V. Bruere, 6 Ves. Jun.
529n; Tily v. Smith, 1 Colles 434.
54 In re Dodgson's Trust, 1
Drew. 440; Lucas v. Carline, 2.
71, 58 N. E. 47; Engle's Estate,
167 Pa. St. 463, 31 Atl. 681; Scott
V. West, 63 Wis. 529, 565, 24 N. W.
161, 25 N. W. 18; Baker v. Mc-
Leod's Estate, 79 Wis. 534, 541, 48
N W 657 ^^ Jones v. Habersham, 107 U. S.
61 Bamardiston v. Carter, 1 P. 17*. 27 L. Ed. 401, 2 Sup. Ct. 336.
Wms. 505, 509; Bagshaw v. Spen- se See §§ 8S7-S90.
Beav. 571; Hutcheon v. Manning-
ton, 4 Bro. C. C. 491; Sltwell v.
Bernard, 6 Ves. Jun. 520, 522; Ent-
wistle V. Markland, 6 Ves. Jun.
528n.
1446 COMMENTARIES ON THE LAW OF WILLS.
is in the nature of a condition subsequent, as where a
clause is added introducing a condition upon the hap-
pening of which the estate will be divested. For exam-
ple, where an estate is devised to A for life with re-
mainder to his children, provided that if any child dies in
the lifetime of A his share shall go to the surviving
children, the share of each child will vest at the date of
the death of the testator but subject to be divested by
the death of such child during the life of A.^''
A devise by a testator in trust for the benefit of his son
for life, with remainder over for the benefit of the chil-
dren of the son who may survive him, but in case the son
shall die without surviving issue then the remainder over
to named persons discharged of the trust, passes to the
last mentioned beneficiaries a vested interest subject to
be divested on the birth of issue to the life tenant.^^ A de-
vise to one "during his natural life and at his death to
his son B if living," gives to B a vested remainder which
will be divested upon his dying before the termination of
the life estate.^*
57 Northern Trust Co. v. Wheat- named devisee "die without issue,"
on, 249 111. 606, 34 L. R. A. (N. S.) see §§ 866, 867.
1150, 94 N. E. 980; Blanchard v. As to devise of life estate to
Blanchard, 1 Allen (83 Mass.) 223; one, with remainder over should
Vandewalker v. Rollins, 63 N. H. first taker "die without Issue," see
460, 3 Atl. 625; Van Houten v. § 970.
Hall, 71 N. J. Eq. 626, 64 Atl. 460. As to the creaUon by implica-
58 Dana v. Sanborn, 70 N. H. 152, t^on of estates tail by gift over if
46 Atl 1053. ^^^ devisee "die without issue,"
see §§ 947-951.
As to survivorship generally, see ^^ ^„ ^^^ ^^j^ j^ ^^^^^^^,^ ^^^^.
§§ 891-897. where the remainder is vested or
As to English and American de- contingent, see § 907.
cisions, where devise is to one 59 McDonald v. Taylor, 107 Ga.
with alternate gift should first- 43, 32 S. E. 879.
VESTED AND CONTINGENT INTERESTS.
1447
§998. The Same Subject.
When an estate has once vested, it can not be divested
by reason of conditions unless all the events which are
to precede the vesting of the substituted devises take
place.®" A contingency to which the effect of a condition
subsequent is given does not prevent the estate from vest-
ing, but merely makes it subject to be divested on the
happening of the contingency. In such cases stress is
generally laid upon the fact that the words of contin-
gency import a condition that the remaindermen shall be
Where a testatrix devised land
"to my husband, T, during his
natural life, and after his de-
cease to my cousin R, but if R
should pre-decease T, leaving no
heir or heirs, then over," R took
a vested remainder, subject to be
divested by her death before T,
leaving no heirs. — ^Walker v. Al-
verson, 87 S. C. 55, 30 L. R. A.
(N. S.) 115, 68 S. E. 966.
60 In re Clark's Trusts, L. R. 9
Bq. 378; Harrison v. Foreman, 5
Ves. Jun. 207; Sturgess v. Pear-
son, 4 Madd. 411; Kimberley v.
Tew, 4 Dru. & War. 139; Masters
v. Scales, 13 Beav. 60; Hulme v.
Hulme, 9 Sim. 644; Peters v. Dip-
pie, 12 Sim. 101; Templeman v.
W^rington, 13 Sim. 267; Clarke v.
Lubbock, 1 You. & C. Ch. 492;
Eaton V. Barker, 2 Coll. C. C. 124;
Benn v. Dixon, 16 Sim. 21; Walker
V. Simpson, 1 Kay & J. 719.
In California, Dakota, Indiana,
Montana, and Utah, there are stat-
utes providing that when once the
title has vested it can not be di-
vested, except upon the occur-
rence of the precise contingency
prescribed by the testator for that
purpose. — Stlmson's Am. Stat.
Law, § 2815.
As to English and American de-
cisions regarding survivorship
where gift is preceded by life es-
tate, see §§ 894-896.
In Michigan it is held that where
a testator gave a life estate to his
widow, with a provision that upon
her decease the property should
be divided between his "surviving
children," the title vested in all
the children who survived their
father's death, and that the heirs
of any child who died before the
widow were entitled to the share
of their ancestor. — Porter v. Por-
ter, 50 Mich. 456, 460, 15 N. W.
550. And the same rule is laid
down in that state, even when the
gift over is to those children who
may be living "at the time of the
decease of" the life tenant. — Rood
V. Hovey, 50 Mich. 395, 15 N. W.
525.
1448 COMMENTABIBS ON THE LAW OF WILLS.
living or surviving at a specified time,*^ Whether the
condition is precedent or subsequent depends largely on
whether it is incorporated into the gift to or descrip-
tion of the remaindermen, or is added as a separate
clause after a devise by which a vested interest is given.®^
Where it is held a condition subsequent by which a vested
interest may be defeated it will be found to be added as a
separate clause following words by which a vested estate
will pass.®'
61 Blanchard v. Blanchard, 1 Al- 37 Am. St. Rep. 135, 34 N. E. 558.
len (83 Mass.) 223. 63 Robinson v. Palmer, 90 Me
62 Ducker r. Burnham. 146 lU. 9, 246, 38 Atl. 103.
CHAPTER XXXVI.
EEMAINDERS AND EXECUTOKY DEVISES.
§ 999. Estates in remainder defined.
§ 1000. The same subject.
§ 1001. Remainders in personalty.
§ 1002. Testamentary disposition of contingent and executory
interests.
§ 1003. Vested and contingent remainders defined.
§ 1004. Vested and contingent remainders distinguished.
§ 1005. Postponement of enjoyment only does not make re-
mainder contingent.
§ 1006. Contingent remainders must vest at termination of pre-
ceding estate, or be defeated : Statutory regulations.
§ 1007. Remainder will be construed, if possible, as vested rather
than contingent.
§ 1008. The same subject : Reason for the rule.
§ 1009. Remainder may vest although apparent contingencies
are expressed.
§ 1010. The same subject : Contingency with reference to ter-
mination of preceding estate.
§ 1011. Power of disposition in life tenant does not make re-
mainder contingent.
§ 1012. The same subject : In trust.
§ 1013. Contingent remainders as affected by the rule as to
perpetuities.
§ 1014. The same subject : Where two contingencies are ex-
pressed.
§ 1015. Alternative contingent remainders.
§ 1016. Limitations and conditional limitations defined.
§ 1017. Executory devises defined.
§ 1018. Vested and contingent executory devises.
§ 1019. Indestructibility of executory devises.
(1449)
1450 COMMENTARIES ON THE LAW OP WILLS.
§ 1020. Right of disposition in first taker repugnant to an execu-
tory devise.
§ 1021. Contingent remainders preferred in law to executory de-
vises.
§ 1022. Remainders and executory devises compared.
§ 1023. Remainders and executory devises distinguished.
§ 1024. Effect on contingent remainder of termination of preced-
ing estate.
§ 1025. Executory devise converted into remainder by change of
circumstances.
§ 1026. Limitation over if first devisee "die without issue."
§ 1027. The same subject.
§ 1028. Limitation over if first taker die under age or unmarried.
§ 1029. Executory interests in personalty.
§ 1030. Executory devises as affected by the rule as to perpetui-
ties.
§ 999. Estates in Remainder Defined.
The term "remainder" is a relative expression, and
implies that some particular thing has been pre^dously
disposed of .^ It is the correct legal language to pass prop-
erty after the expiration of a particular estate.^ It may
be defined as a remnant of an estate in lands depending
upon and created at the same time and by the same instru-
ment as a particular prior estate, to take effect immedi-
ately on the determination of such prior estate.*
1 Hudson V. Wadsworth, 8 Conn. 21 Pac. 288; Say ward v. Sayward,
348. 7 Greenl. (7 Me.) 210, 22 Am. Dec.
2 Den V. Crawford, 8 N. J. L. 90; 191; Hobson v. Huxtable, 79 Neb.
France's Estate, 75 Pa. St 220. 340, 116 N. W. 278; Wood v. Grif-
s 4 Kent Com. *197; Hudson v. fin, 46 N. H. 230; Shadden v. Hem-
Wadsworth, 8 Conn. 348; Kings- bree, 17 Ore. 14, 18 Pac. 572;
ley V. Broward, 19 Fla. 722, 743; "Wadsworth v. Murray, 29 App.
BlggerstafE v. Van Pelt, 207 111. Div. 191, 51 N. Y. Supp. 1038; In
611, 69 N. E. 804; Bunting v. re Miller's Will, 2 Lea (70 Tenn.)
Speek, 41 Kan. 424, 3 L. R. A. 690, 54; Wells v. Houston. 23 Tex. Civ.
REMAINDERS AND EXECUTORY DEVISES. 1451
There are four essential elements of a remainder : first,
there must be a precedent particular estate the regular
determination of which the remainder must await; second,
the remainder must be created by the same instrument
and at the same time as the particular estate ; third, the
remainder must vest in the devisee during the continuance
of the particular estate, or eo instanti upon its termina-
tion ; fourth, no remainder can be limited after a fee sim-
ple.* A remainder, therefore, can be acquired only by pur-
chase, not by descent.®
An estate in remainder has been defined by statute as
an estate limited to be enjoyed after another estate is
determined, or at a time specified in the future.® When a
future estate, '^ other than a reversion,* is dependent upon
a precedent estate, it may be called a "remainder" and
may be created and transferred by that name.
§ 1000. The Same Subject.
Where A devises property to B for ten years, then to C
for life, and after C 's death to D in fee simple, the whole
App. 629, 654, 57 S. W. 584; Ward Kingsley v. Broward, 19 Fla. 722;
V. Caples, (Tex. Civ. App.) 170 Booth v. Terrell, 16 Ga. 20.
S. W. 816. 5 Payne v. Payne, 119 Mo. 174,
A remainder limited after a fee 24 S. W. 781; Dennett v. Dennett,
simple is void because inconsis- 40 jsj jj 49^ 504
tent with the fee, and it is also
void as an executory devise where
a power of disposition has been
vested in the first taker. — Lambe
6 Ga.— Civil Code 1895, § 3098.
7 Mich. — Comp. Laws 1897,
§ 8793.
V. Drayton, 182 111. 110, 55 N. E. Minn.-Gen. Stat. 1894, §4372.
j^gg N. Y.— Real Property Law, § 28.
4 2 Bl. Com. **165-168; 2 Minor's Wis.— Rev. St. 1898, § 2035.
Inst. 383. 8 Cal.— Civ. Code, § 769.
One of the characteristics of IVIont.— Civ. Code, § 1218.
remainders is that they must pass N. D.— Rev. Codes 1899, § 3333.
out of the grantor at the time the OI<la.— Rev. St. 1903, § 4034.
particular estate is created. — S. D.— Civil Code, § 249.
1452 COMMENTARIES ON THE LAW OF WILLS.
fee is devised out of which is first carved an estate for
ten years to B, then a further portion to C which, in rela-
tion to the estate of B, is a remainder, and after the ex-
piration of those estates the fee passes to D by way of
remainder. In each instance the preceding estate must
terminate before the succeeding estate takes effect.®
An estate in remainder may be created either by ex-
press language or by implication. A devise of a re-
mainder by implication will be sustained, though not made
in formal language, if the probability of the intention of
the testator is so strong that a contrary intention can not
be supposed.^"
§ 1001. Remainders in Fersonalt7.
At common law there was no remainder in personal
property, and any gift or bequest of a chattel, no matter
for how short a time, passed every interest therein.^^
This rule was gradually relaxed and a distinction made
between a gift or bequest of the thing itself and the use
of the thing, the law attaching a validity to the latter
which it denied to the former. This modification of the
common law rule in time gave way to the rule as it now
exists, and that a remainder may be limited after a life
9 2 Minor's Inst. 382; Archer v. The words, "and after her death
Jacobs, 125 Iowa 467, 101 N. W. 195. the property to fall to her chil-
A remainder over to vest upon dren" create, "by inartistic
the death of a stranger to the es- phrase," a remainder in fee to the
tate is valid. — Madison v. Larmon, children. — ^Lohmuller v. Mosher,
170 111. 65, 62 Am. St. Rep. 356, 48 74 Kan. 751, 11 Ann. Gas. 469, 87
N. E. 556. Pac. 1140, and approved in Estate
10 Martin v. Martin, 273 111. 595, of Merrigan, 34 S. D. 644, 150
113 N. E. 150. N. W. 285.
As to the creation of life es- n Maulding v. Scott, 13 Ark. 88,
tates by implication, see §§ 968-971. 56 Am. Dec. 298.
REMAINDERS AND EXECUTORY DEVISES.
1453
estate in personalty is as well settled as any other prin-
ciple of our law.^*
The principles governing the distinction between vested
and contingent remainders are applicable to personal
property as well as to realty.^*
Any language which would create a life estate and a
reversion or remainder in lands will create similar inter-
ests in personalty, guarding always against perpetui-
ties.^* A remainder in personalty may be created by
express words or by implication;^^ and whenever it is :
12 Smith V. Bell, 6 Peters (U. S.)
68, 8 L. Ed. 323; Langworthy v.
Chadwick, 13 Conn. 42; Thomas v.
Castle, 76 Conn. 447, 56 Atl. 854;
Lott V. Meacham, 4 Fla. 144;
Thornton v. Burch, 20 Ga. 791;
Trogdon v. Murphy, 85 111. 119;
Dickinson v. Griggsville Nat. Bank,
209 III. 350, 70 N. E. 593; Stallcup
V. Cronley's Trustee, 117 Ky. 547,
554, 78 S. W. 441; Cassilly v. Meyer,
4 Md. 1; Taft v. Taft, 130 Mass.
461; State v. Probate Court, 102
Minn. 268, 291, 294, 113 N. W. 888;
State V. Welch, 175 Mo. App. 303,
162 S. W. 637; Ackerman's Admrs.
V. Vreeland's Exr., 14 N. J. Eq. 23 ;
UnderhiU v. Tripp, 24 How. Pr.
(N. Y.) 51; Westcott v. Cady, 5
Johns. Ch. (N. Y.) 334; Smithwick
V. Biggs, 23 N. C. 281; Cooper v.
Cooper, 2 Brev. (S. C.) 355;
Hughes V. Cannon, 2 Humph. (21
Tenn.) 589; Richardson v. Paige,
64 Vt. 373.
As to life estates in personalty,
see §§ 978-980.
A remainder may be created in
money (Crawford v. Clark, 110 Ga.
729, 36 S. E. 404; State v. Welch,
175 Mo. App. 303, 162 S. W. 637); -
in money, notes, and accounts -
(Thornton v. Burch, 20 Ga. 791) ; ■
in stocks (Trogdon v. Murphy, 85
111. 119) ; and in dividends of stock
and interest on debts (Cassilly v.
Meyer, 4 Md. 1).
It has been held in Missouri
that where the residuary clause of
a will gave all the testator's real
and personal property, with the
proviso that if the devisee should
die without issue the estate should
go to others, the limitation over
was valid as to the realty only,
and the personalty was taken ab-
solutely.— State V. Tolson, 73 Mo.
320.
13 Voorhees v. Singer, 73 N. J.
Eq. 532, 68 Atl. 217.
14 Stallcup V. Cronley's Trustee,
117 Ky. 547, 78 S. W. 441.
Any limitation over of personal
property which contravenes the
rule against perpetuities, is in-
valid. — Ackerman's Admrs. v.
Vreeland's Exr., 14 N. .1. Eq. 23.
15 Evans v. Inglehart, 6 G. & J.
1454 COMMENTARIES ON THE LAW OF WILLS.
manifest from the will that a remainder was intended to
be limited after a life estate in personalty, the court must
sustain and give effect to such intention.^*
§ 1002. Testamentary Disposition of Contingent and Executory
Interests.
Both vested and contingent remainders are transmis-
sible estates, the latter being transmissible when the
takers are ascertained and the contingency relates only
to the collateral event upon the happening of which the
vesting of the estate depends.^''^
At common law contingent remainders were mere inter-
ests or possibilities rather than estates, and for a long
time were deemed inalienable.^^ Finally, however, it was
held that such interests were inheritable or devisable,
and could be assigned in equity or released in law to
the owner of the land in possession, or transferred to
strangers by resort to the doctrine of equity.^*
By statute in England the right of testamentary dis-
position extends to all contingent, executory, or other
future interests in any real or personal estate, whether
(Md.) 171, 185; CassUly v. Meyer, ceedings.— Betz v. Farllng, 274 111.
4 Md. 1. 107, 113 N. E. 40.
As to the creation of life estates ^^y interest in property which
by implication, see §§ 967-971. descends to the heirs or passes to
the next of kin in the event of in-
testacy, may be disposed of by
will, see §§ 241, 242.
isOrtmayer v. Elcock, 225 111.
17 Wadsworth v. Murray, 29 App. g^g^ g^ ^^ ^ 339 . ^^^^^^ ^ g.^
Diy. 191, 51 N. Y. Supp. 1038. ^^^^^ ^^3 ^^^ ^^^^ ^^ g .^ 9^2
See § 243. 19 Ortmayer v. Elcock, 225 111.
Where the remainder is contin- 342, 80 N. E. 339 ; Shindler v. Rob:
gent, the remainderman has only inson, 150 App. Div. 875, 135 N. Y.
the possibility of an Interest, and Supp. 1056.
this is not subject to partition pro- See § 243.
16 Smith V. Bell, 6 Peters (U. S.)
68, 8 L. Ed. 323; Lott v. Meacham,
4 Fla. 144.
REMAINDERS ANO EXECUTORY DEVISES. 1455
the testator may or may not be ascertained as tlie person
or one of the persons in whom the same respectively may
become vested, and whether he may be entitled thereto
under the instrmnent by which the same respectively were
created or under any disposition thereof by deed or will.^"
§ 1003. Vested and Contingent Remainders Deiined.
Remainders are either vested or contingent. A vested
remainder is a present right to property to be enjoyed in
the future, so that the estate is immediately fixed in a
determinate person upon the termination of the partic-
ular estate.^^
A contingent remainder is one where the estate is lim-
ited either to an uncertain person or upon the happening
of an uncertain event,^^ so that the particular estate may
never be determined and the remainder never take
effect.^* A remainder is contingent which is so limited as
20 statute of 1 Victoria, ch. 26, Baton, 56 Mo. App. 563; Hennessy
§ 3. V. Patterson, 85 N. Y. 91.
21 Croxall V. Shererd, 5 Wall. If a contingent remainder is con-
(U. S.) 268, 288, 18 L. Ed. 572; templated, words of contingency
Pingrey v. Rulon, 246 111. 109, 92 such as would naturally consti-
N. E. 592; Bunting v. Speek, 41 tute a condition precedent would
Kan. 424, 3 L. R. A. 690, 21 Pac. be expected to be found in the in-
288. strument creating the estate. —
A remainder is vested only when LInscott v. Trowbridge, 224 Mass.
the remainderman has the right to 108, 112 N. E. 956.
immediate possession whenever 23 Phinizy v. Foster, 90 Ala. 262,
and however the preceding estate 7 So. 836; Throop v. Williams, 5
determines. — Kountz's Estate, 213 Conn. 98; Marvin v. Ledwith, 111
Pa. St. 390, 5 Ann. Cas."427, 3 111. 144; Bunting v. Speek, 41 Kan.
L. R. A. (N. S.) 639, 62 Atl. 1103. 424, 3 L. R. A. 690, 21 Pac. 288.
22 Doe V. Considine, 6 Wall. Where the testator devised
(XJ. S.) 458, 18 L. Ed. 869; City property to his daughter Mary
Council of Augusta v. Radcliffe, 66 during her natural life and also to
Ga. 469; Brownback v. Keister, the heirs of her body, but on fail-
220 111. 544, 77 N. E. 75; Owen v. ure of such on her death to his
1456
COMMENTARIES ON THE LAW OF WILLS.
to depend upon an event or condition which may never
happen or be performed, or wHcli may not happen or be
performed until after the termination of the preceding
estate;^* or which is limited to a person not in being or
not ascertained.^^ Thus the contingency may result from
the uncertainty of some event upon the happening of
which the estate is limited, or from the uncertainty of the
person who is to take the remainder.^®
§ 1004. Vested and Contingent Remainders Disting^uislied.
With a vested remainder the right to the estate is vested
and certain, although possession or enjoyment is deferred
to some future period ; while with contingent remainders
the right to the estate as well as the right of possession
or enjoyment is not only deferred to a future period, but
is dependent upon some future contingency.^'' The feat-
son, the court construed that the
estate devised to the son was a
contingent remainder depending
upon the determination of the es-
tate of Mary by her death -with-
out issue. — Bird v. GllUam, 121
N. C. 326, 28 S. E. 489. And see,
also, Northern Trust Co. v.
Wheaton, 249 111. 606, 34 L. R. A.
(N. S.) 1150, 94 N. E. 980.
24 Grlswold V. Greer, 18 Ga. 545;
Newton v. Southern Baptist Theo-
logical Seminary, 115 Ky. 414, 74
S. W. 180; Den v. Crawford, 8
N. J. L. 90; Haywood v. Shreve, 44
N. J. L. 94; Richardson v. Rich-
ardson, 152 N. C. 705, 68 S. E. 217;
Wallace v. Minor, 86 Va. 550, 10
S. K 423.
2B Woodman v. Woodman, 89
Me. 128, 35 Atl. 1037; Thomson v.
Ludington, 104 Mass. 193; Schuy-
ler V. Hanna, 31 Neb. 307, 11
L. R. A. 321, 47 N. W. 932; Will-
iamson V. Field's Exrs., 2 Sandf.
Ch. (N. Y.) 533.
26 Shannon v. Bonham, 27 Ind>
App. 369, 60 N. E. 951; Woodman
V. Woodman, 89 Me. 123, 35 AtL
1037; Robinson v. Palmer, 90 Me.
246, 38 Atl. 103.
27 Faber v. Police, 10 S. C. 376,.
387; Walker v. Alverson, 87 S. C.
55, 59, 30 L. R. A. (N. S.) 115, 68;
S. E. 966.
"The distinction between a.
vested and a contingent remainder
is often shadowy and difficult tO'
ascertain." — Lingo v. Smith,
(Iowa) 156 N. W. 402.
Chipman, P. J., In In re Wash-
burn's Estate, 11 Cal. App. 735,.
106 Pac. 415, says: "There is no
subject of law more abstruse, or
REMAINDERS AND EXECUTORY DEVISES.
1457
lire wMch distinguishes a vested from a contingent re-
mainder is that as to the former there is the present
capacity of taking effect in possession or enjoyment
should the preceding estate terminate before the estate
limited in remainder determines.^^ A vested remainder is
one so limited to a person in being and ascertained that the
estate is capable of taking effect in possession or enjoy-
ment at the termination of the particular estate without
requiring the concurrence of any collateral contin-
gency. The uncertainty of the remainderman ever enjoy-
in which greater refinement of
'learning has been displayed, than
that of remainders. No defini-
tions ever have been, or ever will
be, given which will relieve all
cases from doubt. Mr. Kent com-
mends Mr. Blackstone's treatment
as far surpassing all others for its
'perspicuity, simplicity, compre-
hension, compactness, exactness,
accuracy, and admirable precis-
Ion.' " And yet he adds: "I have
read the chapter frequently, but
never without a mixture of delight
and despair."
28Croxall V. Shererd, 5 Wall.
(U. S.) 268, 18 L. Ed. 572; Hudson
V. Wadsworth, 8 Conn. 348; Madi-
son V. Larmon, 170 111. 65, 62 Am.
St. Rep. 356, 48 N. B. 556; Smith
V. Chester, 272 111. 428, Ann. Cas.
1917A, 925, 112 N. E. 325; Bruce
V. Bissell, 119 Ind. 525, 12 Am. St.
Rep. 436, 22 N. E. 4; Archer v.
Jacobs, 125 Iowa 467, 101 N. W.
195; Bunting v. Speek, 41 Kan.
424, 3 L. R. A. 690, 21 Pac. 288;
Moore's Admr. v. Sleet, 113 Ky.
II Com. on Wills — 38
600, 68 S. W. 642; Kenuard v. Ken-
nard, 63 N. H. 303; Ward v.
Caples, (Tex. Civ. App.) 170 S. W.
816; Lantz v. Massie, 99 Va. 709,
40 S. E. 50; Chipps v. Hall, 23
W. Va. 504.
It is said by Washburn on Real
Property, and quoted in Howbert
v. Cauthorn, 100 Va. 649, 42 S. B.
683: "By capacity, as thus applied,
is not meant simply that there is a
person in esse interested in the
estate, who has a natural capacity
to take and hold the estate, but
that there is further no interven-
ing circumstance, in the nature of
a precedent condition, which is to
happen before such person can
take. As, for instance, if the limi-
tation be to A for life, remainder
to B, B has a capacity to take this
at any moment when A may die.
But if it had been to A for life,
remainder to B after the death of
J. S. and J. S. is still alive, B can
have no capacity to take till J. S.
dies. When J. S. dies, if A is still
living, the remainder becomes
vested, but not before."
1458 COMMENTARIES ON THE LAW OP WILLS.
ing the estate limited to him will not render the remainder
contingent provided the remainderman has, by snch limi-
tation, a present and absolute right to the estate the in-
stant the preceding estate shall determine ; but the absence
of such present and absolute right renders the estate con-
tingent.^® A contingent remainder may be destroyed by
the determination of the particular estate or the hap-
pening of the contingency, while a vested remainder would
simply be accelerated.*"
§ 1005. Postponement of Enjoyment Only Does Not Make Re-
mainder Gontingfent.
Much confusion has arisen from the failure to observe
the distinction between the uncertainty which makes a
remainder contingent, and the uncertainty of a remainder
ever taking effect in possession or enjoyment.*^ If the
gift is immediate, although the enjoyment be postponed,
it is vested ; but if the remainder is dependent upon some
dubious circumstance through which it may be defeated,
then it is contingent.*^ Estates in remainder, although
the possession is postponed until after the expiration of
the particular estate, in the absence of any further expres-
sion to the contrary vest as to the title immediately upon
the death of the testator.**
29 Giddings v. Gllllngham, 108 33 Benyon v. Maddison, 2 Bro.
Me. 512, 81 Atl. 951; Voorhees v. C. C. 75; Doe v. Considlne, 6 Wall.
Singer, 73 N. J. Eg. 532, 68 Atl. (U. S.) 458, 18 L. Ed. 869; Smith
217. V. Bell, 6 Peters (U. S.) 69, 8
30 In re Brooke's Estate, 214 Pa. L. Ed. 323 ; Throop v. Williams, 5
St. 46, 63 Atl. 411. Conn. 98; Brown v. Lawrence, 3
31 Walker v. Alverson, 87 S. C. Cush. (57 Mass.) 390; Wight v.
55, 30 L. R. A. (N. S.) 115, 68 S. E. Shaw, 5 Gush. (59 Mass.) 56; Fay
966. V. Sylvester, 2 Gray (68 Mass.)
32 Taylor v. Taylor, 118 Iowa 171; Barton v. Blgelow, 4 Gray
407, 92 N. W. 71; Jonas v. Weires, (70 Mass.) 353; White v. Curtis, 12
134 Iowa 47, 111 N. W. 453. Gray (78 Mass.) 54; Weston v.
REMAINDERS AND EXECUTORY DEVISES.
1459
A testamentary gift is to be construed as vested or con-
tingent according to whether the contingency relates to
the gift itself or to the time of payment thereof.^* It is
not the certainty of possession or enjoyment which distin-
guishes a vested remainder, but the certainty of the right
of future possession or enjoyment if the remainderman
who is ascertained lives until the determination of the
preceding estate.*^ Where the devise is to the remainder-
man "from and after" or "after" or "at" or "on" the
death of the life tenant, or words of similar import are
employed, such expressions are construed as relating to
the time of the enjoyment of the estate and not as to its
vesting, and such remainder is a vested one.*® The uncer-
tainty as to whether or not the remainderman will live to
Weston, 125 Mass. 268; Ross v.
Drake, 37 Pa. St. 373; Womrath
V. McCormick, 51 Pa. St. 504.
34 Pennock v. Eagles, 102 Pa. St.
290; Pyle's Appeal, 102 Pa. St.
317.
35 Smith V. Chester, 272 111. 428,
Ann. Cas. 1917A, 925, 112 N. E.
325; Bruce v. Blssell, 119 Ind. 525,
12 Am. St. Rep. 436, 22 N. E. 4;
Lingo V. Smith, (Iowa) 156 N. W.
402; Smith v. Block, 29 Ohio St.
488; Walker v. Alversoh, 87 S. C.
55, 30 L. R. A. (N. S.) 115, 68 S. E.
966.
36 Cadogan v. Ewart, 7 Ad. & E.
636; Doe v. Considine, 6 Wall.
(U. S.) 458, 18 L. Ed. 869; John-
son V. Washington Loan & Tr.
Co., 224 U. S. 224, 56 L. Ed. 741,
32 Sup. Ct. 421; Gingrich v. Ging-
rich, 146 Ind. 227, 45 N. E. 101;
Lingo V. Smith, (Iowa) 156 N. W.
402; White v. Curtis, 12 Gray (78
Mass.) 54; Brown v. Lawrence, 3
Cush. (57 Mass.) 390; Pike v.
Stephenson, 99 Mass. 188; In re
Mahan, 32 Hun (N. Y.) 73; Moore
V. Lyons, 25 Wend. (N. Y.) 119;
Livingston v. Greene, 52 N. Y. 118 ;
Hersee v. Simpson, 154 N. Y. 496,
48 N. E. 890; Chew's Appeal, 37
Pa. St. 23.
See, also. Appeal of Pennsyl-
vania Co., (Pa.) 10 Atl. 130.
Where the residue was given by
will to the testator's sister for
life, with directions that at her
death the executor should convert
the estate into money and deliver
it to a designated corporation, the
gift to the latter was held to vest
at the testator's death; and a sub-
sequent statutory limitation on the
powers of corporations to take be-
quests did not apply. — In re Mc-
Clyment, 16 Abb. N. C. (N. Y.)
262.
1460 COMMENTAKIES ON THE LAW OP WILLS.
come into actual possession or enjoyment of the estate
does not make the remainder contingent, for that is an
uncertainty which attaches to all remainders.*''
§1006. Contingent Remainders Must Vest at Termination of
Preceding Estate, or Be Defeated: Statutory Regu-
lations.
Unless a contingent remainder becomes vested on or
before the determination of the preceding vested estate,
it can never take effect in possession or enjoyment; it is
defeated.*^ It makes no difference whether the preceding
estate terminates by reaching the limit originally imposed,
or whether it is cut short by merger, forfeiture, or other-
wise.*^ It was to prevent contingent remainders from
being defeated by premature determination or destruc-
tion of the preceding estate that the device was invented
of interposing trustees to preserve the contingent re-
mainder imtil the happening of the contingency.*?
In some jurisdictions the rule has been changed by stat-
ute. In England contingent remainders are not defeated
by the regular determination of the preceding estate pend-
37 Parkin v. Creswell, L. R. 24 "Contingent remainders might
Ch. Div. 102; distinguishing Hogg be destroyed by some ulterior act,
V. Jones, 32 Beav. 45; Lingo v. such as the tenant in an estate
Smith, (Iowa) 156 N. W. 402; Ken- tail suffering a common recovery,
nard v. Kennard, 63 N. H. 303. But they were not suicidal; some
Compare: Bristol v. Atwater, 50 extraneous forces beyond the reg-
Conn. 402. ular happening of the contingency
38 Madison v. Larmon, 170 111. had to be employed to accomplish
65, 62 Am. St. Rep. 356, 48 N. E. their destruction." — Shadden v.
556; Bond v. Moore, 236 111. 576, Hembree, 17 Ore. 14, 18 Pac. 572.
19 L. R. A. (N. S.) 540, 86 N. E. 40 2 Bl. Com. *172; Moody v.
386. Walters, 16 Ves. Jun. 283, 294;
39 Madison v. Larmon, 170 111. 65, Bond v. Moore, 236 111. 576, 19
62 Am. St. Rep. 356, 48 N. E. 556. L. R. A. (N. S.) 540, 86 N. E. 386.
REMAINDERS AND EXECUTORY DEVISES.
1461
ing the contingency.*^ Similar statutes have been en-
acted in some of these United States.*^
§ 1007. Remainder Will Be Construed, if Possible, as Vested
Rather Than Contingent.
The courts are disposed, wherever it is possible with-
out violating the intention of the testator, to so construe
the provisions of a will as to prevent the title to real estate
remaining suspended by a contingency, and will always
consider the title as vested rather than as in abeyance,
unless the will plainly indicate a contrary intent.*^ No
remainder wiU be construed to be contingent which may
consistently with the words used and the intention ex-
pressed be deemed vested.** The vesting of bequests of
41 statute of 40 and 41 Victoria,
ci. 33.
42 Stlmson, Am. Stat. Law,
§ 1426b, referring to statutes of
California, Dakota, Georgia, Ken-
tucky, Michigan, Minnesota, New
York, Virginia, West Virginia, and
Wisconsin.
43 Jones V. Mackilwain, 1 Russ.
220; West v. West, 4 Giff. 198;
Booth V. Booth, 4 Ves. Jun. 399;
Watkins v.' Quaries, 23 Ark. 179;
Clanton v. Estes (Vason v. Estes),
77 Ga. 352, 1 S. E. 163; Wills v.
Wills, 85 Ky. 486, 3 S. W. 900;
Richardson v. Wheatland, 7 Met.
(48 Mass.) 169, 171; Winslow v.
Goodwin, 7 Met. (48 Mass.) 363;
Crisp V. Crisp, 61 Md. 149; Shat-
tuck V. Stedman, 2 Pick. (19
Mass.) 468, 469; Olney v. Hull, 21
Pick. (38 Mass.) 311, 314; Ferson
V. Dodge, 23 Pick. (40 Mass.) 287;
Pike V. Stephenson, 99 Mass. 188;
Toms V. Williams, 41 Mich. 552, 2
N. W. 814; Collier's Will, 40 Mo.
287; Moore v. Lyons, 25 Wend.
(N. Y.) 119; King v. King, 1 Watts
& S. (Pa.) 205, 37 Am. Dec. 459;
McCall's Appeal, 86 Pa. St. 254.
As to remainders over to a class,
see § 890.
The tendency of modern decis-
ions is in favor of holding Inter-
ests which in earlier times would
have been regarded as contingent,
vested, subject to be divested. — In
re Brooke's Estate, 214 Pa. St. 46,
63 Atl. 411.
44 Duncan v. De Yampert, IS 2
Ala. 528, 62 So. 673; Bartram v.
Powell, 88 Conn. 86, 89 Atl. 885;
Aldred v. Sylvester, 184 Ind. 542,
111 N. E. 914; Bunting v. Speek,
41 Kan. 424, 3 L. R. A. 690, 21 Pac.
288; Moore v. Sleet, 113 Ky. 600,
68 S. W. 642; Woodman v. Wood-
man, 89 Me. 128, 35 Atl. 1037.
"The struggle with the courts
has always been for that construe-
1462
COMMENTAEIES ON THE LAW OP WILLS.
personalty is generally regulated by the same rules by
which devises of interests in real estate are governed.*'
Even where a legacy is apparently contingent, yet if the
testator direct that the fund be severed from his estate
immediately and set apart for the benefit of the legatee,
the title thereto will vest.*"
It may safely be said that all estates will be regarded as
vested unless a condition precedent thereto is so clearly
expressed that it can not be regarded as vested without
doing violence to the language of the will. To effectuate
this rule words of seeming condition are, if possible, to be.
tion which gives to the remainder
a vested rather than a contingent
character. A remainder is never
held to be contingent when, con-
sistently with the intention, it can
be held to he vested. If an estate
be granted for life to one person —
and any number of remainders for
life to others in succession — and
finally a remainder in fee simple
or fee tail, each of the grantees of
a remainder for life takes at once
a vested estate, although there be
no probability, and scarcely a pos-
sibility, that it will ever, as to
most of them, vest in possession."
— Croxall V. Shererd, 5 Wall.
(U. S.) 268, 18 L. Ed. 572, quoted
in Anderson v. Anderson, 221 Fed.
871, 137 C. C. A. 441.
"This rule is not permitted, how-
ever, to interfere with the primary
rule of construction which re-
quires the court, in all cases, to
ascertain and effectuate the inten-
tion of the testator, as gathered
from the language used, if possi-
ble. The court will ascertain
such intention by giving to non-
technical words their ordinary and
popular meaning, assuming that
the testator used them in that
sense in which they are generally
used and understood." — Freeman
v. Freeman, 141 N. C. 97, 53 S. E.
620.
45 Foster v. Holland, 56 Ala. 474,
480; Ferson v. Dodge, 23 Pick. (40
Mass.) 287.
46 Pearson v. Dolman, L. R. 3
Eq. 315; Dundas v. Wolfe-Murray,
1 Hem. & M. 425; Lister v. Brad-
ley, 1 Hare 10; In re Rouse's Es-
tate, 9 Hare 649; Oddie v. Brown,
4 De Gex & J. 179, 185, 194; Greet
V. Greet, 5 Beav. 123; Thruston v.
Anstey, 27 Beav. 335; Love v.
L'Estrange, 5 B. P. C. Toml. 59;
Saunders v. Vautier, Craig & Ph.
240 ; Ames v. Scudder, 11 Mo. App.
168.
See, also, Festing v. Allen, 5
Hare 573, 577; Gotch v. Foster,
L. R. 5 Eq. 311.
HEMAINDEBS AND EXECUTORY DEVISES. 1463
construed as postponing only the time of enjoyment.*''
In fact, it will be presumed that words postponing the
enjoyment of the estate relate to the beginning of the en-
joyment of the estate and not to the vesting thereof.**
Where the postponement of the estate is for reasons not
personal to the remaindermen the remainder is vested.**
§ 1008. The Same Subject: Reason for the Rule.
The reason for the rule is to prevent the exclusion of
property from the natural laws of descent, and to permit
and promote the unrestricted alienation of property
rather than allow it to be tied up for long periods of
time awaiting the happening of some contingency far in
the future.'" The conclusion is in consonance with the
well recognized rule that the law favors an equal distribu-
tion of an estate among those of the same degree of rela-
tionship to the testator, and therefore leans to the vesting
of estates when an opposite construction would exclude
those who have a strong claim upon the maker of the
devise from participating in the division of the estate.'^
§ 1009. Remainder May Vest Although Apparent Contingen-
cies Are Expressed.
Eules of construction yield to a manifestly contrary
intention, either directly expressed or gathered from the
context or different parts of the wiU f^ but after a clearly
47 Lingo T. Smith, (Iowa) 156 Wheaton, 249 111. 606, 34 L. R. A.
S. W. 402. (N. S.) 1150, 94 N. E. 980.
48 Moores v. Hare, 144 Ind. 573, so Smith v. Chester, 272 111. 428,
43 N. E. 870; Moore v. Gary, 149 Ann. Cas. 1917A, 925, 112 N. E.
Ind. 51, 48 N. E. 630; Aldred v. 325.
Sylvester, 184 Ind. 542, 111 N. E. 5i Anderson v. Anderson, 221
914. Fed. 871, 137 C. C. A. 441.
49 Thomas v. Thomas, 247 111. 52 Watkins v. Cheek, 2 Sim. &
543, 139 Am. St. Rep. 347, 93 N. E. St. 199; Hunter v. Judd, 4 Sim.
344; Northern Trust Co. v. 455; Russell v. Buchanan, 7 Sim.
1464 COMMENTARIES ON THE LAW OP WILLS.
expressed gift of the residue, subsequent ambiguous ex-
pressions will not postpone the vesting.^* Title may vest
notwithstanding a seeming contingency, as where a tes-
tator, after giving an estate or interest for life, proceeds
to dispose of the remainder in terms which, literally con-
strued, would seem to make the ulterior interest depend
on the fact of the prior interest coming into possession.
In such cases it is considered the testator merely uses
expressions of apparent contingency as descriptive of the
state of events under which he conceives the ulterior gift
will fall into possession or enjoyment, and not with the
design of making the vesting of the remainder dependent
upon the contingency. For example, under a devise to a
sister for life with remainder to a brother for life and
after his decease, "in case he should become entitled to
such interest," then over to a cousin, the death of the
628; Comport v. Austen, 12 Sim. See, however, Shum v. Hobbs, 3
246; Bernard v. Mountague, 1 Mer. Drew. 93.
422; Glanvillv. Glanvill, 2Mer. 38; Where in the first part of the
Elwin V. Elwin, 8 Ves. Jun. 547; '"^iH the words were sufficient to
Knight V. Cameron, 14 Ves. Jun. '^^^^^^^ create a vested remainder
in the children of the life tenant.
389; Law v. Thompson, 4 Russ.
92; Lister v. Bradley, 1 Hare 10;
Heath v. Perry, 3 Atk. 101; Wake-
field V. Dyott, 4 Jur. N. S. 1098;
and there was a subsequent direc-
tion that the form of the invest-
ment should not be changed until
the period arrived for its distribu-
Eldrldge V. Eldridge, 9 Cush. (63 ^^^^ ^^^^^ ^^^ remaindermen
Mass.) 516; Shindler v. Robinson, ^y^^^^ ^jjg testator designated as
150 App. Dlv. 875; 135 N. Y. Supp. "their children surviving," It was
1056. determined that the use of the
53 Montgomerie v. Woodley, 5 word "surviving" did not modify
Ves. Jun. 522; Brocklebank v. the previous clearly expressed
Johnson, 20 Beav. 205; Stretch v. gift, nor render the vesting of the
Watklns, 1 Mad. 253; Dodson v. remainder contingent upon the
Hay, 3 Bro. C. C. 404, 409; Eld- survival of the remaindermen. —
ridge V. Eldridge, 9 Cush. (63 Hannah v. Duke, 16 Ch. Dlv. 112,
Mass.) 516. See, also, § 881.
EEMAINDBRS AND EXECUTORY DEVISES. 1465
brother during the sister's lifetime would not cause the
remainder to the cousin to fail, the apparent contingency
being merely descriptive of the event upon which the
cousin would take.®*
§1010. The Same Subject: Contingency With Reference to
Termination of Preceding Estate.
Where a particular estate is devised, then later in the
same instrument the remainder is disposed of to take
effect upon the happening of an event which will deter-
mine the prior estate, the words descriptive of such an
event occurring in the latter devise will be construed as
referring merely to the period of the termination of the
preceding estate and not as designed to postpone the
vesting of the remainder.^® Where a remainder is limited
"in default" or "for want" of the objects of the preced-
ing limitation, these words mean on the failure or ter-
mination of the prior estates, and do not render the
ulterior estates contingent upon the event of such prior
objects not coming into existence.^"
H Webb V. Hearing, Cro. Jac. se Ashley v. Ashley, 6 sfm. 358 ;
415; Pearsall v. Simpson, 15 Ves. Doe v. Dacre, 1 Bos. & P. 250;
Jun. 29; Massey v. Hudson, 2 Mer. Goodrlght v. Jones, 4 Maule & S.
130; Pearsall v. Simpson, 15 Ves. ^8; Lewis v. Waters, 6 East 336.
jyjj 29 Compare: Meeds t. Wood, 19
See, also, Edgworth v. Edg-
worth, L. R. 4 H. L. 35; Leadbeter
Beav. 215.
Where land was devised in fee
with remainder over to take et-
Y. Cross, L. R. 2 Q. B. Div. 18; ^^^^ jj ^^^ ^^^^ ^^^.^^^ ^^^^^^ ^^.^
Maddison V. Chapman, 4 Kay & J. ^^^^^^ ^^ ^^^^^^ ^^ ^^^ ^^^.^^
''*'^' '^^^- heirs, it was decided that the de-
As to death of life tenant not yjge over took effect upon the
causing gift of remainder to lapse, death of the first devisee without
see § 769. heirs, notwithstanding his having
65 Wilson V. Brett, 99 Va. 673, married.— Harwell v. Benson, 8
38 S. B. 181. Lea (76 Tenn.) 344.
1466 COMMENTARIES ON THE LAW OF WILLS.
The intent to postpone the vesting of an estate must be
clear ; it can not arise from mere inference or construc-
tion.^'^ But where the terms of the gift are equivocable
subsequent expressions may be looked to for the purpose
of explaining what went before.^^
§ 1011. Power of Disposition in Life Tenant Does Not Make
Remainder Contingent.
Where an estate is given to one for life with a re-
mainder over to others, and a power of disposition is
annexed to the life estate, the remainder is not affected
by the power unless and to the extent it is exercised. In
such a case the remainder vests subject to the execution of
the power, and the uncertainty as to whether the power
will be exercised as to all or any part of the estate does
not make the remainder contingent.^^ This must not be
confused with the well known principle that where an
57 Duncan v. De Yampert, 1S2 836, 13 S. W. 353; Nelson v. Nel-
Ala. 528, 62 So. 673. son's Exr., 140 Ky. 410, 131 S. W.
58 Merry v. Hill, L. R. 8 Eq. 619; 187; Stuart v. Walker, 72 Me. 145,
Tracey v. Butcher, 24 Beav. 438; 39 Am. Rep, 311; Roberts v. Rob-
Judd V. Judd, 3 Sim. 525; Knox v. erts, 102 Md. 131, 111 Am. St. Rep.
Wells, 2 Hen. & M. 674; Madden 344, 5 Ann. Cas. 805, 1 L. R. A.
V. Ikin, 2 Dr. & Sim. 207. (N. S.) 782, 62 Atl. 161; Dana v.
59 Duncan v. De Yampert, 182 Dana, 185 Mass. 156, 70 N. E. 49 ;
Ala. 528, 62 So. 673; Mallory v. Edwards v. Gibbs, 39 Miss. 166;
Mallory, 72 Conn. 494, 45 Atl. 164; Evans v. Folks, 135 Mo. 397, 37
Melton V. Camp, 121 Ga. 693, 49 S. W. 126; Buckner v. Buckner,
S. E. 690; Boatman v. Boatman, 225 Mo. 371, 164 S. W. 513; Bur-
198 111. 414, 65 N. E. 81; Griffiths leigh v. Clough, 52 N. H. 267, 13
V. Griffiths, 198 111. 632, 64 N. E. Am. Rep. 23; Borden v. Downey,
1069; Smith v. Winsor, 239 111. 567, 35 N. J. L. 74; Rhodes v. Shaw, 43
88 N. E. 482; Heilman v. Heilman, N. J. Eq. 430, 11 Atl. 116; Wein-
129 Ind. 59, 28 N. E. 310; Spaan stein v. Weber, 178 N. Y. 94, 70
V. Anderson, 115 Iowa 121, 88 N. E. 115; Hinkle's Appeal, 116 Pa.
N. W. 200; McCollough's Admr. v. St. 490, 9 Atl. 938; In re Tilton, 21
Anderson, 90 Ky. 126, 7 L. R, A. R. I. 426, 44 Atl. 223; Hare v. Fer-
EEMAINDEES AND EXECUTORY DEVISES.
1467
estate is given to a person generally or indefinitely with
the power of disposition, such gift carries the entire
estate, and the devisee or legatee takes the property abso-
lutely.®" But when the property is given to one expressly
for life and there is annexed to such gift a power of dis-
position of the remainder, the rule is different and the
first devisee takes only an estate for life with the power
annexed.®^ The right of disposition is not property but a
mere authority. An absolute power of disposal is not
risburg Congreg. Soc, 76 Vt. 362,
57 Atl. 964; Lantz v. Massie, 99 Va.
709, 40 S. E. 50.
"If the remainder is contingent
because it may consist of what re-
mains after the exercise of the
power of sale and use conferred
upon the life tenant, then, in case
the life tenant should fail to sell
any of the estate or to exhaust for
her own use any of the principal
thereof, the remainder would still
be contingent because it would
consist of what remains after pay-
ing off the charges created upon
the property by the directions to
pay the debts and the bequests.
To hold that a remainder is con-
tingent because it can not be
known how much will be left un-
til the debts and funeral expenses
and other charges are paid would
make every remainder given by
will a contingent one. But it is
well settled that a devise to a
person after the payment of debts
and legacies is not contingent un-
til such debts and legacies are
paid, but confers an immediately
vested estate. In such cases the
remainder vests subject to the
payment of debts and legacies and
subject to the exercise of the
power to use and sell, but liable
to be divested as to so much of
the estate as may be disposed of
for the payment of debts and lega-
cies and by the execution of the
power. The remainder is not
made contingent by the uncer-
tanty as to the amount of the es-
tate remaining undisposed of at
the expiration of the life estate,
but by uncertainty as to the per-
sons who are to take." — Ducker v.
Burnham, 146 111. 10, 37 Am. St.
Rep. 135, 34 N. E. 558.
A will devising land to one with
power of sale, and with remainder
over to another in the event there
is no sale, is a valid devise. —
Cottrell V. Moreman, (Tex. Civ.)
136 S. W. 124.
60 See §§ 927, 928.
61 See §§929, 973-975.
Where power of disposition is
not exercised, see § 976.
1468 COMMENTARIES ON THE LAW OP WILLS.
inconsistent with an estate for life only.*^ Nor is a re-
mainder made contingent by an uncertainty as to the
amount of the property that may remain undisposed of at
the expiration of the particular estate, where the life
tenant has the power of disposition.**
§ 1012. The Same Subject: In Trust.
Where an estate is given to one for life in trust for the
use of himself and other designated persons, coupled vnth.
the power to sell the property and invest the proceeds,^
using what may be necessary for support and education,
with remainder over, such remainder is vested and not'
contingent.** It makes no difference as to the vesting of a
remainder whether the legal estate be devised to trustees
to convey according to the directions of the will, or
whether the interest takes effect without their interven-
tion ; nor is it material whether the trust provides for the
accumulation of income until the period of payment or
distribution.®^
§ 1013. Oontingent Remainders as Affected by the Rule as to
Perpetuities.
The rule as to perpetuities has its foundation in the
settled policy of the common law which opposed those
restraints upon the alienation of property which were
supposed to be conducive to the power and grandeur of
62 Melton V. Camp, 121 Ga. 693, garding life estate coupled with
49 S. E. 690. power of disposition, see § 974.
See § 973. 64 Roberts v. Roberts, 102 Md.
63 Woodman v. Woodman, 89 131, 111 Am. St. Rep. 344, 5 Ann.
Me. 128, 35 Atl. 1037. Cas. 805, 1 L. R. A. (N. S.) 782,
As to a devise over of what re- 62 Atl. 161.
mains unexpended by a devisee, 65 Tayloe v. Mosher, 29 Md. 443,
see §930. 451; Roberta v. Roberts, 102 Md.
As to statutory regulations re- 131, 111 Am. St. Rep. 344, 5 Ann.
EEMAINDERS AND EXECUTORY DEVISES. 1469
ancient families. Whether it is applicable to contingent
remainders as it is to executory devises, the authorities
are not fully agreed. In a leading case against its appli-
cation it was admitted that by the old law the doctrine of
remoteness was applicable to remainders, but that it is
now done away with, and the rule applies only to spring-
ing and shifting uses and executory devises. This dis-
tinction is put on the ground that as to vested remainders
there can be no remoteness, and as to contingent remain-
ders they must vest at the termination of the particular
estate or they can not take effect at all.^®
Some authorities hold that this would be no safeguard
against remoteness because if the rule does not apply to
remainders, a succession of particular estates may be lim-
ited to unborn persons and thus the inheritances may be
followed for many generations, so long, in fact, as the per-
sons to whom the estates are so limited come into being
in time to take the remainder at the termination of the
particular preceding estates. It is clear that this would
be in conflict with the policy which has dictated the rule
as to perpetuities, for the principle of that rule applies
to contingent remainders equally with springing and
shifting uses and executory devises. In fact, the prin-
ciple as to perpetuities was, in substance, applied to con-
tingent remainders at a period long before the institu-
tion of springing uses and executory devises.*'^
A contingent remainder is good if it vests within the
time limited by the rule against perpetuities, although the
right of enjoyment be postponed beyond that time, for the
Cas. 805, 1 L. R. A. (N. S.) 782, 67 Co. Lltt. 271; Seaward v. Wil-
62 Atl. 161. lock, 5 East. 198.
66 Sir Edward Sugden in Cole v. Executory devises as affected by
Sewall, 2 Con. & Law. (Ir. Ch.) the rule as to perpetuities, see
344. § 1030.
14:70 COMMENTARIES ON THE LAW OF 'WlLIiS.
reason that it has vested and the rule against perpetui-
ties does not apply to vested remainders.^* Where, how-
ever, the remainder is contingent and the period fixed by
the will for the gift to take effect in the remainderman is
too remote and therefore violates the rule against per-
petuities, both the particular estate and the remainder'
fail with the result that the property passes to the heirs
at law."*
§ 1014. The Same Subject: Where Two Contingencies Are Ex-
pressed.
When a devise over includes two contingencies, which
are in their nature divisible, and one of which can operate
as a remainder, they may be divided even though included
in one expression, and the invalidity of one alternative
will not necessarily defeat the other.'"' So where a tes-
tator clearly expresses one limitation to take effect at a
period within the lawful limit, this will be held good as a
remainder although there be an alternative disposition
which is objectionable as an executory devise on the
ground of remoteness.''^
§ 1015. Alternative Contingent Eemainders.
Two concurrent fees may be limited by way of re-
mainder as alternatives, the one to take effect in case the
other should fail to vest in interest.''^ Thus a will may
68 Madison v. Larmon, 170 111. 7i Halsey v. Goddard, 86 Fed.
65, 62 Am. St. Rep. 356, 48 N. E. 25.
556. See § 1030, as to executory de
60 Kountz's Estate, 213 Pa. St. vises.
390, 5 Ann. Cas. 427, 3 L. R. A, 72 2 Minor's Inst. 394; Leppes v.
(N. S.) 639, 62 Atl. 1103. Lee, 92 Ky. 16, 17 S. W. 146; Alll-
70 Evers v. Challls, 7 H. L. Cas. son v. Allison's Exrs., 101 Va. 537,
531. 63 L. R. A. 920, 44 S. E. 904.
REMAINDERS AND EXECUTORY DEVISES. 1471
create a life estate in one with a contingent fee in his
child or children, and upon the failure of this intervening
estate the ultimate remainder to vest in those who are
the heirs at law of the testator at his death J^*
Where two contingent remainders are created, the one
as a substitute or alternative for the other, the second
remainder vests only when the first fails. '^'' Where, for
example, a testator devises property to his widow for
life, remainder to her children should she marry again
and leave children, and if not, then to the brothers and
sisters of the testator and the children of such as miglit
be dead, the brothers and sisters take only a contingent
remainder.
§ 1016. Limitations and Conditional Limitations Defined.
An estate upon limitation is one which determines upon
the happening of some future event. Thus a devise by a
testator to his wife "during," "while," or "so long as"
creates an estate upon limitation. Technical words, how-
ever, are unnecessary, if the intention of the testator is
clear. It differs from an estate upon condition subse-
quent in that the happening of the contingency in itself
terminates the estate, re-entry not being necessary.^^
73 Allison V. Allison's Exrs., 101 grant to A B, provided she con-
Va. 537, 63 L. R. A. 920, 44 S. B. tinues unmarried, is an estate upon
904. condition; and if she marries, no-
74 Leppes V. Lee, 92 Ky. 16, 17 body can take advantage of it to
S. W. 146. defeat the estate but the grantor
75 2 Bl. Com. **155, 156; Taylor or his heirs. But a grant to A B,
V. McCowen, 154 Cal. 798, 99 Pac. so long as she continues unmar-
351; Ashley v. Warner, 11 Gray ried, is a limitation. The moment
(77 Mass.) 43; Owen v. Field, 102 she marries, the time for which
Mass. 90, 105; Miller v. Levi, 44 the estate was to be held has ex-
N. Y. 489. pired, and the estate is not tech-
"This distinction may be lllus- nically defeated, but determined."
trated by a familiar example. A — 1 Washburn, Real Prop. *458.
1472 COMMENTARIES ON THE LAW OP WILLS.
The term "conditional limitation" is used to designate
the estate limited to take effect upon the happening of the
contingency which determines the estate upon limitation.
A condition refers to the cause for the determination of
the estate whereby it may be recovered by the grantor or
his heirs ; a conditional limitation refers to the new estate
transferred over to a third party. '^^
§ 1017. Executory Devises Defined.
An executory devise is a future estate or interest in
lands created by will and limited so that it can not take
effect as a remainder or a future use. It does not vest at
the death of the testator, but only on the happening of
some future contingent event.'^'^ It is such a limitation of
a future estate or interest in lands as the law admits in
the case of a will, though contrary to the rules of limita-
tions regarding conveyances at common law.'^^ It can be
created without the intervention of a preceding estate,
and it may be limited after a fee.''* Such an estate or
interest was instituted to support the will of the testator
in cases where, by the rules of law, a devise of a future
estate could not operate as a remainder, as in case of a
76 1 WashBum Real Prop. *459; 78 Fearne Cont. Rem., 386; 2 Bl.
Tledeman Real Prop., § 211. Com. *172; Ashby v. McKinlock,
„-r. r, ,A- o w„,i 271 m. 25\ 111 N. E. 101; St.
77 Doe V. Considine, 6 Wall. '
Amour v. Rivard, 2 Mich. 294;
(TJ. S.) 458, 18 L. Ed. 869; Bristol
V. Atwater, 50 Conn. 402; Craw-
Burleigh v. Clough, 52 N. H. 267,
13 Am. Rep. 23; Paterson v. Ellis'
ford V. Clark, 110 Ga. 729, 36 S. E. j,xrs., 11 Wend. (N. Y.) 259;
404; Miller v. Miller, 91 Kan. 1, Holden v. Wells, 18 R. I. 802, 31
Ann. Gas. 1917A, 918, L. R. A. Atl. 265; Rutledge v. Fishburne,
1915A, 671, 136 Pac. 953; Starr v. 66 S. C. 155, 97 Am. St. Rep. 757,
Minister & Trustees of Starr 44 S. E. 564; Chipps v. Hall, 23
Methodist Church, 112 Md. 171, 76 W. Va. 504; Ryan v. Monaghan, 99
Atl. 595; Holden v. Wells, 18 R. I. Tenn. 338, 42 S. W. 144.
802, 31 Atl. 265. 79 4 Kent. Com. *269.
REALAINDERS AND EXECUTORY DEVISES. 1473
remainder after a fee which, although not good as a re-
mainder, is valid as an executory devise.*"
§ 1018. Vested and Contingent Executory Devises.
An executory devise may be either vested or contin-
gent. It is vested vs^here the person who is to take is in
being and definitely ascertained and the contingency is
one which is certain to occur. If the person who is to take
is uncertain or the contingency upon which the interest is
limited is uncertain, the executory devise is contingent.*^
§ 1019. Indestructibility of Executory Devises.
It has been said that an executory devise is indestructi-
ble.®^ It is essential to its validity that it can not be
defeated by any act of the first taker. It is independent of
him and beyond his power or control.*^ It can not be
prevented or destroyed by any alteration or sale of the
estate out of or after which it is limited,** nor by a con-
veyance by the first taker.*^ Neither can it be defeated
by adverse possession, no matter how long continued
80 4 Kent Com. *264; St. Amour the vesting of the devise on the
V. Rivard, 2 Mich. 294; Wood v. happening of the contingency;
Griffin, 46 N. H. 230. but he may prevent that occur-
81 Shaw V. English, 40 Misc. 37, rence." — Kent v. Armstrong, 6
81 N. Y. Supp. 169. See, also, Cal- N. J. Eq. 637.
vin V. Springer, 28 Ind. App. 443, 83 Allen v. White, 16 Ala. 181; '
63 N. E. 40. Jones v. Miller, 13 Ind. 337; Mof-
82 McRee's Admrs. v. Means, 34 fat's Exrs. ' v. Strong, 10 Johns.
Ala. 349. (N. Y.) 12.
"This rule only means that the 84 Pells v. Brown, Cro. Jac. 590,;
first taker, as a general rule, can Holmes v. Williams, 1 Root
not create a greater estate than (Conn.) 335, 1 Am. Dec. 49; South-
he has; having a defeasible estate erland v. Cox, 14 N. C. 394.
he can not create an indefeasible 86 Couch v. Gorham, 1 Conn. 36;
one; he can do no act to prevent Jones v. Miller, 13 Ind. 337.
n Com. on wills — 39
1474 COMMENTARIES ON THE LAW OF WILLS.
before the happening of the contingency upon which it
takes effect.*®
Grenerally speaking, an executory devise can not be
barred by fine or common recovery.*'' An exception to
this rule would exist where an executory devise is limited
to take effect in derogation of an estate tail, and the tenant
in tail has allowed the estate to be enlarged into a fee by
fine or common recovery.** Such actions, however, are
not recognized in the United States.*®
§ 1020. Right of Disposition in First Taker Repugnant to an
Executory Devise.
A valid executory devise can not subsist where the first
taker has the absolute power of disposition. Such execu-
tory interest is a species of entailed estate and the first
taker has only the use of the property pending the con-
tingency.^" An unlimited power of disposition in the
first taker defeats the limitation over.*^ Yet this power
must be other than that which attaches as a legal incident
of the estate.®^ It must be the power to destroy the execu-
86Nunnally v. White's Exrs., 3 »l MoRee's Admrs. v. Means, 34
Mete. (60 Ky.) 584. Ala. 349; Galllgan v. McDonald,
87 Doe v. Howell, 10 B. & C. 200 Mass. 299, 86 N. E. 304.
191; Paterson v. Ellis' Exrs., 11 a= *„ „ j„„4^ . ^ -..i. ^.i,
' ' As to a devise coupled with the
Wend. (N. Y.) 259.
88 Kent V. Armstrong, 6 N. J.
Bq. 637; Taylor v. Taylor, 63 Pa.
St. 481, 3 Am. Rep. 565. ^^ to a gift of a life estate
See § 940. coupled with the power of dispo-
89 See § 941. sltion, see §§ 972-975.
90 Kent Com., vol. 4, p. 270; 92 Lamhe v. Drayton, 182 111.
MoRee's Admrs. v. Means, 34 Ala. 110, 55 N. E. 189; Carson v. Car-
349; Wolfer v. Hemmer, 144 111. son, 115 Tenn. 37, 88 S. W. 175.
554, 33 N. E. 751; Ashby v. McKin- Ordinary words conveying the
lock, 271 111. 254, 111 N. E. 101; absolute title alone without super-
Turner V. Ivie, 5 Heisk. (52 Tenn.) added words giving unlimited
222. power of disposition do not de-
power of disposition, see §§ 927-
929.
REMAINDERS AND EXECUTORY DEVISES. 1475
tory devise by alienation, not merely a power to alienate
the estate vested in the first taker.®*
An executory devise which is to become effective and
Avhich is to defeat a preceding estate upon the contingency
of the holder of the particular estate exercising a riglit or
power legally incident to such estate is void. Thus, an
executory devise limited after a fee is void if it is to take
effect upon the non-alienation of the estate by the holder
of the fee, for such limitation is repugnant to the estate
granted and the implied power of disposition."*
§ 1021. Contingent Remainders Preferred in Law to Executory
Devises.
Courts will not construe a limitation over as an execu-
tory devise when it can take effect as a remainder.®^
Executory devises are not favored in law and where the
gift to the first devisee is less than a fee, the courts have
gone to great lengths to construe limitations over as con-
tingent remainders."® Where the contingent estate may
feat an executory devise. — Read v. ingale v. Burrell, 15 Pick. (32
Watkins, 11 Lea (Tenn.) 158. Mass.) 104; Burleigh v. Clough, 52
93 McRee's Admrs. v. Means, 34 N. H. 267, 13 Am. Rep. 23 ; Wilkes
Ala. 349. V. Lion, 2 Cow. (N. Y.) 333, 389;
94 Shaw V. Ford, 7 Ch. Div. 669 ; Wolfe v. Van Nostrand, 2 N. Y.
Ashby V. McKinlock, 271 111. 254, 436; Manderson v. Lukens, 23 Pa.
Ill N. E. 101. St. 31, 62 Am. Dec. 312.
As to gift over of what remains 96 Bullock v. Seymour, 33 Conn,
undisposed of by the first taker, 289.
see § 930. "Most of the cases on the sub-
95 Carwardine v. Carwardine, 1 ject of executory devises have
Eden 27, 34; Doe v. Morgan, 3 come from the courts of chancery;
Term Rep. 763, 765; Doe v. Con- but the courts of law have, always,
sidine, 6 Wall. (U. S.) 468, 18 from the earliest notice of execu-
L. Ed. 869 ; Bruce v. Bissell, 119 tory devises, and whether they re-
Ind. 525, 530, 12 Am. St Rep. 436, lated to real or personal estates,
22 N. B. 4; Aldred v. Sylvester, given them the same construction
184 Ind. 542, 111 N. E. 914; Night- and effect that were given to them
1476 COMMENTARIES ON THE LAW OF WILLS.
take effect during the continuance or at the determination
of the particular estate, such a preceding estate having
been devised, the fact that it is possible or probable that
the final limitation over will not so take effect does not
take it out of the general rule that such a gift will not be
construed as an executory devise if it may take effect as a
contingent remainder.®'^
§ 1022. Remainders and Executory Devises Compared.
Contingent remainders and executory devises are both
governed by the same rule so far as concerns their aliena-
tion or transmission.®* Both come under the denomina-
tion of expectant estates.®^ The word * ' remainder ' ' may
be said to include executory devises, although techni-
cally distinguishable therefrom.^
§ 1023. Remainders and Executory Devises Distinguished.
An executory devise differs from a remainder in three
main particulars: (1) it requires a particular estate to
support it; (2) it may be limited after a fee, and (3) a
chattel interest may be limited over after a life estate by
way of an executory devise.^ A devise to A when he
in chancery. The remedy may be Creary v. Coggeshall, 74 S. C. 42,
different, but the rules of prop- 7 Ann. Cas. 693, 7 L. R. A. (N. S.)
erty are and ought to be uniform 433, 53 S. E. 978.
in both tribunals. The interests 98 Bartram v. Powell, 88 Conn.
in remainder, on a valid executory 86, 89 Atl. 885.
devise of lands or chattels, are 99 Moore v. Gary, 149 Ind. 51,
legal interests to be carried into 48 N. E. 630.
execution when they arise." — Mof- i McRee's Admrs. v. Means, 34
fat's Exrs. v. Strong, 10 Johns. Ala. 349; Gannon v. Albright, 183
(N. T.) 12. Mo. 238, 105 Am. St. Rep. 471, 67
97 Doe v. Considine, 6 Wall. L. R. A. 97, 81 S. W. 1162; Miller
(U. S.) 458, 18 L. Ed. 869; Dun- v. Macomb, 26 Wend. (N.Y.) 229.
can V. Do Yampert, 182 Ala. 528, 2 2 Bl. Com. +172; 4 Kent Com.
62 So. 673; Alsman v. Walters, *269; Miller v. Miller, 91 Kan. 1,
(Ind. App.) 101 N. E. 117; Mc- Ann. Cas. 1917A, 918, L. R. A.
REMAINDERS AND EXECUTORY DEVISES.
1477
attains bis majority or marries is an executory devise, not
supported by a preceding estate. A devise to A in fee,
but sbould A die before reaching majority or die without
issue, then to B in fee, creates in B an executory interest
limited after a fee. No remainder can be limited after a
fee, whether the fee be absolute, conditional, or defeasi-
ble ; such limitation may only be by way of an executory
devise.*
§ 1024. Efifect on Contingent Remainder of Termination of Pre-
ceding Estate.
A change of circumstances may occur between the date
of the execution of the will and the death of the testator,
at which latter date the will for the first time becomes
1915A, 671, 136 Pac. 953; Burleigh
V. Clough, 52 N. H. 267, 13 Am.
Rep. 23.
Chief Justice Shaw, In Nightin-
gale V. Burrell, 15 Pick. (32 Mass.)
104, says: "The essential differ-
ence in the quality of the estate
between a remainder and an ex-
ecutory devise is that the former
may be barred at the pleasure of
the tenant in tail, by a common
recovery, or in our state, by a
conveyance by deed; but he who
holds by force of an executory
devise has an estate above and
beyond the power and control of
the first taker, who can not alien-
ate or change It, or prevent its
taking effect, according to the
terms of the will, upon the hap-
pening of the contingency upon
which it is limited. It does not
depend upon the particular estate,
but operates by way of determina-
tion of the first estate limited, and
the substitution of another in its
place."
3 Bristol V. Atwater, 50 Conn.
402; Pitzer v. Morrison, 272 III.
291, 111 N. E. 1017; Burleigh v.
Clough, 52 N. H. 267, 13 Am. Rep.
23; Selman v. Robertson, 46 S. C.
262, 24 S. E. 187; Davis v. Hodge,
102 S. C. 178, 86 S. E. 478.
Chancellor Wardlaw, in Buist v.
Dawes, 4 Rich. Eq. (S. C.) 421,
423, says: ''It has never been
doubted since the introduction of
executory devises, that a fee could
be limited by executory devise
upon a fee simple absolute, where
there was no objection on the
score of remoteness; and it is
difficult to find any reason why
the same doctrine should not be
applied to a fee simple condi-
tional. We have seen that both
these classes of fees exhaust the
1478 COMMENTARIES ON THE LAW OP WILLS.
effective. The will may dispose of a certain estate in
property with remainder over. The particular estate
may be void or may lapse during the testator's lifetime,
and the remainder therefore have no preceding estate to
support it ; but the devise will be construed as if the re-
mainder had been given directly without the intervention
of a preceding estate, and the remainder in such a case
wiU be given effect as an executory devise if it can vest at
the date of the death of the testator.* But if the will pro-
vides that the remainder may vest only in the event of
some contingency which has not occurred during the tes-
tator's lifetime, and the preceding estate has failed prior
to that time, the remainder must fail since it has no pre-
ceding estate to support it, and it can not be given effect
as an executory devise.® This rule, however, has been
altered by statute in many jurisdictions.®
§ 1025. Executory Devise Converted Into Remainder by Change
of Circumstances.
A will becomes effective only at the death of the testa-
tor. A remainder, either vested or contingent, of an
executory devise, is valid at that date or not at all, subse-
quent events having no effect as to the question of valid-
ity. An interest executory at the time it was given may
by reason of a change of circumstances prior to the death
of the testator, take effect as an ordinary remainder.
estate, so that no remnant exists Eq. 463; Crozler v. Bray, 39 Hun
for the subject ol a remainder; (N. Y.) 121.
and both benignantly need the aid See § 769.
of courts in the interpretation of ® Humberstone v. Stanton, 1 Ves.
wills, in giving effect to executory ^ ^- 385; Williams v. Jones, 1
, . ,, Russ. 517; Doe v. Brabant, 3 Bro.
devises." „ ^ „.
C. C. 393 ; Gibson v. Seymour, 102
4Feame Cont. Rem. 625, 626; Ind. 485, 52 Am. Rep. 688.
Bullock V. Bennett, 31 Eng. L. & 6 See § 1006.
BEMAINDEES AND EXECUTORY DEVISES. 1479
Thus a devise to A for life with remainder in fee to the
child she was supposed to be bearing, with a limitation
over to C should such child die under age and without
issue, is an executory devise to C, but at the death of the
testator, the contingency of the child never occurring, C 's
interest would take effect as an ordinary remainder.'^ And
events subsequent to the death of the testator may con-
vert an executory devise into a remainder, as where the
immediately preceding estate vests in possession.^ For
instance, the testator makes a devise to A for life with
remainder to A's son B in fee, but in case of B's death
before A and A having no other child living at his death,
then A to have the power to dispose of the property to
whom he should desire. Should B die after the testator
but before A, the power given to A would operate only
as an executory devise between the date of the death of
the testator and that of B ; but after the death of B the
estate in A would in effect be an estate for life enlarging
to a fee upon the contingency of death without other
children.*
§ 1026. Limitation Over if First Devisee "Die Without Issue."
The difficulty in determining whether a contingent gift
is an executory devise or a remainder usually arises where
7 Gulliver v. Wickett, 1 Wils. A dies without issue during the
105. testator's lifetime, the gift over
Under a devise to A, but if he takes effect at the testator's death,
dies before a certain age then to — Downing v. Marshall, 23 N. Y.
B, and A dies under that a^e dur- 366, 80 Am. Dec. 290; Matter of
ing the testator's lifetime, the Miller, 161 N. Y. 71, 55 N. E. 385.
gift over takes effect at the testar 8 Fearne Cont. Rem. 503 ; Lion
tor's death. — Barrel v. Molesworth, v. Burtiss, 20 Johns. (N. Y.) 483 ;
2 Vem. 378; Haughton v. Harri- Wilkes v. Lion, 2 Cow. (N. Y.)
son, 2 Atk. 329. 333.
Under a devise to A, but if he s Doe v. Howell, 10 Barn. & C.
"die without Issue," then to B, and 191.
1480 COMMENTARIES ON THE LAW OF WILLS.
there is a devise in fee in one clause, and afterwards a gift
over upon the contingency of the first devisee "dying
without issue." Unless a contrary intent is expressed,
this according to the common law rule referred to an
indefinite failure of issue and created an estate tail in the
first devisee.^" The common law rule was that a limita-
tion over upon the indefinite failure of issue created an
estate tail, and a gift over after the indefinite failure of
issue was a contingent remainder limited after an estate
tail, and not an executory devise.^^ The foregoing refers
to the first taker "dying without issue." But should the
devise be to A with the limitation over upon B "dying
without issue, ' ' the devise in fee to A would not be reduced
to an estate tail, and the gift over being limited after a
fee coiild take effect only as an executory devise, and not
as a remainder.^^ But an executory devise to take effect
ouly upon an indefinite failure of issue is void under the
rule as to perpetuities, for an executory interest, in order
to be valid, must take effect within the life or lives of those
in being and within twenty-one years thereafter, with the
usual period of gestation added.^*
§ 1027. The Same Subject.
A testator may clearly express in his wiU that an
indefinite failure of issue was not intended, and that under
a devise to A in fee and upon his death "without issue"
10 See §948; also §§950, 951. Van Nostrand, 2 N. Y. 436; Wall
As to statutory changes regard- v. Magulre, 24 Pa. St. 248; Man-
ing "dying without Issue," see derson v. Lukens, 23 Pa. St. 31,
§ 949. 62 Am. Dec. 312.
As to English and American de- 12 Grumble v. Jones, 11 Mod.
cislons regarding "dying without 207; Attorney General v. Gill, 2
issue,", see §§866, 867. P. Wms. 369; Terry v. Briggs, 12
11 Hawley v. Northampton, 8 Mete. (53 Mass.) 17, 22.
Mass. 3, 5 Am. Dec. 66; Wolfe v. is See §1030.
BEllilNDEES AND EXECUTORY DEVISES. 1481
to B, the quoted words may be shown to have been used
merely as words of contingency and without the intent
that the issue should take any interest in the property.
The courts favor this construction.^* In such a case the
devise to the first taker would not be reduced to an estate
tail, and the gift over, being limited after a fee, could not
take effect as a remainder, but only as an executory de-
vise.^®
By statute in many jurisdictions estates tail have been
abolished and converted into fees simple, or into life
estates with remainders over in fee to the issue or heirs
of the first taker.^® In such jurisdictions the common law
rule as to a remainder limited after a fee tail has no appli-
cation. And if the gift over is limited to take effect at
the death of the first taker "without issue," and by the
words quoted the testator had reference to an indefinite
failure of issue, an executory devise is not created even
though the common law estate tail in the first taker is con-
verted by statute into a fee simple.^''
By statute in other jurisdictions the words "die with-
out issue" have been declared to refer to failure of issue
14 Pells V. Brown, Cro. Jac. 590; "Issue" as a word of limitation
Granger v. Granger, 147 Ind. 95, or of purchase, see §§946, 947.
36 L. R. A. 186, 44 N. E. 189, 46 17 King v. Burchell, 1 Eden 424;
N. B. 80; Manice v. Manice, 43 Den v. Bagshaw, 6 Term Rep. 512;
N. Y. 303; Hill v. Hill, 74 Pa. St. Doe v. Elvy, 4 East 313.
173, 15 Am. Rep. 545. "It would be a most unreason-
See English rule, § 866. able construction which would say
See American decisions, i 867. that the distinction between ex-
See, also, §§ 950, 951, 969, 970, ecutory devises and contingent
971. remainders is broken down, and
15 4 Kent Com. *273, *274; that they have the same proper-
Nightingale V. Burrell, 15 Pick, ties and effect, and yet the same
(32 Mass.) 104. words shall have an altogether
16 See § 941. different import when the ques-
1482
COMMENTARIES ON THE LAW OF WILLS.
at the death of the first devisee;*^ and, generally, it may
be stated that death "without issue" does not refer to an
indefinite failure of issue.^* It is, therefore, generally
held that a devise to A in fee -\vith the proviso that if he
"die without issue," the property shall pass to B, creates
an executory interest in B.^" The rule is the same if the
contingency is that the first taker shall die without leav-
ing any child or children.^^ Such a limitation over to B
in the event that A shall die without "heirs of his body"
likewise, by construing the words "heirs of his body" to
tion of remoteness Is to be deter-
mined."— McRee's Admrs. v.
Means, 34 Ala. 349.
18 See §§949, 950.
19 As to English and American
decisions with reference to "dying
without issue," see §§ 866, 867;
also, §§ 969-971.
20 Barnitz's Lessee v. Casey, 7
Cranch (TJ. S.) 456, 3 L. Ed. 403;
Russ V. Russ, 9 Fla. 105; Smith
V. Kimbell, 153 111. 368, 38 N. E.
1029 ; Granger v. Granger, 147 Ind.
95, 36 L. R. A. 186, 44 N. E. 189, 46
N. E. 80; Fenhy v. Johnson, 21
Md. 106; Rucker v. Lambdin, 12
Sm. & M. (Miss.) 230; Schnitter
V. McManaman, 85 Neb. 337, 27
L. R. A. (N. S.) 1047, 123 N. W.
299; Jackson v. Staats, 11 Johns.
(N. Y.) 337, 6 Am. Dec. 376;
Southerland v. Cox, 14 N. C. 394;
May V. Lewis, 132 N. C. 115, 43
S. E. 550; Ryan v. Monaghan, 99
Tenn. 338, 42 S. W. 144; St. Paul's
Sanitarium v. Freeman, 102 Tex.
376, 117 S. W. 425; Norris v. John-
ston, 17 Gratt. (Va.) 8.
"Issue" as a word of limitation
or of purchase, see §§ 946, 947.
An estate limited over after a
death without issue, upon a con-
tingency, is not an estate tail, but
an executory devise. — Downing v.
Vi^herrin, 19 N. H. 9, 49 Am. Dec.
139.
Where the testator declares
"the issue, however, of such of
my said cousins as may be alive
on such contingency, to represent
his, her, or their parent, and take
the share which his, her, or their
parent would have taken it alive,"
the issue takes as executory devi-
sees by purchase directly under
the terms of the will. — Buist v.
Walton, 104 S. C. 95, 88 S. E. 357.
21 Doe V. Webber, 1 B. & Aid.
713; Bristol v. Atwater, 50 Conn.
402; Maurice v. Graham, 8 Paige
(N. Y.) 483 ; Lapham v. Martin, 33
Ohio St. 99.
Where the estate given to the
first devisee in fee with a gift over
"if he die childless," the gift over
may be sustained. — Smith v.
Hunter, 23 Ind. 580.
EEMAINDEBS AND EXECUTORY DEVISES. 1483
mean "issue" and thus effectuate the intention of the tes-
tator, is held to create an executory devise in B.^^
§ 1028. Limitation Over if First Taker Die Under Age or Un-
married.
A contingency frequently met is where there is a devise
to one in fee with a gift over in the event of his dying
under the age of twenty-one years or dying unmarried. A
limitation over in the event of the first taker in fee dying
before he attains his majority is a valid executory de-
vise,^^ and the rule is the same where the contingency is
that the first taker shall die without having been mar-
ried.^* And, likewise, the contingency can be both djdn'g
under age and unmarried, or dying under age and with-
22 Raborg's Admr. v. Hammond's
Admr., 2 H. & G. (Md.) 42;
Granger v. Granger, 147 Ind. 95,
36 L. R. A. 186, 44 N. E. 189, 46
N. E. 80; Posdick v. Cornell, 1
Johns. (N. Y.) 440, 3 Am. Dec. 340;
Barber t. Crawford, 85 S. C. 54,
67 S. E. 7.
In Russ T. Russ, 9 Fla. 105, the
words "heirs of the body" are con-
strued to mean children, to carry
out the testator's intention.
"Dying without heirs of body"
can only mean dying without leav-
ing such heirs of body as the es-
tate would have vested in, in fee,
instantly upon the death of the
first devisee — as children." — Sum-
mers V. Smith, 127 111. 645, 21 N. E.
191.
"According to the strictest rule
of English interpretation we can
not regard the devise In question
as a limitation over after an in-
definite failure of issue which
would continue it an estate tail,
but as a limitation over upon a
fee, which vests the estate in the
surviving children upon the death
of either without issue living at
his or her death, and is good as
an executory devise." — Hart v.
Thompson's Admrs., 3 B. Mon. (42
Ky.) 482, 487.
As to who are included in the
term "heirs," see §§ 850, 851.
23 Bamitz's Lessee v. Casey, 7
Cranch (U. S.) 456, 3 L. Ed. 403;
Raborg's Admr. t. Hammond's
Admr., 2 H. & G. (Md.) 42; Jack-
son v. Blanshan, 3 Johns. (N. Y.)
292, 3 Am. Dec. 485.
24 Sullivan v. Garesche, 229 Mo.
496, 49 L. R. A. (N. S.) 605, 129
S. W. 949.
1484
COMMENTABIES ON THE LAW OF WILLS.
out children.^" The effect of such a devise with a limita-
tion over upon the contingencies mentioned, unless
controlled by other provisions of the will, is to make the
absolute gift in favor of the first taker defeasible by the
executory gift over in the event of his dying at any time
under the conditions mentioned.^"
§ 1029. Executory Interests in Personalty,
Remainders and executory interests in chattels were not
recognized at common law.^^ But this rule has been
altered and a gift of personalty may be limited after a
life estate,^^ and after an absolute disposition of the prop-
erty,^* by way of an executory bequest. Thus a limitation
over of personalty upon the definite failure of issue in the
25 Sayward y. Sayward, 7 Me.
<7 Green!.) 210, 22 Am. Dec. 191.
As to construing "and" as "or"
and "or" as "and" In such cases,
see §776.
26 Edwards v. Edwards, 15 Beav.
357; Doe v. Webber, 1 Bam. & Aid.
713; O'Mahoney v. Burdett, L. R.
7 H. L. 388; Anderson v. Jackson,
16 Johns. (N. Y.) 382, 8 Am. Dec.
330 ; Matter of New York, L. & W.
Ry. Co., 105 N. Y. 89, 59 Am. Rep.
478, 11 N. E. 492; Britton v. Thorn-
ton, 112 U. S. 526, 28 L. Ed. 816,
5 Sup. Ct. 291.
27 See § 1001, remainders in per-
sonalty.
28 IngersoU v. Ingersoll, 77 Conn.
408, 59 Atl. 413; State v. Warring-
ton's Exr., 4 Harr. (Del.) 55.
While at common law there
could be no limitation over of a
chattel, "in the course of time
equity has established the doctrine
that, where there is a gift of per-
sonal property to one for life with
a limitation over to another, such
limitation is good as an executory
devise."— Glover v. Condell, 163 111.
566, 35 L. R. A. 360, 45 N. E. 173.
29 Martin v. Long, 2 Vern. 151 ;
Edelen v. Middleton, 9 Gill (Md.)
161; Hooper v. Bradbury, 133
Mass. 303, 306; Wager v. Wager,
96 N. Y. 164; Kelley v. Hogan, 71
App. Div. (N. Y.) 344, 76 N. Y.
Supp. 5.
Applying Blackstone's definition
of an executory devise, an execu-
tory bequest would be such a dis-
position of personalty or money by
will that thereby no estate vests
at the death of the testator, but
only on some future contingency.
—Crawford v. Clark, 110 Ga. 729,
36 S. E. 404.
"Every executory devise is, as
far as it goes, a perpetuity; that
is, it is an unalienable interest.
The devisee has only the use, and
REMAINDERS AND EXECUTORY DEVISES. 1485
first taker, is good as an executory device.'''*' This rule
applies to money as well as to other personalty.^^
§ 1030. Executory Devises as Affected by the Rule as to Per-
petuities.
To constitute a valid executory devise at common law,,
the contingency upon which it is to take effect must occur
within the life or lives of those in being and twenty-one
years, there being added thereto the period of gestation,,
as a child may be en ventre sa mere.^^ The common law
rule as to perpetuities applies to executory bequests of
personalty as well as to executory devises.*^
If the executory interest is limited beyond the time
allowed, it is void as an entirety and not merely for the
excess beyond that period.** The invalidity consists in
the possibility of the executory interest not vesting within
the prescribed time, for it may be void although subse-
quent circumstances would have caused it to vest within
the period.*^ The executory limitation being void, it
not an absolute Interest in the per- 46 S. C. 262, 24 S. E. 187; Turner
sonal property devised." — Moffat's v. Ivie, 5 Heisk. (52 Tenn.) 222.
Exr. V. Strong, 10 Johns. (N. Y.) 12. As to children "en ventre sa
30 Glover v. Condell, 163 111. 566, mere," see § 842.
35 L. R. A. 360, 45 N. E. 173; Mof- 33 Thomas v. Thomas, 97 Miss.
fat's Exr. v. Strong, 10 Johns. 697, 53 So. 630.
(N. Y.) 12. 34 Fox V. Porter, 6 Sim. 485;
31 Pinhury v. Elkin, 1 P. Wms. Evers v. Challis, 7 H. L. Cas. 531,
563; Crawford v. Clark, 110 Ga. 555; St. Amour v. Rivard, 2 Mich.
729, 36 S. E. 404; Rowe's Exrs. v. 294; Jackson v. Phillips, 14 Alleni
White, 16 N. J. Eq. 411, 84 Am. (96 Mass.) 539, 572.
Dec. 169; Scott v. Price, 2 Serg. & As to the effect of the rule of
R. (Pa.) 59, 7 Am. Dec. 629. perpetuity on contingent remain-
32 Curry v. Curry, 58 Ind. App. ders, see §§ 1013, 1014.
567, 105 N. E. 951; Nightingale v. 35 Nottingham v. Jennings, 1
Burrell, 15 Pick. (32 Mass.) 104; Salk. 233; Mandlebaum v. McDon-
Thomas v. Thomas, 97 Miss. 697, ell, 29 Mich. 78, 18 Am. Rep. 61;
53 So. 630; Selman v. Robertson, Wood v. Griffin, 46 N. H. 230, 234;
1486
COMMENTARIES ON THE LAW OF WILLS.
leaves the prior gift free from any condition and takes
effect as if the limitation had not been made,^*
If the devise may be construed in two or more ways,
one of which will not be contrary to the rule as to perpet-
uities, such construction will be adopted.^^ But the execu-
tory interest must vest according to the contingency
under the construction adopted, and not under any ap-
parent contingency expressed in the will, as where alter-
nate contingencies are mentioned, one valid and the other
remote.^*
Anderson v. Jackson, 16 Johns.
(N. Y.) 382, 399, 8 Am. Dec. 330;
Appleton's Appeal, 136 Pa. St. 354,
364, 20 Am. St. Rep. 925, 11 L. R. A.
85, 20 Atl. 521.
36 Nottingham v. Jennings, 1
Salk. 233; Beard v. WestCott, 5
B. & Aid. 801; Gold tree v. Thomp-
son, 79 Cal. 613, 22 Pac. 50; Hale
V. Hale, 125 111. 399, 17 N. E. 470;
Pennington v. Pennington, 70 Md.
418, 3 L. R. A. 816, 17 Atl. 329;
Stout V. Stout, 44 N. J. Bq. 479, 15
Atl. 843; Fowler v. Ingersoll, 50
Hun (N. Y.) 60, 2 N. Y. Supp.
833 ; Philadelphia v. Girard's Heirs,
45 Pa. St. 27, 84 Am. Dec. 470.
STDulany v. Middleton, 72 Md.
67, 19 Atl. 146; Roe v. Vingut, 117
N. Y. 204, 22 N. E. 933; In re
Moran's Will, 118 Wis. 177, 96
N. W. 367.
As to alternative contingent re-
mainders, see § 1015.
38 Armstrong v. Armstrong, 14
B. Mon. (53 Ky.) 333; Burrill v.
Boardman, 43 N. Y. 254, 3 Am.
Rep. 694.
CHAPTER XXXVIL
TESTAMESTTAKY GIFTS UPON CONDITION.
§ 1031. Conditions precedent and subsequent defined.
§ 1032. No particular language required to create a condition.
§ 1033. Condition is precedent or subsequent according to testa-
tor's intention.
§ 1034. Examples of conditions precedent and subsequent.
§ 1035. General effect of conditions precedent.
§ 1036. General effect of conditions subsequent.
§ 1037. Construction favors conditions subsequent.
§ 1038. Limitations distinguished from conditions.
§ 1039. The same subject.
§ 1040. Illegal or void conditions.
§ 1041. The same subject : Civil law rule.
§ 1042. Invalid condition coupled with valid one makes result
the same as if both were invalid.
§ 1043. Where conditions precedent are impossible of perform-
ance.
§ 1044. The same subject: Statutory regulations.
§ 1045. Where conditions subsequent are impossible of perform-
ance.
§ 1046. Effect of accepting gift burdened with a condition of
payment, or the like.
§ 1047. Time within which conditions must be performed : Where
no time specified.
§ 1048. The same subject: Where will prescribes time of per-'
formance.
§ 1049. Conditions as to occupation, study and habits.
§ 1050. Conditions requiring residence at a certain place.
§ 1051. Conditions as to change of name.
§ 1052. Conditions affecting religious freedom.
§ 1053. Conditions against making claims against testator's
estate.
(1487)
1488 COMMENTARIES ON THE LAW OP WILLS.
§ 1054. Conditions against contesting will.
§ 1055. The same subject : "Where annexed to gifts of personalty :
Doctrine of in terrorem.
§ 1056. The same subject : Where probable cause for contest
exists.
§ 1057. What amounts to a contest.
§ 1058. The same subject.
§ 1059. Conditions in restraint of marriage.
§ 1060. The same subject: A limited restraint is valid.
§1061. The same subject: Limited restraint.
§ 1062. The same subject: Condition invalid if annexed to gift
of personalty unless there is a gift over.
§ 1063. The same subject: Words of condition or of limitation.
§1064. The same subject: Intent of testator governs whether
condition or limitation.
§ 1 065. Condition in restraint of re-marriage of widow.
§ 1066. Condition in restraint of re-marriage of widower.
§ 1067. Conditions predicated upon divorce or separation.
§ 1068. The same subject.
§ 1069. Condition that beneficiary marry only, with consent of
certain persons.
§ 1070. The same subject.
§ 1071. Conditions repugnant to estate given are void.
§ 1072. General restraint upon alienation void.
§ 1073. Limiting or prohibiting conveyance to particular person
or class : English decisions.
§ 1074. The same subject : American decisions.
§ 1075. Restraining alienation until donee reaches a certain age.
§ 1076. Restrictions on alienation do not follow the land.
§ 1077. Construction of provisions restraining alienation.
§ 1031. Conditions Precedent and Subsequent Defined.
A conditional legacy or devise is one which takes effect
or continues to be effective by reason of the happening
or non-happening of some certain event.^
1 2 Williams, Bxrs., •1080; 1 As to conditional or contingent
Roper, Legacies (3d ed.), 645. -wills, see ch. 4, §§ 102-115.
TESTAMENTAEY GIFTS UPON CONDITION. 14S9
Conditions fall into the t-\vo well known divisions of
conditions precedent and conditions subsequent. The for-
mer is one which must be performed before the interest
can vest ; the latter is one by which a vested interest may-
be divested, or a contingent interest defeated before it
vests.2
§ 1032. No Particular Language Required to Create a Condi-
tion.
No particular language in a Mdll is required to create a
condition. It is sufficient if such an intention may be
collected from the whole instrument ; but a condition will
not be presumed from ambiguous expressions ; the testa-
tor's intention must be evident.*
§ 1033. Condition Is Precedent or Subsequent According to
Testator's Intention.
There are no technical words to distinguish between
conditions precedent and conditions subsequent, the dis-
tinction being a matter of construction.* The same words
may be used to create each, according to the intent of
the person creating the condition.^ A condition is to be
considered precedent or subsequent according to the fair
intention of the maker, to be collected from the whole in-
strument, and teclmical words, if any there be, yield to
intention.® If the language of the particular clause, or
2GofE V. Pensenhafer, 190 111. Va. 81, 70 Am. St. Rep. 825, 30
200, 60 N. E. 110; Hoss v. Hoss, S. B. 462.
140 Ind. 551, 39 N. E. 255. ' Elllcott v. EUicott, 90 Md. 321,
48 L. R. A. 58, 45 Atl. 183; Burdls
3 Wonnan v. Teagarden, 2 Ohio
St. 380.
V. Burdls, 96 Va. 81, 70 Am. St.
Rep. 825, 30 S. E. 462.
4 Hawkins v. Hansen, 92 Kan. e Porter v. Shephard, 6 Term
740, 142 Pac 280; CresweU's Rep. 665, 668; Finlay v. King's.
Lessee v. Lawson, 7 Gill & J. Lessee, 3 Pet. (U. S.) 346, 7 L. Ed.
(Md.) 227; Burdls v. Burdls, 96 701.
II Com. on Wills— 40
M90 COMMENTARIES ON THE LAW OP WILLS.
the whole will, shows that the act on which the estate
depends must be performed before the estate can vest, the
condition is precedent, and unless it can be performed,
the devisee can take nothing. If, on the contrary, it may
be collected from the whole will that the act need not nec-
essarily precede the vesting of the estate, but may accom-
pany or follow it, the condition is subsequent.'^
§ 1034. Examples of Conditions Precedent and Subsequent.
Where the condition attached to the gift is that the
beneficiary shall part with some consideration, it is held
to be precedent.* When security is required to be given
for the performance of the condition, it is construed as a
condition precedent to taking the estate.^ And a devise
conditioned upon the devisee giving bond within a cer-
tain time not to marry a designated person is upon con-
dition precedent.^" A condition that the devisee do, or
abstain from doing, a certain act is a condition precedent ;
as, for example, that he marry, or that he do not marry
7 Marshall, C. J., in Finlay v. disposed of or unspent, at the time
King's Lessee, 3 Pet. (TJ. S.) 346, of her decease, to such charitable
7 L. Ed. 701. See, also, In re Stick- institution for women, in said city
ney's Will, 85 Md. 79, 102, 60 Am. of Chicago, as she may select,"
St. Rep. 308, 35 L. R. A. 693, 36 there was created a condition pre-
Atl. 654. cedent.— Mills v. Newberry, 112 111.
8 Large v. Cheshire, 1 Vent. 147; 123, 54 Am. Rep. 213, 1 N. E. 156.
Acherley v. Vemon, Willes 153. Legacies given for a valuable
Where a daughter devised in consideration not subject to abate-
these words: "In event I die un- ment. See § 697.
married, leaving my mother sur- As to legacy to pay debt owing
viving, I devise and bequeath her by testator to legatee, see § 758.
all my property . . . upon the 9 Jackson v. Wight, 3 Wend,
express condition, however, that (N. Y.) 109; Hogeboom v. Hall, 24
she devise, by will to be executed Wend. (N. Y.) 146.
before receiving this bequest, so lo Lester y. Garland, 15 Ves. Juh.
much thereof as shall remain un- 248.
TESTAMENTARY GIFTS UPON CONDITION. 1491
without the consent of trustees/' or that he marry into
a certain family,^^ or that he give up low company
and frequenting public houses."
Where the will imports a present interest in the devi-
see, duties to be performed by him will be considered
conditions subsequent." Thus, a bequest to a religious
corporation, on condition that within three years it shall
erect a chapel, is on a condition subsequent.^^ When
"dying without issue" is construed to refer to so dying
after the decease of the testator, a gift over in that event
is in the nature of a condition subsequent."
§ 1035. General Effect of Conditions Precedent.
The general rule is that a devise or bequest upon a
condition precedent does not become effective until the
condition is performed. It is the essence of the disposi-
tion that it shall not become operative until the condition
precedent is fulfilled, and the estate can not vest where
the performance is not accomplished, no matter the rea-
son for non-fulfillment.^^
When a condition precedent embraces several require-
ments, the estate does not vest until all of them have been
complied with.^^ A legacy upon a condition precedent
11 Ellis V. Ellis, 1 Schoales & L. 16 FInlay v. King's Lessee, 3
1; Stackpole v. Beaumont, 3 Ves. Pet. (U. S.) 346, 358, 375, 376,-
Jun. 89. 7 L. Ed. 701; Nellis v. Nellis, 99
12 Randal v. Payne, 1 Bro. N. Y. 505, 3 N. E. 59.
C. C. 55. iTRoundell v. Currer, 2 Bro.
13 Tattersall v. Howell, 2 Mer. C. C. 67; Sprigg v. Sprigg, 2 Vern.
26; Markham v. Hufford, 123 Mich. 394.
505, 81 Am. St. Rep. 222, 48 L. R. A. A condition precedent can not
580, 82 N. W. 222. be dispensed with even by the
14 Bell County v. Alexander, 22 testator's consent. — Davis v. Angel,
Tex. 350, 73 Am. Dec. 268. 8 Jur. N. S. 709; s. c, affirmed,
15 Tappan's Appeal, 52 Conn. 8 Jur. N. S. 1024.
412. 18 Taylor v. Mason, 9 Wheat.
1492 COMMENTARIES ON THE LAW OF WILLS.
not performed, falls into the residue, or, in the absence
of a residuary gift, will pass to the next of kin as estate
undisposed of by the will.^*
Where a prior devise depends upon a condition prece-
dent which fails so that the particular estate never vests,
an ulterior limitation over will also fail.^"
§ 1036. General Effect of Conditions Subsequent.
An estate devised upon condition subsequent vests im-
mediately upon the death of the testator, subject to be de-
feated upon breach of the condition.^^ Thus, where land
is devised to one on condition that he shall pay the tes-
tator's debts and a certain legacy, the estate will vest in
the devisee immediately upon the testator's death, pay-
ment of the debts and legacy being a condition subse-
quent.^^
Where a devisee takes upon condition subsequent, upon
a breach thereof the devisor's heirs may enter for for-
feiture although the will contains no .provision to that
effect.^* If there be a gift over upon the non-perform-
ance of a condition subsequent attached to a prior estate
devised, the gift over will take effect upon failure of the
condition unless the failure be due to the illegality of the
condition or the impossibility of performance.^* Condi-
(U. S.) 325, 350, 6 L. Ed. 101; 22 Horsey's Lessee v. Horsey, i
Moakley v. Rlggs, 19 Johns. Har. (Del.) 517.
(N. Y.) 71, 72, 10 Am. Dec. 196. 23 Birmingham v. Lesan, 77 Me.
10 Mills V. Newberry, 112 111. 123, 494, 1 Atl. 151.
54 Am. Rep. 213, 1 N. E. 156. As to illegal and impossible con-
As to whom the benefit of lapsed ditlons, see §§ 1040-1042.
and void legacies accrues, see As to impossible conditions, see
§§ 681, 779-781. §§ 1043-1045.
20Boyce V. Boyce, 16 Sim. 476; 24 Ridgway v. Woodhouse, 7
Roundell v. Currer, 2 Bro. C. C. 67. Beav. 437; Thomas v. Howell, 1
21 Petro V. Casslday, 13 Ind. 289. Salk. 170; United States v. Arre-
TESTAMENTARY GIFTS UPON CONDITION. 1493
tions subsequent are strictly construed and must be so
expressed as to leave no doubt as to the precise contin-
gency intended.^®
§ 1037. Construction Favors Conditions Subsequent.
Courts will always seek to uphold, if possible, the testa-
mentary dispositions of a decedent, and are adverse to
construing conditions to be precedent when they might
defeat the vesting of estates under a will.^^ And although
the words be in the form of a condition precedent, the gen-
eral intent of the testator as collected from the four cor-
ners of the instrument, if showing a different purpose,
will prevail.^''
§ 1038. Limitations Distinguished from Conditions.
There is a distinction between a condition and a limi-
tation. Where an estate is so expressly restricted and
limited by the words of its creation that it can endure
only until the happening of the contingency upon which it
is to fail, it is denominated a limitation.^^ Thus it is a
dondo, 6 Pet. (XJ. S.) 691, 745, 746, diner v. Corson, 15 Mass. 500, 503;
8 L. Ed. 547; McLachlan v. Mc- Burnett v. Strong, 26 Miss. 116;
Lachlan, 9 Paige (N. Y.) 534. pox v. Phelps, 17 Wend. (N. Y.)
25 Hervey-Bathurst v. Stanley, 393. sarruso v. Madan, 2 Johns.
L. R. 4 Ch. Div. 272, cited, Egerton (j^ y.) 145; Worman's Lessee v.
V. Brownlow, 7 H. L. Cas. 720; Teagarden, 2 Ohio St. 380.
Clavering v. Ellison, 3 Drew. 451;
Duddy V. Gresham, L. R. 2 Ir. 442,
471.
26 Pennington v. Pennington, 70
Md. 418, 442, 17 Atl. 329.
27 Finlay v. King's Lessee, 3 See, also. Society for Promoting
Peters (U. S.) 346, 7 L. Ed. 701; Theological Education v. Attorney-
Wheeler V. Walker, 2 Conn. 196, General, 135 Mass. 285; 2 Wash-
7 Am. Dec. 264; Stark v. Smiley, burn, Real Prop. (4th ed.), 25.
25 Me. 201; Johnson v. Reed, 9 As to limitations and conditional
Mass. 78, 83, 6 Am. Dec. 36; Gar- limitations, see §1016.
28 2 BI. Com. *155; 1 Sanders,
Uses (5th ed.), 156; In re Machu,
21 Ch. Div. 838, 843.
See, post, §§ 1063, 1064.
1494 COMMENTARIES ON THE LAW OF WILLS.
limitation where land is devised to one until slie marry,^'
or during widowhood,*" or "so long as she remain my
widow. "*^
In some cases the validity of a limitation upon a devise,
as by the testator to his wife, ' ' so long as she continued ' '
his widow, or of a bequest of income to the testator 's sis-
ters "as long as they remain unmarried," have not even
been called into question.*^ For in such cases there is
nothing to carry the interest beyond the marriage, and
the estate terminates as soon as the contingency hap--
pens.** And again, even though there be no words of
duration, and though strict words of condition be used,'
yet if, on breach of the condition the estate be given over
to a third person and does not revert to the testator's
representatives, this the law construes to be a limitation
and not a condition, the gift over being a conditional limi-
tation.**
29 Bostick V. Blades, 59 Md. 231, 3i Hibbits v. Jack, 97 Ind. 570,
43 Am. Rep. 548. 573, 49 Am. Rep. 478, where it was
See § 1063. held that accordingly such a lim-
30 Doyal V. Smith, 28 Ga. 262; itation was good under a statute
Harmon v. Brown, 58 Ind. 207; declaring conditions in restraint of
Hibbits V. Jack, 97 Ind. 570, 49 marriage void.
Am. Rep. 478; Coppage v. Alex- See, also, § 964.
ander's Heirs, 2 B. Mon. (41 Ky.) As to limitations and conditional
313, 316, 38 Am. Dec. 153; Chapin limitations, see §1016.
V. Marvin, 12 Wend. (N. Y.) 538 ; 32 King v. Grant, 55 Conn. 166,
Vance v. Campbell's Heirs, 1 Dana 10 Atl. 505; Straus v. Rost, 67 Md.
(31 Ky.) 230; Rodgers v. Rodgers, 465, 10 Atl. 74.
7 Watts (Pa.) 15; Hawkins v. See, also. Appeal of McGuire,
Skeggs' Admr., 10 Humph. (29 (Pa.) 11 Atl. 72.
Tenn.) 31. 33 2 Bl. Com. *155; Bostick v.
See, also, King v. Grant, 55 Blades, 59 Md. 231, 43 Am. Rep.
Conn. 166, 10 Atl. 505; Straus v. 548.
Rost, 67 Md. 465, 10 Atl. 74; Ap- 34 2 Bl. Com. *155; 4 Kent Com.
peal of McGuire, (Pa.) 11 Atl. 72. *126; Snider v. Newsom, 24 Ga.
See §§ 1063-1065. 139, 142; Woodward v. Walling, 31
TESTAMENTARY GIFTS UPON CONDITION. 1495
The distinction between a condition and a limitation is
one of practical importance, for the next subsequent es-
tate which depends upon a limitation becomes immedi-
ately vested upon the happening of the contingency, with-
out any act to be done by him who is next in expectancy ;
whereas, when an estate is, strictly speaMng, upon condi-
tion, the law permits it to endure beyond the time when
such contingency happens, unless the heirs or next of kin
of the testator take advantage of the breach of condition
and make entry to avoid the estate.^^
§ 1039. The Same Subject.
Another difference between conditions and limitations
Avhich renders the distinction between them important, is
that while a substantial compliance "with the intention of
the testator is a sufficient performance of a condition,
a limitation contingent upon a specified event can take
effect only upon the occurrence of the precise event desig-
nated.^® Thus, a limitation over in the event that the
prior devisee "should inarry and thereafter die without
leaving lawful issue," will not take effect if the first
devisee die without issue, not having been married.^'' And
a limitation over to others if the legatee die before com-
lowa 533; Steams v. Godfrey, 16 over, upon breach of a condition
Me. 158; Society for Promoting annexed to a prior devise, must
Education v. Attorney-General, 135 enter for condition broken before
Mass. 285; Fox v. Phelps, 20 jjg c^n maintain a possessory
Wend. (N. Y.) 437; Smith V. Bris- action. — Jewett v. Berry, 20
son, 90 N. C. 284; Hanna's Appeal, „ jj „g
31 Pa. St. 53; Magee v. O'Neill,
19 S. C. 170, 45 Am. Rep. 765.
See §§ 1016, 1017.
35 2 Bl. Com. *155; 4 Kent Com.
•*126 127 37 Jenkins v. Van Schaack, 3
36 Taylor v. Wendel, 4 Bradf.
(N. Y.) 324, 332, 333, and cases
there reviewed.
See §§ 1016, 1017. P^^se (N. Y.) 242.
One to whom land is devised See §§ 1063, 1064.
1496 COMMENTARIES ON THE LAW OP WILLS.
ing of age or marrying, extends only to the contingency
which first occurs, and does not apply in case he marry
and die before majority.^^ So, again, a devise with a gift
over in case the devisee die before he arrives at the age
of twenty-one, or before he has heirs of his body, will
vest absolutely upon his attaining majority, although he
die afterward without issue.**
§ 1040. Illegal or Void Conditions.
The distinction between conditions precedent and sub-
sequent is important where the condition is illegal or void.
A condition may be void because of being in direct con-
travention of some provision of law or because it is con-
trary to public policy or good morals. In considering con-
ditions, however, every presumption will be taken in
favor of their validity and of the innocence of the testator
to do a wrong ; there is no presumption of illegality.*"
If an illegal or void condition is precedent, the estate
can not vest; if such condition is subsequent, the estate
or interest in the property will vest absolutely in the bene-
ficiary, discharged of the condition.''^
38 Wells V. Wells, 10 Mo. 193. Estate, 213 Pa. St. 93, 110 Am. St.
See § 776, as to converting, In Rep. 537, 5 Ann. Cas. 137, 2 L. R. A.
such devises, the word "and" into (N. S.) 545, 62 Atl. 368.
"or" and "or" into "and." A condition annexed to a gift
39 Grimball v. Patton, 70 Ala. to a mother, whether adoptive or
626; Williams v. Dickerson, 2 Root by nature, that she shall separate
(Conn.) 191, 1 Am. Dec. 66; Black herself from her child, and sever
V. McAulay, 50 N. C. (5 Jones L.) the parental relation, and neglect
375. See, also. Plant v. Weeks, 39 her maternal duties to the child,
Mich. 117; Woodman v. Madigan, is immoral, contrary to law, and
58 N. H. 6. against public policy. — Anony-
40 DaboU V. Moon, 88 Conn. 387, mous, 80 Misc. .Rep. 10, 141 N. Y.
Ann. Cas. 1917B, 164, L. R. A. Supp. 700.
1915A, 311, 91 Atl. 646; Winn v. 4i Shep. Touch. 132, 133; Coke,
Hall, IKy.L. Rep. 337; Holbrook's Litt, 206, 206b; Halsey v. God-
TESTAMENTARY GIFTS UPON CONDITION. 1497
§1041. The Same Subject: Civil Law Rule.
As to bequests of personal property, the rule of the
civil law, followed in the English ecclesiastical courts,
makes no distinction between conditions precedent and
conditions subsequent, and the impossibility or illegality
of a condition precedent will not defeat the vesting of an
interest in personal property.*^ But where the perform-
ance of a condition precedent is the sole motive or reason
of the testator for making the gift, the failure to perform
the condition may defeat the vesting of the legacy.*^ And
if the testator was not aware, when he made his will, that
the condition could not be performed, if precedent, it de-
feated the bequest;** likemse, if the condition subse-
quently became impossible through conditions beyond the
testator's control.*" If the condition was malum in se,
then both the gift and the condition were void.*®
§1042. Invalid Condition Coupled With Valid One Makes
Result the Same as if Both Were Invalid.
Beneficiaries under a will must take what is given
them, burdened with the conditions which the testator
dard, 86 Fed. 25; Carter's Heirs v. Burdls, 96 Va. 81, 70 Am. St. Rep.
Carter's Admrs., 39 Ala. 579; New 825, 30 S. E. 462.
Haven County v. Parish Trinity ^2 Gath v. Burton, 1 Beav. 478;
Church, 82 Conn. 378, 17 Ann. Cas. Reynish v. Martin, 3 Atk. 330, 332.
432, 73 Atl. 789; Harrison v. Har- « Rishton v. Cobb, 5 Myl. & C.
145; Sherman v. American Congre-
rison, 105 Ga. 517, 70 Am. St. Rep.
50, 31 S. E. 455; Hoss v. Hoss, 140
Ind. 551, 39 N. E. 255; Morse v.
gational Assn., 98 Fed. 495; Nun-
nery V. Carter, 58 N. C. (5 Jones
Eq.) 370, 78 Am. Dec. 231.
Hayden, 82 Me. 227. 19 Atl. 443; 44 Swinburne, Wills, pt. 4, § 6,
Parker v. Parker, 123 Mass. 584; pj g g
Jones V. Jones, 223 Mo. 424, 25 451 Roper, Leg., 755; Lowther
L. R. A. (N. S.) 424, 123 S. W. 29; y. Cavendish, 1 Eden 99.
In re Vandevort, 62 Hun (N. Y.) 46 Swinburne, Wills, pt. 4, § 6,
612, 17 N. Y. Supp. 316; Burdis v. pi. 16.
1498
COMMENTARIES ON THE LAW OF WILLS.
has seen fit to impose.*'' Where two conditions are jointly-
imposed, one of which is void, the other, although valid
in itself, must be rejected with the void condition. The
reason is that if the testator intended the vesting of the
estate in the beneficiary or the taldng effect of a gift
over should depend upon both conditions, such intention
will prevail, and the result is the same as if both condi-
tions were void.**
§ 1043. Where Conditions Precedent Are Impossible of Per-
formance.
The common law rule is that when a devise is upon a
condition precedent, the estate does not vest until it is
performed, and it is immaterial that the condition itself
is illegal or impossible of performance.*^ A condition is
not regarded as impossible merely because it is beyond
47 Stevens v. De La Vaulx, 166
Mo. 20, 65 S. W. 1003; Trumbull
V. Gibbons, 22 N. J. L. 117; In re
Kathan's Will, 141 N. Y. Supp. 705;
Shirk's Estate, 242 Pa. St. 95, 88
Atl. 873; Magee v. O'Neill, 19 S. C.
170, 45 Am. Rep. 765.
"A vested estate, real or per-
sonal, ought not to be trammelled
with conditions that should pre-
vent its enjoyment or alienation;
but when the estate has not
vested, and can only vest upon
condition, it is diificult to see upon
just what principle the devisee or
legatee can ask to have the con-
dition which the owner has seen
fit to impose, rejected, that he may
enjoy the gift. The election is
given to perform the condition or
not take the estate ; and he should
be satisfied, if the condition is
such that he can not or choose
not to perform It, to let the estate
alone." — Caw v. Robertson, 5 N. Y.
125.
48 Re Babcock, 9 Grant's Ch.
(U. C.) 427.
49 Coke, Litt, 206, 206b; Robin-
son v. Wheelwright, 6 De Gex, M.
6 G. 535; Ridgway v. Woodhouse,
7 Beav. 437; Earl of Shrewsbury
V. Hope-Scott, 6 Jur. N. S. 452,
472; Harvey v. Aston, 1 Atk. 376;
Vanhorne v. Dorrance, 2 Dall.
(U. S.) 304, 1 L. Ed. 391; Stockton
V. Weber, 98 Cal. 433, 441, 33 Pac.
332; Shockley v. Parvis, 4 Houst.
(Del.) 569; Cassem v. Kennedy,
147 111. 660, 664, 35 N. E. 738; Den
V. Hance, 11 N. J. Law 244, 257;
Winthrop v. McKim, 51 How. Pr.
(N. Y.) 323, 327.
TESTAMENTABY GIFTS UPON CONDITION. 1499
the power of the devisee to perform it; it is only so "\yhen
it can not, by any human means, take effect."^" Where
the performance of a condition precedent annexed to a
bequest of personalty has been made impossible by the
act of the testator, the condition itself is discharged ;^^
but this rule does not apply where the condition named is
to be performed by the testator himself, and not by the
devisee.^- And although the condition precedent be pos-
sible of performance at the date of the execution of the
will, if it thereafter can not possibly be performed, al-
though such result is occasioned by act of Grod, the con-
dition is void.^'
§1044. The Same Subject: Statutory Regulations.
In some states it is provided by statute that where a
testamentary disposition is made upon a condition prece-
dent and the fulfillment thereof is impossible, the dis-
position shall vest unless the condition was the sole mo-
tive thereof, and the impossibility was unknown to the
testator or arose from an unavoidable event subsequent
to the execution of the will.^* Under the Greorgia Code,
"conditions which are impossible, illegal, or against pub-
lic policy are void;""^ and in Louisiana, "in all dispo-
sitions inter vivos and mortis causa, impossible condi-
tions, those which are contrary to the laws or to morals,
are reputed not written. ' ' ^^
50 2 story, Eq. Jur., § 1305, citing 200, 60 N. E. 110; Gath v. Burton,
as example that tbe obligee shall 1 Beav. 478.
go from the Church of St. Peter, 53 2 bi. Com. *156.
at Westminster, to the Church of
St. Peter, at Rome, within three
hours.
51 Frost V. Blackwell, 82 N. J.
Eq. 184, 88 Atl. 176. ^^ Ga. Code, (1882) § 2466.
52GofC V. Pensenhafer, 190 111. 56 La. Rev. Civ. Code, (1870)
54 Stimson's Am. Stat. Law,
§ 2825, citing statutes of Cal., Dak.,
Mont., and Utah.
1500 COMMENTARIES ON THE LAW OF WILLS.
§ 1045. Where Conditions Subsequent Are Impossible of Per-
formance.
An estate dependent upon conditions subsequent, hav-
ing once vested, is not defeated by reason of their becom-
ing impossible or being illegal," notwithstanding a gift
over upon failure to perform.-''^ So, too, where the tes-
tator himself prevents the performance of a condition
subsequent, the gift becomes absolute.^* Likewise, if the
condition be imposed upon the devisee for the benefit of
another, and such other waives the performarce thereof
or refuses to accept an offer of performance, the devisee
will take the estate free from the condition.®" And failure,
to pay a legacy charged upon a devisee will not work a
forfeiture when the legatee remains out of the state and
makes no demand of payment.®^
Where, a condition subsequent is annexed to a testa-
mentary gift which is impossible of performance at the
time of the execution of the wiU or, if then possible, sub-
sequently becomes impossible of performance either by
an act of God, the public enemy, war, law, or of the tes-
tator or his representatives, performance is not required
and the estate is not defeated by non-performance.'^^ A
§1519; Succession of McCloskey, College, L. R. 8 Ch. App. 454;
52 La. Ann. 1122, 27 So. 705. affirmed in L. R, 7 H. L. 438.
57 Ridgway v. Woodhouse, 7 60 Petro v. Casslday, 13 Ind. 289 ;
Beav. 437; Burchett v. Woolward, Boone v. Tipton, 15 Ind. 270. See,
Turn. & R. 442 ; Thomas v. Howell, also, Andrews v. Senter, 32 Me.
1 Salk. 170; Jones v. Habersham, 394.
Fed. Ca^. No. 7465, 3 Woods 443; 6i Bradstreet v. Clark, 21 Pick.
Merrill v. Emery, 10 Pick. (27 (38 Mass.) 389.
Mass.) 507; Parker v. Parker, 123 C2 Coke, Litt., 206a, 208b; 2 Bl.
Mass. 584; Conrad v. Long, 33 Com. *156; In re Greenwood,
Mich. 78. (1903) 1 Ch. 749; Huidekoper v.
58 Collett V. Collett, 35 Beav. 312. Douglass, 3 Cranch (U. S.) 1, 73,
09 Walker v. Walker, 2 De Gex, 2 L. Ed. 347; Davis v. Gray, 16
F. & J. 255; Yates v. University Wall. (U. S.) 203, 230, 21 L. Ed.
TESTAMENTARY GIFTS UPON CONDITION.
1501
devise upon condition that the devisee will render service
or support another is a condition subsequent, and if such
other die during the lifetime of the testator, the devisee
takes the property by absolute title as if no condition had
been attached.*- A bequest to a son "provided he takes
447; Sherman v. American Cong.
Assoc, 113 Fed. 609, 51 C. C. A.
329; Jones v. Bramblet, 1 Scam.
(2 ni.) 276; Hoss v. Hoss, 140 Ind.
551, 39 N. E. 255; Ellicott v. Elli-
cott, 90 Md. 321, 48 L. R. A. 58, 45
Atl. 183; Parker v. Parker, 123
Mass. 584; Lusk v. Lewis, 32 Miss.
297; Conrad v. Long, 33 Mich. 78;
Cheairs v. Smith, 37 Miss. 646;
Jones V. Jones, 223 Mo. 424, 25
L. R. A. (N. S.) 424, 123 S. W. 29;
George v. George, 47 N. H. 27;
Frost V. Blackwell, 82 N. J. Eq.
184, 88 Atl. 176; Burleyson v.
Whitley, 97 N. C. 295, 2 S. E. 450;
In re Gunning's Estate, 234 Pa.
139, 49 L. R. A. (N. S.) 637, 83 Atl.
60; Perry v. Brown, 34 R. I. 203,
83 Atl. 8 ; Burdis v. Burdis, 96 Va.
81, 70 Am. St. Rep. 825, 30 S. E.
462; Burnham v. Burnham, 79 Wis.
557, 566, 48 N. W. 661.
Compare: Stark v. Conde, 100
Wis. 633, 76 N. W. 600.
A legacy of $12,000 was given a
church "for use in building a Sun-
day-school room and for such
other improvements as may be
needed" on a piece of land already
given to the church by the testa-
trix. During the settlement of the
estate the land was taken for pub-
lic use under condemnation pro-
ceedings. The inability of the
church to perform the condition
did not forfeit its right to the
legacy. — New Haven County v.
Parish of Trinity Church, 82 Conn.
378, 17 Ann. Cas. 432, 73 Atl. 789.
Where beneficiaries were given
land to hold in common for a home
and support so long as they re-
mained together, but in case one
or more left he should take only
such as is given individually, and
have no share in what was given
in common without the consent of
the others, in case one or more are
forced to remove from the land
because of the cruel treatiiient of
the others, the condition imposed
becomes impossible of execution,
and the use of the land follows
the title divested of the condition.
— Harrison v. Harrison, i05 Ga.
517, 70 Am. St. Rep. 60, 31 S. B.
455.
"The counterpart of the propo-,
sition seems to be equally true
when applied to a condition prece-,
dent." — Stark v. Conde, 100 Wis.
633, 76 N. W. 600. ^
63 Hoss V. Hoss, 140 Ind. 551,
39 N. E. 255; Morse v. Hayden,
82 Me. 227, 19 Atl. 443; Parker v.
Parker, 123 Mass. 584.
A gift to one upon condition that
he care for another is rendered
impossible by an act of God where
1502
COMMENTARIES ON THE LAW OP WILLS.
care of his mother, if not to those that take care of her,"
vests absolutely in the son where the mother dies in the
lifetime of the testator.^" A condition that the beneficiary
pay an annuity to the testator 's wife during her lifetime
is discharged by the subsequent death of the wife prior
to that of the testator.'"'
§ 1046. Effect of Accepting Gift Burdened With a Condition
of Payment, or the Like.
However injudicious the conditions annexed to a gift
may be, if they are unambiguous and not in themselves
unlawful, they may not be rejected."" A devise upon con-
such other dies before the testa-
tor.— Hammond v. Hammond, 55
Md. 575.
Where a testator left a legacy
to his widow on condition that
she should educate and bring up
hia granddaughter until she ar-
rived at the age of eighteen or
married, and the widow died
shortly after the testator, the non-
performance was excused by the
death of the widow. — Merrill v.
Emery, 10 Pick. (27 Mass.) 511.
A devise to a daughter upon
condition that her husband refrain
from drinking until one year after
the death of the testator, will vest
absolutely upon the testator's
death, the husband having died In
the meantime. The condition Is
thus rendered impossible by an
act of God. — Culin's Appeal, 20 Pa.
St. 243.
04 Nunnery v. Carter, 58 N. C.
(5 Jones Eq.) 370, 78 Am. Dec.
231.
(15 Sherman v. American Congre-
gational Assn., 98 Fed. 495.
As to a bequest to suppress the
rebellion and restore the union
taking effect where a testator died
after the rebellion had been sup-
pressed, see Dickson v. United
States, 125 Mass. 311, 28 Am. Rep.
230.
66 Morgan v. Darden, 3 Demar-
est (N. Y.) 203.
A bequest "in consideration of
being taken good care of and
being well treated during the re-
mainder of my life," is not a gift
upon condition or contingency,
upon which the validity of the dis-
position shall depend, but only a
statement of the motive inducing
the testator to make it; and fail-
ure of the consideration, harsh-
ness, and cruelty, can not defeat
the bequest without a canceling or
revocation by the testator. — Mar-
tin V. Martin, 131 Mass. 547, 548.
A condition against giving, pay-
ing, or lending any of the prop-
erty to the devisee's father, refers
to a voluntary gift, and does not
prevent the father from taking
TESTAMENTARY GIFTS UPON CONDITION. 1503
dition that the de\dsee shall comply with what is enjoined
upon him in the will, renders him prima facie under obli-
gation to do what may be imposed upon him in any codicil
thereto.®^ It has been said that when a legatee or devisee
has once accepted a conditional bequest, he can not after-
ward relinquish it and refuse to perform the condition,
although he made the election without waiting to ascer-
tain whether it was to his advantage to do so.*^*
Charges upon legacies and devises for the support of
the testator's children and widow, or other persons, are
valid as a matter of course.''''' However, the legatee is not
bound to elect whether to accept the bequest or no, until
he has had full opportunity to know its burdens f° for the
acceptance of a gift conditioned upon the payment of
debts, annuities, or the like, imposes a personal liability
upon the legatee, without an express promise on his part,
upon which an action at law may be maintained.''^ By
accepting a devise conditioned upon maintaining a person
during the continuance of the estate, the devisee becomes
bound to perform the condition whether the income
thereof is sufficient to support the person or not.''^
under the statute of distribution (N. Y.) 383. See, also, King v.
upon th© death of his son. — In re Gridley, 46 Conn. 555.
Hohman, 37 Hun (N. Y.) 250. 69 Marwick v. Andrews, 25 Me.
A testator may make his gifts 525; Beekman v. Hudson, 20
conditional upon the devisees Wend. (N. Y.) 53; Crandall v.
actively assisting to defeat a law- Hoysradt, 1 Sand. Ch. (N. Y.) 40.
suit pending against him, and may to Wheeler v. Lester, 1 Bradf.
require that they shall prove to (N. Y.) 293.
the executor's satisfaction that ti Messenger v. Andrews, 4
they have rendered such assis- Russ. 478; Rees v. Engelback,
tance. — Cannon v. Apperson, 14 L. R. 12 Eq. 225; Parish v. Whit-
Lea (82 Tenn.) 553. ney, 3 Gray (69 Mass.) 516; Grid-
67 Tilden v. Tilden, 13 Gray (79 ley v. Gridley, 24 N. Y. 130.
Mass.) 103. T2 Pickering v. Pickering, 6 N. H.
68 Spoiford V. Manning, 6 Paige 120; Veazey v. Whitehouse, 10
1504 COMMENTARIES ON THE LAW OF WILLS.
§1047. Time Within Which Condition Must Be Performed:
Where No Time Specified.
There are authorities holding that in the absence of
a direction as to time, a beneficiary has his whole life in
which to comply with a condition annexed to a gift in his
favor. '^* It would seem, however, that no general rule can
be laid down ; in , each case such time will be allowed as,
in view of the circumstances, seems reasonable and just.^*
Thus, a condition that the devisee shall satisfy a mort-
gage, in the absence of any time being set by the will,
must be complied with in a reasonable time f^ and a devise
to a town to build a school-house was forfeited by a fail-
ure to build within twenty years.''®
§1048. The Same Subject: Where Will Prescribes Time of
Performance.
Where the time -within which a condition is to be per-
formed has been prescribed by the testator, ignorance of
the existence of the condition does not excuse non-per-
f ormance.'^''^ If a legacy is conditioned upon being claimed
N. H. 409; Smith v. Jewett, tator's tomb Imposes no obliga-
40 N. H. 530. tions until the bequest vests in
73 Gulliver v. Ashby, 1 Black. W. possession. — Elliot v. Elliot, 10
607; Page V. Hay ward, 2 Salk. 570; Allen (92 Mass.) 357; and see,
Flnlay v. King's Lessee, 3 Peters also, Johnson v. Foulds, L. R.
(U. S.) 346, 7 L. Ed. 701, dictum, 5 Eq. 268.
per Marshall, C. J.; Page v. Whld- A condition to keep a house in
den, 59 N. H. 507. repair includes rebuilding within
See, also, Davies v. Lowndes, 2 a reasonable time after a fire. —
Scott 71; Bennett v. Bennett, 2 Tilden v. Tilden, 13 Gray (79
Drew. & S. 266, 275. Mass.) 103.
74 Drew V. Wakefield, 54 Me. 75 Ross v. Tremaln, 2 Mete. (43
291; Carter v. Carter, 14 Pick. (31 Mass.) 495; Carter v. Carter, 14
Mass.) 424; Tilden v. Tilden, 13 Pick. (79 Mass.) 424.
Gray (79 Mass.) 103, 109 ; Ward v. 76 Hayden v. Stoughton, 5 Pick.
Patterson, 46 Pa. St. 372. (22 Mass.) 528.
A condition for repairing the tes- 77 In re Hodges' Legacy, L. R.
TESTAMENTARY GIFTS UPON CONDITION. 1505
witMn a specified time, it will fail if not so claimed,
although the legatee be ignorant of the bequest and of
the death of the testatorJ^
Where the condition requires performance of an act
within a certain time, the general rule is that the day of
the testator's death is not reckoned.'^^ "When time is
computed from an act done, the general rule is to in-
clude the day; when it is computed from the day of the
act done, the day is excluded. ' ' *"
Forfeiture, however, does not necessarily follow, un-
less there is a gift over upon non-performance of the con-
dition. If there be no gift over, the act, although made
precedent by the will, may sometimes be performed after
the time has expired, if a proper reason appear for the
failure to comply Avith the condition within the designated
time;^^ provided no intervening equities have arisen.^^
And failure to perform a condition subsequent does not
defeat the estate until entry by the devisee to whom it
16 Eq. 92; Powell v. Rawle, L. R. so Perry v. Provident Life Ins.
18 Eq. 243; Astley v. Essex, L. R. & Inv. Co., 99 Mass. 162.
18 Eq. 290; Burgess v. Robinson, si Hollinrake v. Lister, 1 Russ.
3 Mer. 7; Stover's Appeal. 77 Pa. 500, 508; Taylor v. Popham, 1
Bro. C. C. 168.
S2 Pyle V. Price, 6 Ves. Jun. 779
Re Rowland, 86 L. T. N. S. 78
629; s. c, L. R. 18 Eq. 243; Bur- jjolllnrake v. Lister, 1 Russ. 500
gess V. Robinson. 3 Mer. 7; Davis Baylor v. Popham, 1 Bro. C. C. 168
V. Angel, 10 Week. R. 722; Sted- Vaughn v. Lovejoy, 34 Ala. 437
man v. Dunster, L. R. 34 Ch. 742; 3^^^^^^. ^ packer, 70 Conn. 357,
In re Duffy's Estate, 4 Pa. D. C. gg ^^_ g^ ^^^ ^^^^ 39 ^^j ^33
Rep. 147, 36 Week. N. C. 199. chapin v. Cooke, 73 Conn. 72, 84
A devise to one "when he re- Am. St. Rep. 139, 46 Atl. 282
turns" is conditional, and the heir Snider v. Newsom, 24 Ga. 139
is entitled to hold until the return Holmes v. Field, 12 111. 424
of the devisee. — ^Denn v. Little, 1 Becker v. Becker. 206 111. 53, 69
N. J. L. 152. N. E. 49; Levengood v. Hoopla, 124
79 Gorst V. Lowndes. 11 Sim. 434. Ind. 27, 24 N. E. 373.
n Com. on Wills — 41
St. 282.
7S Powell V. Rawle, 22 Week. R.
1506 COMMENTARIES ON THE LAW OF WILLS.
has been limited over in that event,*' or by the heir, if
there be no limitation over.®* Equity, however, will re-
lieve against failure to pay a legacy charged upon a devi-
see upon tender of the legacy with interest.®®
§ 1049. Conditions as to Occupation, Study and Habits.
A valid condition may be annexed to testamentary dis-
positions requiring®" beneficiary to engage in a certain oc-
cupation or carry on a certain business.®'^ An attempt to
carry on the specified business, but being prevented with-
out reason from doing so by those in control, is a suffi-
cient performance;®* but disposing of the business to a
corporation, although becoming a director therein, is a
breach of condition.®'
A testamentary gift may be upon the valid condition
that the beneficiary devote and perfect himself in a cer-
tain line of study, such as fitting himself to enter college.**
If the conditions annexed are subsequent and impossible
of fulfillment, as where a student for the ministry can
not follow the course of study referred to in the will
but must be guided by his superiors, the condition will be
disregarded.*^
83 Webster v. Cooper, 14 How. N. H. 591, 49 Atl. 574; Webster v.
(tJ. S.) 488, 14 L. Ed. 510. Morris, 66 Wis. 366, 57 Am. Rep.
84 Davis V. Gray, 16 Wall. (U. S.) 278, 28 N. W. 353.
230, 21 L. Ed. 447; Sexton v. Chi- 87 Seeley v. Hincks, 65 Conn. 1,
cago Storage Co., 129 111. 318, 332, 31 Atl. 533.
16 Am. St. Rep. 274, 21 N. E. 920; 88 Seeley v. Hincks, 65 Conn. 1,
Thorp V. Johnson, 3 Ind. 343; 31 Atl. 533.
Thompson v. Thompson, 9 Ind. S9 Earned v. Sax, 41 Week. R.
323, 68 Am. Dec. 638; Wellons v. 584.
Jordan, 83 N. C. 371. so Shepard v. Shepard, 57 Conn.
85 Walker v. Wheeler, 2 Conn. 24, 17 Atl. 173; Baker v. Red, 4
299. Dana (34 Ky.) 158.
86 Seeley v. Hincks, 65 Conn. 1, 9i Field v. Drew Theol. Sem.,
31 Atl. 533; Colby v. Dean, 70 41 Fed. 371.
TESTAMENTARY GIFTS UPON CONDITION. 1507
Conditions are valid which reqiiire reformation and tl ?■
leading of a moral life,®^ or ceasing the use of liquor and
tobacco.®* A condition that a beneficiary give up low com-
pany and the frequenting of public houses, is a condition
precedent.®* Where the provision requires the donee to
properly conduct himself for a certain time, his refor-
mation to be judged by the executors or trustees, the con-
dition has been upheld as not void for uncertainty."^ But
where the gift is to tal^e effect in the future upon the
beneficiary abandoning dissipated habits and no one is
designated to determine whether or not reformation has
taken place, the condition has been held void for in-
definiteness and uncertainty."®
§ 1050. Conditions Requiring Residence at a Certain Place.
A condition that the de-^dsee shall reside on the prop-
erty de^dsed to him is valid."^ The terms of the will must
92 Hawke v. Bnyart, 30 Neb. 149, 25 L. R. A. (N. S.) 424, 123
27 Am. St. Rep. 391, 46 N. W. 422; S. W. 29.
Reuff V. Coleman, 30 W. Va. 171, 97 Wilkinson v. Wilkinson, L. R.
3 S. E. 597; Campbell v. Clough, 12 Eq. 604; Astley v. Essex, D. R.
71 N. H. 181, 51 Atl. 668; Cusb- 18 Eq. 295; Law v. Cloud, 45 Ga.
man v. Cushman, 116 App. Div. 481; Lindsey v. Lindsey, 45 Ind.
763, 102 N. Y. Supp. 258. 552; Marston v. Marston, 47 Me.
A condition for the good be- 495; Jenkins v. Horwitz, 92 Md.
havior of the devisee, if intel- 34, 47 Atl. 1022; Caspar v. Walker,
liglble, will be sustained. — West v. 33 N. J. Eq. 35; Reeves v. Craig,
Moore, 37 Miss. 114. 60 N. C. 208; Connor v. Sheridan,
93 Jordan v. James Dunn & On- 116 Wis. 666, 93 N. W. 835.
tario Loan etc. Co., 13 Ont. 267; Contra: Newkerk v. Newkerk,
Onderdonk V. Onderdonk, 127 N. Y. 2 Caines (N. Y.) 345; Pardue v.
196, 27 N. E. 839. Givens, 54 N. C. 306.
94 Tattersall v. Howell, 2 Mer. 26. Where a testatrix, after devis-
95 Markham v. Hufford, 123 ing a farm, bequeathed certain im-
Mich. 505, 81 Am. St Rep. 222, 48 plements and stock necessary to
L. R. A. 580, 82 N. W. 222. carry it on, if the devisee "should
06 Jones V. Jones, 223 Mo. 424, desire to move upon it," the be-
1508 COMMENTARIES ON THE LAW OF WILLS,
clearly express the intention as to residence, otherwise
they will be disregarded as uncertain;®^ for the devisee
might reside on the property for one day, might acquire
it as his legal residence but seldom remain there, or he
may reside there permanently. A condition requiring res-
idence in a certain house is satisfied by such a residence
as is necessary for the creation of a legal domicUe;®*
and a direction that one whose support is charged upon a
devisee shall reside with him, does not require continu-
ous residence.^ It was considered a sufficient compliance
with a condition requiring residence in a particular place
"for at least six calendar months (but not necessarily
consecutively) in every year," that the devisee during
one year was in the house altogether for eighteen days
only, and during another year for no more than twenty-
four days, it being in evidence, however, that he had
placed the house in charge of a staff of servants, had paid
the rates, had kept poultry and horses in the stables and
on the groimds, and that his son who was at coUege
near by had stayed in the house from Saturday until Mon-
day about every alternate week.^
Where the devisee is an infant the condition should not
be enforced, since the domicile of a minor is fixed by his
parent or guardian ;^ but it is otherwise where the devise
is to a parent and his minor children jointly upon con-
quest was decided to be condi- Attenborough. v. Thompson, 2 Hurl,
tional upon the devisee actually & n. 559.
moving upon the farm.-Robert- 1 jackson v. Wight, 3 Wend.
son V. Mowell, 66 Md. 565. 10 Atl. (^_ y.) 109; Hogeboom v. Hall.
671.
98 Shuman v. Heldman, 63 S. C.
474. 41 S. E. 510.
99Walcot V. Botfield. Kay 534;
24 Wend. (N. Y.) 146.
2 Warner v. Moir, 25 Ch. Dlv.
605.
Wynne v. Fletcher. 24 Beav. 430; 3 Partridge v. Partridge, L. R.
Dunne v. Dunne, 3 Smale & G. 22; (1894) 1 Ch. 351.
TESTAMENTARY GIFTS X7P0N CONDITION. 1509
dition that they occupy the premises, since the parent
can cause a breach of the condition.* But a condition re-
quiring a married woman to live at a place other than
Avhere her husband resides and has his business, being
in effect a condition requiring her to neglect her marital
duties, is void.^
In England the effect of the Settled Lands Act" was
that a clause requiring a life tenant to reside on the land
and forfeiting the estate in the event of non-residence
was inconsistent with his statutory power to sell or dis-
pose of his interest and therefore void.'^ But subsequently
it was held that such a clause had the effect of terminat-
ing the interest of the life tenant where he failed to fulfill
the condition as to residence prior to an attempted dis-
position of the property.*
§ 1051. Conditions as to Change of Name.
A condition annexed to a testamentary gift that the
beneficiary shall assume a specified surname, is valid.®
If the expressed intent of the testator is that the change
of name shall be effected by act of the legislature or judi-
cial proceedings as may be required by law, the condition
is subsequent.^" But where a change of name only is re-
quired, it has been held that an informal and voluntary
assumption of the name, mthout legal proceedings to
4 Harrison v. Foote, 9 Tex. Civ. 8 Kemp v. Haynes, 37 Ch. Div.
App. 576, 596, 30 S. W. 838. 306.
9 Gulliver v. Ashby, 4 Burr. 1929,
5 Wilkinson V. Wilkinson, L. R. ^g^g. ^^y,^^ ^ ^^^^^_ 9 ^^^^^
12 Eq. 604. (XJ. S.) 325, 348, 6 L. Ed. 101; Web-
6 Statute of 45 & 46 Vict., ch. 38, ^ter v. Cooper, 14 How. (U. S.)
500, 14 L. Ed. 510.
§§ 51, 52.
7 In re
SO Ch. Div. 161. (U: S.) 325, 349, 6 L. Ed. 101.
10 Gulliver v. Asliby, 4 Burr.
Tin re Paget's Settled Estates, 1929; Taylor v. Mason, 9 Wheat.
1510 COMMENTARIES ON THE LAW OF WILLS.
validate the change, is suffioient.^^ And generally it may
be said that unless the will so require, an act of the leg-
islature or legal proceedings are unnecessary;^- it is suf-
ficient if the beneficiary assume the name by his own act.^*
Since a corporation can use only the name authorized
in its charter, it is doubtful if this rule would be applica-
ble in such a case.
§ 1052. Conditions Affecting Religious Freedom.
Every one has the right to worship according to his de-
sire, religious freedom being granted to all. But it is
neither against public policy nor contrary to law for a
testator to dispose of his property on condition that re-
ligious observances be complied Avith. The beneficiary
may accept the gift or reject it, but he can not complain
that there is any interference with his right to worship
according to the dictates of his conscience.^* A condition
that the beneficiary, an infant, be educated in some Eoman
Catholic seminary and reared as a Eoman Catholic in
the communion and faith of her deceased father, with a
gift over in case the condition be not complied with, has
been sustained, the court saying that such a condition
11 Davies v. Lowndes, 2 Scott 71. was held void. — Musgrave v.
i2Barlowv.Bateman,3P.Wms.65. Brooke, 26 Ch. Div. 792.
13 Davies v. Lowndes, 2 Scott 14 In re Knox, 23 L. R. Ir. 542;
71; Doe v. Yates, 5 Barn. & Aid. Ex parte Dickson, 1 Sim. N. S. 37;
544. Franta v. Bohemian Roman Cath.
See, however, Barlow v. Bate- Cent. Union, 164 Mo. 304, 86 Am.
man, 2 B. P. C. Toml. 272. St. Rep. 611, 54 L. R. A. 723, 63
In a later English case a con- S. W. 1100; Vidal v. Philadelphia,
dltion that a devisee should as- 2 How. (U. S.) 127, 199, 11 L. Ed.
sume the name of "Jones," with 205; In re Paulson's Will, 127 Wis.
a gift over upon refusal or neglect 612, 7 Ann. Cas. 652, 5 L. R. A.
to comply therewith within a year, (N. S.) 804, 107 N. W. 484.
TESTAMENTARY GIFTS UPON CONDITION. 1511
is neither uncertaiii, impossible, against public policy, nor
unconstitutional.^^
A devise may be conditional ujjon the devisee withdraw-
ing from the priesthood of a specified church, or from a
society connected therewith, or upon his refraining from
forming any such connection. "Whatever may be thought
of the opinions of the testator, or his prejudices, the law
recognizes his right to make the enjoyment of his bounty
dependent upon the condition attached to this case. ' ' ^^ So,
where it was provided that in the event of the testator's
daughter taking the veil, she should forfeit all claim to
the bequest made her in the Mall, the condition was sus-
tained as valid.^^ And where a testator left one-third of
his estate to trustees, to pay the income to his grandson
upon the express condition that he should renounce the
priesthood, the validity of the condition was not ques-
tioned.^* A condition annexed to a legacy that the bene-
ficiary should not renounce the Jewish faith or marry a
Christian has been upheld.^'
§1053. Conditions Against Making Claims Against Testator's
Estate.
A testator may make a valid provision to the effect that
if any beneficiary makes any claim against his estate, such
beneficiary shall forfeit any devise or legacy made in his
favor. Such a condition is lawful and one which a testa-
tor has the right to annex to a disposition of his own prop-
is Magee v. O'Neill, 19 S. C. 170, To the same effect, see Mitchell
45 Am. Rep. 765. v. Mitchell, 14 Md. 405.
16 Barnum v. Mayor etc. of Bal- ig Spencer v. See, 5 Redf. (N. Y.)
tlmore, 62 Md. 275, 50 Am. Rep. ^^g.
219.
17 Ex parte Dickson, 1 Sim.
N. S. 37.
19 Hodgson V. Halford, L. R. 11
Ch. Dlv. 959.
1512
COMMENTARIES ON THE LAW OP WILLS.
erty. The beneficiary is not bound to accept tbe gift, but
if he does accept it, he must take it subject to the condi-
tions imposed.^" If the provision is that the amount of
any claim shall be deducted from the benefit conferred by
the will, a release of the debt is not a condition annexed
to the gift, but the beneficiary can receive only the resi-
due after the indebtedness has been taken out.^^
§ 1064. Conditions Against Contesting Will.
A condition annexed to a testamentary gift that if the
beneficiary contest the will he shall forfeit all right to the
property devised or bequeathed him, is a valid condi-
tion ; and should the beneficiary contest the will, he loses
his interest in the property.^^ A provision charging all
As to the doctrine of election
20 Rogers V. Law, 1 Black
(U. S.) 253, 17 L. Ed. 58; Treat's
Appeal, 35 Coirn. 210; Hyde v.
Baldwin, 17 Pick. (34 Mass.) 303;
Farnham v. Barker, 148 Mass. 204,
19 N. B. 371; In re Holllster, 47
Hun (N. Y.) 413; Dunlap v. In-
gram, 57 N. C. 178.
Compare: In re Vandevort's Es-
tate, 62 Hun (N. Y.) 612, 17 N. Y.
Supp. 316.
Where a testatrix, living in the
family of the devisees, wrote in
her will, "loath to offend by the
word 'pay' the feelings of my
friends, whose kindness has been
long continued," and bequeathed
them a certain parcel of land, it
was decided that the words quoted
rendered the devise conditional,
and that a suit by the devisees
against the testatrix for board
worked a forfeiture thereof. — Hap-
good V. Houghton, 22 Pick. (39
Mass.) 480.
as applied to wills, see §§ 813-839.
As to a testamentary gift to a
widow in lieu of dower, see §§ 832-
839.
As to legacies by debtor to cred-
itor in satisfaction of the debt,
see §§728, 729.
A devise upon condition that the
devisee should release the testa-
tor's estate from liability on a note
held by the devisee, is a condition
precedent and no title will vest
until the condition is performed. —
Howard v. Wheatley, 15 Lea (83
Tenn.) 607.
21 Bush V. Cunningham's Exrs.,
37 Ala. 68.
22Evanturel v. Evanturel, 23
Week. R. 32; s. c, L. R. 6 P. C. 1;
Cooke v. Turner, 15 M. & W. 727,
14 Sim. 493 ; Smithsonian Institute
V. Meech, 169 U. S. 398, 42 L. Ed.
793, 18 Sup. Ct. 396; Donegan v.
Wade, 70 Ala. 501; Estate of Hite,
TESTAMENTARY GIFTS UPON CONDITION.
1513
the costs, disbursements and expenses of a contest against
any beneficiary who shall contest the validity of the will,
is likewise valid.^' Such provisions are conditions sub-
sequent.^* Accepting the benefit conferred by the will is
considered an election whereby the donee is estopped
from contesting the testament. '^^
Such a forfeiture clause is not null or void as contrary
to public policy, but is a reasonable condition and will
be upheld by the courts.^® The design of such a clause is
clearly to prevent the inauguration or prosecution of a
155 Cal. 436, 17 Ann. Cas. 993, 21
L. B. A. (N. S.) 953, 101 Pac. 443;
Moran v. Moran, 144 Iowa 451,
30 L. R. A. 898, 123 N. W. 202;
Kayhart v. Whitehead, 77 N. J. Eq.
12, 76 Atl. 241; Bryant v. Thomp-
son, 59 Hun (N. Y.) 545, 14 N. Y.
Supp. 28; Bradford v. Bradford, 19
Ohio St. 546, 2 Am. Rep. 419;
Thompson v. Gaut, 14 Lea (82
Tenn.) 310; Massie v. Massie, 54
Tex. Civ. App. 617, 118 S. W. 219;
In re Kirkholder's Estate, 86 Misc.
Rep. 692, 149 N. Y. Supp. 87;
affirmed in 171 App. Div. 153, 157
N. Y. Supp. 37. See, also, Shivers
V. Gear, 40 Ga. 676.
Contra: Mallet v. Smith, 6 Rich.
Eq. (S. C.) 12, 60 Am. Dec. 107.
Under a provision in a will that
any child who "resists the pro-
bate or petitions to break or set it
aside" should forfeit all Interest
under it, and that the property
should pass to those who had not
"opposed" it, it was decided that
aiding and advising a suit insti-
tuted by another devisee worked a
forfeiture of the child's Interest
under the will. — Donegan v. Wade,
70 Ala. 501.
" Though conditions whereby
legacies are defeated by contest-
ing the validity of the will In
which they are contained are not
favored and are strictly construed,
they are valid." — In re Barandon's
Estate, 41 Misc. Rep. 380, 84 N. Y.
Supp. 937.
23 In re Vom Saal's Will, 82
Misc. Rep. 531, 145 N. Y. Supp. 307.
24Nevitt v. Woodburn, 190 111.
283, 60 N. E. 500.
25 Egg V. Devey, 10 Beav. 444;
Gregg V. Coates, 23 Beav. 33; At-
torney-General v. Christ's Hospi-
tal, Tam. 393; Runnels v. Runnels,
27 Tex. 515.
26 Estate of Hite, 155 Cal. 436,
17 Ann. Cas. 993, 21 L. R. A.
(N. S.) 953, 101 Pac. 443; Moran
V. Moran, 144 Iowa 451, 30 L. R. A.
898, 123 N. W. 202; Thompson v.
Gaut, 14 Lea (82 Tenn.) 310.
Chancellor Wardlaw, in Mallet
V. Smith, 6 Rich. Eq. (S. C.) 12,
60 Am. Dec. 107f expressed his in-
dividual opinion as favoring the
1514 COMMENTARIES ON THE LAW OF WILLS.
contest to defeat the testamentary dispositions of the
testator. He may make such disposition of his property
as he sees fit, and may annex conditions precedent or sub-
sequent to any gift so long as they are not illegal or
against public policy.^'^ It is often said that one can not
claim both under a will and against it.
While a testator may provide that his beneficiaries shall
take only on condition that they shall not dispute or con-
test the will in whole or in part, the rule is subject to
the modification that the condition as expressed in the
will must not violate any law governing conditions. So el
condition not to contest a testamentary disposition prohib-
ited by statute, is void.^*
§1055. The Same Subject: Where Annexed to Gifts of Per-
sonalty: Doctrine of In Terrorem.
A condition annexed to a testamentary gift may be m
terrorem, that is, in the nature of a threat, this especially
where there is no gift over upon breach of the condition.
Conditions of forfeiture in the event of beneficiaries con -
testing the will are sometimes held to be of such a char-
acter and ineffectual. There is, however, a great diversity
of opinion and reasoning on this subject. Thus, if a tes-
view that public policy Is opposed gift to a particular corporation, a
to such restriction upon the rights condition that another legatee
of the beneficiary of a will. The shall not contest such gift to the
court, however, refused to follow corporation is clearly void as to
the opinion to that extent, but held ^™- ■ • • The testator in that
instance has tried to do what the
such a condition to be valid where
there is a gift over.
law expressly forbids, and the con-
dition he prescribes is in further-
27 Donegan v. Wade, 70 Ala. 501. ^^^^ ^^ testator's own unlawful in-
28 In re Kathan's Will, 141 N. Y. tentlon. The common law can not
Supp. 705. recognize or enforce such an un-
"If, for example, our statutes of lawful condition." — In re Kathan's
mortmain prohibit a testamentary Will, 141 N. Y. Supp. 705.
TESTAMENTARY GIFTS UPON CONDITION. 1515
tator imposes the penalty of forfeiture in the event that
his "will is contested, it is said in some cases that such a
condition is repugnant to the policy of the law, since if
one has just cause for grievance or complaint, he has the
right to resort to the courts for satisfaction and that such
rights should not be abridged. On the other hand, a tes-
tator has the right to dispose of his property as he sees
fit. He may impose any conditions not contrary to law or
public policy. There is nothing inherently illegal or im-
moral for a testator to desire his will to stand, and it may
be said to be natural that a testator would not wish to con-
fer a benefit on one who would thereafter seek to have his
will set aside.
A distinction is drawn between devises of realty and
bequests of personalty in those cases where the condition
is not followed by a gift over and forfeiture would cause
the property to revert to the estate. In England a condi-
tion not to contest a will, annexed to a devise of real
estate, whether or not there is a gift over, is upheld and
enforced by the courts.^® Where, however, the condition
is annexed to a gift of personalty, it is invalid unless
there is a specific gift over, there being no proper cause
for the contest.^"
29 Violett V. Brookman, 26 Law Cooke v. Turner, 15 Mees. & W.
J. Ch. 308; Cooke v. Turner, 15 727; Stevenson v. Abington, 11
Mees. & W. 727; Anonymous, 2 Week. R. 935. See, also. Cage v.
Mod. 7. Russell, 2 Vent. 352.
30 Powell V. Morgan, 2 Vern. 90; Contra: Rogers v. Law, 1 Black
Loyd V. Spillet, 3 P. Wms. 344; (U. S.) 253, 17 L. Ed. 58.
Morris v. Burroughs, 1 Atk. 399, As to conditions in restraint of
404; Rhodes v. Muswell Hill Land marriage annexed to gifts of per-
Co., 29 Beav. 560; Evanturel v. sonalty, if no gift over, see § 1062.
Evanturel, 31 L. T. N. S. 105; s. c, As to condition that beneficiary
L. R. 6 P. C. 1; Adams v. Adams, marry only with consent, if no gift
L. R. 45 Ch. Div. 426; Cleaver v. over, see § 1069.
Spurting, 2 P. Wms. 526, 528; As to conditions predicated on
1516
COMMENTARIES ON THE LAW OF WILLS.
The foregoing rule is followed by some courts in the
United States, it being held that a condition relating to
the contest of a mil, when annexed to a bequest of per-
sonal property, is to be considered as in terror em merely
and inoperative and void where there is no gift over on
"the breach of the condition. Admittedly this rule is not
based upon any satisfactory reasoning, but was firmly
fixed in the law of England at an early date.^^ But the
general rule is that if there is a gift' over following the
condition as to forfeiture in the event that the will is con-
tested, such condition is valid.*-
divorce or separation, see §§ 1067,
1068.
In Mickey's Appeal, 46 Pa. St.
337, a direction that upon breach
of condition the legacy should fall
into the corpus of the estate and
be distributed as provided in the
will, was held a good limitation
over.
31 Powell V. Morgan, 2 Vern. 90;
Morris v. Burroughs, 1 Atk. 399,
404; Smithsonian Institute v.
Meeoh, 169 U. S. 398, 42 L. Ed. 793,
18 Sup. Ct. 396; Mallet v. Smith,
6 Rich. Eq. (S. C.) 12, 60 Am. Dec.
107; Rouse v. Branch, 91 S. C. Ill,
Ann. Cas. 1913B, 1296, 39 L. R. A.
(N. S.) 1160, 74 S. B. 133; Fifleld
V. Van Wyck, 94 Va. 557, 64 Am.
St. Rep. 745, 27 S. E. 446. See
cases in following note.
Vice-Chancellor CranwOrth, in
Ex parte Dickson, 1 Sim. N. S. 37,
61 Bng. Reprint 15, in speaking of
conditions subsequent touching the
contest of wills, says: "Judges in
deciding them have never felt very
sure of the ground on which they
were treading. It is, however, cer-
tain that the decisions have pro-
ceeded on maxims of the civil and
not the common law. ... In-
asmuch, therefore, as legacies may
be sued for and recovered in the
ecclesiastical courts, where the
rule of the civil law would prevail,
this court has felt itself bound to
conform to that law in order that
there might not be a conflict of
decisions in the two courts."
"The reason seems to be this:
A court of equity does not con-
sider that the testator meant such
a clause to determine his bounty,
if the legatee resorted to such a
tribunal to ascertain doubtful
rights under the will, or how far
his other interests might be af-
fected by it; but merely to guard
against vexatious litigation." —
Smithsonian Institute v. Meech,
169 U. S. 398, 42 L. Ed. 793, IS
Sup. Ct. 396.
32 Smithsonian Institute v.
Meech, 169 U. S. 39S, 42 L. Ed.
793, 18 Sup. Ct. 396; Donegan v.
TESTAMENTABT GIFTS UPON CONDITION.
1517
With regard to dewses of land, no gift over is required
to make the condition valid.^^ As to personalty, some
courts refuse to recognize the rule that a provision
against contesting a will is ineffectual to work a forfeit-
ure unless there is a gift over, on the ground that there
is no sound reason for maintaining any distinction be-
tween devises of realty and bequests of personalty as to
a condition of this character. These authorities hold that
the rule just mentioned has been adopted merely in defer-
ence to the weight of the earlier adjudications.^*
§ 1056. The Same Subject: Where Probable Cause for Contest
Exists.
It may seem unreasonable for a testator to impose a
condition that a beneficiarv must forfeit all interest under
Wade, 70 Ala. 501; Holt v. Hoit,
42 N. J. Eq. 388, 59 Am. Rep. 43,
7 Atl. 856; Jackson v. Westerfield,
61 How. Pr. (N. Y.) 399.
"But when the acquiescence of
the legatee appears to be a mate-
rial ingredient in the gift, which
is made to determine upon his con-
troverting the will or any of its
provisions, and in either of these
events the legacy is given over to
another person, the restriction no
longer continues a condition in
terrorem, but assumes the charac-
ter of a conditional limitation. The
bequest Is only quousque, the lega-
tee shall refrain from disturbing
the will; and If he controverts it,
his interest will cease and pass to
the other legatee." — 1 Roper on
Legacies, (2d Am. ed.) 795.
A condition that "if any of my
children shall sue or implead any
of my executors, respecting the
construction of my will, or divid-
ing any part of the residuary
estate, such child or children shall
immediately forfeit all right or
title to the residue," with a gift
over of the forfeited share, would
not divest the children of the
power to convene the executors
for fraudulent and collusive con-
duct.— Lee V. Colston, 5 T. B. Mon.
(21 Ky.) 238, 246.
33 Donegan v. Wade, 70 Ala. 501;
Hoit V. Hoit, 42 N. J. Bq. 388, 59
Am. Rep. 43, 7 Atl. 856; Bradford
V. Bradford, 19 Ohio St. 546, 2 Am.
Rep. 419; Mallet v. Smith, 6 Rich.
Bq. (S. C.) 12, 60 Am. Dec. 107;
Thompson v. Gaut, 14 Lea (82
Tenn.) 310.
Contra: Chew's Appeal, 45 Pa.
St. 228, 232.
34 Estate of Hite, 155 Cal. 436,
17 Ann. Cas. 993, 21 L. R. A.
(N. S.) 953, 101 Pac. 443; Brad-
1518 COMMENTARIES ON THE LAW OF- WILLS.
the will in the event of his contesting the same, and thus
to an extent preclude him from attempting to show that
the testator was lacking in mental capacity or was unduly-
influenced, or the like. For this reason some courts hold
that a condition as to forfeiture is inoperative where
probable cause for contest exists.
In England a distinction is made when the condition
that a beneficiary shall forfeit all benefits in case he con-
tests the will is annexed to a bequest of personalty. In
such a case, probable cause for contest existing, the con-
dition is regarded as in terrorem, and a contest does not
result in f orf eiture."'* This rule is followed by some courts
in the United States.^*
Some of the American decisions make no distinction
and hold that a condition of forfeiture is enforceable in
all cases without regard to the cause or ground of con-
test.^'' It is said in one case that to make such a dis-
tinction "would be to substitute our own views for a
clearly expressed intent of the testator to the contrary. " **
ford T. Bradford, 19 Ohio St. 546, 37 Smithsonian Institution v.
2 Am. Rep. 419; Thompson v. Meech, 169 U. S. 398, 42 L. Ed.
Gaut, 14 Lea (82 Tenn.) 310. 793, 18 Sup. Ct. 396; Estate of
35Powell V. Morgan, 2 Vern. 90; Miller, 156 Cal. 119, 23 L. R. A.
Morris v. Burroughs, 1 Atk. 399, (N. S.) 868, 103 Pac. 842; Moran
404; Loyd v. Spillet, 3 P. Wms. v. Moran, 144 Iowa 451, 30 L. R. A.
344. 898, 123 N. W. 202; Holt v. Holt,
36 Hyde v. Baldwin, 17 Pick. (34 42 N. J. Eq. 388, 59 Am. Rep. 43,
Mass.) 303; Jackson v. Wester- 7 Atl. 856; Bradford v. Bradford,
field, 61 How. Pr. (N. Y.) 1399; 19 Ohio St. 546, 2 Am. Rep. 419;
Frederick v. Gray, 10 Serg. & R. Thompson v. Gaut, 14 Lea (82
(Pa.) 182; In re Friend's Estate, Tenn.) 315.
209 Pa. St. 442, 68 L. R. A. 447, 38 Estate of Miller, 156 Cal. 119,
58 Atl. 853; Fifield v. Van Wyck, 23 L. R. A. (N. S.) 868, 103 Pac.
«4 Va. 557, 64 Am. St. Rep. 745, 842, wherein the court further
27 S. B. 446. says: "It is a mere attempt at
TESTAMENTARY GIFTS UPON CONDITION,
1519
There is other authority which, while holding that
such a forfeiture clause may be valid, maintains that the
penalty of forfeiture will not be imposed where it clearly
appears that the contest was justified under the circum-
stances and was not the mere vexatious act of a disap-
pointed heir or next of kin.^" To apply the strict rule of
forfeiture in all cases would, at times, not only work a
manifest injustice, but accomplish results which a rational
testator could not have contemplated, as, for example,
where the contest is on the ground of undue influence in
procuring the will,*" or where the contest is made on a
reasonable belief that the will is a forgery. It has been
held that a devisee or legatee has the right, upon probable
cause, to attempt to show that the will is a forgery with-
out incurring the penalty of forfeiture.*^
an artificial distinction to avoid
the force of a plain and unambig-
uous condition against contests."
39 Jackson v. Westerfield, 61
How. Pr. (N. Y.) 399; In re Ka-
than's Will, 141 N. Y. Supp. 705;
Friend's Estate, 209 Pa. St. 442,
68 L. R. A. 447, 58 Atl. 853; In re
Kirkholder's Estate, 171 App. Div.
153, 157 N. Y. Supp. 37; Rouse v.
Branch, 91 S. C. Ill, Ann. Cas.
1913E, 1296, 39 L. R. A. (N. S.)
1160, 74 S. E. 133.
40 Friend's Estate, 209 Pa. St.
442, 68 L. R. A. 447, 58 Atl. 853,
wherein the court says: "If, as a
matter of fact, undue influence is
successfully exerted over one
about to execute a will, that same
influence will have written into
it a clause which will make sure
its disposition of the alleged tes-
tator's property. He who will take
advantage of his power to unduly
influence another in the execution
of a will will artfully have a care
to have inserted in it a clause to
shut off all inquiry as to the in-
fluence which really made the
will; and, if the rule invoked by
the appellants is to be applied
with no case excepted from it,
those who unscrupulously play
upon the feelings of the testator
may, with impunity, enjoy the
fruits of their iniquity, and laugh
in scorn at those whom they have
wronged."
41 Rouse V. Branch, 91 S. C. Ill,
Ann. Cas. 1913E, 1296, 39 L. R. A.
(N. S.) 1160, 74 S. E. 133. See
dicta in Friend's Estate, 209 Pa.
St. 442, 68 L. R. A. 447, 58 Atl. 853.
"The right of a contestant to
institute judicial proceedings upon
probable cause to ascertain
i
1520
COMMENTAEIES ON THE LAW OP WILLS.
§ 1057. What Amounts to a Contest.
A conditioa in regard to contesting a will lias reference
to an attempt to thwart the testator's expressed wishes.
The filing of a bill for a correct construction of the
will and the enforcement of his rights thereunder is not
such a contest by a beneficiary.*- And the mere filing of a
paper contest which is abandoned without action, and not
employed to thwart the testator's wishes, is not neces-
sarily contesting the will.''* But where one employs the
machinery of the law to set aside the expressed desires
of the testator, whether successful or not, it is deemed a
contest.**
It is not necessary that the beneficiary directly institute
whether the will was ever exe-
cuted hy the apparent testator is
founded upon justice and morality.
If a devisee should accept the
fruits of the crime of forgery
under the belief, and upon prob-
able cause, that It was a forgery,
he would thereby become morally
a particeps criminis, and yet, if he
is unwilling to commit this moral
crime, be confronted with the al-
ternative of doing so, or of taking
the risk of losing all under the
will, in case it should be found not
to be a forgery. Public policy for-
bids that he should be tempted in
such a manner." — Rouse v. Branch,
91 S. C. Ill, Ann. Cas. 1913E, 1296,
39 L. R. A. (N. S.) 1160, 74 S. E.
133.
42 Black V. Herring, 79 Md. 146,
28 Atl. 1063.
Appearing only as a defendant
In a suit with others in an action
to construe the will, and request-
ing a legal construction, although
suggesting in her answer the legal
questions Involved, is not a con-
test.— Scott V. Ives, 22 Misc. Rep.
749, 51 N. Y. Supp. 49.
43 In re Jackson, 47 N. Y. S. R.
443, 20 N. Y. Supp. 380; In re
Eratt, 10 Misc. Rep. (N. Y.) 491,
32 N. Y. Supp. 168.
44 Estate of Hite, 155 Cal. 436,
17 Ann. Cas. 993, 21 L. R. A.
(N. S.) 953, 101 Pac. 443.
Where the beneficiary filed writ-
ten grounds of opposition to the
probate of the will and moved to
strike out the proponent's answer,
and the proceedings were set for
hearing and were continued from
time to time until finally a com-
promise was offered which was
accepted, there is a contest of the
provisions of the will. — Estate of
HIte, 155 Cal. 436, 17 Ann. Cas.
993, 21 L. R. A. (N. S.) 953, 101
Pac. 443.
TESTAMENTARY GIFTS UPON CONDITION. 1521
proceedings or be a party of record thereto. It is sufficient
to come within the condition regarding a contest if the
beneficiary actively advises and aids in a suit instituted
by another, even though it be subsequently abandoned.*^
If beneficiaries under a wall, although not parties to a suit
instituted against the instrument, execute an agreement
for the obvious purpose of securing to themselves and the
contestants the legacies as bequeathed them, should the
will be set aside, they thereby become parties to the pro-
ceedings and subject to the condition.^®
Contesting a will through a guardian ad litem and tes-
tifying, although on matters immaterial to the contest,
brings a beneficiary within the condition.*^
§ 1058. The Same Subject.
Where the condition is, "in case any of the legatees
named as beneficiaries shall contest the same, such legatee
making such contest shall forfeit thereby his right to any
portion of my estate, ' ' the words ' ' shall contest the same ' '
need not be construed as referring to a direct assault
upon the entire instrument as a will upon grounds which,
if established, would render it void in all its parts. Any
attack upon the validity of a material part of the will
which, if successful, would destroy the integrity of the
testator's plan for distributing the estate, is a contest
within the fair meaning of the words.**" A legatee under a
will containing a clause forfeiting a legacy in case he
"controverts, disputes, or calls in question the validity
46 Donegan v. Wade, 70 Ala. 501. (N. Y.) 545, 14 N. Y. Supp. 28. See
46 Rank y. Camp. 3 Demarest ^^"'^ ^^^^- ^^ Abb. N. C. (N. Y.)
183
(N.Y.) 278; Grote's Estate, 2 How. '
48 Moran v. Moran, 144 Iowa
Pr. (N. S.) (N. Y.) 140. 45^ 30 l. r. a. (N. S.) 898, 123
47 Bryant v. Thompson, 59 Hun N. W. 202.
II Com. on Wills— 42
1522 COMMENTARIES ON THE LAW OP WILLS.
of the will," does not forfeit Ms legacy by presenting for
probate an alleged later will which is rejected, provided
he acts in good faith and has probable cause to believe
that such later will is a genuine instrument entitled to
probate. But where in bad faith he presents a spurious
instrument with intent thereby to overthrow and avoid
a prior genuine will, he controverts and calls in ques-
tion the validity of the genuine instrument within the in-
tent and meaning of the clause.**
§ 1059. Conditions in Restraint of Marriage.
The English ecclesiastical courts, which followed the
civil law, held all conditions in restraint of marriage to
be absolutely void, whether precedent or subsequent, or
whether or not they were followed by a gift over. Devises
of land were mthin the jurisdiction of the common law
courts, bequests of personalty under the ecclesiastical
courts, while courts of chancery had concurrent jurisdic-
tion as to both. These last mentioned courts found great
difficulty in following the rules of the other courts and at
the same time attempting to give effect to the expressed
intention of the testator. Distinctions were therefore
made resulting in curious refinements distinguishing be-
tween real and personal estates, conditions and limita-
tions, conditions precedent and subsequent, and gifts with
and mthout valid limitations over.^"
The effect of a condition precedent or subsequent is the
same where the condition is a restraint upon marriage, as
in other cases. If the condition be precedent, a breach of
49 In re Kirkholder's Estate, 171 Dec. 489; In re Holbrook's Estate,
App. Dlv. 153, 157 N. Y. Supp. 37. 213 Pa. St. 93, 110 Am. St. Rep.
50 McUvaine v. Gethen, 3 Whart. 537, 5 Ann. Cas. 137, 2 L. R. A.
(Pa.) 575; Commonwealth v. (N. S.) 545, 62 Atl. 368.
StaufEer, 10 Pa. St. 350, 51 Am.
TESTAMENTAEY GIFTS UPON CONDITION.
1523
the condition prevents the estate from vesting, no matter
hoAv restrictive of marriage it may be; if it be subsequent,
the effect depends on whether or not it is reasonable and
valid.^^ The nature of the property disposed of, whether
real or personal, has no effect in determining whether a
condition is precedent or subsequent.^^
§ 1060. The Same Subject: A Limited Restraint Is Valid.
At common law, conditions in general restraint of mar-
riage were contrary to public policy and void.'* There
was not, however, any prohibition against testamentary
conditions in restraint of marriage to specific persons
or to a particular class of persons;'* for a partial or
reasonable restraint of marriage could be validly imposed
by a testator who had the right to concern himself with
the settlement of the donee for life.®' Thus, a provision
51 Phillips V. Ferguson, 85 Va.
509, 17 Am. St. Rep. 78, 1 L. R. A.
837, 8 S. E. 241.
52 Phillips V. Ferguson, 85 Va.
509, 17 Am. St. Rep. 78, 1 L. R. A.
837, 8 S. E. 241; Meek v. Fox, 118
Va. 774, 88 S. E. 161.
53 Reves v. Heme, 5 Vin. Abr.
343, 344, pi. 41; Crawford v.
Thompson, 91 Ind. 266, 46 Am. Rep.
598; Bostick v. Blades, 59 Md. 231,
43 Am. Rep. 548; Otis v. Prince,
to Gray (76 Mass.) 581; Williams
V. Cowden, 13 Mo. 211, 53 Am. Dec.
143; Maddox v. Maddox's Admr.,
11 Gratt. (Va.) 804.
54 Davis V. Angel, 4 De Gex,
F. & J. 524; Finlay v. King's Les-
see, 3 Peters (V. S.) 346, 7 L. Ed.
701; Matter of Seaman, 218 N. Y.
77, 112 N. E. 576; Daboll v. Moon,
88 Conn. 387, Ann. Cas. 1917B, 164,
L. R. A. 1915A, 311, 91 Atl. 646.
"Conditions not to marry a
papist or a Scotchman; not to
marry any but a Jew . . . have
also been held to be good." — 2 Jar-
man, Wills (6th ed.), 47; cited in
Phillips V. Ferguson, 85 Va. 509
17 Am. St. Rep. 78, 1 L. R. A. 837,
8 S. E. 241.
55 Stackpole v. Beaumont, 3 Ves
89; Haughton v. Haughton, 1 Mol-
loy (Ir.) 611.
At common law a remainder lim
ited after a life estate was de
feated by the determination of the
estate of the life tenant prior to
his death, but this rule has been
modified by statute in some juris-
dictions so that the remarriage of
the widow will not defeat the ro-
1524 COMMENTARIES ON THE LAW OF WILLS.
designed to prevent the marriage of the testator's
daughter with a particular individual named in the will
has received the sanction of judicial authority.^^
A condition is not unlawful Avhich requires the testa-
tor 's son to marry the daughter of a certain person, even
though this requires him to break an engagement to marry
entered into before he knew of the provisions of his
father's will.''''
§ 1061. The Same Subject: Limited Restraint.
Where an estate or interest is definitely conveyed and
annexed thereto is a condition subsequent in general re-
straint of marriage, the condition will be held void as
contrary to public policy and morals and as violative of
the principles of social and domestic life.^^ But conditions
which restrain marriage are permitted where they are
reasonable and do not unduly restrict a just and proper
freedom of choice, or are for any hona fide reason other
than to discourage marriage.^*
malnder. See: S. D. Civil Code, low, 6 Mass. 169, 4 Am. Dec. 107;
§§236, 237 > Estate of Merrigan, 34 Williams v. Cowden, 13 Mo. 211,
S. D. 644, 150 N. W. 285. 53 Am. Dec. 143; Graydon's Exrs.
56 Matter of Seaman, 218 N. Y. ^- Graydon, 23 N. J. Eq. 229; Meek
77, 112 N. E. 576.
57 Graydon's Exr. v. Graydon, 23
N. J. Bq. 229.
V. Fox, 118 Va. 774, 88 S. E. 161;
Maddox v. Maddox's Admr., 11
Gratt. (Va.) 804; Hogan v. Curtin,
88 N. Y. 162, 42 Am. Rep. 244; In
58 Stackpole v. Beaumont, 3 Ves. re Miller's Will, 159 N. C. 123, 74
Jun. 89, 30 Eng. Repr. 909; In re s. E. 888; Goife v. Goffe, 37 R. I.
Alexander, 149 Cal. 146, 9 Ann. 542, Ann. Cas. 1916B, 240, 94 Atl. 2.
Cas. 1141, 85 Pac. 308; In re 59 Jones v. Jones, 24 Week. R.
Scott's Estate, 170 Cal. 65, 148 Pac. 274; Randall v. Marble, 69 Me. 311,
221; Crawford v. Thompson, 91 31 Am. Rep. 281; Phillips v. Fer-
Ind. 266, 46 Am. Rep. 598; Randall guson, 85 Va. 509, 17 Am. St. Rep.
V. Marble, 69 Me. 310, 31 Am. Rep. 78, 1 L. R. A. 837, 8 S. E. 241;
281 ; Bostick v. Blades, 59 Md. 231, Maddox v. Maddox's Admr., 11
4S Am. Rep. 548; Parsons v. Wins- Gratt. (Va.) 801.
TESTAMENTARY GIFTS UPON CONDITION. 1525
A condition not to marry into a particular family is
valid and will be upheld f° also a condition not to marry
the daughter of a named per son,'' ^ or not to marry a
Jew,*'^ is held reasonable. Likewise an absolute restraint
on marriage until tlie beneficiary attains his majority is
upheld.^^ A condition forfeiting a devise upon the mar-
riage of the devisee Avith a domestic servant is valid, and
has been effectual to defeat the estate.®* So conditions
against marrying before twenty-one years of age/° or
Avdthout consent of parents, guardians, or trustees, are
sustained as not in general restraint of marriage.**®
§ 1062. The Same Subject: Condition Invalid if Annexed to
Gift of Personalty Unless There Is a Gift Over.
The same rule applies to bequests of personalty as well
as to devises of realty,"'' except it is generally held that
as to gifts of personalty the condition is invalid
unless there is a limitation over to another on failure
60 Phillips V. Ferguson, 85 Va. 63 Shackelford v. Hall, 19 111.
509, 17 Am. St. Rep. 78, 1 L. R. A. 212.
837, 8 S. E. 241. 64 jenner v. Turner, L. R. 16
61 Graydon's Exrs. v. Graydon, ^^^ ^^^ ^^g
23 N. J. Eq. 229, 237.
62 Hodgson V. Halford, 11 Ch.
Div. 959.
A condition imposing a prohibi-
tion to marry any other than a
member of the Society of Friends «» Fry v. Porter, 1 Mod. 300;
has been held an undue and un- Dawson v. Oliver-Massey, L. R. 2
reasonable restraint upon the Ch. Div. 753; Long v. Ricketts,
choice of marriage. — Maddox v. 2 Sim. & St. 179; In re Stephen-
Maddox's Admr., 11 Gratt. (Va.) son, 13 Week. R. 1066; Collett v.
65 Stackpole v. Beaumont, 3 Ves.
Jun. 89; Shackelford v. Hall, 19
111. 212; ReufC v. Coleman, 30
W. Va. 171, 3 S. E. '597.
804.
Collett, 35 Beav. 312; Collier v.
But a condition that the bene- Slaughter's Admr., 20 Ala. 263."
ficiary shall marry a Protestant 67 Gardiner v. Slater, 25 Beav.
has been upheld. — In re Knox, 509; Clarke v. Parker, 19 Ves.
L. R. 23 Ir. 542. Jun. 1.
1526 COMMENTARIES ON THE LAW OF WILLS.
of the condition. The general rule is that although the
condition be partial and reasonable, and one which the
testator had a right to impose, yet if a condition subse-
quent and annexed to a gift of personalty, the question
of its validity will depend upon whether or not there is a
gift over.^^ But it is generally held that a gift over is not
essential to render a condition subsequent operative as to
realty."^ A residuary clause is not equivalent to a bequest
over in rendering a provision- requiring . consent in mar-
riage operative,'^'' unless there is an express provision,
that on marriage without consent the bequest shall sink
into the residue.'^^ If the gift over prove invalid it will'
not operate to render the condition effective.'^^
§1063. The Same Subject: Words of Condition or of Limita-
tion.
Often the question arises as to whether the words used
are those of condition or of limitation. Where they cir-
68 Marples v. Bainbridge, 1 As to condition that beneficiary
Madd. 590; Wheeler v. Bingham, marry only with consent, if no
3 Atk. 364 ; In re Nourse, L. R. gift over, see § 1069.
(1899) 1 Ch. 63, 69; Shackelford ,g p^^^ ^ p^j,^_ g ^^^^^ ^p^^
213; Bennett v. Robinson, 10
Watts (Pa.) 349; In re Stahl's
V. Hall, 19 111. 212; Crawford v
Tht)mpson, 91 Ind. 266, 46 Am.
Rep. 598; Binnerman v. Weaver,
8 Md. 517: Bostick V. Blades, 59 ^PP^^^' ^ Pa. St. 301; In re Mc-
Md. 231. 43 Am. Rep. 548; Par- Cullough's Appeal, 12 Pa. St. 197.
sons V. wmslow, 6 Mass. 169, 4 '"> SempWU v. Bayly, Prec. Ch.
Am. Dec. 107; Middleton v. Rice, ^^^' Crawford v. Thompson, 91
fi Law J. (Pa.) 229; In re Hough's ^''^- ^^^' *^ ^""^ ^^P- ^^S.
Estate, 13 Phila. (Pa.) 279; Mc- 7 1 Lloyd v. Branton, 3 Mer. 108,
Ilvaine v. Gethen, 3 Whart. (Pa.) H^; Wheeler v. Bingham, 3 Atk.
575; Hoopes v. Dundas, 10 Pa. 364. See, also. In re Mickey's Es-
St. 75. tate, 46 Pa. St. 337.
As to conditions against con- 72 Otis v. Prince, 10 Gray (76
testing the will annexed to gifts Mass.) 581; Heard v. Horton, 1
of personalty, if no gift over, see Denio (N. Y.) 165, 43 Am. Dec.
§§ 1055, 1056. 659. See, also, Jones v. Haber-
TESTAMENTARY GIFTS UPON CONDITION.
1527
cumscribe the continuance of the estate and mark the
period which is to determine it, they may be said to be
words of limitation ; when, however, they render the estate
liable to be defeated before the estate given would other-
wise terminate, they are words of condition. ''^^ For exam-
ple, a devise to A until she marries and then to B, is a
limitation and valid; a demise to A for life on condition
that if she marries the property shall pass to B, is a
condition and void as in general restraint of marriage.
So a devise to a daughter declaring that she shall have
certain property forever except that she should marry,
is not the same as saying until she should marry.''* A.
sham, Fed. Cas. No. 7465, 3 Woods
443.
73 Meek v. Fox, 118 Va. 774, 88
S. E. 161.
See §§ 1038, 1039.
As to limitations and condi-
tional limitations, see § 1016.
"Limitations differ from condi-
tions in this: A limitation marks
the ultimate time of continuance
of an estate; a condition marks
some event which, if it happens in
the course of that time, is to de-
feat the estate." — 1 Minor, Real
Prop., § 540.
74 Morley t. Rennoldson, 2 Hare
570; Webb v. Grace, 2 Phillim.
701; Arthur v. Cole, 56 Md. 100,
40 Am. Rep. 409; Meek v. Fox,
118 Va. 774, 88 S. E. 161.
A devise to a daughter if she
remained unmarried, but if she
married, part of the property was
to go to others, was held to vest
absolutely in the daughter at the
testatrix's death, the daughter
being then unmarried. This under
the statute providing that words
of death or survivorship in a will
relate to the time of the testator's
death. — Estate of Alexander, 149
Cal. 146, 9 Ann. Cas. 1141, 85 Pac.
308.
"But, while this distinction is
logical, it is dry, technical logic,
with no basis of substantial rea-
son for application in the affairs
of life. It is a reproach to the
law that, of two donors intending
to do exactly the same thing, one
shall succeed and the other fail,
as a violator of law, merely be-
cause one scrivener knew what he
was about, and wrote 'so long as
the donee remains unmarried,'
while the other was ignorant or
careless, and wrote, 'for life, if so
long the donee remains unmar-
ried.' " — In re Holbrook's Estate,
213 Pa. St. 93, 110 Am. St. Rep.
537, 5 Ann. Cas. 137, 2 L. R. A.
(N. S.) 545, 62 Atl. 368.
1528 COMMENTARIES ON THE LAW OP WILLS.
devise or bequest by a husband to his wife "so long as
she remains my widow" is a gift upon limitation and
not upon condition, for the words clearly specify -widow-
hood as the utmost time for the continuance of the es-
tate.''^ A testamentary disposition for the time during
which the beneficiary remains unmarried, is quite com-
mon. Such a provision is clearly one of limitation and
not of condition.''*' "Where, also, the devise or bequest
to one so long as she remains unmarried, with a limita-
tion over in the event of her marriage, is an estate upon
limitation, and the gift is valid since there is in fact no
condition in restraint of marriage.'^''
While it is true that a distinction is taken between cases
where the restraint is made to operate as a condition
precedent and those where it is expressed to take effect
as a condition subsequent, and that the decisions as to
personalty have generally turned on whether or not there
was a gift over, there is no doubt that a gift or a devise
until either a man or a woman shall marry is a valid
limitation as distinguished from a condition. In. such a
case there is nothing to carry the interest beyond the
event of the marriage. Thus, marriage may be made
the ground of a limitation; it does not impose a con-
dition in restraint of marriage.'^*
75 Summit v. Yount, 109 Ind. 506, 3 Atl. 53; Maddox v. Yoe, 121 Md.
9 N. E. 582; Nagle v. Hlrsch, 59 288, Ann. Cas. 1915B, 1235, 88 Atl.
Ind. App. 282, 108 N. E. 9. 225; Harlow v. Bailey, 189 Mass.
As to devises "during widow- 208, 75 N. E. 259; Courter v. Stagg,
hood" or "until marriage" confer- 27 N. J. Eq. 305; Bruch's Estate,
ring life estate, see § 964. 185 Pa. St. 194, 39 Atl. 813.
76 Estate of Alexander, 149 Cal. 78 Roberts v. Lewis, 153 U. S.
146, 9 Ann. Cas. 1141, 85 Pac. 308. 367, 38 L. Ed. 747, 14 Sup. Ct. 945,
As to limitations and conditional overruling Giles v. Little, 104 U. S.
limitations, see § 1016. 291, 26 L. Ed. 745, and following
77 Nash V. Simpson, 78 Me. 142, Little v. Giles, 25 Neb. 313, 41
TESTAMENTARY GIFTS UPON CONDITION.
1529
§ 1064. The Same Subject: Intent of Testator Governs Whether
Condition or Limitation.
The intent of the testator must be sought as to whether
or not a testamentary disposition should be considered
as giving an estate upon condition or upon limitation.
While the terms used may ordinarily import a condi-
tion, yet, if from a perusal of the entire vsdll and the facts
and circumstances permissible to be considered in aid of
construction, it appears that the testator meant to pro-
vide for the beneficiary only while she remained single,
and that the words used were not intended as imposing
a restraint upon marriage, the qualifying expressions
will be given effect according to the testator's intent.''**
Thus, although the testator uses apt words of condition,
yet if his purpose is to provide a home or maintenance
for a beneficiary while she remains unmarried, and not
N. W. 186; Vaughn v. Lovejoy, 34
Ala. 437, 439; Helm v. Leggett,
66 Ark. 23, 48 S. W. 675; Bennett
V. Packer, 70 Conn. 357, 66 Am. St.
Rep. 112, 39 Atl. 739; O'Harrow v.
Whitney, 85 Ind. 140; Opel v.
Shoup, 100 Iowa 407, 37 L. R. A.
583, 69 N. W. 560; Labarre v.
Hopkins, 10 La. Ann. 466; Hasel-
tine V. Shepherd, 99 Me. 495, 59
Atl. 1025; Bostick V. Blades, 59 Md.
233, 43 Am. Rep. 548; Gibbens v.
Gibbens, 140 Mass. 102, 54 Am.
Rep. 453, 3 N. E. 1; Beyer v. Allen,
76 Mo. 498; Morgan v. Morgan,
41 N. J. Eq. 235, 3 Atl. 63; Beek-
nian v. Hudson, 20 Wend. (N. Y.)
53; Redding v. Rice, 171 Pa. St.
301, 33 Atl. 330; Martin v. Seigler,
32 S. C. 267, 10 S. E. 1073; Reid
V. Hancock, 10 Humph. (29 Tenn.)
368.
79 Chapin v. Cooke, 73 Conn. 72,
84 Am. St. Rep. 139, 46 Atl. 282;
Mann v. Jackson, 84 Me. 400, 30
Am. St. Rep. 358, 16 L. R. A. 707,
24 Atl. 886; In re Miller's Will,
159 N. C. 123, 74 S. E. 888; Estate
of Holbrook, 213 Pa. St. 93, 110
Am. St. Rep. 537, 5 Ann. Gas. 137,
2 L. R. A. (N. S.) 545, 62 Atl. 368.
"Whether the restraint be by
limitation or condition, is, in a
vast majority of cases, the effect
of accident, depending on the turn
of expression habitual to the scriv-
ener, vpho seldom knows anything
of the technical difference be-
tween them.'" — Chief Justice Gib-
son, in Commonwealth v. Stauffer,
10 Pa. 350, 357, 51 Am. Dec. 489.
1530 COMMENTARIES ON THE LAW OP WILLS.
to prevent her marriage, they will be construed as words
of limitation.*"
If it be conceded that the prohibition of the law upon
conditions in general restraint of marriage is aimed at
the testator's intent to restrict marriage and not at the
restriction itself, an actual restraint or discouragement
of marriage carries with it the prima facie presumption
that such restraint was intended, and the burden rests
upon him who alleges the contrary to prove the real in-
tention.*^
§ 1065. Condition in Restraint of Remarriage of Widow.
The present state of the law as regards conditions in
restraint of a second marriage of a woman is an ezcep-
tion to the general rule that conditions in restraint of
marriage are void. It has been a matter of gradual
growth, at first being applied where the testator was
the husband. A restraint upon the remarriage of a
widow, annexed to a devise or a bequest by the husband,
is valid whether the restraint be in the form of a limi-
tation defining the duration of the widow's interests,
or of a condition subsequent abridging or defeating it
after it has vested. This is the rule by the great weight
of authority both in England and in the United States.*^
80 In re Miller's Will, 159 N. C. A. K. Marsh (8 Ky.) 488, 492;
123, 74 S. E. 888. Haseltlne v. Shepherd, 99 Me. 495,
SI Meek V. Fox, 118 Va. 774, 59 Atl. 1025; Binnerman v.
88 S. E. 161. Weaver, 8 Md. 517; Bostick v.
82Loyd V. Loyd, 2 Sim. N. S. Blades, 59 Md. 231, 43 Am. Rep.
255; Grace v. Webb, 15 Sim. 384; 548; Boyd v. Sachs, 78 Md. 491,
O'Neale v. Ward, 3 Har. & McH. 28 Atl. 391; White v. Sawyer, 13
(Md.) 93; Barton v. Barton, 2 Mete. (54 Mass.) 546; Dilliard v.
Vern. 308 ; Scott v. Tyler, 2 Dick. Connoway, 25 Miss. 230 ; Gaven
712; Jordan v. Holkham, Amb. v. Allen, 100 Mo. 293, 13 S. W. 501;
209; Moore v. Waller's Heirs, 1 Graydon's Exrs. v. Graydon, 23
TESTAMENTARY GIFTS UPON CONDITION.
1531
It has been said that "reason and experience, as well
as the adjudicated cases, sanction the idea that a man
has an interest in his wife remaining a widow. ' ' *^
N. J. Eq. 229, 236; Vance v. Camp-
bell's Heirs, 1 Dana (31 Ky.) 229;
McKrow V. Painter, 89 N. C. 437;
Lancaster v. Flowers, 198 Pa. St.
614, 48 Atl. 896; Hughes v. Boyd,
2 Sneed (34 Tenn.) 512; Herd v.
Catron, 97 Tenn. 662, 37 L. R. A.
731, 37 S. W. 551; Wooten v.
House, (Tenn. Ch.) 36 S. W. 932.
As to a devise "during widow-
hood," or "until remarriage," con-
ferring a life estate, see § 964.
There has been said to be no
authority in the common law, in-
dependently of the civil law, for
saying that a condition restraining
the marriage of a widow is void.
— Newton v. Marsden, 2 Johns.
& H. 356; Crawford v. Thompson,
91 Ind. 266, 46 Am. Rep. 598.
Under the Georgia code, limita-
tions over upon the marriage of
the testator's widow are allowable
as a prudential provision for the
protection of the interest of the
children, or of others, and such
limitations over will take effect
upon her marriage, unless mani-
festly intended to operate as a
restraint upon her freedom in the
matter (Ga. Code, (1882) §2272),
but a condition in terrorem with-
out a limitation over is void. — Id.,
§ 2466.
It has been enacted in Indiana,
Rev. Stats., § 2567, that "a devise
or bequest to a wife, with a con-
dition in restraint of marriage.
shall stand, but the condition shall
be void." This statute operates to
render void at least such condi-
tions as are in general restraint
of marriage of the testator's
widow. — Stilwell v. Knapper, 69
Ind. 558, 35 Am. Rep. 240; Craw-
ford V. Thompson, 91 Ind. 266, 46
Am. Rep. 590.
83 Vaughn v. Lovejoy, 34 Ala.
437, where the court further says:
"A husband may well desire to
leave the control of the whole or
greater part of his property to his
widow, as the best means of keep-
ing his children together, and of
providing for their education, com-
fort and happiness, and yet very
reasonably be unwilling to entrust
her with the same power after she
has contracted a second marriage
and a stranger has become the
head of his household."
"The law recognizes in the hus-
band such an interest in his wife's
widowhood as to make it lawful
for him to restrain her from mak-
ing a second marriage." — Loyd v.
Loyd, 2 Sim. N. S. 255.
"It would be extremely flifficult
to say why a husband should not
be at liberty to leave a homestead
to his wife, without being com-
pelled to let her share it with a
successor to his bed, and to use
it as a nest to hatch a brood of
strangers to his blood." — Common-
1532 COMMENTARIES ON THE LAW OF WILLS.
The same policy or reason does not exist against a
restraint upon a second or third marriage as against
a first; nor do such marriages, especially when there are
children, result so favorably for the interests of the
parties or the public.^* A husband may well desire that
his widow and the mother of his children should not re-
marry, fearing that the children would not be so well
protected if his widow became the mother of a second
family.*^
Although the interest of a husband in his wife, and'
family considerations, may have been the origin of the
rule allowing restraints upon the widow's remarriage,
and although the rule was at first limited to those cases
where the husband was the testator, it was afterward
extended to the case of a son maldng a will in favor of
his mother, and later the rule was applied irrespective
of relationship.^®
Where, however, an estate in fee is devised by a testa-
tor to his widow, a subsequent restraint and disposition
over in the event of her remarriage is repugnant to the
estate given, and is void for such reason.*''
§ 1066. Condition in Restraint of Remarriage of Widower.
There is no good or substantial ground for maintain-
ing a distinction between a condition in restraint of a
second marriage of a woman and a like condition in re-
wealtt V. Stauffer, 10 Pa. 350, 355, & H. 356; Allen v. Jackson, L. R.
51 Am. Dec. 489. 1 Ch. Div. 399; Overton v. Lea,
84 Coppage V. Alexander's Heirs, 108 Tenn. 505, 68 S. W. 250.
2 B. Mon. (Ky.) 313, 315, 38 Am. 87 Becker v. Becker, 206 111. 53,
Dec. 153. 69 N. B. 49; Langman v. Marbe,
85 Allen V. Jackson, L. R. 1 Ch. 156 Ind. 330, 58 N. E. 191.
Div. 399 (1874). See § 1071, conditions repugnant
so Newton v. Marsden, 2 Johns, to estate granted.
TESTAMENTAET GIFTS UPON CONDITION.
1533
straint of a second marriage of a man.^® So a wife may,
by her will, limit the usufruct or the estate given to her
husband until his remarriage, as such a condition is
neither opposed to public policy nor contrary to good
morals.^®
§ 1067. Conditions Predicated Upon Divorce or Separation.
It is well settled that conditions annexed to a testa-
mentary gift, the tendency of which is to induce a hus-
band and wife to live separate or to become divorced,
are void as being contra honos mores and against pub-
lic policy.®" Even though the condition be not in so
many words, it has such an effect if the gift becomes
operative only when such separation or divorce is suf-
fered or procured. If the end desired by the testator is
that a married couple shall separate or become divorced.
88 Allen V. Jackson, 1 Ch. Div.
399, overruling s. c, L. R. 10 Eq.
631; Bostick v. Blades, 59 Md.
231, 43 Am. Rep. 548; Overton v.
Lea, 108 Tenn. 505, 68 S. W. 250.
89 Labarre v. Hopkins, 10 La.
Ann. 466; Stivers v. Gardner, 88
Iowa 307, 55 N. W. 516.
90 Wren v. Bradley, 2 De Gex
& S. 49; Tennant v. Braie, Toth.
141; Cartwright v. Cartwright, 3
De Gex, M. & G. 982; Wilkinson
V. Wilkinson, L. R. 12 Eq. 604; Coe
V. Hill, 201 Mass. 15, 86 N. E. 949;
Conrad v. Long, 33 Mich. 78; With-
erspoon v. Brokaw, 85 Mo. App.
169; Wright v. Mayer, 47 App.
Div. (N. Y.) 604, 62 N. Y. Supp.
610; Matter of Haight, 51 App.
Div. (N. Y.) 310, 64 N. Y. Supp.
1029.
Where the testator provided
that if his niece lived with her
husband she should have two
pounds per month from the estate,
but if she lived apart from him
and with her mother she should
have five pounds per month, the
latter legacy was held good and
divested of the condition, which
was held to be contra bonos
mores. — Brown v. Peck, 1 Eden
Ch. 140.
A devise "for and during the
term of his natural life, or while
he shall live separately from his
present wife," Is void. — Whiton v.
Harmon (Whiton v. Snyder), 54
Hun (N. Y.) 552, 8 N. Y. Supp. 119.
A condition against cohabiting
with one's wife, or supporting her.
Is void, and the devisee will take
free from the condition. — In re
Potter, 3 Demarest (N. Y.) 108.
1534 COMMENTARIES ON THE LAW OF WILLS.
the means employed are objectionable, whether expressed
directly or by mere inference. The law will not sanction
the result sought."^ But there is a wide difference be-
tween a testamentary gift to one during separation, as
an annuity to a daughter while living from her husband,
the two not cohabiting at the time of the execution of the
mil. In such a case a separation is not procured by the
condition, since it already exists.**^
§ 1068. The Same Subject.
While it may be taken as good law that any condition
which tends to induce or compel a husband and wife to
live separately, or to become divorced, is void as being
against public morals and public policy, this rule can
not always be strictly adhered to. There may be cir-
cumstances which mil take a particular case out of the
rule, as, for example, where a life estate in the son of
the testator was to become a fee simple in the event he
should become divorced from his wife, where for several
years prior to the execution of the will the son and his
wife had lived apart and divorce proceedings were al-
ready pending.*^ Where the manifest object of the
condition is not to induce or invite a divorce or separa-
tion, but to make a provision for support upon the hap-
pening of either event, the provision is valid. Thus, a
parent might deem it unnecessary to provide for a daugh-
ter who was being supported by her husband, yet wish
that if she should become dependent through separation
or divorce, she should have additional resources of her
91 In re Haight's Will, 51 App. 93 Ransdell v. Boston, 172 111.
Div. 310, 64 N. Y. Supp. 1029. 439, 43 L. R. A. 526, 50 N. E. 111.
92 Cooper V. Remsen, 3 Johns. 94 Walker v. Walker's Exr., 9
Ch. (N. Y.) 382, 5 Johns. Ch. 459. Wall. (U. S.) 743, 19 L. Ed. 814;
TESTAMENTABY GIFTS UPON CONDITION.
1535
Either a husband or wife has the right which the law
confers to secure a divorce for the misconduct of the
other. The voluntary exercise of such a right will not
render void a testamentary gift, the language of which
shows that the testator had in mind that such a con-
tingency might arise.'*^ It may be claimed that such a
condition might induce a husband or wife to exercise his
or her legal right to procure a divorce which he or she
might otherwise not have done, but it can hardly be said
that it is against public policy to attach to a testa-
mentary gift such a condition as will tend to induce a
beneficiary to do a lawful act in a lawful way.''* And
Born V. Horstmann, 80 Cal. 452,
5 L. R. A. 577, 22 Pac. 169, 338;
Pox V. Davis, 113 Mass. 255, 18
Am. Rep. 476; Coe v. Hill, 201
Mass. 15, 86 N. E. 949; Ellis v.
Birkhead, 30 Tex. Civ. App. 529,
71 S. W. 31; Thayer v. Spear, 58
Vt. 327, 2 Atl. 161.
"The first object is to ascertain,
if possible, what the intention of
the testatrix was; and we find no
difficulty in reaching the conclu-
sion that it was to have her estate
disposed of just as it has been by
the probate court. It was a wise
and prudent provision to make for
her daughter. While she should
remain a wife her husband would
be under obligation to support her,
and hence the income only was ab-
solutely left her during the con-
tinuance of that relation; but
when she should cease to be a
wife, and so become dependent
upon her own resources, it was
just and wise to provide that she
should have the entire estate." —
Thayer v. Spear, 58 Vt. 327, 2 Atl.
161.
95 Bom V. Horstmann, 80 Cal.
452, 5 L. R. A. 577, 22 Pac. 169,
338; Daboll v. Moon, 88 Conn. 387,
Ann. Cas. 1917B, 164, L. R. A.
1915A, 311, 91 Atl. 646; Ransdell
V. Boston, 172 111. 439, 43 L. R. A.
526, 50 N. E. Ill; Winn v. Hall,
1 Ky. L. Rep. 337; Cowley v.
Twombly, 173 Mass. 393, 46 L. R. A.
164, 53 N. E. 886; Coe v. Hill, 201
Mass. 15, 86 N. E. 949; Wither-
spoon V. Brokaw, 85 Mo. App. 169;
Cooper V. Remsen, 5 Johns. Ch.
(N. Y.) 459; Thayer v. Spear, 58
Vt. 327, 2 Atl. 161.
90 Born v. Horstmann, 80 Cal.
452, 5 L. R. A. 577, 22 Pac. 169.
Most of the cases involve gifts
to daughters, but the principle is
the same where the beneficiary is
a son. — Ransdell v. Boston, 172 111.
439, 43 L. R. A. 526, 50 N. E. 111.
1536 COMMENTARIES ON THE LAW OF WILLS.
where a child of the testator is living separate and apart
from her husband, or his wife, as the case may be, and
divorce proceedings are pending between them, there is
nothing contrary to public policy to impose a condition
whereby an estate given should be increased in the event
of divorce.^'''
While inducing the separation of a husband and wife
is against public policy, yet the law provides for and
sanctions divorce, and there is no more reason for hold-
ing that a divorce will be wrongfully procured in order
to secure property than that death might be so occa-
sioned. There is a difference in such a case from one
Avhere the gift is made upon condition that the benefi-
ciary should lose the property if he did not secure a
divorce."^ And where a testator refers to the fact that
his daughter may be compelled to leave her husband
because of his cruelty, and bequeaths her a legacy to be
paid as soon as the executor shall be convinced that it
is impossible for the daughter to live with her husband,
the condition is not unreasonable in Adew of the fact that
the beneficiary is not the .judge as to whether or not
she should leave her husband, since the determination is
lodged in the executor.^®
Although a will is to be construed according to the tes-
tator's intention, yet if it does not appear from the
terms of the will itself that a provision therein was in-
serted to induce the testator's daughter to secure a di-
vorce from her husband, such intention can not be shown
97 Ransdell v. Boston, 172 111. 98 Cowley v. Twombly, 173 Mass.
439, 43 L. R. A. 526, 50 N. E. Ill; 393, 46 L. R. A. 164, 53 N. E. 886.
Cooper V. Remsen, 5 Johns. Ch. 99 Dusbiber v. Melville, 178
(N. y.) 459; Wright v. Mayer, 62 Mich. 601, 51 L. R. A. (N. S.) 367,
N. y. Supp. 610, 47 App. Div. 604. 146 N. W. 208.
TESTAMENTARY GIFTS UPON CONDITION. 1537
by extrinsic evidence to the effect that the testator had
objected to his daughter's marriage.^
§ 1069. Condition That Beneficiary Marry Only With Consent
of Certain Persons.
A devise or bequest on condition that the donee do not
marry without the consent of a guardian, trustee, ex-
ecutor of the estate, or other designated person, there
being a gift over upon breach of condition, is not such a
general or unreasonable restraint upon marriage as will
render the condition void.^ Such conditions usually refer
to the first marriage, and it is sufficient if the bene-
ficiary has obtained consent thereto.*
With real property, a gift over is not necessary to
make the condition valid, but with respect to person-
alty, a provision that the legatee shall forfeit the bequest
upon marriage without the consent of designated per-
sons is generally considered in ierrorem only unless
there is a gift over upon default of condition.* The fail-
ure of the testator to make a further disposition upon
breach of condition strengthens the idea that the provi-
1 Ellis V. BIrkhead, 30 Tex. Civ. Wieeler v. Bingham, 3 Atk. 364,
App. 529, 71 S. W. 31. See, also, 368; Semphill v. Bayly, Prec. Ch.
Ransdell v. Boston, 172 111. 439, 562; Shackelford v. Hall, 19 111.
43 L. R. A. 526, 50 N. E. 111. 212; Gough v. Manning, 26 Md.
2 Long V. Ricketts, 2 Sim. & St. 347.
179; In re Stephenson, 13 Week. R. Compare: Phillips v. Ferguson,
1066; Fry v. Porter, 1 Mod. 300; 85 Va. 512, 17 Am. St. Rep. 78,
Dawson v. Oliver-Massey, L.. R. 2 1 L. R. A. 837, 8 S. E. 241. i
Ch. Div. 753; Collet v. Collet, 35 As to conditions against contest-*
Beav. 312; Collier v. Slaughter's ing the will annexed to gifts of
Admr., 20 Ala. 263. personalty, If no gift over, see
3 Lowe V. Manners, 5 Bam. & §§1055,1056.
Aid. 917; Randal v. Payne, 1 Bro. As to conditions in restraint of
C. C. 55. marriage annexed to gifts of per-
4 Lloyd V. Branton, 3 Mer. 108; sonalty, if no gift over, see § 1062.
n Com. on Wills — 43
3538 COMMENTARIES ON THE LAW OF WILLS.
sion was inserted only as a threat.' But although con-
sent may be dispensed with under the above rule, yet if
marriage by consent be a condition precedent, the prop-
erty can not be claimed until marriage has taken place.®
If forfeiture be occasioned by breach of the condition,
subsequent approbation, not being equivalent of con-
sent, does not cure the defect. '^ If the consent of several
persons is required, the consent of a majority will not
suffice.^ It is necessary that all of the executors or trus-
tees living at the time,® or who have not renounced their
offices,^" should give their assent to the marriage. Of
course, if the person w^hose consent is required die be-
fore giving it, the condition is released,^^ but the con-
dition is not released by the failure of the testator to
appoint a guardian. Thus, where there was a condition
of forfeiture upon marriage of a daughter of the tes-
tator before twenty-one without consent of her guardian,
and there was no guardian, and the daughter married
under age, the bequest was forfeited, it being held that
a guardian could have been appointed by the court and
that the testator, from the language of the will, must
be taken to have contemplated such an appointment.^^
6 Buddy V. Gresham, L. R. 2 Ir. a Clarke v. Parker, 19 Ves.
442; Harmon v. Brown, 58 Ind. Jun. 1.
207; In re Carr's Estate. 138 Pa. sworthln^on v. Evans, 1 Sim.
St. 352, 22 Atl. 18; Maddox v. Mad- ^ g^ ^gg. ^^^^^ ^_ Corbally, LI. &
dox's Admr., 11 Gratt. (Va.) 804; q ^ pj^^^ ^j^. ^ ^^^
Reuff V. Coleman's Heirs, 30
W. Va. 171, 3 S. B. 597. "" Graydon v. Hicks, 2 Atk. 16.
See § 1055. ii Jones v. Suffolk, 1 Bro. C. C.
6 Garbut V. Hilton, 1 Atk. 381. 528; Peyton v. Bury, 2 P. Wms.
7 Clarke v. Parker, 19 Ves. Jun. 626.
1; Long V. Ricketts, 2 Sim. & St. 12 In re Brown's Will, L. R. 18
179; Reynish v. Martin, 3 Atk. 330. Ch. Div. 61.
TESTAMENTAKY GIFTS UPON CONDITION. 1539
§ 1070. The Same Subject.
The guardian, trustee, or other person whose consent
is required for the marriage of a beneficiary may not
make arbitrary use of his power; however, there is no
presumption of fraud or bad faith should he mthhold
his consent, even though he be benefited by the failure of
the beneficiary to marry. But equity will step in, as in
the case of other trustees, and remove a person who at-
tempts to usurp his authority for corrupt ends.^* Like-
wise, equity will relieve against unjust forfeiture, the
beneficiary not being at fault, but the result being occa-
sioned either by reason of the fraud or negligence of the
person appointed to give consent.^* The consent of the
trustee, when given, can not be revoked unless procured
by fraud. *^ And consent may be presunied from actions
or silence.^^ If, however, the will provides that consent
must be given in a specified manner, such as in writing,
the condition must be fulfilled ■,^'' however, form is imma-
terial unless demanded by the mll.^*
§ 1071. Conditions Repugnant to Estate Given Are Void.
Conditions repugnant to the estate to which they are
annexed are absolutely void. A condition that a devisee
in fee shall not mortgage the property is repugnant
to the absolute nature of the gift;^® and a stipulation that
13 Dashwood v. Lord Bulkeley, 16 Keeling v. Smith, L. R. 44
10 Ves. Jun. 230; Goldsmid v. Ch. Dlv. 654; Pollock v. Croft.
Goldsmid, G. Cooper 225. 1 Mer. 181; In re Birch, 17 Beav.
14 Malloon v. Fitzgerald, 3 Mod. 358.
28 ; O'Callaghan v. Cooper, 5 Ves. it Clarke v. Parker, 19 Ves. Jun.
Jun. 117. 1, 12.
15 Dillon V. Harris, 4 Bligh is Worthington v. Evans, 1 Sim.
(N. S.) 324; Le Jeune v. Budd, & St. 165.
6 Sim. 441; D'Aguilar v. Drink- 1 9 Ware t. Cann, 10 Barn. & C.
■water, 2 Ves. & B 225. 433; Gleason v. Fayerweather, 4
1540
COMMENTARIES ON THE LAW OF WILLS.
no annuity shall be charged upon an estate devised in
fee is void.^" The rule is the same where a restriction
is attempted to be placed against the wife or husband
of the devisee in fee taking a dower or curtsey in the
land devised.^* A gift over in the event that the one to
whom laud is devised in fee shall die intestate, is void.^-
"Where by the terms of the will the gift is absolute and
in prcesenti, the title passes to the beneficiary and any
provision against a sale, division, or incumbrance is re-
pugnant to the title in the estate thus granted, and is
void.^* A requirement that land devised in fee shall be
forever leased at a prescribed rental, or be cultivated
in a particular manner, is repugnant to the absolute
nature of the devise.^* The power of alienation is inci-
dent to life interests and estates as well as to those
given absolutely or in fee, and any attempt to restrict
Gray (70 Mass.) 348; Hall v. Tufts,
18 Pick. (35 Mass.) 455; Walker v.
Vincent, 19 Pa. St. 369; L,awrence
V. Singleton, (Tenn.) 17 S. W. 265;
Laval V. Staffel, 64 Tex. 370.
Where an estate is given to a
remainderman with the limitation
that he should "never mortgage,
rent, or sell said parcel of land,"
the restraint is void as being re-
pugnant to the nature of the fee. —
Freeman v. Phillips, 113 Ga. 589,
38 S. E. 943.
20 Willis v. Hiscox, 4 Myl. & C.
197, 201.
21 Mildmay'B Case, 6 Coke 40a;
Portington's Case, 10 Coke 35b.
Contra: Haight v. Hall, 74 Wis.
152, 17 Am. St. Rep. 122, 3 L. R. A.
857, 42 N. W. 109.
22 In re Wilcocks' Settlement,
L. R. 1 Ch. Div. 229; Hill v.
Downes, 125 Mass. 509.
As to a gift over of what re-
mains unexpended by a devisee,
see § 930.
If an estate be so given as to
vest the title immediately upon
the testator's death, with the en-
joyment of possession only post-
poned, a condition that it shall
pass to others on the death of the
first legatee before the time of
coming into possession is void. —
Martin v. Martin, 12 Jur. N. S.
889.
23 Lovett V. Glllender, 35 N. Y.
617.
24 Attorney-General v. Master &
Fellows of Catherine Hall, Jacob
380, 395.
TESTAMENTARY GIFTS UPON CONDITION.
1541
the power of alienation, whether applied to an absolute
interest or to a life estate, is invalid.^'^
§ 1072. General Restraint Upon Alienation Void.
The right of alienation is an inherent and inseparable
quality of an estate in fee-simple; it is an incident of
ownership. Any condition or restriction suspending all
power of alienation of land devised in fee simple would
be repugnant to the estate granted and therefore void.-''
25 Rochford V. Hackman, 9 Hare
475, 480; Brandon v. Robinson, 18
Ves. Jun. 429; Graves v. Dolphin,
1 Sim. 66; Hall v. Tufts, 18 Pick.
(35 Mass.) 455.
26L,itt, §360; Coke Litt. 206b,
223a; 4 Kent Com. *131; Ware v.
Cann, 10 Barn. & C. 433; In re
Machu, L. R. 21 Ch. Div. 838; Mar-
shall V. Alzlewood, 43 L. T. N. S.
752; Gallinger v. Farlinger, 6 U. C.
C. P. 512; In re Thomas, 30 Ont.
49; Potter V. Couch, 141 U. S. 296,
35 L. Ed. 721, 11 Sup. Ct. 1005;
Prey v. Stanley, 110 Cal. 423, 42
Pac. 908; Henderson v. Harness,
176 111. 302, 52 N. B. 68; Becker
V. Becker, 206 111. 53, 69 N. E. 49;
Allen V. Craft, 109 Ind. 476, 58
Am. Rep. 425, 9 N. E. 919; Lang-
man V. Marbe, 156 Ind. 330, 58
N. E. 191; Brookover v. Branyan,
(Ind.) 112 N. E. 769; Powers v.
Wells, 244 111. 558, 91 N. E. 717;
Harkness v. Lisle, 132 Ky. 767, 117
S. W. 264; Jones v. Bacon, 68 Me.
34, 28 Am. Rep. 1; Winsor v. Mills,
157 Mass. 362, 32 N. E. 352; Man-
dlebaum v. McDonell, 29 Mich. 79,
18 Am. Rep. 61; Feit v. Richards,
64 N. J. Eq. 16, 53 Atl. 824; Oxley
V. Lane, 35 N. Y. 340; Pace v.
Pace, 73 N. C. 119; Harker's Ap-
peal, 60 Pa. St. 141; Yard's Appeal,
64 Pa. St. 95; Manierre v. Wel-
ling, 32 R. I. 104, Ann. Cas. 1912C,
1311, 78 Atl. 507; Diamond v. Ro-
tan, (Tex. Civ.) 124 S. W. 196;
Deepwater R. Co. v. Honaker, 66
W. Va. 136, 27 L. R. A. (N. S.) 388,
66 S. E. 104.
See § 931.
As to cutting down a devise in
fee by subsequent provisions in
the will, see §§ 932-934.
Where a devise is made to a
town for the support of a public
school for the benefit of the in-
habitants, with a condition exclud-
ing certain named persons and
their descendants from the school,
the devise is good as to all the
inhabitants and the condition is re-
pugnant to the nature of the grant
and is void, as contrary to law and
public policy. — Nourse v. Merriam,
8 Gush. (62 Mass.) 11.
In Maine, when after a gift of
a residue to the widow In terms
importing a tee, on her decease
1542
COMMENTARIES ON THE LAW OP WILLS.
For the same reason a limitation over in case the first
devisee should alienate the property would be equally-
void, whether the estate be legal or equitable.^^ Such an
absolute restraint on all alienation would be a nullity
even though not in conflict with the rule against perpetui-
ties. On principle and according to the weight of author-
ity, a restriction, whether by way of condition or of de-
vise over, not forbidding alienation to particular persons
or for particular purposes only, but against any and all
alienation during a limited time, is void as repugnant to
the estate devised to the first taker, because it deprives
him during that time of the inherent power of aliena-
tion.^® The principle likewise applies to an absolute in-
the remainder was given to others,
the ulterior devise was decided to
be void. — Mitchell v. Morse, 77 Me.
423, 52 Am. Rep. 781, 1 Atl. 141.
27 Ware v. Cann, 10 Barn. & C.
433 ; Shaw v. Ford, L. R. 7 Ch. Div.
669; In re Dugdale, L. R. 38 Ch.
Div. 176; Corbett v. Corbett, L. R.
13 Pro. Div. 136; Howard v. Ca-
rusi, 109 U. S. 725, 27 L. Ed. 1089,
3 Sup. Ct. 575; Kelley v. Meins,
135 Mass. 231; Steib v. Whitehead,
111 in. 247.
Compare: Smith v. Bell, 6 Pet.
(U. S.) 68, 8 L. Ed. 322; Williams
V. Ash, 1 How. (U. S.) 1, 11 L. Ed.
25, which two cases were distin-
guished In Potter v. Couch, 141
U. S. 296, 316. 35 L. Ed. 721, 11
Sup. Ct. 1005.
28 Rosher v. Rosher, L. R. 26
Ch. Div. 801; Potter v. Couch, 141
V. S. 315, 35 L. Ed. 721, 11 Sup.
Ct. 1005; Hill V. Gray, 160 Ala.
273, 49 So. 676; Jones v. Port
Huron Engine & T. Co., 171 111.
502, 49 N. B. 700 ; Johnson v. Pres-
ton, 226 111. 447, 10 L. R. A. (N. S.)
564, 80 N. E. 1001; Winsor v.
Mills, 157 Mass. 362, 32 N. E. 352;
Bennett v. Chappin, 77 Mich. 526,
538, 7 L. R. A. 377, 43 N. W. 893;
Casgrain v. Hammond, 134 Mich.
419, 104 Am. St. Rep. 610, 96 N. W.
510; Morse v. Blood, 68 Minn. 442,
71 N. W. 682; Kessner v. Phillips,
189 Mo. 515, 107 Am. St. Rep. 368,
3 Ann. Cas. 1005, 88 S. W. 66; Feit
V. Richards, 64 N. J. Eq. 16, 53 Atl.
824; Roosevelt v. Thurman, 1
Johns. Ch. (N. Y.) 220; Twitty v.
Camp, 62 N. C. 61; Latimer v.
Waddell, 119 N. C. 370, 3 L. R. A.
(N. S.) 668, 26 S. B. 122; Ander-
son V. Cary, 36 Ohio St. 506, 38
Am. Rep. 602; Shower's Estate,
211 Pa. St. 297, 60 AU. 789; Ma-
nierre v. Welling, 32 R. I. 104,
Ann. Cas. 1912C, 1311, 78 Atl. 507;
Zillmer v. Landguth, 94 Wis. 607,
TESTAMENTARY GIFTS UPON CONDITION. 1543
terest in personal property or in chattels real disposed
of by wiU in a like manner.^®
§ 1073. Limiting or Prohibiting Conveyance to Particular Per-
son or Glass : English Decisions.
A condition in general restraint of alienation is void,
yet partial restrictions have been upheld. There is, how-
ever, a decided conflict of authority. In an early English
case a restriction that the devisee, in the event of hav-
ing no lawful issue, should have no power to dispose of
her interest in the property devised except to her sister
or sisters or to their children, -was upheld.^" This prin-
ciple was approved some seventy years later in a case
where a devise to the testatrix's brother on condition
that he should never sell it out of the family, was upheld
on the ground that the condition, being limited as to time
to the life of the first tenant, was not void for remote-
ness, and being limited as to the mode of alienation, pro-
hibiting the sale only and not the leasing, mortgaging,
and the like, was a limited restriction only and valid.^^
69 N. W. 568; McCravey v. Otts, 571; Blackstone Bank v. Davis, 21
90 S. C. 447, 74 S. E. 142. Pick. (38 Mass.) 42, 32 Am. Dec.
The fact that a restraint or re- 241.
striction is limited in duration 3o Doe d. Gill v. Pearson, (A. D.
does not of itself make such re- 1805) 6 East 173.
straint valid, if it is otherwise 3i In re Macleay, L. R. 20 Eq.
unreasonable or so general in its 186.
scope and effect as to make it A devise of lands, subject to the
substantially an absolute restraint payment of certain legacies and a
of alienation during such limited support to the testator's wife,
time. — Manierre v. Welling, 32 with the condition that the devi-
R. I. 104, Ann. Cas. 1912C, 1311, sees should not sell or transfer the
78 Atl. 507. property during the lifetime of the
29 Bradley v. Pelxoto, 3 Ves. widow without her written con-
Jun. 324; McCleary v. Ellis, 54 sent, was upheld on the ground
Iowa 311, 37 Am. Rep. 205, 6 N. W. that a condition not to alienate to
1544 COMMENTABIES ON THE LAW OF WILLS.
In conJ3iot with the foregoing, a condition that the devi-
see should never sell the property out of the family,
but if sold at all it should be sold to one of his brothers,
was held invalid as repugnant to the estate devised. The
court said that if the introduction of one person's name
as the only person to whom property could be sold, ren-
ders such a proviso valid, a restraint on alienation may
be created as if no person was named, inasmuch as the
testator could designate one who he is reasonably certain
would not purchase the property.*^ This was followed
in a later case where a covenant by the grantee of lands
that he, his heirs and assigns, would not alienate, sell or
assign to any one except his or their child or children
"without the license of the grantor, and reserving a penal
rent for its breach, was held void.^* And in another case
it was held that a condition annexed to a devise in fee,
that if the devisee should desire to sell at any time during
the life of the testator's widow, she should have the
option to purchase at a price which was far less than the
actual value of the property, amounted to an absolute re-
straint upon alienation during the widow's life and was
void, the devisee having the right to sell without first
offering the property to her at the specified price.**
a particular person or for a par- A condition "that my three sons,
ticular time, and inserted for the M., H. & G., shall not be at lib-
purpose of securing a legacy oi" erty to sell any part of my home-
benefit to a beneficiary under the stead farm herein willed except
will, is valid.— Earls v. McAlpine, *° ^^^h other and so descend to
27 Grant's Ch. (U. C.) 161. *^e»i" ^^eirs to the third genera-
tion," was held invalid. — Gallinger
32 Attwater v. Attwater, (A. D. ^ Farlinger, 6 U. C. C. P. 513.
1853) 18 Beav. 330. To the same 34 Rosher v. Rosher, L. R 26
elfect, see Muschamp v. Bluet, ^h. Div. 801, commenting upon In
Bridg. J. 132, 137. j.g Macleay, L. R. 20 Eq. 186, ex-
33 Billings V. Welch, I. R. 6 plaining Largs's Case, 2 Leon. 82;
C. L. 8S. s. c, 3 Leon. 182.
TESTAMENTARY GIFTS UPON CONDITION.
1545
§ 1074. The Same Subject: American Decisions.
The American authorities are likewise in conflict. There
is a line of cases holding that a limited restraint for a
reasonable period of time is a valid restriction.^^ These
cases seem to be founded on a misconception of the early
English decision in Large 's Case.^^ This case was first
cited as holding that a grantee may be restrained from
alienating for a particular time.^^ It has been said that
this was an evident misapprehension since the case does
not so hold, and that therefore it is unimportant by whom
and how many times it may have been improperly cited.^'
On the other hand, however, it has been said that it has
been so often cited that it is now too late to go back and
35 Langdon v. Ingram's Guar-
dian, 28 Ind. 360 ; Andrews v. Spur-
lin, 35 Ind. 262 (obiter) ; Stewart
V. Brady, 3 Bush (66 Ky.) 623;
Wallace v. Smith, 113 Ky. 263,
24 Ky. L. Rep. 139, 68 S. W. 131;
Call V. Shewmaker, 24 Ky. L. Rep.
686, 69 S. W. 749; Smith v. Isaacs,
25 Ky. L. Rep. 1727, 78 S. W. 434;
Harkness v. Lisle, 132 Ky. 767, 117
S. W. 264; Blackstone Bank v.
Davis, 21 Pick. (38 Mass.) 42, 32
Am. Dec. 241; Dougal v. Fryer,
3 Mo. 40, 22 Am. Dec. 458; Collins
V. Glamorgan's Admr., 5 Mo. 273;
Cornelius v. Den, 26 N. J. L. 376
(obiter) ; Jackson v. Schutz, 18
Johns. (N. Y.) 174, 9 Am. Dec. 195
(obiter) ; De Peyster v. Michael,
6 N. Y. 467, 57 Am. Dec. 470; Mun-
roe V. Hall, 97 N. C. 206, 1 S. E.
651; Ex parte Watts, 130 N. C. 237,
41 S. E. 289; M'Williams v. Nisly,
2 Serg. & R. (Pa.) 507, 7 Am. Dec.
654; Jauretche v. Proctor, 48 Pa.
466.
36 2 Leon. 82; s. c, 3 Leon. 182.
37 Sheppard's Touchstone, p. 190
(Am. ed. of 1808).
38Mandelbaum v. McDonell, 29
Mich. 78, 18 Am. Rep. 61, wherein
the court further says: "We are
entirely satisfied that there never
has been a time since the statute
quia emptores when a restriction
in a conveyance of a vested estate
in fee simple, In possession or
remainder, against selling for a
particular period of time, was
valid by the common law. . . .
It is safe to say that every estate
depending upon such a question
would, by the very fact of such a
question existing, lose a large
share of its market value. Who
can say whether the time is rea-
sonable until the question has
been settled in the court of last
1546
COMMENTARIES ON THE LAW OP WILLS.
reconstruct the text books and decisions, and that the con-
struction ^ven it heretofore has become a rule of prop-
erty.**
A prohibition against a devisee conveying the property
except to one person is arbitrary, unreasonable and in-
valid.*"
§ 1075. Restraining Alienation Until Donee Reaches a Certain
Age,
A prohibition against alienation until the expiration
of a defined and not too remote a period of time has been
upheld.*^ Alienation has been validly prohibited until the
majority of the devisee ;*^ and until the devisee shall at-
tain the age of thirty-five years has been considered as
not too remote.** But restraints upon alienation of vested
remainders before the termination of the particular estate
have been held void.**
resort; and upon what standard of
certainty can the court decide It?"
39 Nell, J., In Fowlkes v. Wag-
oner, (Tenn.) 46 S. W. 586.
40 Schermerhom v. Negus, 1
Denio (N. Y.) 448.
A clause in a will giving a pref-
erence of purchase to brothers of
the devisee did not deprive the
devisee of the absolute power of
sale of his share. — ^Bing v. Burrus,
106 Va. 478, 56 S. E. 222.
41 Churchill v. Marks, 1 Coll.
C. C. 441; Graham v. Lee, 23 Beav.
388; In re Payne, 25 Beav. 556;
Langdon v. Ingram's Guardian, 28
Ind. 360; Stewart v. Barrow, 7
Bush (70 Ky.) 368; Blackstone
Bank v. Davis, 21 Pick. (38 Mass.)
42, 32 Am. Dec. 241; McWilliams
v. Nlsly, 2 Serg. & R. 507, 513,
7 Am. Dec. 654.
Contra: Mandlebaum v. McDon-
ell, 29 Mich. 78, 18 Am. Rep. 61,
q. v. and authorities there re-
viewed and criticised. — Anderson
V. Cary, 36 Ohio St. 506, 38 Am.
Rep. 602.
42 Smithwick v. Jordan, 15 Mass.
113; Claflln v. Claflin, 149 Mass.
19, 14 Am. St. Rep. 393, 3 L. R. A.
370, 20 N. E. 454.
43 Stewart v. Brady, 3 Bush (66
Ky.) 623; Claflin v. Claflin, 149
Mass. 19, 14 Am. St. Rep. 393,
3 L. R. A. 370, 20 N. E. 454.
Contra: Twitty v. Camp, 62
N. C. 61.
44 Hall v. Tufts, 18 Pick. (35
Mass.) 455, 460.
TESTAMENTARY GIFTS UPON CONDITION. 1547
§ 1076. Restrictions on Alienation Do Not Follow the Land.
Restraints upon alienation, except where the restric-
tion is that it shall not be transferred to a certain indi-
vidual or to a certain class, are personal to the first devi-
see and do not follow the land;*^ and it has been held
that a condition that none of the property should ever
pass to the testator's sister or her descendants could not
follow the property into the hands of any one upon whom
it might devolve through the operation of the limitation
attached to the condition.*"
§ 1077. Construction of Provisions Restraining Alienation.
Any limitation or partial restraint which violates the
rule against perpetuities is void.*^ Restrictions on the
power of alienation are not favored, and the policy of
the law is to construe them with the utmost strictness
to the end that the restraint shall not be extended beyond
the express stipulation, and all doubts must be resolved
in favor of the free use of the property.** Glauses im-
45 McKInster v. Smith, 27 Conn. A testator may prohibit the
628. alienation or encumbrance of a
46 Bradford v. Leake, 124 Tenn. devised estate within the llmlta-
312, Ann. Cas. 1912D, 1140, 137 tions prescribed by the statute,
S. W. 96. but in all cases where the question
47 Saulsberry v. Saulsberry, 140 arises whether there is such a
Ky. 608, 131 S. W. 491; Stewart v. prohibition or not, as well as the
WooUey, 121 App. Div. 531, 106 extent of it, must depend on the
N. Y. Supp. 99; Walter v. Walter, intention as expressed in the will,
60 Misc. Rep. 383, 113 N. Y. Supp. and unless the intention is clearly
465; affirmed in 133 App. Div. 893, found to exist the prohibition will
118 N. Y. Supp. 238. not be declared to exist. — Linde-
48 Illinois Christian Missionary meier v. Llndemeier, 91 Ky. 264,
See. V. American Christian Mis- 15 S. W. 524; Gillespie v. Wins-
sionary Soc, 277 111. 193, 115 N. E. ton's Trustee, 170 Ky. 667, 186
118; Brothers v. McCurdy, 36 Pa. S. W. 517; Sparrow v. Sparrow,
St. 407, 78 Am. Dec. 388; Fisher v. 171 Ky. 101, 186 S. W. 904.
Wlster, 154 Pa. St. 65, 25 Atl. 1009. Where the condition is against
1548
COMMENTARIES ON THE LAW OP WILLS.
posing unlawful restrictions on alienation are seldom in-
separably linked with the general testamentary plan of
disposition, and consequently they may be rejected and
the devise remain operative in all other respects.*^
the offer to alien an actual alien-
ation is not embraced within it.
A condition annexed to a devise
that the devisee shall not offer to
alien for a particular purpose is
void for uncertainty, and the devi-
see takes an indefeasible estate. —
Brothers v. McCurdy, 36 Pa. St.
407, 78 Am. Dec. 388.
49 Bradley v. Peixoto, 3 Ves.
Jun. 324; Johnson v. Preston, 226
III. 447, 10 L. R. A. (N. S.) 564,
80 N. E. 1001; Outland v. Bowen,
115 Ind. 150, 7 Am. St. Rep. 420,
17 N. B. 281; Oxley v. Lane, 35
N. Y. 340; Henderson v. Hender-
son, 113 N. Y. 1, 20 N. E. 814;
Greene v. Greene, 125 N. Y. 506,
21 Am. St. Rep. 743, 26 N. E. 739;
Philadelphia v. Girard's Heir's, 45
Pa. 9, 84 Am. Dec. 470; Manierre
v. Welling, 32 R. I. 104, Ann. Cas.
1912C, 1311, 78 Atl. 507; McCravey
V. Otto. 90 S. C. 447, 74 S. E. 142.
CHAPTER XXXVin.
SPENDTHRIFT TRtTSTS AND CONDITIONS AGAINST DEBT.
§ 1078. Common law rule that judgments were not liens upon
realty.
§ 1079. Statutory changes as to effect of judgments : Trusts and
powers of appointment.
§ 1080. Condition of forfeiture if beneficiary becomes insolvent.
§ 1081. - Voluntary and involuntary assignments distinguished.
§ 1082. Inalienability of property and non-liability for debt se-
cured through spendthrift trusts.
§ 1083. Devises in trust to defeat claims of creditors of benefi-
ciaries.
§ 1084. As to necessity of provision terminating estate in event
of attachment: English decisions.
§ 1085. The same subject : American decisions.
§ 1086. Necessary incidents of spendthrift trusts.
§ 1087. Language sufficient to create a spendthrift trust.
§ 1078. Common Law Rule That Judgments Were Not Liens
Upon Realty.
Judgments at common law were not a lien upon real
property. The lien arose from the power to issue a writ
of elegit or execution given by the statute of Westmin-
ster.^ This writ of execution subjected the real estate
to the payment of debts and, as a consequence, it has
always been held to give a lien on the lands of the judg-
ment debtor.^ If the judgment debtor died after the
elegit was executed upon his lands and before the judg-
1 statute of 2 Westminster or 12 L. Ed. &03; United States v.
of 13 Ed. 1, ch. 18. Morrison, 4 Pet (U. S.) 136, 7
2 3 Salk. 212; Masslngill v. L. Ed. 804; Shrew v. Jones, Fed.
Downs, 7 How. (U. S.) 760, 765, Cas. No. 12818, 2 McLean 78.
(1549)
1550 COMMENTARIES ON THE LAW OF WILLS.
ment was satisfied, a court of equity, upon being applied
to, would decree a sale of the land upon which the writ
had been executed, and the judgment would be paid out
of the proceeds.* The same principle was adopted by-
Lord Eedesdale in the equity jurisdiction of Ireland.*
The reason why lands were not liable to execution under
the early common law was because the tenant owed cer-
tain duties to the feudal lord and a new tenant could not
be forced upon him without his consent, while the new
tenant was under obligation to serve the king.
§ 1079. Statutory Changes as to Effect of Judgments : Trusts
and Powers of Appointment.
The lien of a judgment upon real property arises be-
cause of the power to issue a writ of execution which
subjects the real estate to the payment of the judgment.^
The general rule is that a statute subjecting real estate
to execution under a judgment for debt, although the term
"real estate" is declared to include lands, tenements,
hereditaments, and all legal and equitable rights and in-
terests therein and thereto, does not interfere with the
established distinction between law and equity so as to
make an equitable estate liable to execution.® Where the
legal title to real property is in a trustee, a judgment
creditor of the cestui que trust, unless he is given the
right by statute to take out execution against equitable
8 Stileman v. Ashdown, 2 Atk. 6 Smith v. McCann, 24 How.
477,607; Tyndale v.Warre,Jac.212. (U. S.) 398, 16 L. Ed. 714; Morsell
4 O'Gorman v. Comyn, 2 Sch. & v. First National Bank, 91 TJ. S.
L. 137; O'Fallon v. Dillon, 2 357, 23 L. Ed. 436; Potter v. Coucli,
Sch. & L. 13. 141 U. S. 296, 319, 320, 35 L. Ed.
B MassingUl T. Downs, 7 How. 721, 11 Sup. Ct. 1005.
(U. S.) 760, 12 L. Ed. 903.
SPENDTHRIFT TRUSTS. 1551
interest of the beneficiary, must resort to a court of
equity for relief.''
Prior to the statute of 1 and 2 Victoria, ch. 110, it
was a settled law of England that at law a judgment
against a party having a power of appointment of real
estate which vested in him until and in default of ap-
pointment, was defeated by a subsequent execution of the
power in favor of a mortgagee.* And it was held imma-
terial whether or not the purchaser had notice of the judg-
ment,* or that a portion of the purchase money was set
aside as an indemnity against the judgment.^" The stat-
ute of 1 and 2 Victoria, ch. 110, altered the law by making
judgments an actual charge on the debtor's property of
which he has, at the time the judgment is entered or any
time thereafter, any disposing power which he might,
mthout the assent of any other person, exercise for his
own benefit, so that the judgment continues to bind the
property notwithstanding any appointment."
The rule is well settled in England and recognized in
this country that where a person has a general power
of appointment either by will or by deed, and exercises
this power, the property appointed is deemed in equity
part of his assets and subject to the demands of his credi-
tors in preference to the claims of his voluntary ap-
pointees or legatees.^^ But the doctrine has no appli- ■
1 Morsell V. First National Bank, lo Skeeles v. Shearly, 8 Sim.
91 V. S. 357, 23 L. Ed. 436; Com- 153; s. c, 3 Myl. & Cr. 112.
missioners of Freedman's Sav. & n Hotliam v. Somerville, 9
Tr. Co. r. Earle, 110 U. S. 710, Beav. 63.
28 L. Ed. 30, 4 Sup. Ct. 226. i2 Thompson v. Towne, Free.
8 Doe V. Jones, 10 Barn. & C. Ch. 52; s. c, 2 Vern. 319; In re
616; Tunstall v. Trappes, 3 Sim. Harvey's Estate, L. R. 13 Ch. Div.
286, 300. 216; Brandies v. Cochrane, 112
9. Eaton V. Sanxter, 6 Sim. 517. TJ. S. 344, 28 L. Ed. 760, 5 Sup. Ct.
1552
COMMENTARIES ON THE LAW OP WILLS.
cation where the judgment creditor does not seek relief
in equity, but claims a lien at law which is not granted
by statute.^*
§ 1080. Condition of Forfeiture If Beneficiary Becomes Insol-
vent.
A condition precedent that the property shall not vest
in the cestui que trust until his debts are paid, and a
condition subsequent that it shall be divested and for-
feited by his insolvency over and limitation over to an-
other person, are valid, and the law will give effect to
such conditions." Where the beneficiary loses all inter-
est in the property upon his bankruptcy or insolvency
194; Clapp v. Ingraham, 126 Mass.
200.
13 Brandies v. Cochrane, 112
U. S. 344, 28 L. Ed. 760, 5 Sup. Ct.
194.
14 Graves v. Dolphin, 1 Sim. 66;
Foley V. Burnell, 1 Bro. C. C. 274;
Brandon v. Robinson, 18 Ves. Jun.
429; Nichol v. Levy, 72 U. S. 433,
18 L. Ed. 596; Nichols v. Baton, 91
U. S. 716, 23 L. Ed. 254.
A devise of the income of prop-
erty to cease on the insolvency or
bankruptcy of the devisee, is good,
such limitation being valid. — Dom-
mett v. Bedford, 3 Ves. Jun. 149;
Rochford v. Hackman, 9 Hare 475 ;
Tillinghast v. Bradford, 5 R. I. 205.
A condition that a devise shall
not be liable to attachment is void.
— Blackstone Bank v. Davis, 21
Pick. (Mass.) 42, 32 Am. Dec. 241.
But a limitation providing that
the interest of a devisee for life
shall cease upon recovery of judg-
ment by creditors with a view to
reach the property. Is valid. —
Bramhall v. Ferris, 14 N. Y. 41,
67 Am. Dec. 113.
Where the intention of the tes-
tator Is clearly declared to be to
bequeath the property for the sole
benefit of the donee, so that his
creditors shall have no part of it.
the bequest will fail upon his in-
solvency or bankruptcy even when
it occurs during the life of the
testator, and a gift over will take
effect. See Manning v. Chambers,
1 De Gex & S. 282; Sharp v. Cos-
serat, 20 Beav. 470; Yarnold v.
Moorhouse, 1 Russ. & M. 364.
As to the effect of a decree of
bankruptcy which has been re-
voked, see Lloyd v. Lloyd, L. R.
2 Eq. 722; Parnham's Trusts,
L. R. 13 Eq. 413; White v. Chitty,
L. R. 1 Eq. 372; In re Amherst's
Trusts, L. R. 13 Eq. 464. See, also.
Cox V. Fonblanque, L. R. 6 Eq. 482.
SPENDTHRIFT TRUSTS. 1553
and it then passes to another, there remains in him no
interest which can be attached by his creditors. Where
the trust declares that upon the bankruptcy of the bene-
ficiary the property or the income is to go to his wife or
children in such manner as the trustee in his discretion
shall deem proper, all interest would pass from such bene-
ficiary upon the happening of the event mentioned, and
no property would remain for his creditors. If, however,
the beneficiary is to receive, after his bankruptcy, any
vested interest in the property, that interest may be sep-
arated from that which goes to his wife or children and
will be subject to the pajonent of his debts.^^ But if the
devise over is for the support of the bankrupt and his
family in such manner as the trustee may think proper,
the weight of authority is that there remains no interest
to which the assignee can assert a valid claim.^* Even
though the beneficiary might have no wife or child at
the time the trust was made, yet if the trustee is author-
ized in the event of the bankruptcy of the beneficiary to
loan and reinvest the income of the property and to add
the same to the principal of the estate until the benefi-
ciary's decease or until he shall have a wife or child
capable of receiving the trust property forfeited by him,
there would seem to be no intention to secure or rein-
vest in the bankrupt any interest in the devise thus for-
feited, and there woiild therefore be no property to which
the assignee could lay claim. And even if the trustee
may at His discretion transfer to the beneficiary all or
isRlppon V. Norton, 2 Beav. 63; 716, 23 L. Ed. 254; Brooks v. Reyn-
Page V. Way, 3 Beav. 20; Piercy v. olds, 59 Fed. 923, 8 C. C. A. 370;
Roberts, 1 Myl. & K. 4; Lord v. Huntington v. Jones, 72 Conn. 45,
Bunn, 2 You. & Coll. Ch. 98. 43 Atl. 564; Stone v. Westcott, 18
16 Twopeny v. Peyton, 10 Sim. R. I. 685, 29 Atl. 838.
487; Nichols v. Baton, 91 XJ. S.
II Com. on Wills — 44
1554'
COMMENTARIES ON THE LAW OF WILLS.
any portion of the property, or if the trustee, after the
termination of the interest of the beneficiary because of
his bankruptcy, may in his discretion pay to or apply for
any use of the beneficiary or for the use of him and his
family so much of the income to which he would have
been entitled in case the forfeiture had not happened, the
bankruptcy of the beneficiary would leave no estate vested
in him which the assignee could claim. The trustee, in
such a case, is under no obligation to exercise his dis-
cretion in favor of the bankrupt. To compel him to pay
any of the income to the beneficiary after his bankruptcy,
or to his assignee, would be adding a provision to the will
of a testator which he had never intended.^''
17 Nichols V. Baton, 91 U. S. 716,
23 L. Ed. 254.
Contra: Green v. Splcer, 1 Russ.
& M. 395; Snowdon v. Dales, 6
Sim. 524.
Under the California statute a
devise of real property to trustees
with no provision by which it can
vest in any other person except
by a conveyance by the trustees,
and with the express intent that
it should vest only by such a con-
veyance, is void.— Estate of Fair,
132 Cal. 523, 84 Am. St. Rep. 70,
60 Pac. 442, 64 Pac. 1000.
If a construction of the language
of the will by the use of such
words as "shall go to,"' or "shall
be paid to," or other words which
express the idea that it is to go
to named beneficiaries irrespective
of the direct devise to the trus-
tees and without a conveyance by
them, the trust will be upheld. —
Estate of Dunphy, 147 Cal. 95, 100,
81 Pac. 315; Estate of Spreokels,
162 Cal. 559, 568, 123 Pac. 371.
But while the decision in the
Fair case is not extended to cases
where words are found consti-
tuting a disposition of the prop-
erty to the beneficiaries of the
trust without aid of a conveyance
by the trustees, yet that decision
is consistently adhered to, namely,
that a devise of realty in trust to
be conveyed by the trustees to
beneficiaries named, is forbidden
by law. See Estate of Sanford, 136
Cal. 97, 68 Pac. 494; Estate of
Pichoir, 139 Cal. 682, 73 Pac. 606;
McCurdy v. Otto, 140 CaJ. 48, 73
Pac. 748; Hofsas v. Cummlngs, 141
Cal. 525,. 75 Pac. 110; Estate of
Dixon, 143 Cal. 511, 77 Pac. 412;
Sacramento Bank v. Montgomery,
146 Cal. 745, 81 Pac. 138; Camp-
bell-Kawannanakoa v. Campbell,
152 Cal. 201, 204, 92 Pac. 184;
Estate of Heberle, 153 Cal. 275,
SPENDTHRIFT TRUSTS.
1555
§ 1081. Voluntary and Involuntary Assignments Distinguished.
A distinction is drawn by some authorities between
voluntarily taking the benefit of insolvent acts, and being
forced into bankruptcy by the action of creditors.^ ^ In
the leading English case of Eochford v. Hackman,^* a
bequest of personal estate was made in trust for one for
life, with a gift over if he should in any manner sell,
assign, transfer, encumber, or otherwise dispose of or
anticipate the same, or any part thereof. The legatee
being in prison for debt took the benefit of the insolvent
act,^" and it was held that the limitation over thereupon
took effect, for that taking the benefit of the act was a
voluntary alienation on the part of the legatee. There is
said to be in such cases a sound distinction between vol-
276, 95 Pac. 41; Estate of Spreck-
els, 162 Cal. 559, 568, 123 Pac. 371;
Estate of Willson, 171 Cal. 449,
452, 153 Pac. 927.
A trust created by will to re-
ceive the rents and profits of land
until one of the beneficiaries
named shall attain the age of
twenty-five years, and to apply the
net income of the same "to such
an extent and at such time or
times as in their judgment may be
proper," to and for the use of the
beneficiaries named, is void, be-
cause not imperative, but merely
discretionary as to the amount of
the income to be so applied. — Es-
tate of Sanford, 136 Cal. 97, 68
Pac. 494.
A devise by a deceased testator
to trustees in trust to receive the
income of his real and personal
property, and to dispose of the
same for the support of a grand-
son until he shall reach the age
of thirty years, and then to trans-
fer the property to him, is void
as to the real estate; and where
it is apparent that the testator
would not have devised a small
amount of personal property in
trust if he had known that the
devise of the realty was void, the
whole trust scheme must fail, and
the property was properly dis-
tributed to the grandson as the
sole heir at law of the decedent. —
Estate of Dixon, 143 Cal. 511, 77
Pac. 412.
18 Shee V. Hale, 13 Ves. Jun.
404; Brandon v. Aston, 2 You. &
C. Ch. 24; Churchill v. Marks, 1
Coll. C. C. 441; Lloyd v. Lloyd,
L. R. 2 Eq. 722; In re Amherst's
Trusts, L. R. 13 Eq. 464.
19 9 Hare 475.
20 1 and 2 Vict., ch. 110.
1556 COMMENTARIES ON THE LAW OF WILLS.
untary alienation and compulsory. "It can not, I think,
be said that a man has alienated when the alienation is
made by the act of the law, and not by his own act; and
if he has not alienated there is no breach of the condi-
tion, and the life estate is not determined. "^^ But the in-
tent of the testator should control, and the decision would
differ if the expressed intent is that the donee shall for-
feit all interest in the property should there be any
alienation either by reason of his own actions or by
operation of law. Thus, if the condition be against any
alienation which he may "do or suffer, "-^ or "do or
permit"^* to be done, it includes involuntary or com-
pulsory acts.
§ 1082. Inalienability of Property and Non-Liability for Debt
Secured Through Spendthrift Trusts.
The general rule is that no devise in fee simple of prop-
erty can be subjected to a condition or pro^dsion that the
property shall be exempt from all liability for the debts
of the beneficiary.^* If the property given one be either
absolutely or for life, the donor can not take away the
incidents of the estate granted.^^ And a devise that the
property shall not be subject or liable to conveyance or
attachment is void as contrary to law and repugnant to
21 Rochford V. Hackman, 9 Hare 23 Ex parte Eyston, 7 Ch. Dlv.
475, 484. See, also. Rex v. Robin- 145.
son, Wightw. 386 ; Dommett v. 24 In re Machu, L. R. 21 Ch. Dlv.
Bedford, 6 Term Rep. 684; Doe v. 838, 842; Nlchol v. Levy, 72 XJ. S.
Carter, 8 Term Rep. 57. This dis- 433, 18 L. Ed. 596; McCleary v.
tlnctlon has been denied in a later Ellis, 54 Iowa 311, 37 Am. Rep.
case. — Pearson v. Dolman, L. R. 205, 6 N. W. 571; Sparhavsrk v.
3 Eq. 315. Cloon, 125 Mass. 263, 267; Camp v.
22 Roffey V. Bent, L. R. 3 Eq. Cleary, 76 Va. 140.
759. See, also, Montefiore v. Behr- 26 Brandon v. Robinson, 18 Ves.
ens, 35 Beav. 95. Jun. 429, 433.
SPENDTHRIFT TEUSTS.
1557
the estate devised.^® But what can not be done directly
may he accomplished by means of a trust, denominated
a "spendthrift trust. "-'^ The validity of such trusts is
recognized by the great weight of authority.^*
§ 1083. Devises in Trust to Defeat Claims of Creditors of Bene-
ficiaries.
Qualifications of a devise of land in fee, which are in-
tended for the benefit of another designated person,
may be valid, being regarded as constituting a trust in
26 Steib V. Whitehead, 111 m.
247, 251; McCormick Harvesting
Mach. Co. V. Gates, 75 Iowa 343,
39 N. W. 657; Stansbury v. Hub-
ner, 73 Md. 229, 25 Am. St. Rep.
584, 11 L. R. A. 204, 20 Atl. 904;
Blackstone Bank v. Davis, 21 Pick.
(38 Mass.) 42, 32 Am. Dec. 241;
Hahn v. Hutchinson, 159 Pa. St.
133, 28 Atl. 167; Ehrisman v.
Sener, 162 Pa. St. 577, 29 Atl. 719.
An absolute equitable owner-
ship of the income of property is
subject to the claims of creditors.
— Sears v. Choate, 146 Mass. 395,
4 Am. St. Rep. 320, 15 N. E. 786.
27 Van Osdell v. Champion, 89
Wis. 661, 46 Am. St. Rep. 864, 27
L. R. A. 773, 62 N. W. 539.
28 Shelton v. King, 229 U. S. 90,
57 L. Ed. 1086, 33 Sup. Ct. 686;
Mason v. Rhode Island Hospital
Trust Co., 78 Conn. 81, 3 Ann. Cas.
586, 61 Atl. 57; Olsen v. Younger-
man, 136 Iowa 404, 113 N. W. 938;
Wagner v. Wagner, 244 111. 101,
18 Ann. Cas. 490, 91 N. E. 66; Rob-
erts V. Stevens, 84 Me. 325, 17
L. R. A. 266, 24 Atl. 873; Maryland
Grange Agency v. Lee, 72 Md. 161,
19 Atl. 534; Lampert v. Haydel, 96
Mo. 439, 9 Am. St. Rep. 358, 2
L. R. A. 113, 9 S. W. 780; Harden-
burgh V. Blair, 30 N. J. Eq. 645;
Mattison v. Mattison, 53 Or. 254,
133 Am. St. Rep. 829, 18 Ann. Cas.
218, 100 Pac. 4; Siegwarth's Es-
tate, 226 Pa. 591, 134 Am. St. Rep.
1086, 75 Atl. 842; Jourolmon v.
Massengill, 86 Tenn. 81, 5 S. W.
719; Nichols v. Eaton, 91 U. S.
716, 23 L. Ed. 254.
"Why a parent, or one who loves
another," says Mr. Justice Miller,
"and wishes to use his own prop-
erty in securing the object of his
affection, as far as property can
do it, from the ills of life, the
vicissitudes of the future, and
even his own incapacity for self-
protection, should not be per-
mitted to do so, is not readily per-
ceived." — Nichols V. Eaton, 91
U. S. 716, 727, 23 L. Ed. 254.
"A man may have a son so fallen
into vicious habits as to be utterly
useless. That son may have a wife
and children whom he entirely
1558
COMMENTAKIES ON THE LAW OF WILLS.
favor of the person named.^" And restraints upon alien-
ation which might otherwise be void may be generally
rendered effective through the medium of a trust declar-
ing that the beneficiary shall have no interest in the fund
itself or power to assign it, and no power to anticipate
or assign the income therefrom, but that it shall be ap-
plied solely for his own support or that of his family.*"
But where a fund is so bequeathed in trust that the
neglects. The father may be both
able and willing to make ample
provision for them, and save them
from being a public burden; but
he can do nothing through the in-
strumentality of his son. But may
he not, through the intervention
of trustees, in whom he can con-
fide, place property in their hands
for the benefit of his son and
family, beyond his control?" —
WaitCi J., in Leavitt v. Beirne, 21
Conn. 1.
29 Tibbits V. Tibbits, 19 Ves.
Jun. 656; Pierce v. Win, 1 Vent.
321; Large's Case, 2 Leon. 82;
s. c, 3 Leon. 182; Doe v. Pearson,
6 East 173. See, however. Kosher
V. Kosher, L. R. 26 Ch. Div. 801,
stated supra, § 229.
30 Brooks V. Kaynolds, 59 Fed.
923, 936, 8 C. C. A. 370; Seymour
V. McAvoy, 121 Cal. 442, 41 L. R. A.
544, 53 Pac. 946; Easterly v.
Keney, 36 Conn. 18; Steib v.
Whitehead, 111 111. 247, 250; Smith
V. Towers, 69 Md. 77, 85, 9 Am.
St. Rep. 398, 14 Atl. 497, 15 Atl. 92;
Broadway Nat. Bank v. Adams,
133 Mass. 170, 172, 43 Am. Rep.
504.
In an English case in point, cer-
tain freeholds and leaseholds were '
devised to trustees, to the use of
one for life with remainder over '
to his children, but with the pro-
viso that the life estate should be
forfeited and the remainder at
once take effect should the life
tenant charge or encumber the
property. The life tenant charged
his estate, and although the mort-
gagee shortly thereafter, hearing
of the condition and before he had
claimed or taken any benefit under
the charge, repudiated the secur-
ity, obtaining another security in
its stead, it was held that the
estate was forfeited, and that, too,
notwithstanding there being no
remaindermen to take under the
gift over. — Hurst v. Hurst, L. R.
21 Ch. Div. 278; Weller v. Noff-
singer, 57 Neb. 455, 461, 77 N. W.
1075; Clute v. Bool, 8 Paige Ch.
(N. Y.) 83; Wallace v. Campbell.
53 Tex. 229, 234; Garland v. Gar-
land, 87 Va. 758, 763, 24 Am. St.
Rep. 682, 13 L. R. A. 212, 13 S. E.
478.
SPENDTHRIFT TRUSTS. 15G9
legatee may compel the payment of the entire corpus
into his own hands, no condition for the purpose of ex-
empting it from the claims of creditors can be upheld.*^
Where the legal title in fee to real property is vested
in a trustee, not under a mere passive trust with no
duty except to convey to the persons ultimately entitled,
but under an active trust requiring the continuance of
the legal title in the trustee in order to enable him to
perform his duties, the cestui que trust, prior to a con-
veyance or distribution of the property, has only an
equitable interest in the testator's estate and no title to
any specific part of the property.*^ In such a case, un-
less otherwise specially granted by statute, a judgment
creditor of the cestui que trust has no lien against the
interest of his debtor,*'
This matter is regulated by statute in some jurisdic-
tions. Under the Kentucky statute, although the will may
expressly exempt the testamentary gift from the claims
of creditors, nevertheless liability is imposed.'* But the
rule does not apply where the trustee has discretionary
power to withhold all payments and the beneficiary is di-
vested of all interest where the creditors attempt to
reach the fund.'® In Michigan, surplus income not re-
quired for the support of the beneficiary may be reached
31 Hallett V. Thompson, 5 Paige 34 Rudd v. Hagan (Rudd v. Van
Ch. (N. Y.) 583. der Hagan), 86 Ky. 159, 5 S. W.
32 Potter V. Couch, 141 U. S. 296, 416.
319, 35 L. Ed. 721, 11 Sup. Ct. 1005. ■
33 smith y. McCann, 24 How. ^^ ^'^"^"^ ^ ^^"^'^ ^- ^'^''^' ^0
(U. S.) 398, 16 L. Ed. 714; Morsell ^^- "0", 29 Am. St. Rep. 390,
V. First National Bank, 91 U. S. » >-. R. A. 599. 14 S. W. 423. See,
357, 23 L. Ed. 436; Potter V. Couch, also, Bull v. Kentucky National
141 V. S. 296, 319, 320, 35 L. Ed. Bank, 90 Ky. 452, 457, 12 L. R. A.
721, 11 Sup. Ct. 1005. 37, 14 S. W. 425.
1560 COMMENTARIES ON THE LAW OF WILLS.
by creditors.** Likewise, in New York, surplus income
not necessary to maintain the beneficiary and those le-
gally dependent upon him, is subject to the claim of cred-
itors f and the fact that the trustee has discretion as to
the payment of income does not change the rule.''*
§ 1084, As to Necessity of Provision Terminating Estate in
Event of Attachment : English Decisions.
The rule of the common law is that a man can not
attach to an absolute grant of property a condition that
it shall not be alienated, since such condition is repugnant
to the nature of the estate granted. By such a condi-
tion the grantor undertakes to deprive the grantee of
the right which is a legal incident of the property, and
inalienability is deemed to be against public policy.**
The reason of the rule, however, does not apply to trans-
fers of property in trust. "Wliere the trustee takes the
whole legal title to the property with power of aliena-
tion and the cestui que trust takes the whole legal title
to the income, both principal and income are alienable.
It has been held in England that this quality of alienabil-
ity of income, and consequent liability for debt, is so in-
separable from the estate that no provisions, however
expressed, which do not operate as a cesser or limitation
of the estate itself, can protect it from the debts of the
cestui que trust.*"
36 Spring V. Randall, 107 Mich. Bank v. Davis, 21 Pick. (38 Mass.)
103, 64 N. W. 1063. 42, 32 Am. Dec. 241.
37 Dittmar v. Gould, 60 App. Div. 4o Brandon v. Robinson, 18 Ves.
94, 97, 69 N. Y. Supp. 708. Jun. 429; Rochford v. Hackman,
38 Sherman v. Skuse, 45 App. 9 Hare 475; Green v. Spicer, 1
Div. 335, 60 N. Y. Supp. 1030; Russ. & M. 395; Snowdon v. Dales,
affirmed, 166 N. Y. 345, 59 N. E. 6 Sim. 524; Trappes v. Meredith,
990. L. R 9 Eq. 229; Rippon v. Norton,
30 Coke Litt. 223a; Blackstone 2 Beav. 63.
SPENDTHRIFT TRUSTS. 1561
The Englisli authorities are not harmonious. It has
been said that although a life interest may be expressed
to be given, it may be well determined by an apt limita-
tion over.*^ It has been held that a limitation over is not
essential to the termination of the life interest. In Eoch-
ford V. Hackman,''^ the vice-chancellor observed, "that I
do not understand the case of Dickson's Trust,*^ to have
decided that the life interest would not be well deter-
mined by a proviso for cesser, though not accompanied
by a limitation over, and that I do not think that any
such rule is to be collected from the cases. I think, in-
deed, it would be difficult to hold that any greater effect
can be due to the limitation over than to the express dec-
laration of the testator that the life interest should
cease."** But it is necessary that the testator clearly ex-
press the intention that the estate given shall cease upon
the happening of the specified event. If it is doubtful
whether the intent was to limit the estate or to restrict
41 Kearsley v. Woodcock, 3 Hare There may, however, he a "liml-
185; Rochford v. Hackman, 9 Hare tation to a man, not of his own
475, 480; Wilkinson v. Wilkinson, property, hut of the property of
3 Swanst. 515; Cooper v. Wyatt, another, until he shall attempt to
5 Madd. 482; Yarnold v. Moor- alienate or become bankrupt. It is
house, 1 Russ. & M. 364; Martin settled that such a limitation is
V. Margham, 14 Sim. 230; Brandon good with reference to a life
V. Aston, 2 You. & C. Ch. 24; estate; but there is no express
Churchill v. Marks, 1 Coll. C. C. authority, so far as my memory
441. serves me, in which the point has
42 9 Hare 475, 481.
43 1 Sim. N. S. 37,
been decided that a limitation in
fee to a man until he shall alienate
or become bankrupt is good. As
44 Rochford V. Hackman, 9 Hare far as the case before me is con-
475, 481, citing Dommett v. Bed- cerned, I do not think it will be
ford, 6 Term Rep. 684, distinguish- necessary for me to determine the
ing Brandon v. Robinson, 18 Ves. exact point." — In re Machu, L. R.
Jun. 429. 21 Ch. Div. 838i 842.
1562 COMMENTARIES ON THE LAW OP WILLS.
alienation, the latter is adopted since the restriction,
being repugnant to the estate granted, is declared void
and thus eliminated.*^
§ 1085, The Same Subject : American'Becisions.
The English rule has been adopted in some jurisdic-
tions in these United States,*® while in others it has been
rejected, it being held that the donor of property in trust
may provide that the income shall not be alienable nor
subject to be taken for debt.*^
The weight of authority in America is that no princi-
ple of public policy is violated to permit a testator to
give a beneficiary merely a qualified interest in the in-
come of a trust fund and thus provide against his im-
providence or misfortune. Creditors are not deceived
since by the exercise of proper diligence they can ascer-
tain the nature and extent of the estate. It is merely such
a danger as might arise from any false appearances.
The general American rule is that the author of a trust
may direct that the beneficiary shall receive only the
income of the property with the restriction that the in-
terest of the beneficiary shall not be assignable and shall
not be subject to the claims of his creditors; and that
this result may be reached by direct provisions so that
the creditors have not the right of attachment or execu-
45 Wilkinson v. Wilkinson, Coop. R. I. 205; Heath v. Bishop, 4 Rich.
259; Lear v. Leggett, 2 Sim. 479; Bq. (S. C.) 46, 55 Am. Dec. 654.
Whitfield V. Prickett, 2 Keen 608 ; 47 Nichols v. Eaton, 91 V. S. 716,
Graham v. Lee, 23 Beav. 388; 23 L. Ed. 254; Hyde v. Woods, 94
Cooper y. Wyatt, 5 Madd. 482. U. S. 523, 24 L. Ed. 264; Pope's
40 McKinster v. Smith, 27 Conn. Exrs. v. Elliott, 8 B. Mon. (47 Ky.)
628; Dick v. Pitchford, 21 N. C. 56; Rife v. Geyer, 59 Pa. St. 393,
480; Mehane v. Mebane, 36 N. C. 98 Am. Dec. 351; White's Exr. v.
403; Tillinghast v. Bradford, 5 White, 30 Vt. 338.
SPENDTHEIPT TEUSTS.
1563
tion instead of indirectly reacMng the same result, as
under the English decisions, by a provision for the de-
termination of the estate or a limitation over in the
event of insolvency or attachment, or by giving the trus-
tees the discretion as to paying the income. Although a
debtor's property may be subject to the payment of his
debts, this does not subject the property of a donor to the
same obligations.*®
48 Nichols V. Eaton, 91 U. S. 716,
725, 23 L. Ed. 254; Seymour v.
McAvoy, 121 Cal. 442, 443, 41
L. R. A. 544, 53 Pac. 946; Sher-
man V. Havens, 94 Kan. 654, Ann.
Cas. 1917B, 394, 146 Pac. 1030;
Steib V. Whitehead, 111 111. 247;
Roberts v. Stevens, 84 Me. 325,
331, 17 L. R. A. 266, 24 Atl. 873;
Maryland Grange Agency v. Lee,
72 Md. 161, 19 Atl. 534; Broadway
National Bank v. Adams, 133 Mass.
170, 43 Am. Rep. 504; Lampert v.
Haydel, 96 Mo. 439, 446, 9 Am. St.
Rep. 358, 2 L. R. A. 113, 9 S. W.
780; Overman's Appeal, 88 Pa. St
276, 284; Moore's Estate, 198 Pa.
St. 611, 48 Atl. 884; Jourolmon v.
Messengill, 86 Tenn. 81, 100,
5 S. W. 719; Wallace v. Campbell,
53 Tex. 229 ; Wales' Admr. v. Bow-
dish's Exr., 61 Vt. 23, 4 L. R. A.
819, 17 Atl. 1000; Garland v. Gar-
land, 87 Va. 758, 24 Am. St. Rep.
682, 13 L. R. A. 212, 13 S. E. 478.
Under a statute providing for
the subjection of beneficial inter-
ests to the payment of the bene-
ficiary's debts, if a fund Is devised
to trustees with directions to pay
the Income to testator's son dur-
, Ing his life, free from the claims
of creditors, and with further di-
rections that a court of last resort
shall at any time determine that
the income is liable to be sub-
jected to the payment of the son's
debts, then the trustees shall pay
it to the son's wife for her sep-
arate use, income which accrues
prior to a decision by a court of
last resort authorizing the appli-
cation is applicable to the pay-
ment of the son's debts, but not
that which accrues after such de-
cision.— Bull V. Kentucky National
Bank, 90 Ky. 452, 12 L. R. A. 37,
14 S. W. 425.
Where a testator devises land
in trust "for the use and benefit
of my three sons, in equal shares,
so long as they all may live, with
power to use and enjoy equally
the rents. Issues and profits
thereof during their natural lives,"
adding, "my object In making the
foregoing disposition of my prop-
erty, and in attaching the limita-
tions aforesaid, is to secure to my
children a certain annual income
beyond the accident of fortune and
bad management on their part;
and with this end in view, to take
away from them the power of dls-
1564
COMMENTAEIES ON THE LAW OP WILLS.
§ 1086. Necessary Incidents of Spendthrift Trusts.
The creation of a spendthrift trust necessarily requires
that the legal title be vested in a trustee. This trust, how-
ever, must be an active one, not a mere passive trust such
as may be executed under the Statute of Uses. Further,
the benefit conferred on the ceshii que trust must be lim-
ited to income; he must take no estate which he can
alienate or to which he has the right of possession.*' If
the cestui que trust is given an absolute interest in the
property or the right to occupy the property and to re-
ceive the profits thereof, or if the gift to the beneficiary ,
is absolute except that it is conditional that it shall not
be subject to his debts, no spendthrift trust is created.^*
, posing of the same, or of creating
any lien thereon, or of making the
same liable in any way for their
debts," such limitation on the dis-
position of the income is valid,
and not void as being in restraint
of alienation. — Lampert v. Haydel,
96 Mo. 439, 9 Am. St. Rep. 358,
2 L. R. A. 113, 9 S. W. 780.
49 Lear v. Leggett, 2 Sim. 479 ;
Broadway National Bank v.
Adams, 133 Mass. 170, 43 Am. Rep.
504; Kingman v. Winchell, (Mo.)
20 S. W. 296; Howard v. Howard,
(Mo.) 184 S. W. 994; Kessner v.
Phillips, 189 Mo. 515, 524, 107 Am.
St. Rep. 368, 3 Ann. Cas. 1005, 88
S. W. 66; Upham v. Varney, 15
N. H. 462; Ehrisman v. Sener, 162
Pa. St. 577, 29 Atl. 719.
50 Potter V. Merrill, 143 Mass.
190, 9 N. E. 572; Maynard v.
Cleaves, 149 Mass. 307, 21 N. B.
376; Smeltzer v. Goslee, 172 Pa.
St. 298, 34 Atl. 44; Young v. Eas-
ley, 94 Va. 193, 26 S. E. 401.
A deed which conveys an abso-
lute estate in fee simple to the
grantee and gives him the right
of possession and of managing
and controlling the property and
of receiving the whole income
thereof without let or hindrance
and of the unlimited enjoyment
of the same, and neither appoints
a trustee nor creates a trust es-
tate, falls short of the require-
ments of the rule as to the crea-
tion of spendthrift trusts, although
the conditions of the deed are that
the property shall not be liable
for any of the debts of the grantee
who shall have no power to sell,
encumber, or dispose of said prop-
erty during that period except by
last will and testament. — Kessner
V. Phillips, 1S9 Mo. 515, 107 Am^
SPENDTHEIFT TRUSTS. 1565
"Where tlie language of a bequest of income for life is
silent on the subject, it must be held that the life ten-
ant has a power- of assignment, for to hold otherwise
Avould be importing words into the will and imputing to
the testator an intention which he has not expressed.
Such income therefore is subject to the rights of cred-
itors.®*
In order to create a spendthrift trust it is necessary
that the cestui que trust be restricted of the power of
alienation and that the property be not liable for his
debts. The provisions of the will properly construed
must meet these requirements.^^ A provision that all leg-
acies and bequests are to be paid in person to those en-
titled to receive them and in no way to be subject to at-
tachment for any debt or other obligation whatsoever,
nor subject to any order of any kind, creates an effective
spendthrift tru^t with complete immunity from attach-
ment as to all legacies and bequests to which it is entitled
to apply.^*
St Rep. 368, 3 Ann. Cas. 1005, Seymour v. McAvoy, 121 Cal. 438,
88 S. W. 66. 41 L. R. A. 544, 53 Pac. 946; Mason
A condition in an absolute de- v. Rhode Island Hospital Trust
vise of property tliat it shall never Co., 78 Conn. 81, 3 Ann. Cas. 586,
he suhject to any liability, attach- 61 Atl. 57; Lamport v. Haydel, 96
ment, judgment, or execution Mo. 439, 9 Am. St. Rep. 358, 2
against the devisee is void. — ^Van L. R. A. 113, 9 S. W. 780; Lindsey
Osdell V. Champion, 89 Wis. 661, v. Rose, (Tex. Civ.) 175 S. W. 829;
46 Am. St. Rep. 864, 27 L. R. A. Day v. Slaughter (Garland v. Gar-
773, 62 N. W. 539. land), 87 Va. 758, 24 Am. St. Rep.
61 Baker v. Keiser, 75 Md. 332, 682, 13 L. R. A. 212, 13 S. E. 478.
339, 23 Atl. 735; Sherman v. 53 Plitt v. Yakel, 129 Md. 464,
Havens, 94 Kan. 654, Ann. Cas. 99 Atl. 670.
1917B, 394, 146 Pac. 1030. A will directing trustees to pay
52 Sanger v. Rovello, 173 Fed. the income into his daughter's
1022, 97 C. C. A. 669; Nichols v. own hands and not upon any writ-
Eaton, 91 TJ. S. 716, 23 L. Ed. 254; ten or verbal order, assignment or
1566
COMMENTARIES ON THE LAW OF WILLS.
§ 1087. Language SuflBcient to Create a Spendthrift Trust
It is not necessary tliat the trust specifically provide
that the fund be not liable for the debts of the benefi-
ciary in order to constitute a valid spendthrift trust.^*
If the testator 's intention is to create a spendthrift trust,
the court will uphold it without inquiring whether the
beneficiary is in fact a spendthrift;"^ but the intention
to create a spendthrift trust must clearly appear from
the language of the will.'^" It need not be directly ex-
transfer, creates a spendthrift
trust. — ^Anderson v. Williams, 262
111. 308, Ann. Cas. 1915B, 720, 104
N. E. 659.
"It is my will that every pay-
ment of income or principal here-
inbefore directed or devised to be
made shall be made personally to
the persons to whom they are de-
vised or upon their order or re-
ceipt in writing, in every case free
from the interference or control
of creditors of such persons, and
never by way of anticipation, or
assignment," created a valid
spendthrift trust. — Boston Safe
Deposit & Trust Co. v. Collier, 222
Mass. 390, 111 N. E. 163.
54 Wallace v. Foxwell, 250 111.
616, 50 L. R. A. (N. S.) 632, 95
N. E. 985; Hoffman v. Beltzhoover,
71 W. Va. 72, 76 S. E. 968.
55 Wagner v. Wagner, 244 111.
101, 18 Ann. Cas. 490, 91 N. E. 66;
Anderson v. Williams, 262 111. 308,
Ann. Cas. 1915B, 720, 104 N. B.
659; O'Hare v. Johnston, 273 111.
458, 113 N. E. 127; Baker v. Brown,
146 Mass. 369, 15 N. E. 783.
50 Dieke v. Dieke, 182 111. App.
13; Sears v. Choate, 146 Mass. 395,
4 Am. St. Rep. 320, 15 N. E. 786.
In Maryland, in Baker v. Keiser,
75 Md. 332, 23 Atl. 735, the court
says:
"Without importing words into
that will which are not there, and
imputing an intention to the tes-
tator of which he has given no
intimation by any verbal expres-
sion, we can not say that the in-
come was not and is not assign-
able by the life tenant; and if it
Is, there was error in holding it
to be beyond the reach of cred-
itors. Any other construction of
this will and ruling in this case
would be in effect saying that all
life estates of like character, given
in trust, are incapable of being
alienated. This court went as far
as they could in Smith v. Towers,
69 Md. 77, 9 Am. St. Rep. 398, 14
Atl. 497, 15 Atl. 92, to effect the
intention of the testator which
was so expressly declared; but
proper adherence to the policy of
the law in the state will not allow
the extension of the doctrine of
the Towers case beyond the lim-
SPENDTHRIFT TRUSTS.
1567
pressed, but may be implied from the general intention
of the testator, in the light of all provisions and circum-
stances."'' Where, however, there is nothing in the will
to indicate a restraint on alienation and no discretion
given the trustee as to the payment of income or prin-
cipal, an expression of doubt by the testator as to the
cestui que trust settling down to business or as to
whether he would be able to take care of himself, or simi-
lar expressions, do not indicate an inteMion to create a
spendthrift trust, and should the testator appoint such
beneficiary as one of his executors, the idea of a spend-
thrift trust would be further removed.^®
It is not necessary that the cestui que trust be de-
nominated in the will as a spendthrift or that the tes-
itatlons of that decision, nor to
a case not falling clearly within
Its reasons and reasoning; and
this case does not."
On the other band, it has been
held that a widow's right of sup-
port out of the income does not
give her such an interest in the
income as to render it liable to the
claims of creditors. — Slattery v.
Wason, 151 Mass. 266, 21 Am. St.
Rep. 448, 7 L. R. A. 393, 23 N. E.
843.
Where a will created a trust for
the benefit of the testator's son,
directing the trustee to pay over
the income at stated intervals to
the cestui que trust, or to whom-
soever he in writing might desig-
nate. It was held not to create a
spendthrift trust, because the
cestui que trust had the right of
control of the Income while in the
hands of the trustee. — Decker v.
Poor Directors, 120 Pa. St. 272, 13
Atl. 925.
A testamentary gift as follows:
"I deposit in the hands of my ex-
ecutors, for the benefit of my
daughter, F. C. Y., during her nat-
ural life," certain named property,
"to be paid to her for her support,"
held not to create a spendthrift
trust, the language showing only
the motive of the gift. — Young v.
Easley, 94 Va. 193, 26 S. E. 401.
57 Pope's Exrs. v. Elliott, 8
B. Mon. (47 Ky.) 56; Roberts v.
Stevens, 84 Me. 325, 17 L. R. A.
266, 24 Atl. 873; Baker v. Brown,
146 Mass. 369, 15 N. E. 783; Wales'
Admr. v. Bowdish's Exr., 61 Vt.
23, 4 L. R. A. 819, 17 Atl. 1000;
Hoffman v. Beltzhoover, 71 W. Va.
72, 76 S. E. 968.
58 O'Hare v. Johnston, 273 111.
458, 113 N. E. 127.
1568 COMMENTARIES ON THE LAW OF WILLS.
tator should give Ms reasons for creating such a trust;
neither is it necessary that the will shall in express terms
contain all the restrictions and qualifications incident to
such trust. But if, upon consideration of the whole will,
it appears that the testator intended to create a spend-
thrift trust, his intention will be given effect.®*
59 Wagner v. Wagner, 244 111. 985; Sherman v. Havens, 94 Kan.
101, 18 Ann. Cas. 490, 91 N. B. 66; 654, Ann. Cas. 1917B, 394, 146 Pac.
Wallace v. Foxwell, 250 111. 616, 1030; Baker v. Brown, 146 Mass.
50 L. R. A. (N. S.) 632, 95 N. E, 369, 15 N. E. 783.
CHAPTER XXXIX.
PBECATOKY AND SEOEET TRUSTS.
§ 1088. Precatory trusts defined.
§ 1089. Early rule of construction as to precatory words.
§ 10.90. Modern tendency to restrict the rule.
§ 1091. Essential elements of precatory trusts.
§ 1092. Effect of uncertainty of subject matter or objects of the
trust.
§ 1093. Points to be considered in construing the effect of preca-
tory words.
§ 1094. The same subject : Relationship of parties.
§ 1095. Precatory words are imperative in effecting primary
gifts.
§ 1096. Distinction where expressions are addressed to executors
and not beneficiary.
§ 1097. No particular form of language required to create a
precatory trust.
§ 1098. Intention of testator governs : No universal rule of con-
struction.
§ 1099. The same subject.
§ 1100. Where absolute gift is not diminished by subsequent
precatory words.
§ 1101. "Where words merely express motive for gift, no trust
is created.
§ 1102. "Words used must be intended to impose an imperative
obligation, or no trust is created.
§ 1103. ""WUl" a word of command.
§ 1104. Precatory words referring to dependents : "Where no
trust is created.
§ 1105. The same s-ubjeet : "Where trust is created.
§ 1106. Precatory expressions which have been construed as cre-
ating trusts.
n Com. on WUls— 45 (1569)
1570 COMMENTARIES ON THE LAW OP WILLS.
§ 1107. Precatory expressions which have been construed not to
create trusts.
§ 1108. Various precatory words considered.
§ 1109. The same subject.
§ 1110. Gift upon "understanding" or "promise."
§ 1111. Secret trusts, creation and effect of.
§ 1112. The same subject: Necessity of promise by beneficiary.
§ 1088. Precatory Trusts Defined.
The term "precatory trust" has been frequently used,
but seldom defined. The word "precatory" has refer-
ence to the manner of the creation of the trust, for the
effect of such a trust is the same as if created in express
terms. A precatory trust has been defined as one "cre-
ated by certain words which are more like words of en-
treaty and permission than those of command or cer-
tainty."^ Words of recommendation, entreaty or the like
are construed as imperative in character and equivalent
to a command. The desire regarding a power given
may be so expressed as to render its exercise imperative.
The courts wiU consider such a power as in the nature
of a trust imposing a duty which must be discharged by
the one to whom it is directed, and in case of default
the courts will enforce the obligation.^
1 Black's Law Dictionary, quoted 570, per Lord Eldon ; Cole v. Wade,
in Simpson V. Corder, 185 Mo. App. 16 Ves. Jun. 27, 42; Salusbury v.
398, 170 S. W. 357. See, also, Denton, 3 Kay & J. 529; Brown
Bohon V. Barrett's Exr., 79 Ky. v. Pocock, 6 Sim. 257; Croft v.
378, 381. Adam, 12 Sim. 639; In re Caplin's
Precatory trusts are distin- Will, 34 Law J. Ch. N. S. 578;
guished by the creative words Minors v. Battison, L. R. 1 App.
being words of entreaty. — Kep- Cas. 428; Collins v. Carlisle's
linger v. Kepllnger, (Ind.) 113 Heirs, 7 B. Mon. (46 Ky.) 14;
N. B. 292. Gibbs v. Marsh, 2 Mete. (43 Mass.)
2 Harding v. Glyn, 1 Atk. 469; 243; Chase v. Chase, 2 Allen (84
Brown v. Higgs, 8 Ves. Jun. 561, Mass.) 101; Smith v. Bowen, 35
PEECATORT AND SECKET TRUSTS. 1571
§ 1089. Early Rule of Construction as to Precatory Words.
Upon the theory that the "wish of a testator, like the
request of a sovereign, is equivalent to a command, ' ' the
English courts of chancery, at an early date, following
the rule of the civil law, were disposed, in construing
a will, to seize upon expressions of recommendation, en-
treaty, hope, wish, desire or expectancy, and impart
to such provision the prima facie effect of a command,,
discretion in the beneficiary being excluded.^ Thus where,
by will, property was given absolutely to one person and
the testator, by the terms of the will, requested, recom-
mended, expected, desired, or wished the person to whom
the gift was made to hold, use or dispose of the prop-
erty in whole or in part for the benefit of another, the
precatory words were given an imperative character,
and held to create a trust in favor of the one regarding
whom they were used, provided the subject matter and
the object of the trust were certain.* This doctrine or
rule of construction was early adopted in the United
States and has been uniformly recognized,^ except that
N. Y. 83; Withers v. Yeadon, 1 Schoales & L. 189; Bohon v. Bar-
Rich. Bq. (S. C.) 324. rett's Exr., 79 Ky. 378; Warner
Courts of equity may declare v. Bates, 98 Mass. 274; Burt v.
and enforce a trust, but they have Herron's Exrs., 66 Pa. 400, 402.
no authority whatever to create a 4 Massey v. Sherman, Ambl.
trust or to make a contract for the 520; Paul v. Compton, 8 Yes. Jun.
parties, where they did not see fit 375; Eade v. Eade, 5 Madd. 118;
to make the contract themselves; Gully v. Cregoe, 24 Beav. 185;
nor can we impose a restriction Shovelton v. Shovelton, 32 Beav.
which the parties themselves did 143; Eaton v. Watts, L. R. 4 Eq.
not see fit to place upon the trans- 151.
action. — Bliss v. Bliss, 20 Idaho s Creswell's Admr. v. Jones, 68
467, 119 Pac. 451, 457. Ala. 420; Bull v. Bull, 8 Conn. 47,
3 Bernard v. Minshull, Johns. 20 Am. Dec. 86; Lines v. Darden,
276; Shovelton v. Shovelton, 32 5 Fla. 51; Hunter v. Stembridge,
Beav. 143; Gary v. Gary, 2 12 Ga. 192; Major v. Herndon, 78
1572 COMMENTARIES ON THE LAW OP WILLS.
in Pennsylvania it has never been accepted as a rule of
the common law." The modem tendency, however, while
recognizing the rule, is to make its application more
strict.'^
§ 1090. Modem Tendency to Restrict the Rule.
To create a trust by the use of words of recommenda-
tion, desire, entreaty, or the like, it is necessary to give
such words a different meaning from their common ac-
ceptance. For this reason the modern tendency is to limit
the application of the doctrine of precatory trusts, and
words of desire, recommendation, and the like, will be
given their ordinary significance and will not be held to
create a trust unless, from the terms and dispositions of
the will and the circumstances relevant to proper con-
struction, it clearly appears that such expressions were
used in an imperative sense, and that the testator in-
tended to create a trust.^ However, in New Jersey it has
Ky. 123; Lucas v. Lockhart, 10 Ch. Div. 394; Gregory v. Edmond-
Smedes & M. (Miss.) 466, 48 Am. son, L. R. 39 Ch. Div. 253; Mus-
Dec. 766; Noe v. Kern, 93 Mo. 367, sorie Bank v. Raynor, L. R. 7 App.
3 Am. St. Rep. 544, 6 S. W. 239; Cas. 321; Lambe v. Eames, L. R.
Erickson v. Wlllard, 1 N. H. 217; 10 Eq. 267; In re Oldfleld, (1904)
Eddy's Exr. V. Hartsliorne, 34 N. J. L. R. 1 Ch. Div. 549; Russell v.
Eq. 419 ; Carson v. Carson, 36 N. C. United States Trust Company, 127
329. Fed. 445; Burnes v. Burnes, 137
6 Matter of Pennock, 20 Pa. St. Fed. 781, 70 C. C. A. 357; Colton
268, 59 Am. Dec. 718; Bowlby v. v. Colton, 127 U. S. 300, 32 L. Ed.
Thunder, 105 Pa. St. 173; Presby- ■ 138, 8 Sup. Ct. 1164 (although held
terian Board etc. v. Culp, 151 Pa. to create a trust); Kauffman v.
St. 467, 25 Atl. 117; Boyle v. Boyle, Gries, 141 Cal. 295, 299, 74 Pac.
152 Pa. St. 108, 34 Am. St. Rep. 846; Cockrill v. Armstrong, 31 Ark.
«29, 25 Atl. 494. 580; Estate of Mitchell, 160 Cal.
7 See §1090. 618, 117 Pac. 774; Estate of Pur-
8 In re Hutchinson and Tenant, cell, 167 Cal. 176, 138 Pac. 704;
8 Ch. Div. 540; In re Adams and Cameron v. Ah Quong, (Cal.) 165
the Kensington Vestry, L. R. 27 Pac. 961; Gilbert v. Chapin, 19
PRECATORY AND SECRET TRUSTS. 1573
been said that the rule of construction adopted by the
English courts of chancery had been accepted in that
state for many years and that it was now too late to ques-
tion the doctrine.®
The whole doctrine of precatory trusts has been criti-
cised as being purely artificial, and as involving the
solecism of reading an imperative command into words
of mere recommendation accompanying an absolute de-
vise or bequest. The tendency of all modern decisions,
both English and American, is to avoid artificial canons
of construction and to have regard only to the intention
of the testator, as gathered from the whole will, in de-
termining whether or not such expressions shall create a
trust.!"
§ 1091. Essential Elements of Precatory Trusts.
In order to create a trust by the use of precatory ex-
pressions three things are essential: First, that by the
use of such expressions the testator intended to impose
an imperative duty upon the devisee and to create a
Conn. 342, 351; Mills v. Newberry. 163 N. C. 305, 79 S. E. 621; Carter
112 111. 123, 54 Am. Rep. 213, v. Strickland, 165 N. C. 69, Ann.
1 N. E. 156; Orth v. Orth, 145 Ind. cas. 1915D, 416, 80 S. E. 961.
184, 57 Am. St. Rep. 185, 32 L.R.A.
298, 42 N. E. 277, 44 N. E. 17;
Dresser v. Dresser, 46 Me. 48;
Pratt V. Trustees of Sheppard etc. " Pomeroy, Eq. Jur., 3d ed..
Hospital, 88 Md. 610, 42 A-tl. 51; §§1014, 1015; Lambe v. Eames,
Aldrich v. Aldrich, 172 Mass. 101, L. R. 10 Eq. Cas. 267; Burnes v.
51 N. E. 449; Matter of Copeland, Burnes, 137 Fed. 781, 70 C. C. A.
38 Misc. (N. Y.) 402, 77 N. Y. 357, affirming 132 Fed. 485; Foose
Supp. 931; Foose v. Whitmore, 82 v. Whitmore, 82 N. Y. 405, 37 Am.
N. Y. 405, 37 Am. Rep. 572; Post Rep. 572; Carter v. Strickland, 165
V. Moore, 181 N. Y. 15, 106 Am. St. N. C. 69, Ann. Cas. 1915D, 416,
Rep. 495, 2 Ann. Cas. 591, 73 N. E. 80 S. E. 961; In re Dewey's Estate,
482; Fellowes v. Durfey, Admx., 45 Utah 98, 143 Pac. 124, 126.
9 Deacon v. Cobson, 83 N. J. 122,
89 Atl. 1030.
1574 COMMENTARIES ON THE LAW OF WILLS.
trust; second, the subject matter of the trust must be cer-
tain, and third, the object of the trust must be certain.
It is only when these three essentials exist that a preca-
tory trust can be created.^^ If, however, the testator ac-
companies his expression of desire or request with other
words from which it may be deemed that he did not in-
tend them to be imperative, or that he intended the bene-
ficiary should have the power to fulfill the wish or re-
quest or decline to do so at his discretion, or if the
objects are such that they can not be ascertained with
sufficient certainty, or if the ones to be benefited are not
identified, no trust is created.*^
§ 1092. Effect of Uncertainty of Subject Matter or Objects of
the Trust.
Although the English courts of chancery rather arbi-
trarily construed a trust to exist from the use of preca-
tory words, they laid down the principle, still obtaining,
that both the subject matter and the objects of the trust
must be clearly pointed out.^* With the modern tendency
to limit the application of the doctrine of precatory
trusts, the courts will seize upon any uncertainty as to
the alleged cestui que trust or as to the property which
11 Knight V. Knight, 3 Beav. 148, 13 Pushman v. Filliter, 3 Ves.
172; Briggs v. Penny, 3 Macn. & Jun. 7; Cruwys v. Colman, 9
G. 546, 554; Burnes v. Burnes, 137 Ves. Jun. 319; Parsons v. Baker,
Fed. 781, 70 C. C. A. 357, affirming 18 Ves. Jun. 476; Bardswell v.
132 Fed. 485; Seymour v. Sanford, Bardswell, 9 Sim. 320; Fox v. Fox,
86 Conn. 516, 86 Atl. 7; Warner v. 27 Beav. 301; In re Williams, L. R.
Bates, 98 Mass. 274; Post v. (1897) 2 Ch. Dlv. 12; In re Bond,
Moore, 181 N. Y. 15, 106 Am. St. L. R. 4 Ch. Div. 238; Anderson v.
Rep. 495, 2 Ann. Cas. 591, 73 N. E. McCullough, 3 Head (40 Tenn.)
482. 614; Hill v. Page, (Tenn. Ch.) 36
12 Knight V. Knight, 3 Beav. 148, S. W. 735; Harrison v. Harrison's
172-174; Russell v. United States Admr., 2 Gratt. (Va.) 1, 44 Am.
Trust Co., 127 Fed. 445. Dec. 365.
PRECATORY AND SECRET TRUSTS.
1575
he is to receive, and construe such uncertainty as indi-
cating a lack of intention on the part of the testator to
create a trust.^* For where it remains uncertain what
persons the testator intended to benefit,^^ or where he
has left undefined the amount of property which is to be
appropriated to their use, as, for example, "the surplus"
unexpended on the death of the legatee, it is strong evi-
dence that compliance with his wishes was left to the dis-
cretion of the first legatee.^" And although the testator
may have intended to create a trust, yet uncertainty of
the subject matter or objects will render it ineffectual.^'^
Where a trust is rendered ineffectual by reason of
vagueness in the description of the objects and the sub-
14 Knight V. Knight, 3 Beav. 148,
affirmed, suh nom. Knight v.
Bough ton, 11 CI. & F. 513, 517;
Wynne v. Hawkln, 1 Bro. C. C.
179; In re Oldfield, L.. R. (1904)
1 Ch. 549; McDuffie v. Montgom-
ery, 128 Fed. 105; Pratt v. Trus-
tees of Sheppard etc. Hospital, 88
Md. 610, 42 Atl. 51; Williams v.
Baptist Church, 92 Md. 497, 54
L. R. A. 427, 48 Atl. 930; Schmuck-
er's Estate v. Reel, 61 Mo. 592;
Knox V. Knox, 59 Wis. 172, 48
Am. Rep. 487, 18 N. W. 155.
Where the language employed
was "I give, devise, and bequeath
my property of whatever kind to
I. C. H. to divide as seems to her
best, as I have told her my wishes
in the matter," it was held that
there was a manifest intention on
the part of the testatrix to create
a trust, but that it was too in-
definite and uncertain to be exe-
cuted. — Fitzslmmons v. Harmon,
108 Me. 456, 37 L. R. A. (N. S.)
400, 81 Atl. 667.
15 Morice v. Durham, 10 Vea.
Jun. 522, 536; Hood v. Oglander,
34 Law J. Ch. 528; Harlan v.
Trigg, 1 Bro. C. C. 142; Meredith
V. Heneage, 1 Sim. 542; Harper
V. Phelps, 21 Conn. 257, 259; Tol-
son V. Tolson, 10 Gill & J. (Md.)
159.
16 Knight V. Boughton, 11 Clark
& F. 513; Cowman v. Harrison, 10
Hare 234; Palmer v. Simmonds, 2
Dru. 221; Constable v. Bull, 3
De Gex & S. 411; Pennock's Es-
tate, 8 Harris (Pa.) 268, 59 Am.
Dec. 718; Smith v. Bell, Mart. &
Y. (8 Tenn.) 302, 17 Am. Dec. 798.
17 Pratt V. Trustees of Sheppard
etc. Hospital, 88 Md. 610, 42 Atl.
51; Schmucker's Estate v. Reel,
61 Mo. 592; Foster v. Willson, 68
N. H. 241, 73 Am. St. Rep. 581,
38 Atl. 1003.
1576 COMMENTARIES ON THE LAW OF WHiLS.
ject matter of the trust, yet the testator's intention to
create a trust has its effect. Where the imperative na-
ture of the precatory words does not admit of doubt, but
the trust is insufficiently defined to be carried into effect,
the devisee or legatee will not take beneficially, but will
hold the bare legal title mth a resulting trust to the tes-
tator's heirs or next of kin.*^ All beneficial interest in
the donee is defeated if it cleai'ly appears that the testa-
tor intended to create a trust, even though the trust
prove ineffectual.^® However, if the uncertainty is suffi-
cient to cause the court to determine that the testator
did not intend to create a trust, then the entire interest
in the property passes to the beneficiary.^"*
§ 1093. Points to Be Considered in Construing the Effect of
Precatory Words.
One apparent conflict among many decisions involving
the use of precatory words arises because of the failure
to distinguish the nature of the estate given an4 the man-
ner in which precatory expressions are coupled with the
bequest or devise.^^ Conditions repugnant to an estate
granted are void.^- Likewise general restraints upon
alienation are invalid.^' With precatory trusts an abso-
lute estate is granted, the expressions coupled with the
18 Wadley V. North, 3 Ves. Jun. G. 546; Schmucker's Estate v.
364; Briggs v. Penny, 3 Macn. & G. Reel, 61 Mo. 592.
546; Ingram v. Fraley, 29 Ga. 553; 20 Pratt v. Trustees of Sheppard
Pratt V. Trustees of Sheppard etc. etc. Hospital, 88 Md. 610, 42
Hospital, 88 Md. 610, 42 Atl. 51; -*■*'• ^1-
Nichols V. Allen, 130 Mass. 211, 39 " ^lay v. Wood, 153 N. Y. 134,
Am. Rep. 445; Schouler, Peti- ^' N. B. 274; Collister v. Fassltt.
.„. ,, .00 Tir „ 163 N. Y. 281, 79 Am. St. Rep. 586,
tioner, 134 Mass. 426; Wells v. ^^ ^ ^ ^^^
Williams, 136 Mass. 333. ^2 See § 1071.
19 Briggs V. Penny, 3 Macn. & 23 See §§ 931-934, 1072.
PKECATORT AND SECRET TRUSTS. 1577
gift being such as to impose a trust and an imperative
obligation upon the donee to fulfill the desires expressed
by the testator. The border line between imposing a trust
upon an absolute gift by the use of precatory expressions
and the cutting down of a fee or an absolute interest
given by the use of precatory words, is sometimes hard
to discern. Property may be given absolutely with an ex-
pression of hope, desire, request, or the like that the bene-
ficiary will make some provision for another out of the
property given.^* The precatory expressions may be di-
rectly coupled with the bequest or devise or they may be
inserted in a subsequent paragraph, connected with the
gift only by reference. Again, the words of the gift and
the precatory terms may stand alone in the will, Avith no
other expressions which shed any light upon the tes-
tator's intention; or the gift and the precatory words
may be accompanied by other expressions from which it
may be inferred that the testator did not intend the preca-
tory words to be in the nature of a command, or such
other expressions may make the subject matter of the
gift uncertain.^^
Further, words of reconunendation and the like di-
rected to the executor may have the effect of a command,
whereas, if addressed to the beneficiary, they will be held
precatory only.^®
§ 1094. Tbe Same Subject: Relationship of Parties.
In considering the effect of precatory expressions, the
relationship which the legatee or devisee bears to the tes-
tator must be considered; likewise whether or not there
is a moral duty imposed upon the testator to make pro-
24 Post V. Moore, 181 N. Y. 15, 2B Burnes v. Burnes, 137 Fed.
106 Am. St. Rep. 495, 2 Ann. Cas. 781, 70 C. C. A. 357.
591, 73 N. E. 482. 26 See § 1096.
1578 COMMENTABIES ON THE LAW OP WILLS.
vision for the one regarding whom the precatory expres-
sions are used. Terms of expectancy, recommendation,
and the like, in a testamentary gift from a husband to his
wife or from a wife to her husband, would naturally be
expressed in language less forceful than if addressed to
strangers.^''^ And if there rests upon the testator a moral
duty to provide for the one in whose favor it is sought
to raise a trust because of precatory words, a trust may
be held to be created in such a case while it might be
denied if the benefit would go to a stranger.^*
Precatory expressions themselves may differ, as a gift
to one "in order that he may support himself and fam-
ily, ' ' may show merely the motive for the gift ; whereas,
a gift by a husband to his wife with a "request that she
use the property for the maintenance and education" of
their children, would indicate an imperative obligation
imposed on the wife.-® In the first instance, there is no
direction to the beneficiary, his use of the property being
discretionary; in the second, an express request or im-
plied direction is coupled with the gift. And a gift to one,
enjoining him to make provision for another, such as a
child, whom the beneficiary is under no obligation to sup-
port, and which child is living with its parent who is
required to provide for its maintenance, the beneficiary
being under no obligation to indemnify the parent for
any sums expended for the child's support, would not cre-
ate a trust.®" Also, it should be considered whether the
27 Mitchell V. Mitchell, 143 Ind. 28 Warner v. Bates, 98 Mass.
113, 42 N. B. 465; Warner V. Bates, 274; Foster v. Willson, 68 N. H.
98 Mass. 274; Murphy v. Carlin, 241, 73 Am. St. Rep. &81, 38 Atl.
113 Mo. 112, 35 Am. St. Rep. 699, 1003.
20 S. W. 786; Knox v. Knox, 59 29 See §§1101, 1104.
Wis. 172, 48 Am. Rep. 487, 18 N. W. 30 Lawrence v. Cook, 104 N. Y.
155. 632, 11 N. E. 144.
PRECATORY AND SECRET TRUSTS. 1579
beneficiary was the primary object of the testator's
bounty, or merely a medium through which to pass a
benefit to another.^^
§ 1095. Precatory Words Are Imperative in Effecting Primary
Gifts.
The question of the character of the words or terms
used, whether precatory or imperative, is not material
in considering the primary gift. Thus a devise to one
for life, with the "desire" that the remainder shall pass
to another, is as effective as if the word "devise" had
been used. In such a case the remainderman takes a pri-
mary gift.*^ But where the primary gift is followed by an
apparent attempt to impress upon the estate given a use
for the benefit of another, the character of the expressions
employed, whether mandatory or advisory, becomes im-
portant.**
Words of desire, or other similar expressions, when
used for the purpose of declaring the manner of the dis-
position of the testator's property after his death, and
not as a request or prayer directed to a devisee or leg-
atee concerning the devise or legacy given him, are words
commanding disposition and are testamentary in char-
si Carter v. Strickland, 165 the above estate to go to use of
N. C. 69, Ann. Cas. 1915D, 416, 80 his children." The word "desire,"
S. E. 961. t^is employed by the testator, is
32 Taylor v. Stephens, 165 Ind. ^°^ "^^rely precatory. It is as
200, 202, 74 N. E. 980.
The testator gave his Mount
mandatory as if the words "I will,"
or "I order and direct," had been
used. — Pox's Appeal, 99 Pa. St.
Airy farm, etc., to plaintiff "for ggg g^^^ ^j^^^ Qy^^gj. ^ ^^^u^ ^g^
his support," thereby Indicating pg^ g^ 443^ gl Am. St. Rep. 890,
that a life estate was intended; 20 Atl. 624.
and then declares: "If he should .'is Keplinger v. Keplinger, (Ind.)
be spared to have family, I desire 113 N. E. 293.
1580 COMMENTARIES ON THE LAW OP WILLS.
acter. They are not precatory, but of positive direction
and binding upon the court in the distribution of the
estate.**
§ 1096. Distinction Where Expressions Are Addressed to Ex-
ecutors and Not Beneficiary.
A trust may or may not be created according to whether
or not the precatory expressions are directed to the ex-
ecutor or to the beneficiary. Expressions of desire, rec-
ommendation, hope, or the like, addressed to the benefi-
ciary, may be regarded as being merely words of request
and not of command, while if addressed to the executor
of the testator's will, the testator having the right to com-
mand the maimer of the disposition of his property, such
expressions will be considered and construed as com-
mands,, although clothed merely in the language of civil-
ity, and the courts will enforce them as a duty imposed
upon the executor.**
34 Weber v. Bryant, 161 Mass. 300, 32 L. Ed. 138, 8 Sup. Ct. 1164;
403, 37 N. E. 203; Barney v. Hayes, Estate of Marti, 132 Cal. 666, 61
11 Mont. 571, 28 Am. St. Rep. 495, Pac. 964, 64 Pac. 1071; Pemtroke
29 Pac. 282; Wood v. Camden Safe Academy Trustees v. Epsom
Deposit etc. Co., 44 N. J. Bq. 460, School Dist., 75 N. H. 408, 37
14 Atl. 885; Stewart v. Stewart, L. R. A. (N. S.) 646, 75 Atl. 100;
61 N. J. Bq. 25, 47 Atl. 633; Mee- Seefried v. Clarke, 113 Va. 365,
han V. Brennen, 16 App. Div. 74 S. E. 204.
(N. Y.) 395, 45 N. Y. Supp. 57; In Lines v. Darden, 5 Fla. 51,
Phillips V. Phillips, 112 N. Y. 197, the court says: "The words 'will
205, 8 Am. St. Rep. 737, 19 N. E. and desire' when addressed to an
411; Brasher V. Marsh, 15 Ohio St. executor, are, as contended, im-
103, 111; Appeal of Philadelphia, peratlve, and it is his duty to
112 Pa. St. 470, 474, 4 Atl. 4; carry out the wishes of his tes-
Oyster v. KnuU, 137 Pa. St. 448, tator, if possible, and when con-
21 Am. St. Rep. 890, 20 Atl. 624; sistent with the will. The words
McMurry v. Stanley, 69 Tex. 227, are not necessarily addressed to
231, 6 S. W. 412. the executor. The object to be
88 Colton V. Colton, 127 U. S. performed will usually afford a
PBECATOET AND SECRET TRUSTS. 1581
§ 1097. No Particular Form of Language Required to Create a
Precatory Trust.
Precatory words may be sufficient to create a trust,^®
but they must be inserted in the will ; an oral expression
to the devisee of desire or the like is insufficient to raise
a trust.^^
In considering the provisions of a mil, precatory words
are given their ordinary and usual significance unless
from the terms and dispositions made, and the surround-
ing circumstances, they can be considered as impera-
tive.** No particular form of language is necessary to
create the trust; it may be raised by the intention of
the testator discovered by the aid of judicial construction,
as well as by words taken in their literal sense,^'' and it
may be created by precatory words clearly expressive of
the testator's desire.*" But the testator's intention, as
construed, must have been to impose an imperative duty
on the devisee,"*^ and the terms of the will must point out
with sufficient clearness and certainty both the subject
matter and the object of the trust.*^
safe guide in determining to wliom 41 Hughes v. Fitzgerald, 78 Conn,
they are addressed." 4, 60 Atl. 694; In re Dewey's Es-
se Hays V. Harris, 73 W. Va. 17, tate, 45 Utah 98, 143 Pac. 124.
80 S. B. 827. See § 1102.
37 Hayes v. Hayes, 242 Mo. 155, Words which are precatory in
145 S. W. 1155. form may sometimes be regarded
.Ts Carter V. Strickland, 165 N. C. as mandatory in effect when it
69, Ann. Cas. 1915D, 416, 80 S. E. appears that they were intended
961. to be used In that sense. — Dexter
39 Noe V. Kern, 93 Mo. 367, 3 v. Evans, 63 Conn. 58, 38 Am. St,
Am. St. Rep. 544, 6 S. W. 239; Rep. 336, 27 Atl. 308.
Foster v. Willson, 68 N. H. 241, 42 Schmucker's Estate v. Reel,
73 Am. St. Rep. 581, 38 Atl. 1003; 61 Mo. 592, 596; Noe v. Kern, 93
Wolbert v. Beard, 128 Wis. 391, Mo. 367, 3 Am. St. Rep. 544, 6
107 N. W. 663. S. W. 239; Deacon v. Cobson, 83
4 0 Hays v. Harris, 73 W. Va. 17, N. J. Eq. 122, 89 Atl. 1029.
81) S. E. 828. See § 1092.
1582
COMMENTARIES ON THE LAW OF WILLS.
§1098. Intention of Testator Governs: No Universal Rule of
Construction.
It is impossible to lay down any definite statement of
the principles which will apply to all cases of precatory
trusts, and each must, in a measure, depend upon the pro-
visions of the will and the circumstances of the particular
«ase.*^ Thus the words "I desire," or similar expres-
sions, are to be construed as mandatory or as precatory
according to the intention of the testator.** This intent
Is determined not only from a consideration of the preca-
tory words, but is gathered from all the provisions of
the instrument.*^
43 Williams v. Williams, 1 Sim.
N. S. 358; Floyd v. Smith, 59 Fla.
485, 138 Am. St. Rep. 133, 21 Ann.
Cas. 318, 37 L. R. A. (N. S.) 651,
51 So. 537; Warner v. Bates, 98
Mass. 274, 276; Lemp v. Lemp, 264
Mo. 533, 175 S. W. 618.
In Williams v. Williams, 1 Sim.
N. S. 358, 369, it Is said: "The
point really to be decided in all
these cases is whether, looking at
the whole context of the will, the
testator has meant to impose an
obligation on his legatee (or devi-
see) to carry his express wishes
into eilect, or whether, having ex-
pressed his wishes, he has meant
to leave it to the legatee to act
on them or not, at his discretion."
It is further said that it is doubt-
ful "if there can exist any formula
for bringing to a direct test the
question whether words of request
or hope or recommendation are
or are not to be construed as
obligatory."
"One rule, which we think may
be said to be of universal appli-
cation, is to the effect that no
particular words are necessary to
create a trust, and that if from
all the language used by the tes-
tator in his will a trust is fairly
implied, the courts will enforce
the same." — In re Dewey's Estate,
45 Utah 98, 143 Pac. 126.
44 Estate of Pforr, 144 Cal. 121,
77 Pac. 825; Moseley v. Bolster,
201 Mass. 135, 143, 87 N. E. 606;
Stewart v. Stewart, 61 N. J. Eq. 25,
47 Atl. 633; Turrill v. Davenport,
173 App. Div. 543, 159 N. Y. Supp.
814; Appeal of City of Philadel-
phia, 112 Pa. St. 470, 4 Atl. 4.
The test of a creation of a preca-
tory trust is the intention of the
testator to impose an obligation on
his legatee to carry his request
into effect, or not. — In re Mc-
Veigh's Estate, 181 Mo. App. 566,
164 S. W. 673.
45 Eaton V. Watts, L. R. 4 Eq.
151; Sale v. Thornberry, 86 Ky.
266, 5 S. W. 468; Negro Chase v.
PKECATOBY AND SECEET TRUSTS. 1583
The subject matter and the objects referred to by the
precatory expressions being certain, the intention of the
testator is the controlling factor. In order to create a
trust, his words of entreaty, expectancy and the like must
be intended as words of command. It may be sometimes
difficult to determine the intent, but the tendency is to
construe words as obligatory if thereby is furthered a re-
sult which accords with a moral duty on the part of
the beneficiary, and which it may be supposed the tes-
tator would require if he could control the actions of the
donee. But the question to be determined is whether the
testator intended to govern and control the actions of
the beneficiary, or whether he merely expressed his mo-
tive for making the gift or his idea of what he deemed
would be reasonable and proper for the beneficiary to do,
intending merely to advise him but not to deprive him of
his discretion.** In determining the question, should the
testator be under a moral obligation to provide for the
one regarding whom the precatory words were used, such
as an aged, infirm and dependent parent, the expressions
used will be construed as imperative, whereas the same
terms, with reference to strangers, would be considered
precatory only.*''
§ 1099. The Same Subject.
It will not be presumed that the testator intended as
imperative a request to his legatee or devisee which
Plummer, 17 Md. 165; Spooner v. 46 Colton v. Colton, 127 TJ. S.
Lovejoy, 108 Mass. 529, 533; Bacon 300, 32 L. Ed. 138, 8 Sup. Ct. 1164;
V. Ransom, 139 Mass. 117, 29 N. E. Warner v. Bates, 98 Mass. 274;
473; Biddle's Appeal, 80 Pa. 258; Post v. Moore, 181 N. Y. 15, 106
Brunson v. King, 2 Hill Eq. (S. C.) Am. St. Rep. 495, 2 Ann. Cas. 591,
483, 490; Van Amee v. Jackson, 73 N. E. 482.
35 Vt. 173, 177. *^ Warner v. Bates, 98 Mass.
1584 COMMENTARIES ON THE LAW OF WILLS.
is incapable of fulfillment. Precatory words will not be
held to create a trust which can not be executed.** And
the rules of construction forbid that a trust be imposed
which would nullify previous expressions in the will and
create a repugnancy between its different parts.**
But where the words of recommendation, request, wish,
expectation, and the like must necessarily be followed and
obeyed, they are to be regarded as words of command
or direction.®"
Where the testator declares in his will that he does
not intend to create a trust nor impose an imperative
. duty upon the beneficiary, but merely expresses a wish
which he leaves optional with the donee to fulfill, no trust
is created. For example, where the testator says : " It is
my desire that it may suit her pleasure, and if so, I re-
quest, without intending to create any trust therefor,"
there is no trust. "^
274; Foster v. Willson, 68 N. H. vised.— Pierce v. Pierce, 114 Me.
241, 73 Am. St Rep. 581, 38 Atl. 311, 96 Atl. 144.
1003. « Clay v. Wood, 153 N. Y. 134,
48 Pierce v. Pierce, 114 Me. 311, 47 N. E. 274.
96 Atl. 143. ^° Wolbert v. Beard, 128 Wis.
Precatory words In a will should ^^^' ^"'^ N" ^- ^^^■
not be accorded such force and ^' Anders' Exr. v. Tasco, 89 Ky.
meaning as will deprive the donee 1^' " «. W. 818. To the same
of his beneficial use and full right
of disposal of a gift otherwise ab-
solute, unless the court can gather
effect: Estate of Purcell, 167 Cal.
176, 138 Pac. 704.
A request to use a fund for a
certain purpose Imposes no trust,
from the rest of the will and the .^^^^^ ^j^^ testator states that the
attending circumstances an Inten- legatee is under no legal respon
tion of the testator which is recon- gibiiity to any one or to any court
cilable with the idea of a trust to do as requested. — Bacon v. Ran-
imposed upon the legal estate de- som, 139 Mass. 117, 29 N. E. 473.
PRECATOET AND SECRET TRUSTS.
1585
§1100. Where Absolute Gift Is Not Diminished by Subse-
quent Precatory Words.
Some of the earlier English cases followed by some
decisions in this country, impose a trust where property
is given in absolute terms if followed by precatory expres-
sions apparently limiting the interest given. The later
cases disprove this rule.°^ In this connection we must
distinguish between conditions or restrictions repugnant
to the estate granted and gifts where there is no condi-
tion or restriction, but the words used are merely those
of recommendation.^^ Where a devise is made in such
52 Post V. Moore, 181 N. Y. 15,
106 Am. St. Rep. 495, 2 Ann. Cas.
591, 73 N. E. 1100; Carter v.
Strickland, 165 N. C. 69, Ann. Cas.
1915D, 416, 80 S. E. 961.
"Where an estate In fee is de-
vised in one clause of a will, in
clear and decisive terms, it can
not be taken away or cut down
by raising a doubt upon a sub-
sequent clause, nor by inference
therefrom, nor by any subsequent
words that are not as clear and
decisive as the clause giving the
estate in fee." — Ross v. Ross, 135
Ind. 367, 35 N. E. 9.
In Hess v. Singler, 114 Mass. 56,
59, 60, there was a devise of the
residue of the estate to the son
of the testator, his heirs and as-
signs forever, and a further clause
in the will in these words: "I
hereby signify to my said son my
desire and hope that he will so
provide by will or otherwise that,
in case he shall die leaving no
lawful issue living, the property
which he will take under this will
II Com. on Wills — 46
shall go in equal shares" to cer-
tain persons therein named. Gray,
C. J., says: "In order to create
a trust, it must appear that the
words were intended by the tes-
tator to be imperative; and, when
property is given absolutely and
without restriction, a trust is not
to be lightly imposed upon mere
words of recommendation and con-
fidence."
As to liniiting devises in fee, see
§§ 931-934.
As to restraints upon alienation,
see §§ 1072-1077.
As to conditions repugnant to
the estate granted being void, see
§ 1071.
53 Orth V. Orth, 145 Ind. 184, 57
Am. St. Rep. 185, 32 L. R. A. 298,
42 N. E. 277, 44 N. E. 17.
In Good V. Fichthorn, 144 Pa. St.
287, 27 Am. St. Rep. 630, 22 Atl.
1032, the court says: "The true
test of the effect of language at
variance with other parts of the
devise is, whether the Intent is
to give a smaller estate than the
1586
COMMENTARIES ON THE LAW OP WILLS.
form as to convey an estate in fee simple, the use of
precatory words in a subsequent clause will not dimin-
ish the estate by creating a trust.^* For example, where
lands are devised to certain beneficiaries and it is there-
after recited that it is understood * ' that should any of my
near relatives become so reduced in circumstances as to
need assistance, then it is my wish that they assist such
relatives in such ways as they shall judge to be best,"
no trust is created.^®
meaning of the words of the gift
standing alone would import, or
to impose restraints upon the es-
tate given. The former is always
lawful and effective; the latter
rarely, if ever; the first because
the testator's intention is the gov-
erning consideration in the con-
struction and carrying out of a
will; the second, because even a
clear intention of the testator can
not be permitted to contravene the
settled rules of law by depriving
any estate of its essential legal
attributes."
54 Boyle V. Boyle, 152 Pa. St.
108, 34 Am. St. Rep. 629, 25 Atl.
494.
If a will purports to devise all
the testator's property to his
widow, to have and to hold to her
and her heirs and assigns forever,
but states that it is his will and-
desire that she shall pay the sum
of three hundred dollars a year to
his sister-in-law, Nellie Post, no
trust or power in trust is created
In her favor thereby. — Post v.
Moore, 181 N. Y. 15, 106 Am. St.
Rep. 495, 2 Ann. Cas. 591, 73 N. E.
1100.
55 Haight V. Royce, 274 111. 162,
113 N. E. 71.
A bequest to a wife by decisive
words, but accompanied with the
following: "To have, use and en-
joy the same as she may choose,
and to dispose of the same in such
manner as she may desire; yet
I request that If, at her decease;
any of the personal property shall
remain undisposed of, It be given
to the children of my son and the
children of my daughter," was
held to vest in the wife absolutely.
— FuUenwider v. Watson, 113 Ind.
18, 14 N. E. 571.
In the clause devising property
to the testator's widow It imposed
no restraint upon her full owner-
ship, but a subsequent clause re-
quested that at her death she
should divide the estate among
their daughters, share and share
alike, it was held that no trust
was created by the additional
words. — Hopkins v. Glunt, 111 Pa.
St. 287, 2 Atl. 183.
PRECATOET AND SECRET TRUSTS.
1587
Precatory words can not cut down or diminisli an es-
tate given absolutely in the foregoing portion of the
will.^^ Thus, where the testator devises the rents and in-
comes of his properties and moneys to his wife for life,
provided that at her demise the properties and moneys
should go to the testator's brother for the benefit of
himself and his family, the remainder over to the brother
is not diminished by the addition of the words "for the
benefit of himself and his family," inasmuch as they are
precatory only.*'' And where a husband devises prop-
erty to his wife in fee and in a subsequent clause re-
quests that at her death the property shall go to their
children, such request does not Limit the estate in fee in
the wife.*^
56 Snodgrass v. Brandenburg,
164 Ind. 59, 71 N. E. 137, 72
N. B. 1030; Holder v. Holder, 40
App. Div. (N. Y.) 255, 59 N. Y.
Supp. 204.
57 Holder v. Holder, 40 App. Div.
(N. Y.) 255, 59 N. Y. Supp. 204.
In Matter of Gardner, 140 N. Y.
122, 35 N. E. 439, the testator,
after vesting the absolute title of
his property in his wife, provided
that if any part of it should re-
main unexpended at her death, he
gave It to his son, his heirs and
assigns. Following this was the
expression of testator's expecta-
tion and desire that his wife
should not dispose of any of the
estate by will so that it would go
out of his "own family and blood
relations." It was held that the
words of expectation and desire
did not qualify the wife's absolute
estate; also, that if the words
could be construed as a power in
trust for the son, it was fully
executed.
58 Snodgrass v. Brandenburg,
164 Ind. 59, 71 N. E. 137, 72 N. E.
1030.
It is held that a devise of prop-
erty to be "held, used, and en-
joyed" by the devisee, "his heirs,
executors, administrators, and as-
signs forever, with the hope and
trust, however, that he will not
diminish the same to a greater
extent than may be necessary for
his comfortable support and main-
tenance, and that at his death the
same, or as much thereof as he
shall not have disposed of by de-
vise or sale, shall descend" to
specified individuals, conferred an
absolute fee upon the devisee, and
that no trust was created by the
words "with the hope and trust."
— Howard v. Carusi, 109 U. S. 725,
1588
COMMENTARIES ON THE LAW OF WILLS.
§1101. Where Words Merely Express Motive for Gift, No
Trust Is Created.
No trust will be implied merely from words indicating
the motive or reason of the testator for making the gift,
as, for instance, where a legacy is given in order tliat
the devisee may "support himself and his family," or
like expressions.^^
Wherever the prior disposition of property imports un-
controlled ownership, or where compliance with the rec-
ommendations of the testator rests absolutely in the
discretion of the beneficiary ng,med, equity will not con-
strue a trust from the language employed.*'" Thus, a be-
27 L. Ed. 1089, 3 Sup. Ct. 575. See,
also, Colton v. Colton, 21 Fed. 594.
In Foose v. Whltmore, 82 N. Y.
405, 37 Am. Rep. 572, the will
read: "I . . . give and be-
queath all my property, real and
personal, to my beloved wife,
Mary, only requesting her, at the
close of her life, to make such
disposition of the same among my
children and grandchildren as
shall seem to her good." It is
very clear that these are preca-
tory words. The testator gives
everything to his wife absolutely,
with a mere suggestion as to the
disposition she shall make of the
property at the close of her life.
The wife, vested with absolute
title and living many years, the
estate at her death might be
necessarily expended, or improvl-
dently wasted. The testator's
words evidently created no trust
or charge. — Collister v. Fassitt,
163 N. Y. 281, 79 Am. St. Rep. 586,
57 N. E. 490.
In Clarke v. Leupp, 88 N. Y. 228,
the testator gave all his property
to his wife, closing with the words,
"and do appoint my wife . . .
my true and lawful attorney and
sole executrix of this my will, to
take charge of my property after
my death, and retain or dispose
of the same for the benefit of her-
self and children above named."
It was held that the widow took
an absolute title, and that the suc-
ceeding words did not limit the
gift.
B9 Cresswell's Admr. v. Jones, 68
Ala. 420; Bryan v. Rowland, 98 111.
625; Giles v. Anslow, 128 111. 187,
196, 21 N. E. 225; Major v. Hern-
don, 78 Ky. 123; Knefler v. Shreve,
78 Ky. 198.
60 Randall v. Randall, 135 111.
398, 25 Am. St. Rep. 373, 25 N. E.
780.
See § 1104.
PEECATORT AND SECRET TRUSTS. 1589
quest to a testator 's widow ' ' during her lifetime, for the
support of herself and my children," does not create a
trust."^ In such a case the beneficiary takes an absolute
estate or interest in the property.*^
§ 1102. Words Used Must Be Intended to Impose an Impera-
tive Obligation, or No Trust Is Created.
One question to be determined is whether or not the
precatory expressions contained in the will were used in
an imperative sense, intended to impose an obligation on
the beneficiary to carry out the desires of the testator,
or whether the entire matter is one discretionary with the
donee. If he is to take the gift solely for his own benefit,
it being discretionary with him as to whether or not he
shall part with any of the property or use it for the
benefit of another mentioned in the wiU, no trust is cre-
ated. In order to make the donee a trustee, it must ap-
pear that the testator intended by the expressions used
to impose upon him an imperative obligation."*
61 Billar v. Loundes, 2 Demarest Estate of Mitchell, 160 Cal. 618,
(N. Y.) 590; Wood v. Seward, 4 117 Pac. 774; Estate of Purcell,
Redf. (N. Y.) 271; Foose v. Whit- 167 Cal. 176, 138 Pac. 704; Estate
more, 82 N. Y. 405, 37 Am. Rep. of Browne, (Cal.) 165 Pac. 960;
572; Clarke v. Leupp, 88 N. Y. 228. Hughes v. Fitzgerald, 78 Conn. 4,
62 Succession of Hutchinson, 112 60 Atl. 694 ; Haight v. Royce, 274
La. Ann. 656, 36 So. 639; Lloyd v. 111. 162, 113 N. B. 71; Pierce v.
Lloyd, 173 Mass. 97, 53 N. B. 148; Pierce, 114 Me. 311, 96 Atl. 143;
Pratt V. Miller, 23 Neb. 496, 501, OUifCe v. Wells, 130 Mass. 221;
37 N. W. 263. Hillsdale College Trustees v.
63 Williams v. Williams, 1 Sim. Wood, 145 Mich. 257, 108 N. W.
N. S. 358; Howarth v. Dewell, 6 675; State v. McVeigh, 181 Mo.
Jur. N. S. 1360; In re Hutchinson App. 566, 164 S. W. 673; Hunt v.
and Tenant, L. R. 8 Ch. Div. 540; Hunt, 11 Nev..442; Foose v. Whit-
Burnes v. Burnes, 137 Fed. 781, 70 more, 82 N. Y. 405, 37 Am. Rep.
C. C. A. 357; CockriU t. Arm- 572; Post v. Moore, 181 N. Y. 15,
strong, 31 Ark. 580; Estate of 306 Am. St. Rep. 495, 2 Ann. Gas.
Pforr, 144 Cal. 121, 77 Pac. 825; 591, 73 N. E. 482; Biddle's Appeal,
1590
COMMENTARIES ON THE LAW OF WILLS.
While discretionary expressions, which leave the ap-
plication of the subject of the devise entirely to the
caprice of the donee, will prevent a trust from attach-
ing,®* a mere discretion in regard to the method of the
application of the subject matter has been held not in-
consistent with a trust.®^ Thus, the language employed
80 Pa. St. 258; Van Amee v. Jack-
son, 35 Vt. 173; Hays v. Harris,
73 W. Va. 17, 80 S. E. 827.
A devise of property to a son
"save and except I desire that he
pay out of said property to C. McG.
the sum of $200, and to B. J. the
sum of $200," did not create a
trust. — Cameron v. Ah Quong,
(Cal.) 165 Pac. 961.
Precatory words do not always
or necessarily create a trust. The
question is one of intention, and
the real question is whether the
direction is imperative, and if the
matter is left to the decision of
the donee such words would not
create a trust. — People v. Brun-
strom, (III.) 113 N. E. 74.
"To create a precatory trust it
must clearly appear that the tes-
tator intended to govern and con-
trol the conduct of the party to
whom the language of the will is
addressed, and did not design it
as an expression or indication of
that which the testator thought
would be a reasonable exercise of
a discretion which he intended to
repose in the legatee or devisee."
— Warner v. Bates, 98 Mass. 274.
"A precatory trust is not to be
inferred from expressions of con-
fidence or desire on the part of
the testator contained in the will
regarding the use to be made of
the property devised or be-
queathed, unless it fairly appears
from the will that the testator'
contemplated and intended to cre-
ate such trust, and especially no '
such trust will be implied when it
clearly appears that the testator
intended to give the devisee full
discretion in the use of the prop-
erty."—Corby V. Corby, 85 Mo. 371,
393.
To create a precatory trust it
must clearly appear that the
words are imperative. — Carter v.
Strickland, 165 N. C. 69, Ann. Cas.
1915D, 416, 80 S. E. 961.
It is provided by the code in
Georgia that precatory or recom-
mendatory words will create a
trust if they are sufficiently im-
perative to show that it is not left
discretionary with the party to
act or not, and if the subject-
matter of the trust and the bene-
ficiary be defined with sufficient
certainty, and if the mode in
which the trust is to be executed
be clearly pointed out. — Ga. Code,
(1882) §2318.
64 Corby v. Corby, 85 Mo. 371.
05 Harding v. Glyn, 1 Atk. 469;
s. c, 2 Lead. Cas. Eq. 950; Shovel-
PRECATORY AND SECRET TRUSTS.
1591
may be imperative in fact, though not in form, and con-
vey the intention of the testator in terms equivalent
to a command, leaving the donee no discretion to defeat
the wishes of the testator, although the donee may have
discretion to fulfill them by a choice of methods, or even
to define and limit the extent of the interest conferred.""
If the power vested in the trustee be abused, the cestui
que trust may resort to a court of equity for relief."'^
§ 1103. ' ' Wm ' ' a Word of Command.
The word "will," in other than a legal sense, is some-
times used as synonymous with choice, wish or please,
and at other times it is used in the sense of command.
ton V. Shovelton, 32 Beav. 143;
Olliffe V. Wells, 130 Mass. 221.
66Colton T. Colton, 127 U. S.
300, 32 L. Ed. 138, 8 Sup. Ct. 1164;
Toms V. Owen, 52 Fed. 417, 423;
In re Dewey's Estate, 45 Utah 98,
143 Pac. 124, 127.
A will by which a testator di-
rected his wife, whom he nomi-
nated as executrix and made resid-
uary devisee, to use so much of
his residuary estate for the sup-
port and benefit of his niece as
the wife should, from time to time,
in her discretion think best, and
also created a trust fund, the in-
come of which was to be paid to
his wife during life, and at her
death one thousand dollars per
annum of the income were to be
paid to such niece until she mar-
ried, or if she never married, then
during her life, creates a trust in
favor of the niece during the life
of the wife which a court of equity
will enforce against the latter by
requiring her to honestly and in-
telligently exercise the discretion
vested in her. — Collister v. Fassitt,
163 N. Y. 281, 79 Am. St. Rep. 586,
57 N. E. 490.
67 Costabadie v. Costabadie, 6
Hare 110; Collister v. Fassitt, 163
N. Y. 281, 79 Am. St. Rep. 586, 57
N. E. 490.
Where by a will a wife is re-
quired to pay a niece of the testa-
tor out of the residuary estate
bequeathed the former so much as
she shall, from time to time, think
best for the support and benefit
of the niece, a court may ascer-
tain the amount and decree the
payment of a reasonable sum for
the support of such niece, where
the wife fails to honestly and
fairly exercise her discretion. —
Collister v. Fassitt, 163 N. Y. 281,
79 Am. St. Rep. 586, 57 N. E. 490.
1592 COMMENTARIES ON THE LAW OF WILLS.
direction or resolution. But when employed in connec-
tion with testamentary dispositions, it has universally
received a mandatory signification."^ The word "will,"
in testamentary instruments, is given the effect of an im-
perative direction as distinguished from words of rec-
ommendation and request,^® and is distinct from the
word "wish."''*' A "will" is the lawful intent of a com-
petent person, legally expressed, regarding his estate and
effective after his death,''^ and is imperative since it is
what the testator mils to be performed after his death.'^^
§ 1104. Precatory Words Referring to Dependents : Where No
Trust Is Created.
Where words of confidence, expectation, hope, purpose,
or the like, are used with reference to dependents of the
beneficiary, and the will contains no provision in effect
directing the beneficiary to apply the property for the
maintenance and support of those referred to, such words
are not deemed imperative.''^ Bequests to enable the leg-
atee to support himself and child, or to maintain him-
self and family, or to a beneficiary absolutely with con-
fidence that he will provide for his children or that they
will not be left in want, have been held to be expres-
sions of motive only and not to create a trust. ''*
68 McRee's Admrs. v. Means, 34 Rep. 495, 2 Ann. Cas. 591, 73 N. B.
Ala. 349. 482.
09 Gilbert v. Chapln, 19 Conn. 73 Lawrence v. Cooke, 104 N. Y.
342, 351. 632, 11 N. E. 144.
70 Brunson v. King, 2 Hill Eq. 74 Benson v. Whittam, 5 Sim.
(S. C.) 483, 490. 22; Van Gorder v. Smith, 99 Ind.
71 See § 23. 404; Williams v. Worthington, 49
72 Seles V. England, 2 Vern. 466; Md. 572, 33 Am. Rep. 286; Hunt v.
Forbes v. Ball, 3 Mer. 437; Post v. Hunt, 11 Nev. 442; Parsons v.
Moore, 181 N. Y. 15, 106 Am. St. Best, 1 Thomp. & C. (N. Y.) 211;
PRECATOET AND SECEET TRUSTS.
1593
TJiider a devise or bequest by a testator to his wife "in
the fullest trust and confidence that she will carry out
my wishes" in certain particulars, the wife should take
Foose V. Whitmore, 82 N. Y. 405,
37 Am. Rep. 572.
Where motive of gift is ex-
pressed, see § 1101.
A bequest by the husband to
the wife "to and for her own use
and benefit absolutely, having full
confidence In her sufiacient and ju-
dicious provision for my dear chil-
dren," held not to create a trust. —
Fox V. Fox, 27 Beav. 301.
Where the testatrix gave $15,000
to her sister absolutely, "but with
the hope and expectation that she
will expend so much of the income
and principal thereof, if it should
become necessary, in the carrying
on of a certain charity in which
she knows I am deeply inter-
ested," no precatory trust was cre-
ated, and the disposition of the
legacy was left entirely to the dis-
cretion and conscience of the lega-
tee.— Seymour v. Sanford, 86 Conn.
516, 86 Atl. 7.
When a testatrix bequeaths to
her husband, the father of her
children, "all my property, whether
real, personal, or mixed, that he
may use the same for the mainte-
nance and education of my said
children, and that he may, from
time to time, advance to each, as
he may deem best, to start them
in life," and "I do hereby appoint
my beloved husband my executor,
with full power to control, man-
age, use, convey, sell and dispose
of said property as his own abso-
lute property, without being re-
quired to file or render any ac-
count or give any bail," the hus-
band will take an absolute estate,
not subject to any trust in favor of
such children. — Randall v. Ran-
dall, 135 111. 398, 25 Am. St. Rep.
373, 25 N. E. 780.
The following clause in a will
was held not to create a precatory
trust: "To C. C. McV., widow of
my son J. W. McV., deceased, I
give and bequeath the sum of $25,-
000. To my grandchild, H. H. McV.,
I give $1. I think it best to give
his mother, C. C. McV., a sufficient
sum to enable her to supply his
needs according to her discretion,
I knowing that she will do the just
and proper thing in the matter,
and therefore limit my gift to a
nominal sum." — In re McVeigh's
Estate, 181 Mo. App. 566, 164 S. W.
673.
Where the will read: "I give to
my beloved wife A. C. T., all my
property, real, personal and mixed,
absolutely, knowing she will deal
properly with my grandchild G. S.,
and my son U. T.," the court held
that these words of recommenda-
tion were an intimation of the
wishes of the testator, and not a
command. — Snyder v. Toler, 179
Mo. App. 376, 166 S. W. 1059.
The following clause does not
create a precatory trust: "I make
1594 COMMENTARIES ON THE LAW OF WILLS.
the estate absolutely, free from any condition or trustJ^
An expression that "upon the death of my wife, I desire
one-half of the property bequeathed to her to be devised
by her to her relatives," standing in a paragraph sep-
arate from that by Avhich the property is given to the
wife, with nothing further throwing any light upon the
intention Avith which the words were used, does not im-
pose a charge or trust upon the devisee, but is rather in
the nature of an expression of the testator's feelings or
of suggestion.''* And an absolute devise was not cut
dowTi because it was followed by the words, "it is my de-
sire and request that my wife do sustain, provide for
and educate the daughter of my adopted daughter."''^
§ 1105. The Same Subject: Where Trust Is Created.
Where the precatory expressions impliedly direct the
devisee to use the fund for the proper maintenance of
family, children or dependents, trusts have been held to
be created. A bequest "in full faith that my husband
will properly provide for the two children of my de-
ceased brother, whom we have undertaken to raise and
educate ;"''* or "in full confidence that, upon my decease,
he (the husband) will, as he has heretofore done, con-
no gift here to my children and I When property is given abso-
make no gift here to my grand- lutely, and without restriction, a
children (naming them), having trust is not to be lightly imposed,
perfect confidence that my wife upon mere words of recommenda-
will without any request on my tion and confidence. — Hess v. Sing-
part, and none such is here made, ler, 114 Mass. 56.
do best for them." — Lemp v. 77 Clay v. Wood, 153 N. Y. 134,
Lemp, 264 Mo. 533, 175 S. W. 618. 47 N. B. 274.
75 Williams v. Williams, L. R. 78Noe v. Kern, 93 Mo. 367, 3
(1897) 2 Ch. DIv. 12. Am. St. Rep. 544, 6 S. W. 239.
76 Estate of Marti, 132 Cal. 671, Where a testator directed his
61 Pac. 964, 64 Pac. 1071. wife to extend aid to a daughter
PRECATORY AND SECRET TRUSTS.
1595
tinue to give and afford my children such protection, com-
fort, and support as they, or either of them, may stand
in need of ;"''^ or "ha"\T.ng full confidence in my said wife,
and hereby request that at her death she will divide
equally between my sons and daughters;"^" or "to use
and dispose of as slie msij think best for herself and chil-
dren, ' ' **i have been held to create a trust.
should she become dependent, it
created a trust. — Patterson v.
Humphries, 101 Miss. 831, 58 So.
772.
Where the ■will provided that
the entire estate was given to the
husband of the testatrix "with one
simple request that the said estate
to be divided with my children as
his better judgment might direct,"
it raised a precatory trust, al-
though some discretion is given. —
Seefried v. Clarke, 113 Va. 365, 74
S. E. 204.
79 Warner v. Bates, 98 Mass.
274.
In the following cases it has
been held that the language em-
ployed created a trust, there being
no other terms indicating a con-
trary intention:
In Colton V. Colton, 127 U. S.
300, 32 L. Ed. 138, 8 Sup. Ct. 1164,
the will read: "I give and be-
queath to my said wife, Ellen M.
Colton, all of the estate, real and
personal, of which I shall die
seised or possessed, or entitled to.
I recommend to her the care and
protection of my mother and sis-
ter, and request her to make such
gift and provisions for them as in
her judgment will be best."
In Bakert v. Bakert, 86 Mo. App.
83, 86, the provisions were: "It is
my will that my sons Caldwell
Bakert and Barnett Bakert have
all of my real estate. . . . It is
my will that my sons Barnett
Bakert and Caldwell Bakert sup-
port their mother and single sister
off of the proceeds of the farm I
bequeath to them so long as they
may see fit and proper to live with
my sons."
In Murphy v. Carlln, 113 Mo. 112,
35 Am. St. Rep. 699, 20 S. W.
786, there was a devise of the
remainder of the property of the
testator, after the payment of cer-
tain legacies, to his wife, and to
her heirs and assigns forever, ac-
companied with this provision: "It
is my will and desire that my wife
continue to provide for the care,
comfort, and education of Thomas
Joseph Murphy, now aged nearly
five years . . . and to make
suitable provision for him in case
of her death."
80 Knox V. Knox, 59 Wis. 172,
48 Am. Rep. 487, 18 N. W. 155.
SI Elliott V. Elliott, 117 Ind. 380,
10 Am. St. Rep. 54, 20 N. E. 264.
1596 COMMENTAEIES ON THE LAW OP WILLS.
§ 1106. Precatory Expressions Which Have Been Construed as
Creating Trusts.
A statement of expressions which have been construed
as creating trusts must be referred to with caution since
the words themselves may be controlled by other pro-
visions of and dispositions made in the will, and the cir-
cumstances of the case.*^ If an old case is referred to, the
modem tendency to limit the rule as to precatory trusts
should be kept in mind.** However, as a matter of
reference, some illustrations will be given. Thus, where
the testator made an absolute gift by will to one person,
and accompanied the same with words expressing a be-
lief,** wish and desire,*^ request,*^ hope,*'^ recommenda-
tion,®* or entreaty,*® that the donee devote the gift or
some ascertainable portion thereof to the benefit of a
certain other person or persons, a trust has been created
therein, the donee becoming a trustee for the person or
persons in whose favor such expressions were used. Many
similar expressions have been construed to have a like
effect, as, for example, "of course, the legatee will
give,"®" "in consideration that the legatee has promised
to give,"®^ "I desire that the donee should appropri-
ate,"®^ "with the msh and request that,"®* "heartily be-
82 See § 1093, points to be con- 88 Tibblts v. Tibbits, Jacob 317.
sldered. 89 Prevost v. Clarke, 2 Madd.
83 See § 1090. 45g
84 Paul V. Compton, 8 Ves. Jun.
375, 380.
85 Cruwys v. Colman, 9 Ves. Jun.
319; Negro Chase v. Plummer, 17
jl^ 165_ 92 Ericson v. Willard, 1 N. H.
86 Pierson v. Garnet, 2 Bro. C. C. 217.
38, 226. 93 Foley v. Parry, 5 Sim. 138;
ST Harland v. Trigg, 1 Bro. C. C. Cook v. Ellington, 59 N. C. 371.
142.
90 Robinson v. Smith, 6 Madd.
194.
91 Clifton V. Lombe, Ambl. 519.
PEECATOET AND SECEET TEUSTS. 1597
seech,"^* "not doubting,"^^ "having full assurance and
confident hope,'"'® "under the firm conviction,""^ "well
knowing, "®8 and "I also allow my son to give her a
support off my plantation during her life," have been
held to create a trust.*"*
§ 1107. Precatory Expressions Which Have Been Construed
Not to Create Trusts.
The trust was created where a testator, leaving noth-
ing to one of his OAvn sons, "assumed" that the
brothers would do what under the circumstances the tru-
est fraternal regard might require.* Nor was a trust cre-
ated by a statement that the testator relies upon the
legatee to dispose of money bequeathed him for the ben-
efit of such charitable and benevolent and educational
purposes as the legatee shall judge will most promote the
comfort and improve the condition of the poor, or of the
testator's descendants, if they become poor and needy.^
Neither was a trust imposed by a mere expression of
kindness or good will toward other persons, as with a
hope that "he would continue it in the family;"^ nor by
a request to distribute it among such members of the do-
nee's family as he should deem most deserving;* nor by
requests to "consider" the testator's relations;^ "to be
94 Meredith v. Heneage, 1 Sim. 99 Hunter v. Stembridge, 12 Ga.
553. 192.
95 Parsons v. Baker, 18 Yea. Jun. * ^"^e v. Porter, 141 Mass. 309,
5 N. E. 641.
2Willets V. Wlllets, 35 Hun
(N. Y.) 401.
3 Harland v. Trigg, 1 Bro. C. C.
97 Barnes v. Grant, 2 Jur. N. S. 142.
1127. 4 Green v. Marsden, 1 Drew.
98Bardswell v. Bardswell, 9 646.
Sim. 319, 323. 8 Sale v. Moore, 1 Sim. 534.
476.
96 Macnab v. Whltbread, 17
Beav. 299.
1598
COMMENTARIES ON THE LAW OP WILLS.
kind to" certain persons,* "to remember them,"'' "to do
justice to them,"® nor where the request was at death
to dispose among the testator's children "as shall seem
good" to the devisee.®
§ 1108. Various Precatory Words Considered.
According to the English language, the words ' ' desire ' '
and "request" do not import a trust or charge. Neither
do expressions of hope, confidence or expectation import
a command.^" The word "request" necessarily imports
an option to refuse and excludes the idea of obedience
as a corresponding duty.^^ But if a testator requests his
6 Buggins V. Yeates, 9 Mod. 122.
7 Bardswell v. Bardswell, 9 Sim.
319.
8 Le Maltre v. Bannister, Free.
Ch. 200.
0 Foose V. Whitmore, 82 N. T.
405, 37 Am. Rep. 572.
10 Shaw V. Lawless, 5 CI. & Fin.
129; Hutchinson v. Tenant, L. R.
8 Ch. Div. 540; In re Adams and
the Kensington Vestry, 27 Ch. Div.
394, 410; Williams v. Williams,
L. R. (1897) 2 Ch. Div. 12; Estate
of Marti, 132 Cal. 666, 61 Pac. 964,
64 Pac. 1071; Blels v. Biels, 80
Iowa 269, 20 Am. St. Rep. 418,
8 L. R. A. 696, 45 N. W. 748; Hess
V. Slngler, 114 Mass. 56; Batchelor
V. Macon, 69 N. C. 545; Pennook's
Estate, 20 Pa. St. 268, 59 Am. Dec.
718; Bellas' Estate, 176 Pa. St.
122, 34 Atl. 1003.
11 Under a will bequeathing land
to testator's niece and stating that
it was his "request" that the niece
bequeath the land to her daughter,
the niece became the absolute
owner of the property in fee, free
from any trust in favor of her
daughter, where it appeared, from
a perusal of the entire will and
from the circumstances of its ex-
ecution, that the niece was the
primary object of testator's
bounty, and that by his "request"
he merely referred the matter to
her affectionate discretion, al-
though he was especially devoted
to the daughter who stayed a great
part of her time at his home, and
bore a large part of the ex-
penses of her education. — Carter
V. Strickland, 165 N. C. 69, Ann.
Cas. 1915D, 416, 80 S. E. 961.
Where the testator, after devis-
ing the residue of his property to
his three daughters, said: "I re-
quest my executors, in dividing
and appropriating the said residue,
to require of my said daughters
that their respective daughters
shall receive of my estate, as far
as practicable, severally, about
double the amount that my said
PKECATORT AND SECRET TRUSTS.
1599
executor to pay a given sum to a particular person, the
legacy is complete. An expression of desire or wish may
be equivalent to a command, as where a testator desired
his just debts, and those of the firm for which he was not
liable, should be paid.^^
The words "I desire" may be construed as equivalent
to "I will," if such was the intention of the testator.^''
daughters' sons receive severally,"
it was held the words used were
only expressions of desire, and
inoperative. — Bellas' Estate, 176
Pa. St. 122, 34 Atl. 1003.
12 Burt V. Herron's Exrs., 66 Pa.
St. 400. See, also, Colton v. Col-
ton, 127 U. S. 300, 32 L. Ed. 138,
8 Sup. Ct. 1164.
13 Moseley v. Bolster, 201 Mass.
135, 143, 87 N. E. 606; Turrill v.
Davenport, 173 App. Div. 543, 159
N. Y. Supp. 814.
The testator provided: "It is
my desire that my son W. shall
have the use and occupation,
rents. Issues, and profits of my
fruit ranch . . . for a period
of five years . . . at an annual
rental of $300 to he paid to his
brothers and sisters . . . and
I direct all my other children to
execute to my said son W. imme-
diately after my death a lease of
said premises and said personal
property for the said term and
upon the conditions herein ex-
pressed." This provision was con-
strued as a mandatory expression
of the testator's intention, and not
merely as precatory. — Estate of
Buhrmeister, 1 Cal. App. 80, 81
Pac. 752.
Testatrix, after giving all her
property to her daughter, pro-
vided "but it is my wish and de-
sire, and I hereby request my said
daughter to keep intact, so far as
may be possible and practicable,
the body of my estate,'' using all
the rents and profits, etc., for her
own use, etc., and "I further desire
and hereby request my said daugh-
ter to make a will wherein and
whereby she shall devise and be-
queath all the corpus of my estate,
. . . or so much as may be in-
tact and remaining at the time of
her death," to certain designated
beneficiaries therein enumerated.
Held, that the words "wish," "de-
sire," and "request," as used in
the will, operated to create a
trust in favor of the beneficiaries
specified therein. — Deacon v. Cob-
son, 83 N. J. Eq. 122, 89 Atl. 1029.
Where, after disposing of some
of her estate, the testatrix gave
the residue to T., adding: "It is
my desire that he shall distribute
the same, or the proceeds thereof,
among my nephews and nieces,
and to such of them, and in such
proportions, as he shall deem just
and proper, and his decision upon
such matters shall be final, con-
1600
COMMENTARIES ON THE LAW OP WILLS.
Undoubtedly the word "wisli" may be equivalent to
"will" or ''request" or "direct," if the context of the
will justifies such meaning.^* "Wish" may be equivalent
to "request," but the meaning of the word "request,"
standing alone, is indeterminate and depends altogether
upon the context.^^
§ 1109. The Same Subject.
The word "enjoin" in itself is more imperative than
"wish," yet a trust will be denied if the terms of com-
mand are placed wholly within the discretion of the devi-
see, as where payments were to be made at such times, in
such manner, and in such amounts" as the devisee should
judge to be expedient, and controlled only by what his
elusive, and binding upon all par-
ties," a precatory trust Is estab-
lished for the beneficiaries other
than T. — In re Dewey's Estate, 45
Utah 98, 143 Pac. 124.
After bequeathing the residue of
his property to his son,. the testa-
tor added, "save and except I de-
sire that he pay out of my said
property to Miss C. M. the sum
of $200 and to Miss E. J. the sum
of $200." It was held that these
words were not sufficient to create
a precatory trust. — Estate of
Browne, (Cal.) 165 Pac. 960.
14 Bliven v. Seymour, 88 N. Y.
469.
Where the testatrix after be-
quests to her children other than
her son H., bequeathed to her
daughter-in-law, the wife of H., as
follows: "To S., wife of H., I de-
vise and bequeath the simi of
$2000, this amount to be free from
the control of her husband and
her son G., and I request the said
S. at her death to give the same
to her two daughters V. and M.,"
a trust was created under which
S. held the $2000 with the right
to use the Income during her life,
the principal going to the two
daughters upon her death. — Mc-
Curdy v. McCallum, 186 Mass. 464,
72 N. E. 75.
isFoose V. Whitmore, 82 N. Y.
405, 37 Am. Rep. 572.
Where after making devises to
his nephew and sister absolutely,
the testator added, "should any of
my near relatives become so re-
duced In circumstances as to need
assistance, then It is my wish that
they assist such relatives In such
ways as my said nephew and sis-
ter shall judge to be the best," no
trust was created. — Haight v.
Royce, 274 111. 162, 113 N. B. 71.
PKECATOBT AND SECRET TRUSTS. 1601
own sense of justice and Christian duty should dictate.
If, however, the devisee is enjoined to make "suitable
provision," a trust may be created since the court can
determine as a matter of fact what would be ' ' s.uitable, ' '
thus making the provision independent of the mere choice
or whim of the devisee. The word "wish," in the instance
last mentioned, would have the same effect as the word
"enjoin."^* And where the direction is to pay a certain
annuity "if convenient" the devisee can not, as his caprice
may suggest, pay or withhold the sums mentioned, but
must pay them if his financial circumstances are such
as to make it convenient for him to do so. This "a court
of equity can determine.^''
The phrase, "it is my wish and expectation," standing
alone, is as ambiguous as "I recommend and request."
Where, however, the first mentioned phrase is used re-
garding the providing for the support of the testator's
mother and sister, an immediate obligation, and the latter
with reference to generous remembrance of the children
of his brother and others, to find expression at some fu-
ture time, the phrase first mentioned is merely an expres-
sion of hope and confidence rather than of command.
"Wish and expectation" import "hope," and hope pre-
supposes the possibility of disappointment. And tlie
change in the language used implies a different inten-
tion.^*
16 Lawrence v. Cook, 104 N. Y. i7 Phillips v. Phillips, 112 N. Y.
632, 11 N. E. 144. See, also, Phil- 197, 8 Am. St. Rep. 737, 19 N. B.
lips V. Phillips, 112 N. Y. 197, 411.
8 Am. St. Rep. 737, 19 N. B. 411; i8 Russell v. United States Trust
CoIUster v. Fassltt, 163 N. Y. 281, Co., 136 Fed. 758, 760, 69 C. C. A.
79 Am. St. Rep. 586, 57 N. E. 490. 410.
n Com. on Wills — 47
1602 COMMENTARIES ON THE LAW OF WILLS.
§ 1110. Gift Upon "Understanding" or "Promise."
A testamentary gift "with tlie understanding" that it
shall be applied in a certain manner is controlled by the
words quoted, they being more than an expression of de-
sire, hope or expectation, but implying a condition.'*
And a bequest made to one in consideration of past ser-
vices and, as stated in the will, "upon his promise to take
care of and provide for my half sister during the rest of
her natural life, and defray all the expenses of her last
sickness and burial," a trust was created.^"
§ 1111. Secret Trusts, Creation and Effect Of.
A testamentary gift may appear absolute on its face,
yet extrinsic evidence is admissible to show an agree-
ment between the testator and the beneficiary that the
gift was made upon a secret trust, and also to show the
nature of the trust. If the trust or its purposes be un-
lawful, the beneficiary holds the property for the benefit
of the heirs at law or for those to whom it would have de-
scended in the event of intestacy, he taking no beneficial
interest in the property. If the trust be lawful, then the
beneficiary named takes the property as trustee in ac-
cordance with the agreement. ^^
The trust does not operate upon the will by modifying
the gift, but acts upon the gift itself after it passes into
the hands of the beneficiary or as soon as he is entitled
to receive it.^^ Title passes to the beneficiary, and then
19 Tillman v. Ogren, 99 Misc. O'Hara v. Dudley, 95 N. Y. 403.
Rep. 539, 166 N. Y. Supp. 39. 47 Am. Rep. 53 ; Trustees of Am-
20 Simpson v. Corder, 185 Mo. herst College v. Ritch, 151 N. Y.
App. 398, 170 S. W. 357. 283, 37 L. R. A. 305, 45 N. E. 876;
21 Tee V. Ferris, 2 Kay & J. 357; Fairchild v. Edson, 154 N. Y. 199,
Jones V. Badley, L. R. 3 Eq. 635; 61 Am. St. Rep. 609, 48 N. E. 541.
O'Brien v. Tyssen, 28 Ch. Div. 372; 22 Ahrens v. Jones, 169 N. Y. 555.
PEECATOET AND SECEET TEUSTS. 1603
equity, to prevent fraud, compels the beneficiary to fulfill
the terms of the agreement. This obligation is imposed
by law and is not affected either by the Statute of Frauds
or the Statute of Wills.-^ It is immaterial whether or not
the devisee intended, at the time of his agreement with
the testator, to commit a fraud, his final refusal to fulfill
the agreement effects the fraud.^* And equity enforces-
the secret trust because otherwise a fraud would be com-
mitted.^®
§1112. The Same Subject: Necessity of Promise by Benefi-
ciary.
The secret trust may be created by a person procuring
an absolute testamentary gift to himself by promising
the testator that he will either hold it for the benefit
of some third person or transfer it to another, according
as the testator may express his desire.^® The trust may
be created by an implied agreement subsequent to the ex-
ecution of the will, as where the testator writes to the
beneficiary stating the terms of the trust upon which he
has made the gift and defining how the trust shall be car-
ried out. If the beneficiary gives his written acceptance
to the terms of the trust and promises to fulfill them, he
can not, thereafter, repudiate the agreement.^'^ There
must, however, be some promise on the part of the bene-
ficiary, for if he knew nothing of the testator's intentions
561, 88 Am. St. Rep. 620, 62 N. E. H. L. 82; DeLaurencel v. DeBoom,
666. 48 Cal. 581; Dowd v. Tucker, 41
23 Trustees of Amherst College Conn. 197.
V. Rltch, 151 N. Y. 282, 37 L. R. A. 26 Gilpatrick v. Glidden, 81 Me.
305, 45 N. E. 876. 137, 10 Am. St. Rep. 245, 2 L. R. A.
24 Gilpatrick v. Glidden, 81 Me. 662, 16 Atl. 464; Olliffe v. Wells,
137, 151, 10 Am. St. Rep. 245, 130 Mass. 221.
2 L. R. A. 662, 16 Atl. 464. 27 DeLaurencel v. DeBoom, 48
25 McCormick v. Grogan, L. R. 4 Cal. 581.
1604
COMMENTARIES ON THE LAW OF WILLS.
no trust is created.^* But silent acquiescence and encour-
agement are sufficient to naake the beneficiary a trustee.^®
If, however, the testamentary gift he absolute, without
any understanding, express or implied, as to its use or
appropriation, no secret trust is created.^"
if lie chooses, apply \he
28 Wallgrave v. Tebbs, 2 Kay &
J. 313; In re Crawshay, L. R. 43
Ch. Div. 615; McCormick v. Gro-
gan, L. R. 4 H. L. 82; Schultz'
Appeal, 80 Pa. St. 396.
29 Curdy v. Berton, 79 Cal. 420,
12 Am. St. Rep. 157, 5 U. R. A. 189,
21 Pac. 858; Brook v. Chappell,
34 Wis. 405.
soO'Donnell v. Murphy, 17 Cal.
App. 625, 627, 120 Pac. 1076.
"While a testator may make a
gift to a legatee solely for the pur-
pose of enabling him, if he sees
fit, to dispose of it in a particular
way, still, if there is no promise by
him, express or implied, to so dis-
pose of it, and the matter is left
wholly to his will and discretion,
no secret trust is created, and he
may,
legacy to his own use. When It
clearly appears that no secret
trust was intended, even if it is
equally clear that the testator ex-
pected that the gift would be ap-
plied in accordance with his
known wishes, the legatee, if he
has made no promise, and none
has been made in his behalf, takes
an absolute title, and can do what
he pleases with the gift. What-
ever moral obligation there may
be, no legal obligation rests upon
him." — Trustees of Amherst Col-
lege V. Ritch, 151 N. Y. 283, 323,
37 L. R. A. 305, 45 N. E. 876. See,
also, Rowbotham v. Dunnett, 8
Li. R. Ch. Div. 430; McCormick v.
Grogan, 4 U R. Eng. & Ir. App. 82.
CHAPTER XL.
CHATtlTABLE USES AXD TRUSTS.
§ 1113. Charitable trusts distinguished from private trusts.
§ 1114. Doctrine of charitable uses and trusts only partially
accepted in some states, and whollj' rejected in others.
§ 1115. English statutes of mortmain and charitable uses.
§ 1116. Statute of Charitable Uses of 43 Eliz., ch. 4.
§ 1117. Restrictions on corporate holdings of land in the United
States.
§ 1118. Statutory restrictions on gifts to charity, as to amount
and time of execution.
§1119. The same subject: Purpose of statutes.
§ 1120. How value of estate is computed.
§ 1121. Charity, in a legal sense, defined.
§ 1122. Objects construed as not charitable.
§ 1123. Examples of charitable uses.
§ 1124. The same subject.
§ 1125. Superstitious uses and trusts : English rule.
§ 1126. Masses for repose of souls of the dead : American rule.
§ 1127. Religious and pious uses.
§1128. Churches.
§ 1129. Christian Science.
§ 1130. Christian associations for young men or women.
§ 1131. Home and foreign missions.
§ 1132. Cemeteries, churchyards, or burial grounds.
§1133. Hospitals.
§ 1134. Libraries.
§ 1135. Public purposes.
§ 1136. Prohibition and temperance.
§ 1137. Woman's suffrage.
§ 1138. Medals and prizes.
§ 1139. Benefit of animals.
§ 1140. Rule as to perpetuities as affecting charitable gifts.
(1605)
1606 COMMENTARIES ON THE LAW OF WILLS.
§ 1141. The same subject : Where gift vests in the future.
§ 1142. Testamentary gifts to charity liberally construed.
§ 1143. Purpose of trust must not be so indefmitc that chancery
can not correct abuse.
§ 1144. Purpose of trust must be stated in will.
§ 1145. Uncertainty of objects of charitable trusts.
§ 1146. Corporations and voluntary associations as trustees.
§ 1147. Trust will not fail for lack of trustee.
§ 1148. Trustees may be vested with discretionary power of
administration.
^ 1149. Chancery may compel trustee to account : Statute of
Limitations.
§ 1150. Doctrine of cy pres: English and American chancery
jurisdiction distinguished.
§ 1151. The same subject : General American rule stated.
§ 1152. The same subject.
§ 1153. Cy pres doctrine: English rule where object or purpose
of trust fails.
§ 1154. The same subject.
§ 1155. The same subject : American authorities.
§ 1113. Charitable Trusts Distinguished From Private Trusts.
Charitable trusts differ from private trusts in that they
do not come vdthin the rule against perpetuities and may-
be made perpetual. They are for objects of permanent
interest and for the benefit of the public, and therefore do
not come under the rule that property devoted to a pri-
vate use can not be made inalienable beyond the period
prescribed by the rule as to perpetuities.^ Another dis-
tinguishing feature of charitable trusts is that the num-
1 Duggan V. Slocum, 92 Fed. 806, 27 L. Ed. 401, 2 Sup. Ct. 336;
34 C. C. A. 676; Brigham v. Peter Matter of Merchant, 143 Cal. 537,
Bent Brigham Hospital, 126 Fed. 77 Pac. 475; Ingraham v. Ingra-
796; Russell v. Allen, 107 U. S. ham, 169 Ul. 432, 48 N. E. 561,
163, 27 L. Ed. 397, 2 Sup. Ct. 327; 49 N. E. 320; Hopkins v. Crossley,
Jones V. Habersham, 107 U. S. 174, 132 Mich. 616, 96 N. W. 499;
CHARITABLE USES AND TRUSTS. 1607
ber of the beneficiaries is and must be indefinite,* for a
trust can not be charitable where the beneficiaries are
definitely designated.^ And again, charitable trusts are
further distingxiished from private trusts in that the ben-
eficiaries are uncertain.* This imcertainty, however, re-
fers to the particular individuals to be benefited by the
gift, not to the class from which the beneficiaries shall
come.^ And charitable trusts generally are not subject to
the common law rule against accumulations.®
§ 1114. Doctrine of Charitable Uses and Trusts Only Partially
Accepted in Some States, and Wholly Rejected in
Others.
The foregoing rules are those applied in those juris-
dictions which accept the English doctrine of uses and
trusts as developed under the Statute of Charitable Uses
of 43 Eliz., ch. 4. In the United States it is fully recog-
nized in some jurisdictions, partially in others, and in
some not at all, active trusts created by statute only being
allowed.
Young V. St. Mark's Lutheran 3 Fontain t. Ravenel, 17 How.
Church, 200 Pa. St. 332, 49 Atl. (U. S.) 369, 15 L. Ed. 80; Estate
887. of Hinckley, 58 Cal. 457.
See §§ 1142, 1143. See §§ 1143, 1144.
As to doctrine of cy pres, see 4 Beall v. Fox's Exrs., 4 Ga. 404;
§§ 1149-1154. Santa Clara Female Academy v.
2 Russell V. Allen, 107 U. S. 163, Sullivan, 116 111. 375, 56 Am. Rep.
27 L. Ed. 397, 2 Sup. Ct. 327; 776, 6 N. E. 183; Rotch v. Emer-
Matter of Upham, 127 Cal. 90, 59 son, 105 Mass. 431; Gidley v.
Pac. 315; Fay v. Howe, 136 Cal. Lovenberg, 35 Tex. Civ. 203, 79
599, 69 Pac. 423; Grant v. Saun- S. W. 831.
ders, 121 Iowa 80, 100 Am. St. Rep. See §§ 1143, 1144.
310, 95 N. W. 411; Haynes V. Carr, 5 People v. Cogswell, 113 Cal.
70 N. H. 463, 49 Atl. 638; Harring- 129, 35 L. R. A. 269, 45 Pac. 270;
ton V. Pier, 105 Wis. 485, 76 Am. Paschal v. Acklin, 27 Tex. 173.
St. Rep. 920, 50 L. R. A. 307, 82 See §§ 1143, 1144.
N. W. 345. 6 Odell v. Odell, 10 Allen (92
1608
COMMENTARIES ON THE LAW OP WILLS.
The existence of a judicial power to administer a char-
ity cy pres where the expressed intention of the founder
can not be exactly carried out, has been either admitted
or left an open question in all the New England states
except Connecticut.'' In New Jersey the doctrine is favor-
ably regarded.* In Kentucky the statute of Elizabeth is
re-enacted. Grants and devises for charitable and educa-
tional purposes are declared valid,* and the judicial doc-
trine of cy pres was formerly fully applied,^** but those
decisions have been practically overruled." In other
Mass.) 1; Hillyard v. Miller, 10
Pa. St. 326; Philadelphia v. GI-
rard's Heirs, 45 Pa. St. 9, 84 Am.
Dec. 470.
7 Treat's Appeal, 30 Conn. 113 ;
Goodrich's Appeal, 57 Conn. 275,
18 Atl. 49; Woodruff v. Marsh, 63
Conn. 125, 38 Am. St. Rep. 346,
26 Atl. 846; Howard v. American
Peace Soc, 49 Me. 288, 302; Ever-
ett V. Carr, 59 Me. 325; Simpson v.
Welcome, 72 Me. 496, 39 Am. Rep.
349; Stratton v. Physio-Medical
College, 149 Mass. 505, 508, 14 Am.
St. Rep. 442, 5 L. R. A. 33, 21 N. E.
874; Weber v. Bryant, 161 Mass.
400, 37 N. E. 203 ; Morse v. Inhabi-
tants of Natick, 176 Mass. 510,
57 N. E. 996; Codman v. Brigham,
187 Mass. 309, 105 Am. St. Rep.
394, 72 N. E. 1008; Brown v. Con-
cord, 33 N. H. 285, 296; Goodale
V. Mooney, 60 N. H. 528, 49 Am.
Rep. 334; Pell v. Mercer, 14 R. I.
412; Burr's Exrs. v. Smith, 7 Vt.
241, 29 Am. Dec. 154; McAllister
V. McAllister. 46 Vt. 272.
As to doctrine of cy pres, see
§§ 1149-1154.
8 Stevens v. Shippen, 28 N. J.
Eq. 487; Trustees of Cory XJni-
versalist Soc. v. Beatty, 28 N. J.
Eq. 570; Goodell v. Union Asso-
ciation etc., 29 N. J. Eq. 32;
De Camp v. Dobbins, 29 N. J. Eq.
36; Hyde's Exrs. v. Hyde, 64 N. J.
Eq. 6, 53 Atl. 593; American Bible
Soc. V. American Tract Soc, 62
N. J. Eq. 219, 50 Atl. 67; Hyde's
Exrs. V. Hyde, 64 N. J. Eq. 6, 53
Atl. 593.
9Ky. Gen. Stats., (1873) ch. 13,
§ 1. Churches and Christian so-
cieties may not hold more than
fifty acres in that state. — Ky. Gen.
Stats., (1873) ch. 13, § 3.
10 Baptist Church v. Presbyte-
rian Church, 18 B. Mon. (Ky.) 635;
Kinney v. Kinney's Exr., 86 Ky.
610, 6 S. W. 593; Crawford v.
Thomas, 114 Ky. 484, 54 S. W. 197,
55 S. W. 12; Thompson v. Brown,
116 Ky. 102, 105 Am. St Rep. 194,
75 S. W. 210.
11 Spaulding v. St. Joseph's In-
dustrial School, 107 Ky. 382, 54
S. W. 200.
CHABITABLE USES AND TRUSTS.
1609
states the doctrine of charitable trusts has never been
adopted, or has been abolished, either by statutory prohi-
bition of all uses and trusts where the trustee has no
active service to perform, with a few specified exceptions,
or by the provisions of the law against perpetuities, or
by the general policy of the state legislation. And in
those states charitable trusts do not exist except where
they are merely the express private trusts permitted by
the law, or in those particular instances authorized by
statute.^^ In this class are included Michigan,'^ Louisi-
ana," Maryland,^" North Carolina,^® Virginia,^'^ and West
Virginia.^* In all these states a trust for charitable pur-
poses would be upheld provided it possessed all the ele-
12 3 Pomeroy's Equity Jur. (3d
ed.) §1029.
13 Hopkins v. Crossley, 132
Mich. 612, 96 N. W. 499; Cook v.
XJniversalist Gen. Convention, 138
Mich. 157, 101 N. W. 217.
14 Fink V. Fink's Exr., 12 La.
Ann. 301; Perin v. McMicken's
Heirs, 15 La. Ann. 154. And see
Meunier's Succession, 52 La. Ann.
79, 48 L. R. A. 77, 26 So. 776.
i5Eutaw Place Baptist Church
V. Shlvely, 67 Md. 493, 1 Am. St.
Rep. 412, 10 Atl. 244; Dulany v.
Middleton, 72 Md. 67, 19 Atl. 146.
But see Chase v. Stockett, 72 Md.
235, 19 Atl. 761.
The statute of Eliz. is not recog-
nized In Maryland.
16 McAuley T. Wilson, 16 N. C.
276, 18 Am. Dec. 587; Trustees of
Davidson College v. Chambers, 56
N. C. 253; Holland v. Peck, 37 N. C.
255; White v. Attorney-General,
39 N. C. 19, 44 Am. Dec. 92; Miller
V. Atkinson, 63 N. C. 537.
17 The English law of charitable
uses and trusts not recognized. —
Seabum's Exr. v. Seaburn, 15
Gratt. (Va.) 423; Gallego's Exrs. v.
Attorney General, 3 Leigh (Va.)
450, 24 Am. Dec 650; Literary
Fund V. Dawson, 10 Leigh (Va.)
147, 153; Fifield v. Van Wyck's
Exr., 94 Va. 557, 64 Am. St. Rep.
745, 27 S. E. 446.
Compare: Protestant Episcopal
Educ. Soc. V. Churchman's Repre-
sentatives, 80 Va. 718; Trustees
etc. of Presbyterian Church v.
Guthrie, 86 Va. 126, 6 L. R. A. 321,
10 S. E. 318.
18 The English law of charitable
uses and trusts is not recognized.
— Carpenter v. Miller, 3 W. Va.
174, 100 Am. Dec. 744; Mong v.
Roush, 29 W. Va. 119, 11 S. E. 906;
Wilson V. Perry, 29 W. Va. 169,
1 S. B. 302.
1610 COMMENTARIES ON THE LAW OP WILLS.
ments of a valid ordinary trust, a competent and certain
trustee, certainty in the beneficiaries, and compliance
with the laws against perpetuities.^* And in Tennessee
it has been said that if a charity be created, either by de-
vise or deed, it must be in faA^or of a person having suffi-
cient capacity to take as devisee or donee, or if not in
favor of such a person, it must be definite in its object
and lawful in its creation, and devised or granted to trus-
tees before the Court of Chancery can, by virtue of its
extraordinary or simple equity jurisdiction, interfere to
enforce its execution.^" But in Massachusetts, when land
is devised to a charity without naming a trustee, the heir
will hold the property in trust until a trustee be ap-
pointed by a court of chancery.^^ New York and Wiscon-
sin formerly recognized only such trusts which fulfilled
the requirements of private trusts. In New York, by leg-
islative enactment, the rule has been changed ;^^ and in
Wisconsin, the later decisions overrule the earlier with
respect to personal property.^®
19 3 Pomeroy's Equity Jur., (3d 22 In New York the doctrine of
ed.) § 1029, n. charitable trusts is not recognized.
20 Reeves v. Reeves, 5 Lea (73 Such a trust will be enforced as a
Tenn.) 644; Cheatham v. Nash- power in trust, but it is subject to
ville Trust Co., (Tenn.) 57 S. W. the rule against perpetuities. —
202. Cottman v. Grace, 112 N. Y. 299,
21 Bartlett v. Nye, 4 Mete. (45 3 L. R. A. 145, 19 N. E. 839; Booth
Mass.) 378; Washburn v. Seawall, v. Baptist Church, 126 N. Y. 215,
9 Mete. (50 Mass.) 280; North 239, 28 N. E. 238; Tilden v. Green,
Adams Univ. Soc. v. Fitch, 8 Gray 130 N. Y. 29, 27 Am. St. Rep. 487,
(74 Mass.) 421; Bliss v. American 14 L. R. A. 33, 28 N. B. 880.
Bible Soc, 2 Allen (84 Mass.) 334;- And formerly the benoficiaries
Brown v. Kelsey, 2 Cush. (56 were required to be definitely
Mass.) 243; Winslow v. Cum- designated, but this has been
mings, 3 Cush. (57 Mass.) 358; changed by statute. — N. Y. Laws
Fellows v. Miner, 119 Mass. 541 ; 1893, ch. 701, and Allen v. Stevens,
Missionary Soc. v. Chapman, 128 161 N. Y. 122, 55 N. E. 568.
Mass. 265. 23 Harrington v. Pier, 105 Wis.
CHARITABLE USES AND TRUSTS. 1611
§ 1115. English Statutes of Mortmain and Charitable Uses.
At common law there was no restriction upon an indi-
vidual acquiring lands by purchase, but corporations
were required to have a license in mortmain from the
crown to enable them to purchase lands. The reason of
the rule was tliat the king, being the ultimate lord in
fee, should not lose his right of escheats or forfeitures
by the vesting of lands in tenants that could not be at-
tainted or die.^* To defeat the law, the tenant who in-
tended to alienate, first conveyed his lands to a religious
body and instantly took them back, holding them as ten-
ant of such body. This character of instantaneous seisin
was held not to occasion a forfeiture. This evasion caused
the passing of the statute De Religiosis, 7 Edw. I (1279),
which provided that no person, religious or other, should
buy, sell or receive under the pretense of a gift, or by
any art or ingenuity appropriate, any lands or tenements
in mortmain, upon penalty of forfeiture. The inventive
genius of the clergy found new methods of evasion, and
to meet them various statutes were successively passed.-'''
Because of the fact that persons might on their death-
beds make large and improvident dispositions, even for
worthy purposes, and thus defeat the statutes of mort-
main, it was enacted by the statute of 9 Geo. II, ch. 36,
commonly called the Mortmain Act, that no lands or tene-
ments, or money to be laid out therein, should be given or
charged with any charitable use unless made according to
law by deed executed before at least two witnesses twelve
485, 76 Am. St. Rep. 924, 50 L. R.A. McHugh v. McCole, 97' Wis. 166,
307, 82 N. W. 345. 65 Am. St. Rep. 106, 40 L. R. A.
As to realty, see Danforth v. 724, 72 N. W. 631.
City of Oshkosh, 119 Wis. 262,
„„ ^, „, „ro c, ,171 n .„ 24 Coke Litt. 94b, 95a, 99a, 250a.
97 N. W. 258. See, also. Fuller's
Will, 75 Wis. 431, 44 N. W. 304; 25 2 Bl. Com. *270, *274.
1612 COMMENTABIES ON THE LAW OP WILLS.
montlis at least before the donor's death, and enrolled
in the court of chancery within six months after execu-
tion ; also such gifts were to take effect immediately and
be irrevocable.^®
The last-mentioned statute was repealed and replaced
by the Mortmain and Charitable Uses Act, 51 and 52 Vict.,
ch. 42 (1888).^'' This act principally consolidated and
restated the former mortmain acts, continuing in effect
the restrictions just mentioned in the statute of 9 Geo. II.
Under these statutes every testamentary assurance of
land and of personalty to be laid out in land, and charged
with any charitable use, was void. But by the amending
act of 1891, 54 and 55 Vict., ch. 73, it became lawful
to make testamentary gifts of land for charitable uses;
but it provides the land shall not be retained by the char-
ity, but shall be sold within one year from the death of
the testator, unless the period is extended by the HigJi
Court or the Charity Commissioners. As to personal
property given by will for charitable uses and directed to
26 Under this statute a mort
gage upon real estate is an inter-
est in land which can not he given
by will to charity. — In re Watts,
(Cornford v. Elliott), L. R. 29 Ch,
Div. 947; s. c, L. R. 27 Ch. Div,
Brook V. Badley, L. R. 3 Ch. App
672, and explaining In re Harris,
15 Ch. Div. 561.
The statute of 43 George III,
ch. 108, authorized devises and be
standing the statute of 9 George II,
ch. 36; but it expressly excluded
married women from doing so ex-
cept with the authority of their
husbands. This disability was not
removed by the Married Women's
318, approving and following Property Act of 1882 (45 and 46
Tlct, ch. 75).— Re Smith's Estate,
(Clements v. Ward), L. R. 35 Ch.
Div. 589.
27 This statute has been held
not to apply to English wills in
quests of property, to a limited the colonies of Great Britain. —
value, for the purpose of erecting Canterbury v. Wyburn, L. R.
churches, although there was out- (1895) A. C. 89.
CHARITABLE USES AND TRUSTS. 1613
be applied to the purchase of lands, the gift is valid and
the direction disregarded.^*
§ 1116. Statute of Charitable Uses of 43 Elk., Ch. 4,
Trusts for charitable uses were recognized in England
prior to A. D. 1601. At that date was passed the Statute
of Charitable Uses of 43 Eliz., ch. 4. The preamble of
this act enumerates the objects considered charitable, they
being twenty-one in number.^® The object of this act was
not to construe and define the law of charitable uses, but
was intended solely to provide a new jurisdiction and legal
machinery to discover and enforce the administration of
charitable trusts which had fallen into neglect, and to cor-
rect abuses arising from fraud and breaches of trust.
However obscure may have been the law as to public
charities prior to the statute of Elizabeth, that act is now
considered the principal source of legal charities ; and it
has become the general rule in England that no uses can
be considered charitable except such as fall within the
words or the obvious intent of the statute. Thus, although
28 Sec. 7 of the act, which fur- maimed soldiers and mariners;
ther provided that the High Court schools of learning; free schools;
or the Charity Commissioners scholars in universities; houses of
could sanction the proposed pur- correction; repairs of bridges,
chase of lands out of the personal r°'"t«' '^^^^°^' causeways, churches,
sea-banks, and highways; the ed-
property bequeathed for that pur
pose, if required for actual occupa-
tion for the purposes of the char-
ucation and preferment of or-
phans ; the marriage of poor
maids; support and help of trades-
ity, and not as an investment. ^^^^ handicraftsmen, and persons
29 The Statute of Charitable decayed; the relief or redemption
Uses, 43 Eliz., ch. 4, is regarded of prisoners or captives; and aid
as authority for considering as or ease of any poor inhabitants
charitable, uses for "the relief of concerning the payment of fif-
aged and impotent and poor peo- teenths, setting out of soldiers,
pie; the maintenance of sick and and other taxes."
1614 COMMENTAEIES ON THE LAW OP WILLS.
twenty-one objects were enumerated by tlie statute of
Elizabeth, an examination of the early decisions resulted
in finding forty-six specifications of pious and charitable
uses recognized as within the protection of the law, in
which were embraced all those enumerated in the stat-
ute.^o
The statute of Elizabeth was apparently authority for
testamentary appointments to corporations for charitable
uses f^ but this power was abolished as to testamentary
dispositions by the statute of 9 Geo. II, ch. 36.^^
The statute of Elizabeth practically became a part of
the common law and has been substantially re-enacted in
many of our states. It was repealed by the Mortmain
and Charitable Uses Act of 51 and 52 Vict., ch. 42.3* But
the last-named act sets forth the preamble of the statute
of Elizabeth and recites that reference is made to the
charities within the purview, meaning and interpretation
of the former statute, and by section 13 enacts that refer-
ences to charities shall be construed as referring to char-
ities within the meaning, purview, and interpretation of
said preamble. Thus, the charities recognized in England
are those within the purview of the statute of Elizabeth.
In this respect no change was made by the amending act
of 1891, 54 and 55 Vict., ch. 73.^*
§ 1117. Restrictions on Corporate Holdings of Land in the
United States.
The English statutes of mortmain are of no force in
these United States unless they have been rerenacted. It
30 Maglll V. Brown, Brightly also, Attorney-General v. Rye, 2
N. P. (Pa.) 347, referred to in Vern. 453; Attorney-General v.
Ould V. Washington Hospital for Eurdet, 2 Vern. 755.
Foundlings, 95 TJ. S. 303, 24 L. Ed. 32 See § 1114.
450. 33 See § 1114.
81 Flood's Case, Hob. 136. See, S4 See § 1114.
CHAEITABLE USES AND TRUSTS. 1615
was at one time held in Pennsylvania that these statutes
were a part of the law of that state, but this opinion
was afterward controverted.*^ However, in some of the
states, statutes have been passed limiting the right of
charitable corporations to hold lands. Congress has
passed an act that no religious or charitable association
in the territories of the United States may hold real estate
of a greater value than fifty thousand doUars.^^ By a
Kentucky act, no church or society of Christians can hold
the legal or equitable title to exceeding fifty acres of
land.*'' The constitution of Maryland declares all gifts,
as well as devises of land or personal property, to relig-
ious sects or for religious uses, void without the sanction
of the legislature given before or after the gift, except
five acres for a church, parsonage or cemetery.*^ With-
out express legislative sanction, a foreign religious cor-
poration can not hold land in that state, but a will direct-
ing land to be sold and bequeathing the proceeds to a
corporation of that kind, is valid.*^ In most of the states
laws have been enacted prohibiting corporations generally
from acquiring or holding lands except such as are nec-
essary for the conduct of their business. The statutes
should be consulted in all cases.
§1118. Statutory Restrictions on Gifts to Charity, as to
Amount and Time of Execution.
Statutes have been enacted generally in these United
States which have placed restrictions upon testamentary .
85 MaglU V. Brown, Brightly 37 Ky. Gen. Stats., (1873) ch. 13,
N. P. (Pa.) 346, 350; Vidal v. Gi- §3.
J o TT /-TT o ^ 100 -i-i I I? J 38 Md. Declaration of Rights,
rard, 2 How. (U. S.) 128, 11 L. Ed.
§38.
^*'^- 39 Church-Extension of M. B.
38 U. S. Rev. Stats., § 1890. Church v. Smith, 56 Md. 362.
1616 COMMENTARIES ON THE LAW OP WILLS.
gifts to charity, such as requiring such, gifts to be made at
least a specified time prior to the testator's death, and
limiting the amounts thereof to a certain proportion of
his estate. Thus, if a testator leave a wife, child or de-
scendants of a child, he may not dispose by will for char-
itable uses of more than one-half of his estate, as in New
York ;*" or more than one-third, as in California, Georgia
and Kentucky.*^ In Louisiana, if the testator leave one
legitimate child, he can not dispose of more than two-
thirds of his estate ; if he leaves two, he is limited to one-
half ; and if three or more, then to one-third. So, also, if
having no children, he leaves a father or mother, or both,
the devisable portion is restricted to two-thirds.*^
Where such restrictions are imposed, it is generally re-
quired that the testator execute his will within a specified
time prior to his death, otherwise any gift for charitable
uses will be held void. The time specified generally is be-
tween thirty and ninety days, although it is as extended
as one year.** These matters are of statutory regulation,
varying with the jurisdictions, and the law of the particu-
lar state in question must be consulted in each case.
40 Decedents' Estates Law, (Con- 4i Cal. Civ. Code, §1313; 6a.
sol. L. 1909) § 17. Civ. Code, (1910) §3851; Mont.
One who has no "husband, wife, j^g^ ^ode 1907, §§ 4761, 4762.
child or parent" is not within the
^ , . , ., .. , 42 See Louisiana Code,
statute and is not prohibited
thereby from devising or bequeath- 43 Cal. Civ. Code, §1313; Ga.
Ing all of his or her estate to Civ. Code, (1910) §3851.
charity. — Matter of Dunlap, 86 ^ y.— §§ 18, 19, Decedents' Es-
MIsc. Rep. 372, 148 N. Y. Supp. 4^^^^ ^aw. (Consol. Laws N. Y.
*^1- 1909, ch. 13).
The statute does not apply
where the nearest of kin to the Pa--§ H. Pa. Act of April 11,
testator is a first cousin. — Matter ^*^^'
of Danklefesen, 171 App. Div. 339, One year In Ohio under Rev.
157 N. Y. Supp. 119. Stats., § 5915.
CHARITABLE USES AND TRUSTS. 1617
Where a will containing a charitable bequest is exe-
cuted within a less time before the testator's death than
is fixed by law, the statute renders the gift invalid, but
the other provisions of the will stand.** If the amount of
the gift to charity exceeds the percentage of the estate
which may be so disposed of, generally only the excess
is void, the remaining dispositions of the will standing.
The void excess, arising from either cause, passes to the
residuary legatee, heir or next of kin, according to law.*^
§1119. The Same Subject: Purpose of Statutes.
The purpose of the statutes limiting the amount of his
estate which a testator may give to charity, and requiring
his will to be executed a prescribed time prior to his
demise, is to prevent the testator from disregarding
the just claims of those who would be the natural recipi-
ents of his bounty, and whose expectations might be de-
feated through some sudden pious or philanthropic im-
44 Estate of Budd, 166 Cal. 286, Matter of Smith, 85 Misc. Rep.
135 Pac. 1131, where a bequest 636, 149 N. Y. Supp. 24.
to the city of Stockton for a pub-
lic library was held void because
the will was executed in less than
30 days before testator's death.
The language of the statute "is 1"«^ts for certain purposes void
unless the will was executed at
least two months before the tes-
tatOEls death, make void only
Sections 18 and 19 of the Dece-
dents' Estates Law (Consol. Laws
N. Y. 1909, ch. 13), making be-
too explicit to be capable of being
misunderstood. It clearly shows
that the policy of the legislature
^ . ... . „ J .. J such bequests to corporations cre-
was to invalidate all devises and
^ ,. i j„ ated by the state of New York,
bequests by any person to an In-
..^ ^, .. . J and do not apply to foreign cor-
stitution or corporation formed
, . ,. i .j.„ porations. — Pottstown Hospital v.
under the act or subject to its
„ . New York Life Ins. & Trust Co.,
provisions, whose will was made
, ^ , ^. . .,208 Fed. 196.
and executed less than two months
before his death, without refer- 45 O'Donnell v. Murphy, 17 Cal.
ence to the circumstance of his App. 628, 120 Pac. 1076; Estate of
having a wife, child, or parent."— Peabody, 154 Cal. 173, 97 Pac. 184.
II Com. on Wills— 48
1618 COMMENTARIES ON THE LAW OF WILLS.
pulse. But such statutes impose only the restrictions
stated ; they do not compel a testator to give his property
to his kindred nor deprive him of the right to give all his
estate to charity during his life.*®
It is recognized that one in fear of death, although he
may never have exhibited charitable impulses, may sud-
denly desire to atone for the past and become an easy
prey for some designing promoter of a charitable or re-
ligious institution who, by playing upon the fears of the
testator, may cause him to temporarily lose thought of
wife, child or dependents. Limiting the amount which
can be devoted to charity also allows the testator the
unembarrassed disposition of the remainder and forces
the testator to consider, in disposing of his property, the
relative claims of those of kindred and charity.*'^
§ 1120. How Value of Estate Is Computed.
Where a testator may give only a certain percentage
of his estate to charity, in computing the amount the
value of the estate is taken as of the date of testator's
death.*^ Where the estate is subject to a life interest in
another which has not terminated, it is proper to deter-
mine the value of the life estate by reference to standard
mortality tables.*® In determining the amount, the whole
estate is treated as converted into money at the testator's
46 Jones V. Habersham, 107 U. S. Stevens, 161 N. Y. 122, 55 N. E.
174, 27 L. Ed. 401, 2 Sup. Ct. 336; 568.
Estate of Hinckley, 58 Cal. 457; 48 Frost v. Emanuel, 152 App.
Estate of Dwyer, 159 Cal. 680, 687, Dlv. 687, 137 N. Y. Supp. 559 ;
115 Pac. 242; In re Ihmes' Estate, Estate of Colburn, 157 N. Y. Supp.
154 Iowa 20, 134 N. W. 429; Estate 676.
of Beck, 44 Mont. 561, 121 Pac. 784, 49 Frost v. Emanuel, 152 App.
1057; Allen v. Stevens, 161 N. Y. Div. 687, 137 N. Y. Supp. 559;
122, 55 N. E. 568. HoUis v. Drew Theological Semi-
47 Parker, C. J., in Allen v. nary, 95 N. Y. 166.
CHARITABLE USES AND TRUSTS. 1619
death, and if the money value of the charitable gift ex-
ceeds the prescribed portion allowed by law to be given,
the statute has been violated.^**
The value of the estate is what remains after the pay-
ment of the debts of the decedent. As to whether the
■charges and expenses of administration should also be
deducted, there is a conflict of authority. In California
the percentage is based on the distributable assets after
the administrative expenses have been paid,^^ while in
New York the rule is to the contrary.^*
§ 1121. Charity, in a Legal Sense, Defined.
Charity, in its widest sense, denotes all the good affec-
tions men should bear toward each other. In its most
restricted sense it refers to relief of the poor. In neither
of these senses is it employed in the courts of chancery.
Its signification is derived chiefly from the statute of
Elizabeth,®* those purposes being charitable which are
enumerated in the statute, or which by analogy are
deemed within its spirit and intendment.®* It is clear,
however, that a charity or a charitable use, if not pro-
hibited by statute or public policy, may be applied to
almost anything which tends to promote the well doing
and well being of mankind, and liberality and benevolence
can find numerous objects not included within the stat-
50 Hollis V. Drew Theological 53 Statute of 43 Bliz., ch. 4.
Seminary, 95 N. Y. 166, 178. ^^ j^^g.jj ^_ ^^^^^^ Brightly
51 Estate of Hinckley, 58 Cal. ,„,„.„ ^ ^ . . ^ ,^
„ „„ (Pa.) 347, referred to m Ould v.
457, 516; Estate of Pearsons, 98 ' '
Cal. 603, 611, 33 Pac. 451. Washington Hospital for Found-
62 Estate of Colburn, 157 N. Y. lings, 96 U. S. 303, 24 L. Ed. 450.
Supp. 676.
T620
COMMENTARIES ON THE LAW OF WILLS.
ute.^^ In legal contemplation, "charity" and "charitable
use" are held to be convertible terms.^*
A charity, in a legal sense, is a gift to be applied ac-
cording to existing laws for the benefit of an indefinite
number of persons, either to improve them mentally or
morally by bringing them under the influence of education
or religion, or by relieving their bodies from suffering or
disease, or by erecting or maintaining public buildings
or works or otherwise lessening the burdens of mankind.
It is immaterial whether the purposes be called charitable
or not, if they are charitable in their nature.^'^ A charity
55 Morice v. Bishop of Durham,
9 Ves. Jun. 399, 32 Eng. Reprint
656; affirmed in 10 Ves. 522; Ould
V. Washington Hospital for Found-
lings, 95 U. S..303, 24 L. Ed. 450;
Hamden v. Rice, 24 Conn. 350;
Taylor v Keep, 2 111. App. 368;
Maine Baptist Missionary Conven-
tion V. Portland, 65 Me. 92; State
V. Addison, 2 S. C. 499; State v.
Board of Comrs. Laramie Co., 8
Wyo. 104, 55 Pac. 451.
56 Owens V. M. E. Church Mis-
sionary Soc, 14 N. Y. 380, 67 Am.
Dec. 160.
57 McDonald v Shaw, 81 Ark.
235, 98 S. W. 952; New Castle
Common v. Megglnson, 1 Boyce
(24 Del.) 361, Ann. Gas. 1914A,
1207, 77 Atl. 565; Crerar v. Will-
iams, 145 111. 625, 21 L. R. A. 454,
34 N. E. 467; Estate of Graves,
242 111. 23, 134 Ann. St. Rep. 302,
17 Ann. Cas. 137, 24 L. R. A.
(N. S.) 283, 89 N. B. 672; Jackson
V. Phillips, 14 Allen (96 Mass.)
539, 556.
Mr. Binney, in his argument in
the Girard Will case, thus defined
charity: "Whatever is given for
the love of God, or the love of
your neighbor, in the catholic and
universal sense — given from these
motives and to these ends, free
from the stain or taint of every
consideration that is personal, pri-
vate or selfish." This definition is
cited in a number of cases. — Ould
V. Washington Hospital for Found-
lings, 95 U. S. 303, 24 L. Ed. 450;
Garrison v. Little, 75 111. App. 402.
A devise "solely for benevolent
purposes," leaving it to the dis-
cretion of the trustee how the
proceeds shall be applied, has
been held not to be a charitable
gift, and void. — Williams v. Ker-
shaw, 5 CI. & F. Ill; Adye v.
Smith, 44 Conn. 60, 26 Am. Rep.
424; Chamberlain v. Stearns, 111
Mass. 267; Norris v. Thomson's
Exrs., 19 N. J. Eq. 307, 20 N. J.
Eq. 489.
But the word "benevolent," when
coupled with "charitable" or used
in such connection as to indicate
CHARITABLE USES AND TRUSTS. 1621
has been defined as "a gift to promote the welfare of
others."^* It is understood to refer to something done
or given for the benefit of fellowmen or of the public.^"
In a legal sense, charity is not confined merely to the
relief of poverty and distress, but has a wider significance
which embraces the improvement and promotion of the
happiness of man.^"
Charity, in a legal sense, has reference to what might
commonly be designated as a public charity, as distin-
guished from a private charity. To give it "the char-
acter of a public charity, there must be some benefit con-
ferred upon or duty to be performed toward, either the
public at large or some large part thereof, or an indefi-
nite number of persons."®^ The definition of a public
charity has been steadily broadened, and it has been said
that "whatever is gratuitously done or given in relief of
an intention that it be understood Mass. 414, Ann. Cas. 1912D, 425, 96
as equivalent to "charitable," may N. E. 1032.
have effect according to intention. gi Erskine v. Whitehead, 84 Ind.
-Hill V. Bums, 2 Wils. & S. 80; 35^. ^^^^^^^ ^ ^^^^^ 59 j^^ 325.
Miller V. Rowan. 5 CI. & F. 99; ^^^^^^^,^,, ^ g^^^^^^^ ,, ^j,^^
Crichton v. Grierson, 3 Bligh N. S.
424; Rotch v. Emerson, 105 Mass.
431, 434; Chamberlain v. Steams,
111 Mass. 267; Saltonstall v. San- D"" ^45; Old South Society v.
ders, 11 Allen (93 Mass.) 446. Crocker, 119 Mass. 1, 20 Am. Rep.
58 Philadelphia v. Masonic Home ^99.
of Penn., 160 Pa. St. 572, 40 Am. See § 1113.
St. Rep. 736, 23 L. R. A. 545, 28 a public charity has been de-
Atl. 954. fined as a gift to the general pub-
59 Knight's Estate, 159 Pa. St. lie which extends to the poor as
500, 28 Atl. 303. well as the rich. — Jones v. Will-
60 New England Sanitarium v. iams, Ambl. 652; State v. Board
Stoneham, 205 Mass. 335, 91 N. E. of Commissioners of Laramie Co.,
385; Lattle v. Newburyport, 210 8 Wyo. 104, 55 Pac. 451.
(93 Mass.) 446; Going v. Emery,
16 Pick. (33 Mass.) 107, 26 Am.
1622 COMMENTARIES ON THE LAW OF WILLS.
the public burdens or for the advancement of the public
good, is a public charity."**
§ 1122. Objects Construed as Not Charitable.
A court of chancery can not see to the execution of
a private charity;®^ as, for example, a gift to found a
private museum,®* or in aid of a subscription library,®*
or of a friendly society,®® or for the benefit of an orphan
school kept by an individual substantially at his own ex-
pense.®'' A gift to a society for benevolent work among-
its members only is not a public charity,®* nor for keeping
a graveyard and monument in repair,®^ nor to build a
monument, tomb, or vault, for the donor.''® A fund to
maintain a brass band to march to the testator's grave
on holidays and other occasions is not for a charitable
use, and void as creating a perpetuity.^^
62 Episcopal Academy v. Phila- 65 Came v. Long, 29 Law J. Ch.
delphia, 150 Pa. St. 565, 25 Atl. 55. 503.
A public charity has also been 66 In re Clark's Trust, L. R. 1
defined as "any gift not Inconsis- Ch. Div. 497; In re Button, L. R. i
tent with existing laws, which is Ex. Div. 54.
promotive of science or tends to 67 Clark v. Taylor, 1 Drew. 642.
the education, enlightenment, ben- 68 Beaumont v. Meredith, 3 Ves.
efit, or amelioration of the condi- & B. 180; Babb v. Reed, 5 Rawle
tion of mankind, or the diffusion (Pa.) 151, 28 Am. Dec. 650; Swift's
of useful knowledge, or is for the Bxrs. v. Beneficial Soc, 73 Pa. St.
public convenience." — Missouri 362.
Historical Soc. v. Academy of Sci- 69 Fite v. Beasley, 12 Lea (80
ence, 94 Mo. 459, 8 S. W. 346; Tenn.) 328.
Buchanan v. Kennard, 234 Mo. 117, Compare: Detwiller v. Hartman,
Ann. Gas. 1912D, 50, 37 L. R. A. 37 N. J. Eq. 347.
(N. S.) 993, 136 S. W. 415. 70 Hoare v. Osborne, L. R. 1 Bq.
63 Nash V. Morley, 5 Beav. 177; 585; Bates v. Bates, 134 Mass. 110,
Ommanney v. Butcher, Turn. & R. 45 Am. Rep. 305. See, also, Adnam
260. V. Cole, 6 Beav. 353.
64 Thompson v. Shakespeare, 7i Detwiller v. Hartman, 37 N. J.
Johns. 612. Eq. 347.
CHARITABLE USES AND TRUSTS. 1623
A gift for the benefit of the World 's Columbian Exposi-
tion to help it out of financial difficulty and to enable it
to complete its undertaking, does not fall within the ac-
cepted definitions of charitable gifts for the benefit of
the public.''^ Neither is a devise to keep in repair the
graves of the testator's sisters and his own, a charitable
use.''® And if the beneficiaries are definitely pointed out
or are clearly ascertainable, the charity can not be con-
sidered public.''*
§ 1123. Examples of Charitable Uses.
The doctrine of charitable uses and the validity of char-
itable trusts in the United States do not owe their origin
to the statute of Elizabeth, 43 Eliz., ch. 4, nor does
the jurisdiction of courts of equity depend upon that
statute.''^ Accordingly, in those states where the statute
is not in force, the courts will not confine themselves to
the objects enumerated therein.''® And in other jurisdic-
tions where the statute is in force, the courts extend the
application of the doctrine of charitable uses to purposes
72 World's Columbian Exposl- for Foundlings, 96 TJ. S. 303, 24
tion V. United States, 56 Fed; 654, L. Ed. 450; State v. Griffith, 2 Del.
6 C. C. A. 58. ^^- 382; Garrison v. Little, 75 111.
App. 402; Missouri Historical See.
73 Kelly V. Nichols, 17 R. I. 306,
19 L. R. A. 413, 21 Atl. 906.
74 Attorney General v. Federal
V. Academy of Science, 94 Mo. 459,
8 S. W. 346; Harrington v. Pier,
105 Wis. 485, 76 Am. St. Rep. 924,
St. Meeting House, 3 Gray (69 gp l. R. A. 307, 82 N. W. 345.
Mass.) 1; Parker t. May, 5 Gush. ^ contrary rule was laid down
(59 Mass.) 336; Old South Soc. v. .^ Philadelphia Baptist Assoc, v.
Crocker, 119 Mass. 1. 20 Am. Rep. jj^^^_ ^ ^j^^^^ ^^ g^ ^^ ^ L. Ed.
^88- 499, but this was overruled in the
See § 1113. Girard Will Case.
75 Vidal V. Girard (Girard Will 76 Tappan v. Deblois, 45 Me.
Case), 2 Ho.w. (U. S.) 127, 11 L Ed. 122; Witman v. Lex, 17 Serg. C^
205; Ould v. Washington Hospital R. (Pa.) 88, 17 Am. Dec. 644.
1624
COMMENTARIES ON THE LAW OP WILLS.
which, although not set forth therein, are by analogy
deemed within the spirit and intendment of the act.'^^ So
we find a great number of uses that have at various times
been held to be charitable, as, for example, "for the ad-
vancement of the Christian religion among infidels";''^
for repairing a church,'^® or parsonage;*" gifts tending
to lessen the burdens of government, as for erecting and
keeping public buildings and works ;*^ building and re-
pairing bridges, causeways, ports, and sea-banks, for pav-
ing, cleaning and lighting a town;^^ for erecting a free
grammar school;*' for literary institutions and libra-
ries;** for building an organ gallery;*^ for educational
purposes;*® for the public improvements of a town;*^
77 Morice v. Duriam, 9 Ves. Jun.
399, 405.
78 Attorney General v. William
& Mary's College, 1 Ves. Jun.
243, 245.
See §§ 1127, 1128.
79 Attorney General v. Ruper, 2
P. Wms. 125.
80 Legard v. Hodges, 3 Bro. C. C.
531.
81 Jackson v. Phillips, 14 Allen
(96 Mass.) 539, 556.
See § 1135.
82 Beaumont v. Oliveira, L. R. 4
Ch. App. 309; Hamden v. Rice, 24
Conn. 350; State v. Griffith, 2 Del.
Ch. 392; Thomas v. Ellmaker, 1
Pars. Eq. Cas. (Pa.) 98; Cogges-
hall V. Pelton, 7 Johns. Ch. (N. Y.)
292; Magill v. Brown, Brightly
N. P. (Pa.) 347; Cresson's Appeal,
30 Pa. 437; Bethlehem Borough v.
Perseverance EMre Co., 81 Pa. St.
445; Humane Fire Co.'s Appeal, 88
Pa. St. 389.
See §1135.
83 Hadley v. Trustees ot Hop-
kins Academy, 14 Pick. (31 Mass.)
240; State v. McGowen, 37 N. C. 9.
84 Humphries v. The Little Sis-
ters, 29 Ohio St. 201, 205; Drury v.
Inhabitants of Natick, 10 Allen (92
Mass.) 169; Gerke v. Purcell, 25
Ohio St. 229; Donohugh's Appeal,
86 Pa. St. 306. And see Burd Or-
phan Asylum v. School District, 90
Pa. St. 21; Miller's Bxr. v. Com-
monwealth, 27 Gratt. (Va.) 110,
116.
See §1134.
85 Cited Attorney General v.
Oakaver, 1 Ves. Sen. 536.
See § 1128.
86 Whicker v. Hume, 7 H. L. Cas.
124; Taylor's Exrs. v. Trustees of
Bryn Mawr College, 34 N. J. Eq.
101; Vidal v. Girard, 2 How.
(U. S.) 128, 11 L. Ed. 205.
87 Attorney General v. Heelis, 2
Sim. & St. 67.
See § 1135.
CHABITABLE USES AND TRUSTS.
1625
"to tlie poor";®^ for releasing poor debtors;*' to a
parish;'" for the benefit of fugitive slaves;'^ for or-
phans;*^ for a hospital;'* for the dissemination of the
gospel;®* for the purchase and distribution of religious
books and reading;'^ for the benefit of ministers of the
gospel ;'® for the advancement of learning ;"^ for the dif-
fusion of knowledge among the laboring classes ;'* to pro-
mote the moral, intellectual, and physical instruction of
a city;" for the foundation of scholarships and fellow-
ships ;^ for the suppression of the manufacture and sale
88 Attorney General v. Mat-
thews, 2 Ii6T. 167; Heuser v. Har-
ris, 42 111. 425; Howard v. Ameri-
can Peace Sec, 49 Me. 288.
89 Attorney General v. Ironmon-
gers' Co., 2 Myl. & K. 576.
90 Attorney General v. Blizard,
21 Beav. 233; Attorney General v.
Old South Soc, 13 Allen (95
Mass.) 474; State v. Gerard, 37
N. C. 210; Shotwell v. Mott, 2
Sand. Ch. (N. Y.) 46.
91 Jackson v. Phillips, 14 Allen
(96 Mass.) 539, 571.
92 Vldal V. Glrard, 2 How. (U. S.)
128, 11 L. Ed. 205.
93 Attorney General v. Kell, 2
Beav. 575; McDonald v. Massa-
chusetts Gen. Hospital, 120 Mass.
432, 21 Am. Rep. 529.
See § 1133.
94 Attorney General v. Wallace's
Devisees, 7 B. Mon. (46 Ky.) 611;
Hinckley v. Thatcher, 139 Mass.
477, 52 Am. Rep. 719, 1 N. B. 840;
Burr's Exrs. v. Smith, 7 Vt. 241,
29 Am. Dec. 154.
See §1127.
95 Attorney General v. Stepney,
10 Ves. Jun. 22; Simpson v. Wel-
come, 72 Me. 496, 39 Am. Rep. 349;
Bliss V. American Bible Society,
2 Allen (84 Mass.) 334; Winslow
v. Cummings, 3 Cush. (57 Mass.)
358.
96 Pember v. Inhabitants of
Kingston, Toth. 34; Attorney Gen-
eral V. Gladstone, 13 Sim. 7; Cory
Universalist Soc. v. Beatty, 28
N. J. Eq. 570.
97 Whicker v, Hume, 1 De Gex,
M. & G. 506; Stevens v. Shippen,
28 N. J. Eq. 487; Taylor's Exrs.
V. Trustees of Bryn Mawr College,
34 N. J. Eq. 101.
98 Sweeney v. Sampson, 5 Ind.
465.
99 Lowell's Appeal, 22 Pick. (39
Mass.) 215.
See § 1135.
1 Attorney General v. Andrew,
3 Ves. Jun. 633; Attorney General
V. Bowyer, 3 Ves. Jun. 714; Rex v.
Newman, 1 Lev. 284.
1626 ■
COMMENTARIES ON THE LAW OP WILLS.
of intoxicating liquors f for the relief of aged females f
gifts to a college for orphans f for the cause of foreign
missions;' a gift for "charity," or for "charitable pur-
poses" simply;" for the relief of Indians;^ for poor re-
lations;^ for "the worthy poor" of a city "in such man-
ner as a court of chancery may direct";® "for human
beneficence";^" for the poor members of two chnrches;^^
for the relief of the most deserving poor of a city, ex-
cepting from the benefit the intemperate, lazy, immoral,
and undeserving f^ to be expended for ' ' charitable and de-
serving objects";^* for "charities and other public pur-
poses" in a parish;^* for the general improvement of a
town ;^' for the erection of water-works ;^® for the ' ' good ' '
100,
2 Haines v. Allen, 78 Ind,
41 Am. Rep. 555.
See § 1136.
3 Gooch V. Association for Relief
of Aged Indigent Females, 109
Mass. 558, 567.
4 Vidal V. Girard, 2 How. (U. S.)
128, 11 L. Ed. 205; Miller v. Atkin-
son, 63 N. C. 537; Miller v. Porter,
53 Pa. St. 292; Clement v. Hyde,
50 Vt. 716, 28 Am. Rep. 522;
Paschal v. Acldin, 27 Tex. 173.
5 Bartlet v. King, 12 Mass. 537,
7 Am. Dec. 99; Fairbanks v. Lam-
son, 99 Mass. 533.
See § 1131.
6 Mills V. Farmer, 19 Yes. Jun.
483, cited Legge v. Asgill, Turn.
& R. 265, n.
Compare: Ady© v. Smith, 44
Conn. 60, 26 Am. Rep. 424.
T Magill V. Brown, Brightly N. P.
(Pa.) 347.
8 Brunsden v. Woolridge, Ambl.
507; Swasey v. American Bible
Soc, 57 Me. 523, 527; Smith v.
Harrington, 4 Allen (86 Mass.)
566.
9 Hunt V. Fowler, 121 111. 269,
12 N. E. 331, 17 N. B. 491.
10 Hinckley's Estate, 58 Cal. 457.
11 Union Methodist Church v.
Wilkinson, 36 N. J. Eq. 141.
12 Hesketh v. Murphy, 36 N. J.
Eq. 304; s. c, 35 N. J. Eq. 23. See,
also, Brskine v. Whitehead, 84 Ind.
357.
IS Stone V. Attorney General,
Li. R. 28 Ch. Div. 464.
14 Dolan V. Macdermot, L. R. 5
Eq. 60.
15 Howse V. Chapman, 4 Ves.
Jun. 542; Attorney General v.
Heelis, 2 Sim. & St 67; Mitford v.
Reynolds', 1 Phillim. 185.
See § 1135.
le Jones v. Williams, Ambl. 651.
See §1135.
CHARITABLE USES AND TRUSTS. 1627
of a place ;^'' for the establishment of a life-boat ;^* for a
botanical garden for public benefit;''* for the British Mu-
seum ;-" for humane societies.^^ A devise to a corporation
organized to enable its incorporators to establish and
manage hospitals, schools, asylums, and "other institu-
tions for the relief, education, and care of the poor, the
needy, the distressed, the orphans, and the ignorant, ' ' is
charitable in nature.-^
§ 1124. The Same Subject.
A devise entailed upon a priest and his successors has
been held to be in ease of the congregation, and therefore
charitable and valid.^* A devise of a house containing a
library to an historical society in trust, "to be for the
public" on such terms as the society might prescribe, is
a valid charity.^* A gift to "aid indigent young men"
in fitting themselves for the "evangelical ministry," is
not void for uncertainty, the words "indigent" and
"evangelical" being sufficiently definite.^^ Where the
words of a will were, "the residue of my estate to be kept
in reserve for further consideration in the way of char-
itable purposes in a liberal way, not to any particular
17 Attorney-General v. Lonsdale, See § 1139.
1 Sim. 105; Attorney-General v. 22 Quinn v. Shields, 62 Iowa 129,
Webster, L. R. 20 Eq. 483. 135^ 49 Am. Rep. 141, 17 N. W. 437.
18 Johnston v. Swann, 3 Madd.
457.
See § 1135.
19 Townley v. Bedwell, 6 Ves.
Jun. 194; Rotch v. Emerson, 105
Mass. 431, 433.
See § 1135.
20 British Museum v. White, 2 24 Jones v. Habersham, 107 U. S.
Sim. & St. 595. 17*- 27 L. Ed. 401, 2 Sup. Ct. 336.
21 Beaumont v. Oliveira, L. R. 6 25 Storr's Agricultural School v.
Eq. 534. Whitney, 54 Conn. 352, 8 Atl. 141.
23 McGirr v. Aaron, 1 Pen. & W.
(Pa.) 49, 21 Am. Dec. 361. See,
also, Brower's Exrs.' Lessee v.
Fromm, Addis (Pa.) 362; Trus-
tees of Bishop's Fund v. Eagle
Bank, 7 Conn. 476.
1628 COMMENTARIES ON THE LAW OP WILLS.
creed or sect of religion," it was considered a valid char-
itable use, and held to constitute the executors of the will
trustees for its application, although they were not named
trustees in the residuary clause.^*
A penitentiary has been held to be a charitable institu-
tion.2'^ A gift to build and maintain a life saving station f^
for the increase and encouragement of good servants ;^^
"to give shelter to homeless people at night irrespective
of creed, color, or condition";** to the American Peace
Society to be expended in the cause of peace ;*^ for the.
maintenance and extension of a botanical garden ;^^ for
the relief of the great suffering, distress, famine, and'
want caused by the destruction of life and property by
storms, floods, fires, and other accidental and natural
causes,** and for the best essays in statistics with ref-
erence to the testator's writings on the subject,** have
all been held to be for charitable purposes.
§ 1125. Superstitious Uses and Trusts : English Rule.
At one time, in England, a gift to promote a religious
faith contrary to statute, was void.*^ Bequests in favor
of the Roman Catholic religion were unlawful.*® About
26 Claypool V. Norcross, 42 N. J. 3S Kronshage v. Varrell, 120 Wis.
Eq. 545, 9 Atl. 112. 161, 97 N. W. 928.
27 State V. Board of Comrs. of 34 Thompson v. Thompson, 1
Laramie County, 8 Wyo. 104, 55 Coll. 381, 63 Eng. Reprint 464.
Pac. 451. 35 De Themmines v. De Bonne-
28 Richardson v. Mullery, 200 val, 5 Russ. 288; Da Costa v. De
Mass. 247, 86 N. E. 319. Pas, Ambl. 228.
29 Loscombe v. Wlntringham, 13 See, also Lusk v. Lewis, 32 Miss.
Beav. 87, 51 Eng. Reprint 34. 297 ; Finley v. Hunter, 2 Strob. Eq.
30 In re Croxall, 162 Pa. St. 579, (S. C.) 208, 218; Johnson v. Clark-
29 Atl. 759. son, 3 Rich. Eq. (S. C.) 305.
31 Tappan v. Deblois, 45 Me. 36 Gary v. Abbot, 7 Ves. Jun.
122. 490.
32 Lackland v. Walker, 151 Mo. Catholics were placed on the
210, 52 S. W. 414. same footing as Protestants by
CHARITABLE USES AND TRUSTS. 1629
the time of the Reformation, statutes were enacted to
prevent the disposition of property to uses which were
then held to be superstitious. ^'^ Such uses were not, how-
ever, within the letter of the statute, but were held to be
contrary to the policy of the law.^* Thus, bequests to be
expended in having masses said for the repose of the tes-
tator's soul, maintaining obit lamps, or for similar pur-
poses, are held void.**
In Ireland, while bequests for masses for the benefit
of the testator have been held valid,""* they are not chari-
table and therefore must not contravene the rule against
perpetuities.*^
§ 1126. Masses for Repose of Souls of the Dead : American Rule.
In the United States, under our political institutions
which maintain and enforce absolute separation of church
and state and the utmost freedom of religious thought
the statute of 2 & 3 Wm. 4, ch. Baxter, 1 Eq. Cas. Ab. 96, pi. 9;
115, and Jews by the statute of Attorney General v. Pearson, 3
9 & 10 Vict., ch. 59. Mer. 353.
37 By the statute of 23 Hen. 39 Adams v. Lambert's Case, 4
VIII, ch. 10, gifts "thereafter" ^^^^ ^04b; Hart v. Brewer, Cro.
made of lands declared to such
uses, as having perpetual obits or
the continual services of a priest,
or similar uses, were void.
The statute of 1 Edw. VI, ch. 14,
forfeited to the king all real prop-
erty and certain corporate per-
sonal property "theretofore" dis-
posed of for the perpetual finding
of a priest, or for the maintenance
of an obit or lights or similar The rule is the same In Canada,
matters of ceremony. see Elmsley v. Madden, 18 Grant
38 Gary v. Abbot, 7 Ves. Jun. Cl»- (U. C.) 386.
490, 495. 41 Kehoe v. Wilson, L. R. 7 Ir.
See, also. Attorney General v. 10.
Eliz. 449; West v. Shuttleworth, 2
Myl. & K. 684; Attorney General v.
Fishmonger's Co., 2 Beav. 151;
Blundell's Trusts, 30 Beav. 360,
s. c. 31 L. J. Ch. 52; Yeap v. Ong.
L. R. 6 P. C. 381, 396.
40 Read V. Hodgens, 7 Ir. Eq. 17;
Charitable Donation Comrs. v.
Walsh, 7 Ir. Ch. 24.
1630
COMMENTARIES ON THE LAW OP WILLS.
and action, the English doctrine as to superstitious uses
has never obtained.*^ If a bequest to be expended for
such a purpose as having masses said for the repose of
the souls of the dead, can othermse be supported under
recognized rules of law, it will not be assailed as giving
effect to the religious superstitions of the donor. Such
bequests, however, partake of the nature of trusts and
can not generally be treated as gifts to the churches them-
selves.**
42 Perry, Trusts, §715; Gass v.
Wilhite, 2 Dana (32 Ky.) 175, 26
Am. Dec. 446; Methodist Church
V. Remington, 1 Watts (Pa.) 219,
26 Am. Dec. 61; Miller v. Porter,
53 Pa. St. 292.
Compare: Jackson v. Phillips,
14 Allen (96 Mass.) 549, 554.
43 Festorazzi v. St. Joseph's
Catholic Church, 104 Ala. 327, 53
Am. St. Rep. 48, 25 L. R. A. 360,
18 So. 394; Hoeffer v. Clogan, 171
111. 462, 63 Am. St. Rep. 241, 40
L. R. A. 730, 49 N. E. 527; Burke
V. Burke, 259 111. 262, 102 N. E.
293 ; Ackerman v. Fichter, 179 Ind.
392, Ann. Cas. 1915D, 1117, 46
L. R. A. (N. S.) 221, 101 N. E. 493;
Moran v. Moran, 104 Iowa 216, 65
Am. St. Rep. 443, 39 L. R. A. 204,
73 N. W. 617; Harrison v. Brophy,
.59 Kan. 1, 40 L. R. A. 721, 51 Pac.
883; Coleman v. O'Leary's Exr.,
114 Ky. 388, 70 S. W. 1068; Web-
ster V. Sughrow, 69 N. H. 380, 48
L. R. A. 100, 45 Atl. 139; Holland
V. Alcock, 108 N. Y. 312, 2 Am. St.
Rep. 420, 16 N. B. 305; In re Kav-
anaugh, 143 Wis. 90, 28 L. R. A.
(N. S.) 470, 126 N. W. 672; Mc-
Hugh V. McCole, 97 Wis. 166, 65
Am. St. Rep. 106, 4Q L. R. A. 724,
72 N. W. 631.
In the United States bequests
for the general advancement of
the Roman Catholic religion, the
support of its forms of worship, or
the benefit of its clergy, are char-
itable equally with those for the
support of any other form of re-
ligious belief or worship. It is said
that mass is intended as a repeti-
tion of the sacrifice on the cross,
Christ offering himself again
through the priest and asking par-
don for sinners as he did on the
cross; and It is one of the chief
and central acts of worship in the
Roman Catholic church. — Hoeffer
V. Clogan, 171 111. 462, 63 Am. St.
Rep. 241, 40 L. R. A. 730, 49 N. E.
527.
A mass has been defined as "an
act of public worship, in celebra-
tion of the Eucharist as observed
in the Roman Catholic Church and
formerly observed in the Church
of England and yet observed in
some Anglican churches." It is
common and public to all as a re-
CHARITABLE USES AND TRUSTS.
1631
Gifts to procure masses to be said for the souls of the
dead are held valid.** There is, hoAvever, a diversity of
opinion as to the nature of such trusts, one line of cases
holding them to be good as charitable trusts,*^ another
holding them to be private trusts ;*" and still another hold-
ing them to be good as outright gifts for a specified legal
object.*^
Where the bequest is to be expended only for masses
for the repose of the testator's soul, it can not be a gift
to charity since the beneficiary is specified, and a char-
ity is for the benefit of an indefinite number. It may, how-
ligious ceremony, and Is therefore
a religious or pious use and is a
public charity as distinguished
from a private charity, which it
might be if restricted to the
masses tor the souls of designated
persons. — ^Ackerman v. Fichter,
179 Ind. 392, Ann. Cas. 1915D, 1117,
46 L. R. A. (N. S.) 221, 101 N. B.
493.
44 Ex parte Schouler, 134 Mass.
426; Hagenmeyer v. Hanselman,
2 Demar. (N. Y.) 87; In re Hagen-
meyer's Will, 12 Abb. N. C. (N. Y.)
432.
45 Hoeffer v. Clogan, 171 111. 462,
63 Am. St. Rep. 241, 40 L. R. A.
730, 49 N. E. 527; Ackerman v.
Fichter, 179 Ind. 392, Ann. Cas.
1915D, 1117, 46 L. R. A. (N. S.) 221,
101 N. E. 493; In re Schouler, 134
Mass. 426; Webster v. Sughrow, 69
N. H. 380, 48 L. R. A. 100, 45 Atl.
139; Kerrigan v. Tabb, (N. J.) 39
Atl. 701.
In construing a bequest for
masses "for the repose of all poor
souls," the court says: "The bene-
ficiaries are all poor souls, not the
souls of the poor; but as we under-
stand it, all souls are regarded as
poor souls, objects, or subjects of
mediation in their behalf, and if so
all come within the classification,
indefinite both as to persons and
numbers, and this brings the de-
vise within the doctrine of pious
or charitable uses, or a public
charity, if otherwise sustainable."
— Ackerman v. Fichter, 179 Ind.
392, Ann. Cas. 1915D, 1117, 46
L. R. A. (N. S.) 221, 101 N. E. 493.
46 Moran v. Moran, 104 Iowa 216,
65 Am. St. Rep. 443, 39 L. R. A.
204, 73 N. W. 617; McHugh v. Mc-
Cole, 97 Wis. 166, 65 Am. St. Rep.
106, 40 L. R. A. 724, 72 N. W. 631.
47 Estate of Lennon, 152 Cal.
327, 125 Am. St. Rep. 58, 14 Ann.
Cas. 1024, 92 Pac. 870; Harrison
V. Brophy, 59 Kan. 1, 40 L. R. A.
721, 51 Pac. 883; Sherman v.
Baker, 20 R. I. 446, 40 L. R. A. 717,
40 Atl. 11.
1632
COMMENTARIES ON THE LAW OF WILLS.
ever, be valid as an ordinary trust and be enforced as
such.**
§ 1127. Religious and Pious Uses.
Bequests for religion and religious purposes go far
back in judicial history, and it has been universally
held that a religious purpose is a charitable purpose.
Promotion of religious opinions, circulation of religious
literature, maintenance of the clergy, preaching and
spread of the gospel are charitable.*®
48 Dougherty's Estate, 12 Phila.
(Pa.) 70.
in Pestorazzi v. St. Joseph's Cath.
Church, 104 Ala. 327, 53 Am. St.
Rep. 48, 25 L. R. A. 360, 18 So. 394,
a hequest to he used "In solemn
masses for the repose of my soul"
was held invalid because it cre-
ated a private trust for the benefit
alone of his own soul, and there
was a lack of a living beneficiary
and some one to enforce it. This
is also decided in Holland v. Al-
cock, 108 N. Y. 312, 2 Am. St. Rep.
420, 16 N. E. 305.
49 Dunne v. Byrne, (1912) A. C.
407, Ann. Cas. 1912C, 1055; In re
Darling, 1 Ch. 50; Arnott v. Ar-
nott, L.. R. (1901) 1 Ir. 201; In re
Barrett, 10 Ont. L. 337; Blscoe v.
Thweatt, 74 Ark. 545, 4 Ann. Cas.
1136, 86 S. W. 432; Beckwith v.
Rector etc. of St. Philip's Parish,
69 Ga. 564; Alden v. St. Peter's
Parish, 158 111. 631, 30 L. R. A. 232,
42 N. E. 392; People v. Baucher,
258 111. 604, 47 L. R. A. (N. S.)
1015, 101 N. E. 944; First M. E.
Church of Pt. Madison v. Donnell,
110 Iowa 5, 46 L. R. A. 858, 81
N. W. 171; Jackson v. Phillips, 14
Allen (96 Mass.) 539; Bruce v.
Central M. E. Church, 147 Mich.
230, 11 Ann. Cas. 150, 10 L. R. A.
(N. S.) 74, 110 N. W. 951; Mac-
Kenzie v. Trustees of Presbytery
of Jersey City, 67 N. J. Eq. 652, 3
L. R. A. (N. S.) 227, 61 Atl. 1027;
Board of Education of City of Al-
buquerque V. Bernalillo Co. School
Dlst., 21 N. M. 624, 157 Pac. 668;
Brice v. Trustees of All Saints'
Mem. Chapel, 31 R. I. 183, 76 Atl.
774; In re Kavanaugh, 143 Wis. 90,
28 L. R. A. (N. S.) 470, 126 N. W.
672.
See § 1127, Pious Uses.
See §§ 1125, 1126, Superstitious
Uses.
A gift to promote the political
welfare of the Jews has been con-
sidered not to be charitable in its
nature. -^ Habershon v. Vardon, 7
Eng. li. & Bq. 228.
A trust for a public library Is
not rendered void by a direction
to the trustees not to exclude
books because of their containing
CHAKITABLE USES AND TRUSTS. 1633
Legacies to pious uses are those wMoli are destined to
some work of piety, or object of charity, and have their
motive independent of the consideration which the merit
of the legatee might procure to them. They are viewed
with special favor by the law, and with double favor be-
cause of their motives for sacred usages, and their ad-
vantage to the public weal.^" The legal maxim is that
"the law favoreth charity." Another legal maxim is " ec-
clesice magis favendum est quam persona," which trans-
lated means that "the church ought to be more favored
than a person." The idea of a perpetuity is of the very
essence of such a grant.^^
At common law, lands may be granted to pious uses be-
fore there is a grantee to take. In the meantime the fee
will lie in abeyance. It will vest when the grantee ex-
ists.s2
Abandonment of a pious use involves two elements:
First, an intent to abandon permanently, and secondly,
the physical fact of nonuser for religious purposes.
These two elements must conjoin and both be operative
at the same time or else there is no abandonment.^^
unconventional doctrines on the 60 Succession of Vance, 39 La.
subjects of theology and morals, Ann. 371, 2 So. 54; Succession of
the direction being considered only Tilton, 133 La. 435, 63 So. 99.
a negative recommendation.- g, strother v. Barrow, 246 Mo.
Manners v. Philadelphia Library „ . ^g_ ^ „
Co., 93 Pa. St. 165, 39 Am. Rep,
741.
52 Pawlet V. Clark, 9 Cranch
A trust for an infidel society (U. S.) 292, 3 L. Ed. 735; Ould v.
can not be construed to be of a Washington Hospital, 95 U. S. 303,
charitable nature. — Zeisweiss v. 24 L. Ed. 450.
James, 63 Pa. St 465, 3 Am. Rep. 53 Strother v. Barrow, 246 Mo.
558. ?41, 151 S. W. 960.
II Com. on Wills— 49
1634 COMMENTAEIES ON THE LAW OF WILLS.
§1128. Churches.
While it is true that by the statute of Elizabeth'* no
mention is made of gifts to churches, the omission "was
intentional, in order to avoid confiscations in case the
Eeformation went backward.'"-^ Repairs to churches
are enumerated and by analogy gifts to churches may be
included, and it is universally held that such devises
or bequests are valid charitable uses.®® Such gifts will
be sustained even though the church is unincorporated
and not capable in law of holding and transmitting prop-
erty.®^
A gift by will of the parsonage, together with the land
upon which it is situated, to a church society so long as it
is used for a parsonage, vests the church with a base or
qualified fee to said land, terminable upon an event that
may or may not happen, and until the happening of the
contingency or event, the trustees or governing body of
54 See § 1115. in trust is a gift "to" the church
55 2 Perry, Trusts, 5 701. within Rev. Laws, ch. 37, i 9.-
56 Sears v. Attorney General,
193 Mass. 551, 9 Ann. Cas. 1200, 79
N. B. 772; Estate of Douglass, 94
Chase v. Dickey, 212 Mass. 555, 99
N. E. 410.
A bequest "I leave to the rector
of the Jesuits' College at Mun-
Neb. 280, Ann. Cas. 1914D, 447. 143 ^^.^^^ .^ ^.^ ^^ ^^^ ^^^^^ ^^^^^_
N. W. 299; Jordan v. Universalist ^^^ ^^^ ^^^.^^^ ^^ p^p.,^ .^.
etc. Trustees, 107 Va. 79, 57 S. E. ^^^^^^ ^^^ ^^^ ^^^^^^_ ^^^ ^^^ ^^
£500," is not invalid as being con-
A devise to the vestrymen of a trary to the policy of the Roman
church, an unincorporated rellg- catholic relief act (10 Geo. IV. ch.
ious body, for the use and benefit 7).— Roche v. M'Dermott, L. R.
of such church, is a good charita- (1901) 1 i. r. 394, 1 B. R. 0. 949.
ble devise. — ^Blscoe v. Thweatt, 74 57 Blscoe v. Thweatt, 74 Ark.
Ark. 545, 4 Ann. Cas. 1136, 80 S. W. 545^ 4 ^nn. Cas. 1136, 80 S. W.
432. 432; Burke v. Burke, 259 111. 262,
A devise of property to a church 102 N. E. 293.
CHAEITABIE USES AND TRUSTS.
1635
the churcli may hold and use the property for the pur-
pose for which it was donated.^*
§1129. Christian Science.
A will providing a trust "for the purpose of more
effectually promoting and extending the religion of Chris-
tian Science as taught by me" is considered as a gift to
a public charity and for a general public use.^'' "Even if
Mrs. Eddy's scheme were merely educational, if it were
such that she might legally publish and promote it in her
lifetime, there would be no legal objection to gifts by
herself or others to extend and promote it by publish-
ing her writings, or by other lawful means, after her
death. "««
58 Mendenhall v. First New
Church Soc, 177 Ind. 336, 98 N. E.
57; Estate of Douglass, 94 Neb.
280, Ann. Cas. 1914D, 447, 143
N. W. 299.
59 Chase v. Dickey, 212 Mass.
555, 99 N. E. 410; Glover v. Baker,
76 N. H. 393, 83 Atl. 916.
These cases have reference to
the will of Mary Baker Eddy.
In Chase v. Dickey, 212 Mass.
555, 99 N. B. 410, the court says:
"Christian Science, as a denomi-
nation of Christianity, may be as-
sumed to be no more difficult of as-
certainment than many other
sects. It is argued, however, that
because the testatrix confined her
benefaction to the spread of Chris-
tian Science as taught by her,
there is thereby involved an in-
quiry into oral utterances of such
vagueness and dependent upon
such uncertainty of recitals by
hearers that indefiniteness in a
legal sense must be inevitable.
Certainly this can not be pre-
sumed in advance of a determina-
tion of what her teachings in fact
were. It is not to be assumed that
they are more difficult of ascer-
tainment than those of most other
sects of Christendom, nor that a
court of equity would encounter
any insurmountable difficulty in
administering the trust."
60 Glover v. Baker, 76 N. H. 393,
83 Atl. 916, wherein the court
says: "The allegation that Chris-
tian Science is not a religion, but
a system of faith-cure for disease,
does not help the plaintiff, whether
the extension and promotion in-
tended is of a religion, or of a
system of therapeutics, or a com-
bination of the two, — whether it
aims to benefit mankind by ensur-
ing their happiness in a future
1636
COMMENTAKIES ON THE LAW OF WILLS.
§ 1130. Christian Associations for Young Men or Women.
The question whether Yoiiiig Men's Christian Asso-
ciations or Young Women's Christian Associations,®^
the purposes of which are the improvement of the spir-
itual, mental, social, and physical condition of young
men and young women, and which include educational
classes, reading rooms, and the like, for which fees are
charged but no profits are made, are charitable insti-
tutions within the meaning of the statutes, has been
seemingly decided both negatively®^ and affirmatively.®^
state, or by rendering their exist-
ence more tolerable in ttiis world
— it is equally a gift for general
public use."
61 Philadelphia v. Women's
Christian Assoc, 125 Pa. St. 572,
17 Atl. 475.
62 State V. Assessors, 52 La,
Ann. 223, 26 So. 872; Trustees of
Young Men's Christian Associa-
tion V. Paterson, 61 N. J. L. 420,
39 Atl. 655; affirmed in 64 N. J. L.
361, 45 Atl. 1092.
In State v. Assessors, 52 La.
Ann. 223, 26 So. 872, the court
says : "It is claimed that the build-
ing owned by the association Is
exempt because it is to be deemed
used for charitable purposes. The
argument is that caring for the
social, moral, and spiritual condi-
tion of men is charity in the broad-
est sense, and that a place pro-
vided by the association where
young men can assemble for re-
ligious exercises and be secluded
from temptation is a charity and a
blessing. We wish we could yield
to this reasoning. It demonstrates
the capacity of the association to
aid in the intellectual improve-
ment of young men, and the use-
fulness of the association in pro-
moting religious purposes. But, in
our opinion, the argument fails to
bring the association and its
rooms within the exemption
granted in the constitution to
property actually used for charita-
ble purposes. We are dealing with
a question of exemption under the
imperative rule, so often affirmed,
of strict construction. If the
property of the association is to
be exempt because of the tendency
of the association to advance the
Intellectual and moral condition of
young men, it would be the begin-
ning of a latitudinous construction
that far exceeds the bounds the
constitution imposes."
63 Commonwealth v. Young
Men's Christian Association, 116
Ky. 711, 105 Am. St. Rep. 234, 76
S. W. 522; Little v. Newburyport,
210 Mass. 414, Ann. Cas. 1912D,
425, 96 N. E. 1032; Carter v. Whit-
comb, 74 N. H. 482, 17 L. R. A.
CHARITABLE USES AND TRUSTS. 1637
Such question has generally arisen in the claiming of
exemptions from taxes or in inheritance tax cases, and
not regarding bequests left to such institutions. In a
Massachusetts case, the question arose as to the liability
for personal injuries, and the court said: "The report
shows that while much of the work of the defendant
corporation is of a charitable nature, its purposes are
also social, and include the giving of lectures and the-
atrical and other entertainments for the benefit of its
members, the provision of a gymnasium and of athletic
sports for promoting their health, and the sale of food at
a coffee or lunch counter. In these respects the defen-
dant is not a charitable corporation, but one established
for the peculiar benefit of its members."^* And in New
York it has been held that the Young Men's Christian
Association is not a religious corporation within the
meaning of section 221 of the tax law exempting such
corporations from the transfer tax on testamentary
gifts,*^ but is an educational corporation within the
meaning of that section.*®
In New Jersey a testamentary gift to help form a
Young Men's Christian xissociation is good as a charity
and will be applied not only to assist in the formation,
but also in the maintenance of the association.*'^ How-
ever, the same court held that the buildings of such an
association where the use of the reading room alone was
free, and all other parts were for the use of members
(N. S.) 733, 69 Atl. 779; Young 256, 65 N. E. 1109, reversing 70
Men's Christian Association v. App. Div. 623, 75 N. Y. Supp. 1134.
Donohugh, 13 Phila. (Pa.) 12. ^^^^^^^^ ^^ ^^^^^^ ^^^ ^^^
6<.Chapin V. Holyoke Young ^iv. 525, 123 N. Y. Supp. 443.
Men's Christian Association, 165
Mass. 280, 42 N. E. 1130. ^7 Goodell v. Union Assoc, etc.
66 Matter of Watson, 171 N. Y. of Burlington Co., 29 N. J. Eq. 32.
1638 COMMENTARIES ON THE LAW OF WILLS.
only, except the bowling alleys, wMcli were open to the
public at a fixed price, and the auditorium which was
sometimes rented, were not used for charitable purposes
within the meaning of a statute exempting such from tax-
ation.®*
§ 1131. Home and Foreign Missions.
Wherever the terms "home missions" and "foreign
missions" are used, they are associated with the notion
of a benevolent service for others. They are usually sep-
arate and distinct branches of work and are carried on
by boards organized and sometimes incorporated for that
purpose alone. Testamentary gifts to such boards or to
missions are deemed for a charitable purpose.®*
§ 1132. Cemeteries, Churchyards, or Burial Grounds.
The maintenance of a cemetery, churchyard, or burial
grounds as a place of public burial to all persons alike is
a charitable use, and a gift for the purpose of aiding in
68 Young Men's Christian Asso- 58 Md. 112; Bartlett v. King, 12
ciation v. Paterson, 61 N. J. L. Mass. 537, 7 Am. Dec. 99 ; Hinckley
420, 39 Atl. 655; affirmed in 64 ^- Thatcher, 139 Mass. 477, 52 Am.
N. J. L. 361, 45 Atl. 1092. ''^P- ^1^' ^ N. E. 840; McAIister v.
Burgess, 161 Mass. 269, 24 L. R. A.
69 Re Kenny, 97 L. T. R. N. S. ^^^^ 37 ^^ ^ ,^73; Bruere v. Cook,,
ISO; Allan v. Allan. (1908) Sc. C. gS N. J. Eq. 624, 52 Atl. 1001; af-
807; Toronto Gen. Trusts Co. v. firmed in 67 N. J. Eq. 724, 63 Atl.
Wilson, 26 Ont. 671; Carter v. Hal- mg; Sheldon v. Chappell, 47 Hun
four's Admr., 19 Ala. 814; Estate (N. Y.) 59; Nauman v Weidman,
of Hewitt, 94 Cal. 376, 29 Pa.c. 775; 182 Pa. St. 263, 37 Atl. 863; Shields
Hitchcock V. Board of Home Mis- v. Jolly, 1 Rich. Eq. (S. C.) 99, 42
sions, 259 HI. 288, Ann. Gas. 1915B, Am. Dec. 349; Frierson v. General
1, 102 N. B. 741, reversing 175 111. Assembly, 7 Heisk. (54 Tenn.) 683;
App. 87; Johnson v. Mayne, 4 Iowa Missionary Soc. of M. E. Church
180; Louisville v. Weme, 25 Ky. L. v. Calvert's Admr., 32 Gratt. (Va.)
2196, 80 S. W. 224; Rizer v. Perry, 357.
CHARITABLE USES AND TRUSTS.
1639
its establishment or maintenance is valid.''*' There is,
however, a distinction between a bequest to apply the
income for the benefit of the churchyard as a whole, and
one for the maintenance of a particular grave therein.''
A bequest to provide for the care, maintenance, or beau-
tifying of a particular burial spot and monument where
it is not for the public benefit, does not establish a char-
itable gift or use and is void as creating a perpetuity.''^
In Connecticut, Illinois, Massachusetts, and New York
there are statutes authorizing the creation of trusts to a
70 In re Vaughan, L. R. 33 Ci.
D. 187, 55 L. T. N. S. 547;
Hopkins v. Grimshaw, 165 TJ. S.
342, 41 L. Ed. 739, 17 Sup. Ct. 401;
Chapman v. Newell, 146 Iowa 415,
125 N. W. 324; Tate v. Woodyard,
145 Ky. 613, 140 S. W. 1044; Old-
field V. Attorney General, 219
Mass. 378, 106 N. E. 1015; Stewart
V. Coshow, 238 Mo. 662, 142 S. W.
283; Bliss v. Linden Cemetery
Assn., 81 N. J. Bq. 394, 87 Atl. 224;
Mannix v. Purcell, 46 Ohio St. 102,
15 Am. St. Rep. 562, 2 L. R. A.
753, 19 N. E. 572; Kelly v. Nich-
ols, 18 R. I. 62, 19 L. R. A. 413, 25
Atl. 840.
71 Forest Hill Cemetery Co. v.
Creath, 127 Tenn. 686, 157 S. W.
412; Sheldon v. Stockbridge, 67
Vt. 299, 31 Atl. 414; Tacoma v.
Tacoma Cemetery, 28 Wash. 238, 68
Pac. 723; Webster v. Morris, 66
Wis. 366, 57 Am. Rep. 278, 28
N. W. 353.
North, J., In re Vaughan, 33 Ch.
D. 187, 55 L.. T. N. S. 547, says:
"Then it Is said that the keeping
in repair the tombs in the church-
yard is only the same thing as
keeping in repair a tomb in the
churchyard. I do not think so. A
testator providing for the repair
of a family tomb is only minister-
ing to his own private feeling or
pride, or it may be to a feeling of
affection he has for his own rela-
tions; and it is not for the benefit
of the parish at large that that
particular tomb shall be kept in
repair. But in respect to the re-
pair of the churchyard as a whole,
it is for their benefit."
72 Toole V. Hamilton, L. R.
(1901) 1 Ir. 383; In re Vaughan,
33 Ch. Div. 187, 55 L. T. N. S.
547; Hopkins v. Grimshaw, 165
U. S. 342, 41 L. Ed. 739, 17 Sup.
Ct. 401; Johnson v. Holifleld, 79
Ala. 423, 58 Am. Rep. 596; Estate
of Gay, 138 Cal. 552, 94 Am. St.
Rep. 70, 71 Pac. 707; Coit v. Corn-
stock, 51 Conn. 352, 50 Am. Rep.
29; Piper v. Moulton, 72 Me. 155;
Needles v. Martin, 33 Md. 609;
Detwiller v. Hartman, 37 N. J. Eq.
1640
COMMENTARIES ON THE LAW OF WILLS.
religious corporation to apply the income to the care of
a burial lof*
§1133. Hospitals.
A gift of property by will to found, establish or main-
tain a hospital is a valid charitable gift whether or not it
violates the rule against perpetuities, for such rule does
not apply.''* A gift to endow beds in a hospital in per-
petuity obviously imports a charitable trust.'^^
The fact that a hospital charges those able to pay an
amount sufficient to cover the per capita cost of main-
tenance does not change the hospital's standing as a
charitable institution.''^ Where the first concern of an
S47; Smith's Estate, 5 Pa. Dist.
327; Kelly v. Nichols, 17 R. I. 306,
19 L. R. A. 413, 21 AO. 906; Fite
V. Beasley, 12 Lea (80 Tenn.) 328;
Mcllvain v. Hockaday, 36 Tex. Civ.
App. 1, 81 S. W. 54; Knox v.
Knox's Exrs., 9 W. Va. 124.
73 Conn. — Gen. Stats., §§3939,
4456, 4459.
III.— Kurd's Stat 1905, p. 223.
Mass.— Stat. 1884. c. 186, § 1.
N. Y.— Laws 1895, ch. 723, § 7.
74Foy V. Foy, 1 Cox Ch. 163;
Attorney General v. Belgrave Hos-
pital, 1 Ch. 73, 79 L. J. Ch. 75, 101
L. T. N. S. 628; Edwards v. Smith,
75 L. J. Ch. 163, 27 Times L. R.
242; Butland v. Gillespie, 16 Ont.
486; Brigham v. Peter Bent Brig-
ham Hospital, 134 Fed. 513, 67
C. C. A. 393; Jones v. Habersham,
107 U. S. 174, 27 L. Ed. 401, 2 Sup.
Ct. 336; Hayes v. Pratt, 147 V. S.
557, 3 L. Ed. 279, 13 Sup. Ct. 503;
Hayden v. Connecticut Hospital
for Insane, 64 Conn. 320, 30 Atl.
50; Ingraham v. Ingraham, 169 111.
432, 48 N. B. 561, 49 N. E. 320;
French v. Calkins, 252 111. 243, 96
N. B. 877; Dykeman v. Jenkins,
179 Ind. 549, Ann. Gas. 1915D, 1011,
101 N. B. 1013; Phillips v. Harrow,
93 Iowa 92, 61 N. W. 434; Webber
Hospital Assn. v. McKenzie, 104
Me. 320, 326, 71 Atl. 1032; Burbank
V. Burbank, 152 Mass. 254, 9
L. R. A. 748, 25 N. E. 427; Codman
V. Brigham, 187 Mass. 309, 105
Am. St. Rep. 394, 72 N. E. 1008;
Buchanan v. Kennard, 234 Mo. 117,
Ann. Gas. 1912D, 50, 37 L. R. A.
(N. S.) 993, 136 S. W. 415; Ely v.
Ely, 163 App. Div. 320, 148 N. Y. S.
691.
75 Bly V. Ely, 163 App. Div. 320,
148 N. Y. S. 691.
76 People V. Purdy, 58 Hun
(N. Y.) 386, 12 N. Y. Supp. 307,
126 N. Y. 679, 28 N. B. 249;
Schloendorff v. Society of N. Y.
CHARITABLE USES AND TRUSTS. , 1641
organization is to bring relief to those afflicted or suffer-
ing, ,or in need or want, the question as to whether a
recipient is able to pay is a mere incident of minor im-
portance.''''
§1134. Libraries.
A gift for the purpose of aiding in the establishment
and support of a public library is a gift to a charity, and
such gifts are looked upon with peculiar favor by the
courts, which will take special care to enforce them.''*
§ 1135. Public Purposes.
Gifts to and for a general public use or for lessening
the burdens of government are charitable trusts and are
not within the rule against perpetuities. Such gifts are
valid and will be enforced and administered by the courts
of chancery.''* Applying this rule, all gifts for municipal
Hospital, 211 N. Y. 125, Ann. Cas. Fed. 446, 102 C. C. A. 592, affirm-
1915C, 581, 52 L. R. A. (N. S.) 505, ing 171 Fed. 161; Vidal v. Philadel-
105 N. E. 92. phia, 2 How. (U. S.) 127, 11 L. Ed.
77 Buchanan V. Kennard, 234 Mo. 205; Russell v. Allen, 107 U. S.
117, Ann. Cas. 1912D, 50, 37 L. R. A. 163, 27 U Ed. 397, 2 Sup. Ct. 327;
(N. S.) 993, 136 S. W. 415. Hamden v. Rice, 24 Conn. 350;
78 Estate of Budd, 166 Cal. 286, New Castle Common v. Meggin-
135 Pac. 1131; Mason v. Blooming- son, 1 Boyce (24 Del.) 361, Ann.
ton Library Assn., 237 m. 442, 15 Cas. 1914A, 1207, 77 Atl. 565;
Ann. Cas. 603, 86 N. B. 1044; Garrison v. Little, 75 111. App.
Franklin v. Hastings, 253 111. 46, 402; Henry County v. Winne-
Ann. Cas. 1913A, 135, 97 N. E. 265; bago Swamp Drainage Co., 52 111.
Gary Library v. Bliss, 151 Mass. 454; Haines v. Allen, 78 Ind. 100,
564, 7 L. R. A. 765, 25 N. E. 92. 41 Am. Rep. 555; Tappan v. De-,
79 Faversham V. Ryder, 18 Beav. blois, 45 Me. 122; Jackson v.
318, 5 De G. M. & G. 350; In Phillips, 14 Allen (96 Mass.) 539;
re Pardoe, L. R. (1906) 2 Ch. 184, Burbank v. Burbank, 152 Mass.
75 L. J. Ch. 455, 94 L. T. N. S. 567; 254, 9 L. R. A. 748, 25 N. E. 427;
Farewell v. Farewell, 22 Ont. 573; Richardson v. Essex Institute, 208
Girard Trust Co. v. Russell, 179 Mass. 311, 21 Ann. Cas. 1158, 94
1642
COMMENTARIES ON THE LAW OF WILIS.
purposes,** for the erection of public works and build-
ings,*^ for the improvement and repair of highways and
bridges,** for laying out or improving or maintaining
public parks,*' and for the reduction of national or state
debts,** have been sustained. But a devise of land, situ-
N. E. 262; Penny v. Croul, 76 Mich.
471, 5 L. R. A. 858, 43 N. W. 649;
Lackland v. Walker, 151 Mo. 210,
52 S. W. 414; Sargent v. Cornish,
54 N. H. 18; Coggeshall v. Pelton,
7 Johns. Ch. (N. Y.) 292, 11 Am.
Dec. 471; Fire Ins. Patrol v. Boyd,
120 Pa. St. 624, 6 Am. St. Rep. 745,
1 L. R. A. 417, 15 Atl. 553; In re
Smith, 181 Pa. St. 109, 37 Atl. 114;
Webster v. Wiggin, 19 R. I. 73, 28
L. R. A. 510, 31 Atl. 824; Staines
V. Burton, 17 Utah 331, 70 Am. St.
Rep. 788, 53 Pac. 1015; Harrington
V. Pier, 105 Wis. 485, 76 Am. St.
Rep. 924, 50 L. R. A. 307, 82 N. W.
345.
80 Faversham v. Ryder, 18 Beav.
318, 5 De G. M. & G. 350, 25 Bng.
L. & Eq. 367; Attorney General v.
Carlisle, 2 Sim. 437, 29 Rev. Rep.
133; Howse v. Chapman, 4 Ves.
Jun. 542, 31 Eng. Reprint 278;
Vidal V. Philadelphia, 2 How.
(U. S.) 127, 11 L. Ed. 205; Penny
V. Croul, 76 Mich. 471, 5 L. R. A.
858, 43 N. W. 649.
A municipal water supply may
be a proper object of a public char-
ity (Jones V. Williams, Ambl. 651),
but it was held not to be such In
Doughten v. Vandever, 5 Del. Ch.
51.
A gift for improvements of a
street was held valid in Attorney
General v. Bastlake, 11 Hare 205,
and in Vidal v. Philadelphia, 2
How. (U. S.) 127, 11 L. Ed. 205.
81 Mitford V. Reynolds, 1 Phila.
185, 41 Eng. Reprint 602; Stuart v.
Easton, 74 Fed. 854, 21 C. C. A.
146; aifirmed in 170 U. S. 383, 42
L. Ed. 1078, 18 Sup. Ct. 650; Cog-
geshall V. Pelton, 7 Johns. Ch.
(N. Y.) 292, 11 Am. Dec. 471;
Staines v. Burton, 17 Utah 331, 70
Am. St. Rep. 788, 53 Pac. 1015.
82 Attorney General v. Shrews-
bury, 6 Beav. 220; Forbes v.
Forbes, 18 Beav. 552, 23 Eng. L. &
Eq. 335; Attorney General v. Day,
1 Ch. 31, 69 L. J. Ch. 8, 81 L. T.
N. S. 806, 64 J. P. 88; Hamden v.
Rice, 24 Conn. 350; Webster v.
Wiggin, 19 R. I. 73, 28 L. R. A. 510,
31 Atl. 824.
A devise to a town, directing
"all the interest thereof to be laid
out In repairing highways and
bridges yearly, and not to be ex-
pended for any other use," is for
a public and charitable use. —
Hamden v. Rice, 24 Conn. 350.
83 Burbank v. Burbank, 152
Mass. 254, 9 L. R. A. 748, 25 N. E.
427; Richardson v. Essex Insti-
tute, 208 Mass. 311, 21 Ann. Cas.
1158, 94 N. E. 262; In re Smith,
181 Pa. St. 109, 37 Atl. 114.
84 Newland v. Attorney General,
3 Meriv. 684, 36 Eng. Rep. 262;
Ashton V. Langdale, 4 De G. & Sm.
CHARITABLE USES AND TRUSTS. 1643
ated in the State of New York, to the government of the
United States to assist in the discharge of national obli-
gations, was held void since, under the New York stat-
utes, such a devise could be made only to natural per-
sons or to corporations authorized by law to accept such
a devise ; and although the government could take by de-
vise, it was excluded by the New York statute.*^
§ 1136. Prohibition and Temperance.
A bequest to trustees ' ' to apply the same in such law-
ful ways as in their discretion they may deem best, in
order to promote the adoption by the parliament of the
Donainion of Canada of legislation prohibiting totally
the manufacture or sale in the Dominion of intoxicating
liquors to be used as a beverage," was held a good char-
itable legacy, being for a lawful public or general pur-
pose and not contrary to morality or public policy.''® A
bequest for the suppression of the manufacture, sale and
use of intoxicating liquors is a valid bequest, the court
saying: "Preventing the use of intoxicating liquors, re-
garded as a means of promoting indi^dduai and social
welfare, may be deemed a proper subject of a charitable
bequest, and whether the object shall be sought by the
distribution of documents, or by lectures, or by other
reasonable and appropriate means, is a matter within the
discretion of the trustees."^'' A bequest of three-fourths
of an estate to trustees to expend "for temperance work"
402, 4 Eng. L. & Bq. 80; Glrard States v. Fox, 94 TJ. S. 315, 24
Trust Co. V. Russell, 179 Fed. 446, L. Ed. 192.
102 C. C. A. 592, affirming 171 Fed. se Farewell v. Farewell, 22 Ont.
161. 573.
85 Will of Fox, 52 N. Y. 530, 11 87 Haines v. Allen, 78 Ind. 100,
Am. Rep. 751; affirmed United 41 Am. Rep. 555.
1644 COMMENTARIES ON THE LAW OP WILLS.
in the city of Milwaukee, is a valid bequest for a char-
itable use.^*
§ 1137. W.oman's Suifrage.
Whether or not a bequest for the attainment of woman
suffrage violates the policy of the law and can be sus-
tained as a valid charity, has been decided seemingly
both in the affirmative and the negative. In an Illinois
case, a bequest to trustees "to be used by them, accord-
ing to their best judgment, for the attainment of woman's
suffrage in the United States of America and its terri-
tories," was sustained as a valid charity. The court
says: "Whether the attainment of the elective franchise
by women, to the extent enjoyed by men, would be as
beneficial in its results to society as its friends hope or
believe, is not a question for us to consider. Upon this
subject there are widely divergent opinions; but if the
cause was dear to the heart of the testatrix, we see no
reason why she should not be permitted to devote a por-
tion of her estate to its advancement. She believed it
to be for the benefit of women, and for that purpose
and because of her interest in their welfare, and not from
any selfish motive, she made the bequest in question."^'
On the other hand, in a Massachusetts case, it was
decided that a bequest to trustees "to secure the passage
of laws granting women, whether married or unmarried,
the right to vote, to hold office, to hold, manage and de-
vise property, and all other civil rights enjoyed by men,"
was not a charity. The grounds on which this decision
was reached appear to be that the bequest was to effect
88 Harrington v. Pier, 105 Wis. 89 Garrison v. Little, 75 111. App.
485, 76 Am. St. Rep. 924, 50 403.
L. R. A. 307, 82 N. W. 345.
CHAEITABLE USES AND TRUSTS. 1645
a change in the existing laws which object could not be
carried out except by changing the constitution.®" The
Illinois appellate court, in commenting on this, says : ' ' But
even though a constitutional amendment be necessary
before a complete right of suffrage may be conferred
on women in this state, we see no reason for holding that
the advocacy of a change of the organic law, in a proper
way, and in the manner provided by that instrument it-
self, can be held as against public policy. In the evolu-
tion of the race new conditions arise which the earlier
lawmakers could not anticipate or foresee."®^
§ 1138. Medals and Prizes.
A bequest to be applied in providing medals for meri-
torious scholars in the high and grammar schools ;®2 a
bequest to be applied in rewards of merit to poor pupils
in parochial schools ;®* and a bequest providing for prizes
for essays on medical subjects,** have all been sustained
as good charitable bequests.
§ 1139. Benefit of Animals.
A gift or devise for the benefit of useful animals is for
a charitable purpose. Thus a bequest to a city to erect
a suitable fountain for the benefit of thirsty animals
and birds f^ a bequest to park commissioners for a foun-
tain with a drinking basin for horses ;*""' a bequest for the
90 Jackson v. Phillips, 14 Allen 94 Almy v. Jones, 17 R. I. 265,
(96 Mass.) 539. 270, 12 L. R. A. 414, 21 Atl. 616.
91 Garrison v. Little, supra. "" ^^^^^ °^ Coleman, 167 Cal.
212, Ann. Cas. 1915C, 682, 138 Pac.
92 Bartlett, Petitioner, 163 Mass. ggg
509, 40 N. B. 899. 96 Estate of Graves, 242 111. 23,
93 Coleman v. O'Leary's Exr., 134 Am. St. Rep. 302, 17 Ann. Cas.
114 Ky. 388, 24 Ky. Law Rep. 1248, 137, 24 L. R. A. (N. S.) 283, 89
70 S. W. 1068. N. E. 672.
1646 COMMENTAEIES ON THE LAW OF WILLS.
founding of an institution for the study and cure of mala-
dies of quadrupeds or birds useful to man f a bequest to
a society to promote prosecution for cruelty to ani-
mals;^® a bequest for the maintenance of starving and
forsaken cats f^ a bequest for the publication of a paper
by a society for the prevention of cruelty to animals;^
a bequest to a home for lost dogs f and for the suppres-
sion and abolition of vivisection,* are all for charitable
purposes.
It seems, however, that where the bequest is for the
benefit of animals not useful to mankind, such as the
feeding of English sparrows, the gift is not a charity.*
And, furthermore, a gift in favor of the testator 's horses
and dogs is obviously not a charity because it is intended
for the benefit of the particular animals mentioned, and
not for the benefit of animals generally."
§ 1140. Rule as to Perpetidties as Affecting Chai-itable Gifts.
A perpetual charitable use does not necessarily re-
strict the alienation of the property inasmuch as when
needful, a court of equity will decree a sale thereof.*
The gerieral rule is that charitable trusts are not subject
to the prohibition against perpetuities, the very object of
97 London University t. Yarrow, 2 In re Bouglass, L. R. 35 Ch.
1 De G. & J. 72, affirming 23 Beav. Dlv. 472.
159. 3 Armstrong v. Reeves, 25 L. R.
98 In re Douglass, L. R, 35 Ch. Ir. 325; In re Foveaux, (1895) 2
Dlv. 472; In re Dean, L. R. 41 Ch. Ch. Dlv. 501; In re Joy, 60 L. T.
Div. 552; Minns v. Billings, 183 N. S. 175.
Mass. 126, 97 Am. St Rep. 420, 5 4 Attorney General v. Whor-
L. R. A. (N. S.) 686, 66 N. B. 593. wood, 1 Ves. 534.
99 Swifte V. Attorney General, 5 In re Dean, L. R. 41 Ch. Div.
(1912) 1 Ir. 133. 552.
1 Marsh v. Means, 3 Jur. N. S. 6 Attorney General v. Mayor of
790. Newark, 1 Hare 395, 400; Attoi^
CHARITABLE USES AND TRUSTS.
1647
a charity being that its benefits shall endure through all
time/ And constitutional and statutory provisions
against perpetuities are held generally not to apply to be-
quests for charitable uses* where the title vests immedi-
ately in the charity.*
ney General v. Warren, 2 Swanst.
291, 302; Attorney General v.
Kerr, 2 Beav. 420, 428; Attorney
General v. South Sea Co., 4 Beav.
453; Ban- v. Weld, 24 Pa. 84;
Brown v. Meeting St. Baptist Soc,
9 R. I. 177.
See, also, regarding the adminis-
tration of charities. Stats. 16 & 17
Vict, ch. 137, §24; 18 & 19 Vict,
ch. 124, §32; 23 & 24 Vict,
ch. 136, § 16.
T St. M. Magdalen College v. At-
torney General, 6 H. L. Cas. 189,
205; Ould v. Washington Hospital,
95 V. S. 303, 24 L. Ed. 450; Hinck-
ley's Estate, 58 Cal. 457; Andrews
V. Andrews, 110 111. 223 ; Dexter v.
Gardner, 7 Allen (89 Mass.) 243;
Odell V. Odell, 10 Allen (92 Mass.)
1, 6; Yard's Appeal, 64 Pa. St. 95;
Curran Trust Co., 15 Phila. (Pa.)
84.
Compare: Storrs Agricultural
School V. Whitney, 54 Conn. 342, 8
Atl. Rep. 141.
See §§ 1113, 1114.
8 Inglis V. Sailors' Snug Harbor,
3 Pet (U. S.) 99, 7 L. Ed. 617;
McDonogh v. Murdoch, 15 How.
(tr. S.) 367, 14 L. Ed. 732; Ould v.
Washington Hospital, 95 U. S.
303, 24 L. Ed. 450; Hopkins v.
Grimshaw, 165 U. S. 342, 41 L. Ed.
739, 17 Sup. Ct 401; Estate of
Hinckley, 58 Cal. 457; Pendleton v.
Kinney, 65 Conn. 222, 32 Atl. 331;
Crerar v. Williams, 145 111. 625, 21
L. R. A. 454, 34 N. E. 467; Alden
V. St Peter's Parish, 158 111. 631,
30 L. R. A. 232, 42 N. E. 392; elev-
en's Estate, 161 Iowa 289, 142
N. W. 986; Lane v. Eaton, 69
Minn. 141, 65 Am. St. Rep. 559, 38
L. R. A. 669, 71 N. W. 1031; Penny
V. Croul, 76 Mich. 471, 5 L. R. A.
858, 43 N. W. 649; Mills v. Davi-
son, 54 N. J. Eq. 659, 55 Am. St.
Rep. 594, 35 L. R. A. 113, 35 Atl.
1072; Sherman v. Baker, 20 R. I.
446, 40 L. R. A. 717, 40 Atl. 11;
Paschal v. Acklin, 27 Tex. 173.
But see, Danforth v. Oshkosh,
119 Wis. 262, 97 N. W. 258.
The statutory right of a charita-
ble corporation to hold real estate
is in effect a repeal pro tanto of
the statute against perpetuities. —
Durkee v. Smith, 90 Misc. Rep. 92,
153 N. Y. Supp. 316; affirmed 171
App. Div. 72, 156 N. Y. Supp. 920. '
9 Field V. Drew Theological Sem-
inary, 41 Fed. 371-373; Brigham v.
Peter Bent Brigham Hospital, 126
Fed. 796; Hinckley's Estate, 58
Cal. 457; Franklin v. Hastings,
253 111. 46, Ann. Cas. 1913A, 135, 97
N. E. 265; City of Richmond v.
Davis, 103 Ind. 449, 3 N. E. 130;
Dykeman v. Jenkins, 179 Ind. 549,
1648
COMMENTAEIES ON THE LAW OF WILLS.
§ 1141. The Same Subject: Where Gift Vests in the Future.
Where the gift to charity is to take effect in the future,
the cases are distinguishable. If the gift is conditioned
to take effect upon the happening of an event certain to
occur within limited time, the rule against perpetuities
does not apply. The rule is the same where the gift is to
vest upon the performance of some condition, it being
valid if the condition is fulfilled within a reasonable time.
But if the gift depends upon some uncertain contingency,
it violates the rule against perpetuities and is void.^"
The rule against perpetuities has no application where
the property passes, upon an event certain, from one
charity to another.^^ But this rule does not extend to
cases where an immediate gift in favor of private indi-
viduals is followed by an executory gift in favor of char-
Ann. Cas. 1915D, 1011, 101 N. E.
1013.
In California, Const, art. 20, § 9,
and in Nevada, Const, art. 15, § 4,
the provisions against perpetuities
do not apply to those created for
eleemosynary purposes.
10 Attorney General v. Chester, 1
Bro. C. C. 444; Sinnett v. Herbert,
L. R. 7 Ch. App. 232; White's
Trusts, L. R. 33 Ch. Div. 449; In
re Gassiot, 70 L. J. Ch. 242; In re
Clarke, L. R. (1901) 2 Ch. 110;
Inglis V. Sailors' Snug Harbor, 3
Pet. (U. S.) 99, 7 L. Ed. 617; Mc-
Donogh V. Murdoch, 56 U. S. 367,
14 L. Ed. 732; Ould v. Washington
Hospital, 96 U. S. 303, 24 L. Ed.
732; Coit v. Comstock, 51 Conn.
352, 50 Am. Rep. 29; Almy v.
Jones, 17 R. I. 265, 12 L. R. A. 414,
21 Atl. 616.
Compare: De Wolf v. Lawson,
61 Wis. 469, 50 Am. Rep. 148, 21
N. W. 615.
"A gift in trust for a charity
not existing at the date of the
gift, and the beginning of whose
existence is uncertain, or which is
to take effect upon a contingency
that may possibly not happen with-
in a life or lives in being and
twenty-one years, is valid, pro-
vided there is no gift of the prop-
erty meanwhile to be for the bene-
fit of any private corporation or
person." — Russell v. Allen, 107
V. S. 163, 27 L. Ed. 397, 2 Sup. Ct.
327.
11 Christ's Hospital v. Grainger,
1 Macn. & G. 460; In re Tyler,
L. R. (1891) 3 Ch. 252, 60 L. J. Ch.
N. S. 686, 65 L. T. N. S. 367, 40
Week. R. 7.
CHAEITABLE USES AND TRUSTS. 1549
ity, or an immediate gift in favor of charity is followed
by an executory gift in favor of private individuals. i-
Thus, a gift to a private person with a remainder over
to a charity to vest upon a contingency which may not
occur within the period allowed by law for limitations
upon alienation, would tend to create a perpetuity in the
first taker. 1*
§1142. Testamentary Gifts to Charity Liberally Construed.
By the law of England, from before the Statute of
Charitable Uses of 43 Elizabeth, ch. 4, A. D. 1601, and by
the law of these United States except where it has been
restricted by statute or judicial decision, trusts for char-
itable uses are applied under circumstances where trusts
for private use would fail. Charitable trusts, being for
objects of permanent interest and benefit to the public,
may be perpetual in their duration and are not within the
rule against perpetuities. Instruments creating them
should be considered so as to give them effect, if pos-
sible, and to carry out the general intention of the donor
even if the particular form and manner pointed out by
him can not be followed. Charitable trusts may and
must be for the benefit of an indefinite number of persons,
for if all the beneficiaries are personally designated, the
trust lacks the essential element of indefiniteness, which
is one of the characteristics of a public charity. If the
12 In re Bowen, L. R. (1893) 2 and Bequests v. De Clifford, 1 Dru.
Ch. Div. 491; Worthing Corpora- & War. 245; Attorney General v.
tlon V. Heather, (1906) 2 Ch. 532, Gill, 2 P. Wms. 369; Attorney Gen-
75 Li. J. Ch. N. S. 761, 22 Times eral v. Hall, Kelynge, W. 13 ; Odell
L. R. 750, 95 L. T. N. S. 718, 4 v. Odell, 10 Allen (92 Mass.) 1, 7;
B. R. C. 280. In re John's Will, 30 Ore. 494, 36
iSPewterers' Co. v. Christ's L. R. A. 242, 47 Pac. 341, 50 Pac.
Hospital, 1 Vern. 161; Commis- 226; Smith v. Townsend, 32 Pa. St.
sioners of Charitable Donation 434; Leonard v. Burr, 18 N. Y. 96.
II Com. on Wills— 50
1650 COMMENTARIES ON THE LAW OF WILLS.
donor describes the general nature of tlie charitable trust,
he may leave the details of its administration to be set-
tled by trustees under the superintendence of a court of
chancery.^* And if the property, under the will, may be
devoted to either of two objects at the discretion of the
trustee, should one be illegal and the other valid, the trust
will be sustained as to the object which is legal and the
property will be devoted solely to such use.^^
It has always been the policy of the law to uphold char-
itable bequests and to give effect to them whenever pos-
sible,^® and the words "charity" and "charitable" must
receive a liberal interpretation in construing whether or
not certain institutions are comprised within the meaning
of "charitable institutions."^'' If the words of a chari-
table bequest are ambiguous or contradictory, they are
to be so construed as to support the charity, if possi-
ble.^* Charitable uses are favorites with courts of equity.
The construing of all instruments where they are con-
cerned is liberal in their behalf.^^ And the mere fact that
14 Russell V. Allen, 107 V. S. 163, N. E. 265; Jackson v. Phillips, 14
27 L. Ed. 397, 2 Sup. Ct. 327. Allen (96 Mass.) 539.
15 Sorresby v. HoUins, 9 Mod. it State v. Board of Control, 85
221; Curtis v. Hutton, 14 Ves. Jun. Minn. 165, 88 N. W. 533.
537; Lewis v. AUenby, L. R. 10 is Jackson v. Phillips, 14 Allen
Eq. 668; In re Hedgman, L. R. 8 (96 Mass.) 539.
Ch. Div. 156; Jackson v. Phillips, Gifts to charities may be good
14 Allen (96 Mass.) 539, 556; St. which if they hsd been made to in-
Paul's Church v. Attorney General, dividuals would be void. — Gilmer
164 Mass. 188,41 N. E. 231; Staines v. Stone, 120 U. S. 586, 30 L. Ed.
V. Burton, 17 Utah 331, 70 Am. St. 734, 7 Sup. Ct. 689; Succession of
Rep. 788, 53 Pac. 1015. Tilton, 133 La. 435, 63 So. 99.
16 Estate of Graves, 242 ni. 23, 19 Mills v. Farmer, 19 Ves. 483,
134 Am. St. Rep. 302, 17 Ann. Cas. 487; Ould v. Washington Hospital,
137, 24 L. R. A. (N. S.) 283, 89 95 U. S. 303, 24 L. Ed. 450; Magill
N. E. 672; Franklin v. Hastings, v. Brown, Brightly N. P. (Pa.)
253 111. 46, Ann. Cas. 1913A, 135, 97 346.
CHARITABLE USES AND TEUSTS. 1651
a charity is also intended as a private memorial does
not impair its public character or legal validity.^"
§ 1143. Purpose of Trust Must Not Be so Indefinite That Chan-
cery Can Not Correct Abuse.
The purpose of a charitable trust must not be so indefi-
nite that a court of chancery can not so determine its
purpose as to be able to correct an abuse thereof. If
there is nothing to restrain the discretion of the trustees
or to guide the judgment of the court, the trustees could
apply the fund for a purpose ever so remotely connected
with the objects of a trust which are indefinitely stated,
and the court could not substitute its judgment for that
of the trustees. Such a trust must fail.^^ But although
the purpose of a charitable trust must be stated, it is
not necessary that the testator do more than outline
its general nature; the details of administration may be
left to the trustees who are, of course, subject to the jur-
isdiction of the court.^* However, if the gift is not for a
purpose strictly charitable and the trustee may, in his
20 Jones V. Habersham, 107 U. S. been ruled in Massachusetts that
174, 27 L. Ed. 401, 2 Sup. Ct. 336; a devise to the missionary "case"
Richardson v. Essex Institute, 208 of the "Methodist Episcopal
Mass. 311, 21 Ann. Cas. 1158, 94 Church," although it was assumed.
N. E. 262. that "case" was intended for
21 Wheeler v. Smith, 9 How. "cause," could not be executed in
(TJ. S.) 55, 13 L. Ed. 44. favor of the Missionary Society of
See § 1148. the Methodist Episcopal Church, a
A devise to the "Vermont State corporation organized under the
Convention" was held a sufficient laws of New York.— Missionary
designation of "The Vermont Bap- Soc. of M. E. Church v. Chapman,
tist State Convention."— Vermont 128 Mass. 265.
Baptist State Conv. v. Ladd's Es- 22 Russell v. Allen, 107 U. Sj
tate, 59 Vt 5, 9 Atl. 1. But it has 163, 27 L. Ed. 397, 2 Sup. Ct. 327.
1652 COMMENTARIES ON THE LAW OF "WILLS.
discretion, apply the fund to an indefinite purpose, the
gift will fail.='«
§ 1144. Purpose of Trust Must Be Stated in Will.
If the testator intends to create a trust for charitable
uses, he must state the purposes thereof in his will. Wills
must be in writing; this is the manner in which the testa-
tor must express his intention. The courts can not add
words to a will or create an intention not therein ex-
pressed or necessarily implied. A testamentary gift to
one in trust for charitable and benevolent purposes not
outlined, but which the wiU recites were stated to the
trustee, can not be administered as a definite charitable
gift.^* A reference in the will, however, to previous ver-
bal instructions, may be held merely descriptive if the
will contains directions as to the purposes of the trust.^^
There is a distinction where the language of the will
refers to the plans of some organization, such as the man-
ner in which a designated university is conducted, or re-
23 Morice v. Bishop of Durham, public purposes as the trustee may
9 Ves. Jun. 399; Hunter v. Attor- thinlc proper" has been held in-
ney General, L. R. (1899) A. C. yaiid on account of the word "pub-
SOS- lie."— Blair v. Duncan, L. R. (1902)
A bequest to "objects of liber- ji^ c S7
ality and benevolence" has been
held invalid. — Morice v. Bishop of
Durham, 9 Ves. Jun. 399.
A bequest for "charitable and
philanthropic purposes" has beenj ^^ "^^ells v. Doane, 3 Gray
held bad on account of the word (Mass.) 201.
"philanthropic." — In re Macduff, See, also, Gill v. Attorney Gen-
L. R. (1896) 2 Ch. Div. 451. eral, 197 Mass. 232, 83 N. E. 676;
But a gift "to the service of Molly Varnum Chapter, D. A. R. v.
God" has been held good. —In re Lowell, 204 Mass. 487, 26 L. R. A.
Darling, L. R. (1896) 1 Ch. Div. (N. S.) 707, 90 N. E. 893; New
50. England Sanitarium v. Stoneham,
A bequest to "such charitable or 205 Mass. 335, 91 N. E. 385.
24 Wilcox V. Attorney General,
207 Mass. 198, Ann. Cas. 1912A,
859, 93 N. E. 599.
CHARITABLE USES AND TRUSTS.
1653
fers to previously pronounced religious or other doc-
trines or recognized schemes for distribution of moneys
in charity ; but if the testator refers only to his own ver-
bal statements previously made regarding something
which was not to come into existence until after his
death, no charitable trust is created. Where the will fails
to indicate the purpose of the charitable trust, the court
will not supply that which the will omits.^®
§ 1145. Uncertainty of Objects of Charitable Trusts.
Devises for ordinary purposes may fall through uncer-
tainty in the object;^'' but uncertainty is said to be one
of the essentials of a gift to charitable uses, and does not
defeat the intention of the testator.-^ This exception in
26 Smith V. Smith, 54 N. J. Eq.
1, 32 Atl. 1069.
Where a testator, being a mem-
ber of the Protestant Church, be-
queathed certain property to trus-
tees upon the following trusts, to-
wit: "Five hundred dollars to
fence the lot of ground on which
the Mt. Pleasant Protestant
Church stands and the graveyard
belonging thereto, four thousand
dollars to purchase a parsonage
for the use and benefit of the Mt.
Pleasant Protestant Church for-
ever, two hundred and fifty dol-
lars to buy books for the library
of the Sunday-school at Union, two
hundred and fifty dollars for the
library of the Sunday-school at
CentrevlUe, Monroe County, West
Virginia, two hundred and fifty
dollars to establish a Sunday-
school in Fairview schoolhouse
and providing the same with a
library, three hundred dollars for
the sole and exclusive use and
purposes of the home missions of
the Presbyterian Church at Union,
West Virginia, forever," all of
these bequests were held . to be
uncertain as to the beneficiaries,
and therefore void. — ^Wilson v.
Perry, 29 W. Va. 169, 1 S. E. 302;
Flfield V. Van Wyck's Exr., 94 Va.
557, 64 Am. St. Rep. 745, 27 S. E.
446.
27 Wilderman v. Baltimore, 8
Md. 551; Needles v. Martin, 33
Md. 609; White v. Howard, 46
N. Y. 144.
28 Mitford V. Reynolds, 1 Phil-
lim. 185; Whicker v. Hume, 7 H. L.
Cas. 124; Nash v. Morley, 5 Beav.
177; Attorney General v. Comber,
2 Sim. & St. 93; Jones v. Haber-
sham, Fed. Cas. No. 7465, 3 Woods
443; Russell v. Allen, Fed. Cas.
No. 12149, 5 Dill. 235; Erskiue v.
1654 COMMENTAMES ON THE LAW OF WIliLS.
favor of charitable uses does not depend upon tlie statute
of 43 Elizabeth, ch. 4, but was a part of the conunon law
which continues in force in this country so far as con-
formable to our polity and adapted to our institutions.^*
Neither does ambiguity in designating the beneficiary of
a charitable gift defeat the bequest, if the beneficiary can
be identified by parol.^" "\Aniere the name or description
is erroneous, but there is no reasonable doubt as to the
beneficiaries intended in the will, the mistake will not de-
feat the charity, whether the beneficiaries be individuals ,
or a corporation.'*^
A gift for an "art institute," "worthy of the city," is'
not void for indefiniteness either because of an uncer-
tainty as to what is meant by an art institute ; and the
expression "worthy of the city" is a matter which is
capable of determination by the court, aided by proper
testimony, with sufficient accuracy for the purposes of
Whitehead, 84 Ind. 357; Drew v. Pac. 890; Philadelphia v. Girard'S
Wakefield, 54 Me. 291; Jackson v. Heirs, 45 Pa. St. 9, 27, 84 Am. Dec.
Phillips, 14 Allen (96 Mass.) 539, 470; Zeisweiss v. James, 63 Pa. St.
550; Going v. Emery, 16 Pick. (33 465, 3 Am. Rep. 558; Frierson v.
Mass.) 107, 26 Am. Dec. 645; General Assembly, 7 Heisk. (54
Sohier v. Burr, 127 Mass. 221; Tenn.) 683.
Howe V. Wilson, 91 Mo. 45, 60 Am. See §§ 1113, 1114.
Rep. 226, 3 S. W. 390; Harriman V. 29 Beall v. Fox's Exrs., 4 Ga.
Harriman, 59 N. H. 135; De Camp 404; Burhank v. Whitney, 24 Pick.
V. Dobbins, 31 N. J. Eq. 671; Union (41 Mass.) 146, 35 Am. Dec. 312;
Methodist B. Church v. Wilkinson, Williams v. Williams, 8 N. Y. 525;
36 N. J. Eq. 139, 141; Hesketh v. Griffin v. Graham, 8 N. C. 196, 9
Murphy, 36 N. J. Eq. 304; Williams Am. Dec. 619.
V. Williams, 8 N. T. 525; Shot- But see, Levy v. Levy, 33 N. Y.
well V. Mott, 2 Sand. Ch. (N. Y.) 97.
46; Beekman v. Bonsor, 23 N. Y. so First Baptist Church v. Rob-
298, 80 Am. Dec. 269; Downing v. berson, 71 Mo. 326; Wilson v.
Marshall, 23 N. Y. 366, 80 Am. Dec. Perry, 29 W. Va. 167, 1 S. E. 302.
290; Raley v. County of Umatilla, si Wilson v. Perry, 29 W. Va.
15 Ore. 172, 3 Am. St. Rep. 142. 13 169, 1 S. B. 302.
CHAEITABLE USES AND TRUSTS.
1655
the bequest, should it be found necessary to apply to the
court for such determination.^^
A trust may be created for the benefit of a class which
may be to an extent uncertain, such as ' ' the poor, " " the
children," and the like; but if the purpose is charitable,
the trust will be enforced in equity.^* The decisions are
conflicting since the courts do not all alike accept the
English doctrine of charitable trusts,^* but the general
rule may be stated that the gift will be held invalid as a
charitable trust unless the beneficiaries are sufficiently
designated so that the court can carry the purposes of
the testator into effect.*®
32 Almy V. Jones, 17 R. I. 265, 12
L. R. A. 415, 21 Atl. 616. ■
33 Morice V. Bishop of Durham,
9 Ves. Jun. 399, 405; Nightingale
V. Goulburn, 5 Hare 484; Nash v.
Morley, 5 Beav. 177; Kendall v.
Granger, 5 Beav. 300; British
Museum v. White, 2 Sim. & St.
594, 596; Attorney General v. As-
pinall, 2 Myl. & C. 613, 622; Ameri-
can Academy etc. v. Harvard Col-
lege, 12 Gray (78 Mass.) 582;
Jackson v. Phillips, 14 Allen (96
Mass.) 539; Coggeshall v. Pelton,
7 Johns. Ch. (N. Y.) 292, 11 Am.
Dec. 471.
In the District of Columbia a
trust for the benefit of "the poor
of the city of Washington and of
the District of Columbia" was con-
sidered void for Indefiniteness. —
District of Columbia v. Washing-
ton Market Co., 3 McArth. (D. C.)
559.
34 See § 1114.
35 See, Mills v. Newberry, 112
111. 123, 54 Am. Rep. 213, 1 N. E.
156; Moran v. Moran, 104 Iowa
216, 65 Am. St. Rep. 443, 39
L. R. A. 204, 73 N. W. 617; Spald-
ing V. St. Joseph's Industrial
School, 107 Ky. 382, 54 S. W. 200;
Wheelock v. American Tract So-
ciety, 109 Mich. 141, 63 Am. St.
Rep. 578, 66 N. W. 955; Brennan
V. Winkler, 37 S. C. 457, 16 S. E.
190; Nolte v. Meyer, 79 Tex. 351,
15 S. W. 276.
A residuary bequest to execu-
tors, "to be by them distributed
to such persons, societies, or in-
stitutions as they may consider
most deserving," was not consid-
ered a charitable trust and in con-
sequence was too indefinite to be
carried into effect. — Nichols v.
Allen, 130 Mass. 211, 221, 39 Am.
Rep. 445.
1656, COMMENTARIES ON THE LAW OF WILLS.
§1146. Coiporations and Voluntary Associations as Trustees.
A corporation may act as trustee of a charitable trust
if the purposes of the trust are not inconsistent with its
eharter.^^ On the question as to whether or not an un-
incorporated society, with a fluctuating membership, can
take as trustee, the authorities are conflicting.^^ Herein
is one of the distinguishing features between charitable
and private trusts, for a private trust, unless there be a
competent trustee to take and hold the title, is void.^*
§ 1147. Trust Will Not Fail for Lack of Trustee.
Where a trust for charitable uses is valid both as to
purpose and objects, and the objects are in existence and
capable of receiving the benefit and the purpose is one
which can be fulfilled, such trust will not be allowed to
fail because of the lack of a trustee. If in a gift to chai*i-
table uses no trustee is named, or the trustee appointed
by the will is incapable of acting or of holding the legal
estate, the title merely remains in abeyance, or is held by
the testator's executors for the benefit of the benefi-
ciaries, or a trustee will be appointed to carry out the
36 Phillips V. King, 12 Mass. Against taking: Philadelphia
546; Chapin v. School District No. Baptist Assn. v. Hart, 4 Wheat.
2, 35 N. H. 445; Taylor's Exrs. v. (tJ. S.) 1, 4 L. Ed. 499; Greene v.
Trustees of Bryn Mawr College, 34 Dennis, 6 Conn. 293, 301, 16 Am.
N. J. Eq. 101; Protestant Episco- Dec. 58; Acklen v. Franklin, 7 La.
pal Educ. Soc. V. Churchman's Ann. 395, 415.
Representatives, 80 Va. 718. ss Attorney General v. Tancred,
37 For tai<ing: Pickering v. Shot- Ambl. 351, Anon., 2 Ch. Cas. 207;
■well, 10 Pa. St. 23; Dye v. Beaver Philadelphia Baptist Assoc, v.
Creek Church, 48 S. C. 444, 59 Hart, 4 Wheat. (U. S.) 1, 4 L. Ed.
Am. St. Rep. 724, 26 S. E. 717; 499; Grimes' Exrs. v. Harmon, 35
Burr's Exrs. v. Smith, 7 Vt. 241, 29 Ind. 198, 9 Am. Rep. 690; Levy v.
Am. Dec. 154. Levy, 33 N. Y. 97.
CHARITABLE USES AND TRUSTS.
1657
testator's purposes.^* Except as the trustee may be
designated in a testator's will, the power of appointing
or substituting trustees rests wholly with the courts of
chancery. Except as provided in the wiU, no trustee
can substitute another in his stead unless with the ap-
proval of the court.*"
A testator may vest in the trustee discretion to apply
the fund among various charities or for certain chari-
table purposes. The testator, . having expressed the in-
tent that the gift be applied to charity, if the testator
fails in his wiU to appoint a trustee or if the trustee
appointed dies or is incapable of acting, the weight of
authority is that a court of chancery may appoint a trus-
tee and control the administration of the fund within the
limits designated by the trustee.*^ But in those jurisdic-
39 Mills V. Farmer, 1 Mer. 55,
96; Moggridge V. Thackwell, 7 Ves.
Jun. 36, 69; Attorney General v.
Jackson, 11 Ves. Jun. 365, 367;
John V. Smith, 102 Fed. 218, 42
C. C. A. 275; Russell v. Allen, 107
U. S. 163, 27 L. Ed. 397, 2 Sup. Ct.
327; Williams v. Pearson, 38 Ala.
299; Matter of Gay, 138 Gal. 552,
94 Am. St. Rep. 70, 71 Pac. 707;
Eliot's Appeal, 74 Conn. 586, 51
Atl. 558; Grand Prairie Seminary
V. Morgan, 171 111. 444, 49 N. E.
516; Klumpert v. Vrieland, 142
Iowa 434, 121 N. W. 34; Sears v.
Chapman, 158 Mass. 400, 35 Am.
St. Rep. 502, 33 N. E. 604; Attor-
ney General v. Goodell, 180 Mass.
538, 62 N. E. 962; Campbell v.
Clough, 71 N. H. 181, 51 Atl. 668;
Jones V. Watford, 62 N. J. Bq. 339,
50 Atl. 180; In re John's Estate,
30 Ore. 494, 36 L. R. A. 242, 47
Pac. 341, 50 Pac. 226; Stevens' Es-
tate, 200 Pa. St. 318, 49 Atl. 985;
Hood V. Dorer, 107 Wis. 149, 82
N. W. 546.
io Harvard College v. Theologi-
cal Education Society, 3 Gray (69
Mass.) 280; Second Religious So-
ciety V. Harriman, 125 Mass. 321.
41 Mills V. Farmer, 1 Mer. 55,
96; Moggridge v. Thackwell, 3
Bro. C. C. 517; s. c, 7 Ves. Jun. 36;
Baptist Church v. Presbyterian
Church, 18 B. Mon. (Ky.) 635;
XJniversalist Society v. Kimball,
34 Me. 424; Swasey v. American
Bible Soc, 57 Me. 523; Sohier v.
Burr, 127 Mass. 221; Minot v.
Baker, 147 Mass. 348, 9 Am. St.
Rep. 713, 17 N. E. 839; Sears v.
Chapman, 158 Mass. 400, 35 Am.
St. Rep. 502, 33 N. B. 604; Mis-
souri Historical Soc. v. Academy
of Science, 94 Mo. 459, 8 S. W.
1658
COMMENTARIES ON THE LAW OP WILLS.
tibns where the English doctrine of charitable uses and
trusts is not recognized and such trusts are placed on the
same footing as private trusts, the courts require that
the beneficiaries and the purpose of the gift be stated
with such certainty that they may be determined by the
courts. They will refuse to administer the gift cy pres.*'-
§ 1148. Trustees May Be Vested With Discretionary Power of
Adnunistration.
It is proper for the testator to leave to the trustee
the details of the administration of a charitable trust cre-
ated by his will,** but he must outline its purposes.** A
346; American Bible Soc. v. Mar-
shall, 15 Ohio St. 537; In re John's
Estate, 38 Ore. 494, 36 L. R. A.
242, 47 Pac. 341, 50 Pac. 226; Mur-
phy's Estate, 184 Pa. St. 310, 63
Am. St. Rep. 802, 39 AU. 70.
42 Methodist Episcopal Church
V. Clark, 41 Mich. 730, 3 N. W.
207; Hopkins v. Crossley, 132
Mich. 612, 96 N. W. 499; Holland
V. Peck, 37 N. C. 255; Miller v.
Atkinson, 63 N. C. 537; Fifield v.
Van Wyck's Exr., 94 Va. 557, 64
Am. St. Rep. 745, 27 S. E. 446;
Mong V. Roush, 29 W. Va. 119, 11
S. E. 906; Pack v. Shanklln, 43
W. Va. 304, 27 S. E. 389.
As to the doctrine of cy pres,
see §§ 1150-1155.
In New York the rule above
mentioned was in accord with the
earlier decisions, but it has been
largely changed by legislation
(N. Y. Laws, 1893, ch. 701). See,
also, Allen v. Stevens, 161 N. Y.
122, 55 N. E. 568; In re Sturgis,
164 N. Y. 485, 58 N. E. 646.
In Wisconsin the earlier cases
placed charitable trusts upon the
same footing as private trusts, but
the later cases apply a more lib-
eral rule as to personalty. — See
Harrington v. Pier, 105 Wis. 485,
76 Am. St. Rep. 924, 50 L. R. A.
307, 82 N. W. 345; Danforth v.
City of Oshkosh, 119 Wis. 262, 97
N. W. 258.
43 Jones V. Habersham, 107 XJ. S.
174, 27 L. Ed. 401, 2 Sup. Ct. 336;
Quinn v. Shields, 62 Iowa 129, 49
Am. Rep. 141; Rotch v. Emerson,
105 Mass. .431; Suter v. Hilliard,
132 Mass. 412, 42 Am. Rep. 444.
Contra: Pritchard v. Thomp-
son, 95 N. Y. 76, 47 Am. Rep. 9,
reversing s. c. 29 Hun (N. Y.) 295.
But see. In re Hagenmeyer's
Will, 12 Abb. N. C. (N. Y.) 432;
Gumble v. Pfluger, 62 How. Pr.
(N. Y.) 118.
44 Russell V. Allen, 107 U. S. 163,
27 L. Ed. 397, 2 Sup. Ct. 327.
See §§ 1143, 1144.
The provision of the will was
CHARITABLE USES AND TRUSTS.
1659
gift * ' for any and all benevolent purposes that the trustee
may see fit,"*^ or with the direction to "distribute to such
persons, societies or institutions as the trustees shall con-
sider most deserving,"*^ does not create a charitable
trust. If the trustee is merely to distribute the property
among such incorporated societies, organized under the
laws of certain named states which have authority to re-
ceive and hold funds upon a permanent trust for chari-
table or educational uses, as he might select, and in such
terms as he might determine, such a trust is indefinite
and void.*^
as follows: "After the above leg-
acies are paid without unnecessary
delay, the sum remaining I desire
my executors to divide among
such American charities they may
think well of and I would like
these sums to be given to any
societies that assist poor needle-
women (seamstresses) whose toil
is so poorly requited. If no such
organization exists the money to
be divided for the benefit of in-
capacitated sailors and their fam-
ilies." It was held the beneficiaries
only were indefinite, the primary
purpose being to assist poor
needlewomen. — Manley v. Fiske,
139 App. Div. 665, 124 N. Y. Supp.
150.
45Adye v. Smith, 44 Conn. 60,
26 Am. Rep. 424.
46 Nichols V. Allen, 130 Mass.
211, 39 Am. Rep. 445.
47 Pritchard v. Thompson, 95
N. T. 76, 47 Am. Rep. 9.
See, also, Cottman v. Grace, 112
N. Y. 299, 3 L. R. A. 145, 19 N. E.
S39.
After making a number of spe-
cific bequests the testatrix de-
clared that "all the rest and resi-
due of my said estate, real and
personal, wherever situate, and of
whatever kind, I give, devise, and
bequeath to the Reverend S. S. Se-
ward, of New York City, and to the
Rev. J. C. Ager, of Brooklyn, state
of New York, or the survivor of
them, or to whomsoever they may
select, in case of their death, in
trust for the benefit of the New
Jerusalem Church (Swedenborg-
ian) as they shall deem best." It
was held an attempt to create so
vague and uncertain a trust that
it could not be enforced by a
court of equity. — Fifield v. Van
Wyck's Exrs., 94 Va. 557, 64 Am.
St. Rep. 745, 27 S. E. 446.
1660 COMMENTARIES ON THE LAW OF WILLS.
§ 1149. Chancery May Compd Trustee to Account: Statute of
Limitations.
A trustee of a charitable trust may be compelled by a
court of equity to account for any misapplication of
the fund, and this power is not restricted to a period
within the statute of limitations.** But if the intent of
the testator was not clearly expressed as to the manner
in which the fund should be applied to charitable uses,
long acquiescence in the method of such application by
the trustee will be accepted as good evidence of the do-'
nor's purpose and as to the manner in which the trust
should be administered.*'
§ 1150. Doctrine of Cy Pres : English and American Chancery
Jurisdiction Distinguished.
Much confusion has arisen with respect to the doctrine
of cy pres, owing to the fact that in its application by
the English courts the lord-chancellor exercised a double
function, the one judicial in adjudicating upon the legal
questions arising upon charitable gifts, the other minis-
terial as keeper of the king's conscience, who, as parens
patrice, may carry into effect, in some other manner, gifts
for charitable uses that are illegal or contrary to public
policy. The disposition is in the crown by sign manual.
The instances in which such prerogative powers have
been exercised are reported together with the judicial
decisions, and no clear line of distinction is drawn be-
tween the two classes. If gifts are made for an alleged
48 Man V. Ballet, 1 Vero. 44; At- 49 Attorney General v. Coventry,
torney General v. Newbury, 3 Myl. 2 Vern. 397; Church of Christ v.
& K. 647; Attorney General v. Old Reorganized Church, 71 Fed. 250.
South Soc. 13 Allen (95 Mass.)
474 ; Tacoma v. Tacoma Cemetery,
28 Wash. 238, 68 Pac. 723.
17 C. C. A. 397.
CHARITABLE USES AND TRUSTS. 1661
charitable purpose whicli can not be carried into effect
because contrary to law or its policy, by the king's
royal prerogative such gifts are made effective for chari-
ties cy pres, or as near as practicable, to the purpose
stated.®** No such power of administration is possessed
by the courts of chancery in this country.^^
Another class of cases in which the chancellor exer-
cises his ministerial function is where gifts are made
to charity, religion, or education, without indicating
when, where, or how the gifts are to be applied or used,
and without appointment of a trustee or other person
to select the objects or appropriate and apply the
funds.®^ The courts in America have generally declined,
in the absence of legislative authority, to administer
these indefinite trusts unless a trustee be appointed by
the testator to exercise his discretion in applying the
gift to particular objects or persons. °*
BOMoggridge v. Thackwell, 7 Jun. 36; In re Pyne, L. R. (1903) 1
Ves. Jun. 36; Gary v. Abbot, 7 Yes. Cb. Div. 83; Jackson v. PhlUipa,
Jun. 490; Isaac v. Gompertz, Ambl. 14 Allen (96 Mass.) 539, 576.
228, n. 1; Attorney General v. Bax- b3 Perry, Trusts, § 719.
ter, 1 Vem. 248; Attorney General This distinction is pointed out In
V. Todd, 1 Keen 803. Jackson v. Phillips, 14 Allen (96.
Bi Klumpert v. Vrleland, 142 Mass.) 539, 576; Moore's Heirs v..
Iowa 434, 121 N. W. 34; Teele v. Moore's Devisees, 4 Dana (34'
Bishop of Derry, 168 Mass. 341, 60 Ky.) 354, 366, 29 Am. Dec. 417.
Am. St. Rep. 401, 38 L. R. A. 629, See, also, Gass v. Wilbite, 2
47 N. E. 422. Dana (32 Ky.) 170, 177, 26 Am.
52 Attorney General v. Herrlck, Dec. 446; Curling's Admrs. v. Curl-
Ambl. 712; Attorney General v. ing's Heirs, 8 Dana (38 Ky!) 38,
Matthews, 2 Lev. 167; Attorney 33 Am. Dec. 475.
General v. Syderfen, 1 Vern. 224; Compare: White v. Fisk, 22
Moggridge v. Thackwell, 7 Ves. Conn. 31.
1662 COMMENTARIES ON THE LAW OP WILLS.
§ 1151. The Same Subject : General American Bule Stated.
An American case in point where this whole question
was fully discussed is Jackson v. Phillips,'* in which
one of the trusts was for the inflaming of public senti-
ment against the internal polity of some of the Ameri-
can commonwealths, thereby to secure the repeal of their
•laws in regard to the relations of master and servant and
for harboring persons who, in violation of those rela-
tions, abandoned the states wherein they existed. After
the death of the testator, but while litigation upon his
will was still in progress, the laws referred to were ren-
dered inoperative by an amendment to the Federal Con-
stitution; and the immediate purpose for which the be-
quest was made having failed, the fund was applied
to the New England branch of the American Freedmen 's
Union Commission. It was laid down that where a gift
is made to a trustee for a charitable purpose, the gen-
eral nature of which is pointed out, and which is lawful
and valid at the time of the death of the testator, no in-
tention being expressed to limit it to a particular insti-
tution or mode of application, and afterward, if either
by change of circumstances the scheme of the testator
becomes impracticable, or by change of law it becomes
illegal, the fund, having once vested in the charity, does
not go to the heir at law as a resulting trust, but is to ■
be applied by the court of chancery, in the exercise of its
jurisdiction in equity, cy pres, or as near the testator's
particular directions as possible, thereby to carry out his
general charitable intent.'®
54 14 Allen (96 Mass.) 539. Am. St. Rep. 401, 38 L. R. A. 629,
55 Jackson v. Phillips, 14 Allen 47 N. E. 422; Osgood v. Rogers,
(96 Mass.) 539, 584. 186 Mass. 238, 71 N. E. 306; Glad-
To the same effect, see, Teele v. ding v. St. Matthew's Church, 25
Bishop of Derry, 168 Mass. 341, 60 R. I. 628, 105 Am. St. Rep. 904, 1
CHARITABLE USES AND TRUSTS. 1663
This distinction between the ministerial functions of
the lord-chancellor and his judicial powers is recognized
in England. The distinction is said to consist in this :
If the testator in his will has clearly pointed out what
he intends to be done and his directions are not con-
trary to law, the court of chancery is bound to carry
his intentions into effect, and has no right to speculate
as to the beneficial effect of the testator's dispositions
or to prescribe a different mode for applying the fund ;
but if the disposition is in the crown by sign manual,
or where there are accumulations to the charity not spe-
cifically disposed of, or where a fund is given for the
benefit of a particular object which fails, the court may
regulate the application of the fund consistent with the
laws of the country.®®
§ 1152. The Same Subject.
Even when the trust is to be executed out of the state,
chancery may appoint a trustee within the state to re-
Ann. Cas. 537, 65 L. R. A. 225, 57 516; Grant v. Saunders, 121 Iowa
Atl. 860. 80, 100 Am. St. Rep. 310, 95 N. W.
See, also, Attorney General t. 411 ; Gass v. Wllhite, 2 Dana (32
Pyle, 1 Atk. 435; Attorney General ^y j 170, 177, 26 Am. Dec. 446;
V. Green, 2 Bro. C. C. 492; Attor- Moose's Heirs v. Moore's Devi-
ney General v. Bishop of London, ^^^^ ^ j,^^^ ^3^ ^^^^ 35^^ 3gg^ 23
3 Bro. C. C. 171; Moggrldge v.
Thackwell, 3 Bro. C. C. 517; s. c, 1
Ves. Jun. 464; Attorney General v.
Glyn, 12 Sim. 84 ; Attorney General
V. Lawes, 8 Hare 32; Attorney Gen-
eral V. Vint, 3 De Gex & S. 705;
Attorney General v. Ironmongers
Am. Dec. 417; Curling's Admrs. v.
Curling's Heirs, 8 Dana (38 Ky.)
38, 33 Am. Dec. 475; Philadelphia
V. Girard's Heirs, 45 Pa. St. 9, 27,
28, 84 Am. Dec. 470; Shields v.
Jolly (Attorney General v. Jolly),
Co. 2 Mylne & K. 576; s. c. Craig 1 ^^^^- ^Q- (S. O 99. 42 Am. Dec.
& P 208; s. c. 10 Clark & F. 908; 349; s. c. 2 Stroh. Eq. (S. C.) 379,
Lyons v. Advocate General, L. R. 1 """'•
App. 91; Grand Prairie Seminary 66 philpott v. St. George's Hos-
V. Morgan, 171 111. 444, 49 N. E. pital, 27 Beav. 107.
1664: COMMENTABIES ON THE LAW OF WILLS.
ceive the bequest, or may o^-der the fund or the profits
arising from it to be paid from time to time to a trustee
in the place where the trust is to be executed.^'' There
seems to be "no valid reason why the judicial cy pres
doctrine, as explained in Jackson v. Phillips,^* should not
be approved in all those states wherein the statute of
Elizabeth^* has been decided to be in force, or where its
principles have been adopted by the law of the state;
in other words, in those states where the doctrine is rec-
ognized that indefiniteness of the object is no objection
to a trust, provided it is for a charity. This is the case in
many states of the Union."®" And, indeed, it would seem
that courts of equity have derived from the law of Eng-
land, independent of the statute of Elizabeth, the author-
ity to enforce charities when trustees competent to take
the legal title are named, and the class to be benefited
and the individuals to be designated by the trustees are
87 Fellows V. Miner, 119 Mass. 18 B. Mon. (Ky.) 635; Preachers
541. See, also. Attorney General v. Aid Sec. v. Rich, 45 Me. 552; Had-
London, 3 Bro. C. 0. 171; 1 Ves. ley v. Hopkins Academy, 14 Pick.
Jun. 243; Mayor of Lyons v. East (31 Mass.) 240; Going v. Emery
India Co., 1 Moore P. C. C. 175, 16 Pick. (33 Mass.) 107, 26 Am,
295-297; Attorney General v. Dec 645; "Wade v. American Col
Sturge, 19 Beav. 597; Washburn onization Soc, 7 Smedes & M. (15
V. Sewall, 9 Mete. (50 Mass.) 280; Miss.) 663, 45 Am. Dec. 324; Cham-
Chamberlain V. Chamberlain, 43 bers v. St. Louis, 29 Mo. 543 ; Trus-
N. Y. 424. tees of Davidson College v. Cham-
58 14 Allen (96 Mass.) 539. bers, 56 N. C. 253; Landis v.
59 See § 1116. Wooden, 1 Ohio St. 160, 59 Am.
60 Vidal V. Girard, 2 How. (U.S.) Dec. 615; Witman v. Lex, 17 Serg.
128, 11 L. Ed. 205; Williams v. & R. (Pa.) 88, 17 Am. Dec. 644;
Pearson, 38 Ala. 299; Treat's Ap- Potter v. Thornton, 7 R. I. 252;
peal, 30 Conn. 113; Beall v. Fox's Meeting St. Baptist Soc. v. Hail,
Exrs., 4 Ga. 404; Walker v. 8 R. I. 234, 239; Dickson v. Mont-
Walker, 25 Ga. 420; McCord v. gomery, 1 Swan (31 Tenn.) 348;
Ochiltree, 8 Blackf. (Ind.) 15; Bap- Paschal v. Acklin, 27 Tex. 173.
tist Church v. Presbyterian Church, See §§ 1113, 1114.
CHARITABLE USES AND TRUSTS. 1665
ascertainable.*^ Thus, it has been held that in the general
devolution upon the courts of California of all judicial
power with respect to charities is included the power of
cy pres, so far as it may be employed in directing the
trustees under a will to carry into effect its general, law-
ful, and charitable intent, when the particular scheme is
impracticable or has become unlawful.®^
§ 1153. Cy Pres Doctrine: English Rule Where Object or Pur-
pose of Trust Fails.
"WTiere the object of the charity is particularly desig-
nated, as a legacy to a certain ophthalmic hospital, and
it has ceased to exist at the date of the will, the court will
not administer cy pres the gift.**^ Or if such particular
object ceases to exist before the testator's death, the
legacy will lapse and will not be administered cy pres.^^
The rule is the same where the particular purpose for
which the trust is created becomes impossible of fulfill-
ment during the testator's lifetime. For instance, a leg-
acy to pay off a mortgage on a chapel which is satisfied
before the testator's death, will lapse, there being no
general charitable purpose indicated.^^ For if the tes-
tator has expressed a general charitable intention for
certain objects or purposes, the gift will be executed cy
pres.^^
61 Hinckley's Estate, 58 Cal. 457. es Corbyn v. French, 4 Ves. Jun.
62 Hinckley's Estate, 58 Cal. 457. 418; In re White's Trusts, L.. R. 33 '
esBroadbent v. Barrow, L. R. 29 ch. Div. 449; In re Randall, L. R.
Ch. Div. 560. 38 ch. Div. 213; Doyle v. Whalen,
64 In re Ovey, L. R. 29 Ch. Div. g^ j^^ ^^^^ ^^ L. R. A. 118, 32 Atl.
560; Pease v. Pattison, 32 Ch. Div. ^^^^
154; In re Davis, (1902) 1 Ch. 876;
Gladding V. St. Matthew's Church, «« Daly v. Attorney General, 11
25 R. I. 628, 638, 105 Am. St. Rep. Ir. Ch. 41; Biscoe v. Jackson, 35
904, 1 Ann. Cas. 537, 65 L. R. A. Ch. Div. 460; Lyons v. Advocate
225, 57 Atl. 860. General, L. R. 1 App. 91.
II Com. on Wills — 51
1666 COMMENTARIES ON THE LAW OF WHjLS.
Should the particular object of charity specified by the
testator or the particular purpose of the gift be in exist-
ence or capable of fulfillment at the testator's death, a
right in the trust fund becomes vested; and should the
object or purpose subsequent cease to exist or become
impossible of fulfillment, the gift will not lapse but will
be administered cy pres by the coui't.*''
§ 1154. The Same Subject.
If the testator in his will shows a clear intention that
his gift to a beneficiary is in trust for charitable pur-
poses, but the charities are not designated, or if the ob-
ject mentioned fails, the courts will execute the trust cy
pres and apply it to some similar object, although the par-
ticular manner of administration contemplated by the
testator is uncertain or impracticable and although the
object of the trust may be indefinite.*^ Where several
objects are mentioned and one fails, the rule is the same
as to the object failing, and the proportion allotted to it
will be administered cy pres.^^
67 In re Slevin, L. R. (1891) 2 Macduff, L. R. (1896) 2 Ch. Div.
Ch. 236; In re Buck, L. R. (1896) 451, 455; McCord v. Ochiltree, 8
2 Ch. 727. Blackf. (Ind.) 15, 22; Winslow v.
68 Paice V. Canterbury, 14 Ves. Cummings, 3 Cush. (57 Mass.) 358,
Jun. 364; In re Pyne, L. R. (1903) ggg. g^j^j^j. ^ g^^.^.^ ^^^ ^^^^ 331 ;
1 Ch. 83; Moggridge v. Thackwell, j^^^^ ^_ Watford, 62 N. J. Eg. 339,
7 Ves. Jun. 36; Mills v. Farmer, ^^ ^^ ^^^
19 Ves. Jun. 483; Pocock v. Attor-
ney General, 3 Ch. Div. 343; ^^^""^ ^ S^'^^^'a' charitable In-
Pieschel V. Paris, 2 Sim. & St. tention is expressed, but no trus-
384; In re Prison Charities, L. R. tee is appointed and no trust
16 Bq. 129; Attorney General v. created, the disposition is by the
St. John's Hospital Bath, L. R. 1 ^^^S hy sign manual.— In re Pyne,
Ch. App. 92; Manchester School L. R. (1903) 1 Ch. 83.
Case, Li. R. 2 Ch. 497; In re White, 69 Ironmonger's Co. v. Attorney
L. R. (1893) 2 Ch. Div. 41; In re General, 10 CI. & F. 908.
CHARITABLE USES AND TRUSTS, 1667
§1155. The Same Subject: American Authorities.
The courts of chancery of the United States do not
possess the ministerial powers of like courts of Eng-
land. Except in so far as the English courts may admin-
ister the prerogative power of the crown, the cy pres
doctrine as applied by them is generally adopted in this
country in those jurisdictions which accept the English
doctrine of charitable uses and trusts.'^" In other states
the doctrine is applied to a greater or less extent as they
may recognize the principle.'^
It is impossible to lay down any general American rule
since the English doctrine of charitable uses and trusts,
from being fully recognized in some jurisdictions, is in
others accepted only partially or denied in toto. Further,
such matters are largely regulated by legislation which
varies in the different states. It is therefore possible only,
within the scope of this work, to state those principles
which will be accepted generally.
It must be remembered that courts of chancery can not
control the discretion of a trustee in the absence of fraud
or abuse. If the will clearly indicates that the trust prop-
erty is to be devoted to charitable purposes, but the pur-
pose is too indefinite for ascertainment, the trust mil
fail unless a trustee is appointed with discretion to apply
the property to the general purpose, or the court assumes
jurisdiction. In the last instance, the purpose must be
sufficiently definite, by the terms of the will, so that the
court can cause the fund to be applied according to the
70 See §1114; Hinckley's Estate, 210, 52 S. W. 414; Adams Female
58 Cal. 457; Heuser v. Harris, 42 Academy v. Adams, 65 N. H. 225,
111. 425; Erskine v. Whitehead, 84 6 L. R. A. 785, 18 Atl. 777, 23 Atl.
Ind. 357; Attorney General v. 430; St. Peter's Church v. Brown,
Briggs, 164 Mass. 561, 42 N. E. 21 R. I. 367, 43 Atl. 642.
118; Lackland v. Walker. 151 Mo. Ti See § 1114.
1668 COMMENTARIES ON THE LAW OF WILLS.
testator's intent, for the court can not supply an intent
not expressed by the testator. If the purpose of the tes-
tator is not charitable, or if the property is to be devoted
to charity only in the discretion of the trustee appointed
in the will, the trustee having authority to devote all the
fund to purposes not charitable, the court can not control
such discretion and create a charitable trust. Whenever
action by the court depends upon its assuming minis-
terial functions as distinguished from, judicial, the general
American rule is that the court has no jurisdiction to ad-
minister the trust property and apply it to some chari-
table purpose which it may select. "^^
72 Fairfield v. Lawson, 50 Conn. 568; McAuley v. Wilson, 16 N. C.
501, 47 Am. Rep. 669; Spalding v. 276, 18 Am. Dec. 587; Johnson v.
St. Joseph's Industrial School, 107 Johnson, 92 Tenn. 559, 36 Am. St.
Ky. 382, 54 S. W. 200; Holland v. Rep. 104, 22 L. R. A. 179, 23 S. W.
Alcock, 108 N. Y. 312, 2 Am. St. 114; Danforth v. City of Oshkosh,
Rep, 420, 16 N. E. 305; Allen v. 119 Wis. 262, 97 N. W. 258.
Stevens. 161 N. Y. 122, 55 N. B.
CHAPTER XLI.
PEEPETTJITIES AND TRUSTS TO ACCUMULATE.
§ 1156. Perpetuities defined.
§ 1157. Development of the rule against perpetuities.
§ 1158. Statement of the rule against perpetuities.
§ 1159. The same subject.
§ 1160. To what interests the rule applies.
§ 1161. Contingent and vested interests distinguished.
§ 1162. Provisions construed as of date of testator's death.
§ 1163. A rule of law : Possibility of violation of rule the test.
§ 1164. Cases illustrating application of rule.
§ 1165. Time runs from date of testator's death.
§ 1166. Powers of appointment: Effect of, if void.
§ 1167. Private trusts subject to rule against perpetuities.
§ 1168. Effect of provisions violating rule against perpetuities.
§ 1169. The same subject : Effect on preceding estates.
§ 1170. The same subject: Effect on other estates.
§ 1171. Gifts to a class.
§ 1172. Accumulation defined.
§ 1173. Common law rule as to accumulation.
§ 1174. The Thellusson Case.
§ 1175. The Thellusson Act.
§ 1176. Statutory regulations regarding accumulations.
§1177. The same subject: Charities.
§ 1178. Implied directions to accumulate.
§ 1179. Effect of trust to accumulate for longer period than
allowed by rule or statute.
§ 1156. Perpetuities Defined.
It has been said that a perfect definition of a perpetuity
has never been given.^ It may be defined as a grant of
property wherein the vesting of the estate or interest
1 Hlllyard v. Miller, 10 Pa. 326, 334.
(1669)
1670 COMMENTARIES ON THE LAW OP WILLS.
is unlawfully postponed, and it is called a perpetuity
not because the grant, as written, would make it perpet-
ual,, but because it transgresses the limit which the law
has set in restraint of grants which tend to a perpetual
suspense of the title or its vesting.- It has also been de-
fined as a limitation which takes the subject matter of the
perpetuity out of commerce for a period of time greater
than a life or lives in being and twenty-one years there-
after.* The estate of the person who for the time being
is entitled to the property must be indestructible.*
§ 1157. Development of the Rule Against Perpetuities.
The common law did not permit an entire restraint
upon alienation to be coupled with a grant in fee simple,
the right of alienation being an incident of the estate and
the restraint being void. The rule has been gradually es-
tablished by judicial decisions in discussions of cases in-
volving executory devises .of chattels real. At first the
contingent interests depended upon the nature of the con-
tingency, remoteness not being in question. The courts at
first allowed only those limitations which would take ef-
fect at the death of the testator ; later this was changed
2 Philadelphia v. Glrard's Heirs, Cady, 171 III. 229, 63 Am. St. Rep.
45 Pa. St. 9, 26, 84 Am. Dec. 470. 230, 48 N. B. 974; Kolb v. Landes,
See, also, Duke of Norfolk's Case, 277 111. 440, 115 N. E. 539, and
2 Swanst. 454; Hollander v. Cen- Branson v. Bailey, 246 111. 490, 92
tral Metal & Supply Co., 109 Md. N. E. 940; Pulitzer v. Livingston,
131, 23 L. R. A. (N. S.) 1135, 71 89 Me. 359, 36 Atl. 635, 637; True
Atl. 442. Real Estate Co. v. True, (Me.) 99
A perpetuity is "an estate in- Atl. 627; Anderson v. Menefee,
alienable though all mankind .loin (Tex. Civ. App.) 174 S. W. 904.
in the conveyance." — Scatterwood 4Hlllyard v. Miller, 10 Pa. 326,
V. Edge, 1 Salk. 229. 334; Mifflin's Appeal, 121 Pa. St.
3 Raymond v. Northern Trust 205, 6 Am. St. Rep. 781, 1 L. R. A.
Co., 150 111. App. 282; Bigelow v. 453, 15 Atl. 525.
PERPETUITIES AND TRUSTS TO ACCUMULATE. 1671
to include two or more lives in being at the same time.
Then was added the time necessary for the birth of a
posthumous child, then twenty-one years was included in
the period allowed for the minority of children in esse at
the expiration of the life estate. Minority, however, was
lost sight of and the period of twenty-one years was al-
lowed without reference to infancy.^
§ 1158. Statement of the Rule Against Perpetuities.
The common law rule, and it obtains in every American
state except as it may have been modified by statute, is
that the utmost period in which an executory devise or
bequest can take effect is a life or lives in being and
twenty-one years thereafter, together Avith the period of
gestation.* The number of lives is immaterial, but they
must be in being so, as has been expressed, the candles
are all burning at the same time, for the life of the longest
liver is but a single day.^ The rule allows the vesting of
5Cadell V. Palmer, 1 CI. & F. 65, 62 Am. St. Rep. 356, 48 N. E.
372, 6 Eng. Reprint 956; Marks v. 556; Smith's Appeal, 88 Pa. St.
Marks, 10 Mod. 419; Loyd v. 492; Barton v. Thaw, 246 Pa. 348,
Carew,' Prec. Ch. 72, 24 Eng. Re- *""■ Cas. 1916D, 570, 92 Atl. 312.
print 35. See, also. Goring v. ^^ Scatterwood v. Edge, 1 Salk.
Blckerstaffe, 2 Freem. Ch. 163, 22 ^^^' ^^^ '=°"'-t °* «°'^'^°'^ P^^^^ '«
Eng. Reprint 1132; Love v. Wind-
ham, 1 Sid. 450, 82 Eng. Rep. 1211;
said to have agreed In holding
that "the compass of a life or
lives" was a reasonable time, "for
Goldtree v. Thompson, 79 Cal. 613, j^^ ^^^ ^.^^^ ^^ ^^^^^ ^^ ^^^^^
22 Pac. 50. there must be a survivor, and so
6 Cadell V. Palmer, 7 Bllgh N. S. it is btit the length of that life."
202, 1 CI. & F. 372, 6 Eng. Re- Lord Hardwick in Hopkins v.
print 956; Lyons v. Bradley, 168 Hopkins, 1 Atk. 580, said: "It is
Ala. 505, 53 So. 244; Towle v. Doe, not (in my opinion) material to
97 Me. 427, 54 Atl. 1072; In re restrain it to the life of the tenant
Smisson, 79 N. J. Eq. 233, 82 Atl. for life of the land, provided it be
614. restrained to the life of a person
7 Madison v. Larmon, 170 111. in being."
1672 COMMENTARIES ON THE LAW OF WILLS.
an estate or interest, or the power of alienation, to be
postponed for such period only, and all restraints which
may suspend the vesting of an estate or the power of
alienation beyond such time are treated as perpetual and
therefore void. But nothing is denounced by the law as a
perpetuity which does not transgress this rule.*
To prevent estates from being locked up forever from
commercial and social purposes, perpetuities are for-
bidden and a period fixed bej^ond which no one is allowed
to direct how his estate shall devolve. That period is for
a life or lives in being and twenty-one years thereafter
with the period of gestation added. A testator therefore
can not by devise or bequest limit an estate over to take
effect after that period and, if he does so, the limitation
over is void.®
In Arkansas, California, Nevada, New Mexico, North
Carolina, Tennessee, and Texas perpetuities are for-
bidden by the constitution. In many of the states of this
country the common law^ rule has become part of the stat-
utory law. In others the statute declares that the abso-
lute power of alienation of real estate shall not be sus-
pended by any condition or limitation for a longer period
than during the continuance of two lives in being at the
creation of the estate ; in others for a longer period than
the duration of any number of lives in being; in still
others the suspension must not be for longer than during
three lives and ten years. Generally the period of the
suspension of alienation must by express terms be mea-
8 Barnum v. Barnum, 26 Md. 119, Philadelphia v. Glrard's Heirs, 45
90 Am. Dec. 88; Graham v. Whit- Pa. St. 9, 26, 84 Am. Dec. 470.
ridge, 99 Md. 248, 66 L. R. A. 408, « Moore's Trustees v. Howe's
Heirs, 4 T. B. Men. (20 Ky.) 199;
57 Atl. 609, 58 Atl. 36; Levenson
Winsor V. Mills, 157 Mass. 3G2,
V. Manly, 119 Md. 517, 87 Atl. 261; 32 ^ ^ 352^
PERPETUITIES AND TRUSTS TO ACCUMULATE. 1673
sured by lives in being, no period for simply a term of
years being valid unless the ultimate limit be lives in
being.i**
§ 1159. The Same Subject.
The rule against perpetuities is by far the most im-
portant restraint which the law places upon the right to
create future interests. The rule deals only Avith future
estates. The remoteness against which the rule is di-
rected is remoteness in the commencement or first taking
effect of limitations, and not in the determination of in-
terests.^^ The statutes on the subject are not, in all cases,
against perpetuities, some simply prohibit restraints upon
alienation. But a declaration that a grant of a future
estate is void in its creation if it suspends the power of
alienation beyond the prescribed period is to the same
end; and it is void if by any possibility it may so re-
strict the power of alienation. The doctrine of remote-
ness has no materiality under many statutes except as it
affects alienability.^- The rule promotes alienability by
destroying future interests which would tend to prevent
alienation. ^^
The object of the rule is to defeat the intention of the
testator where his intent is to violate the rule, and not
otherwise. The object is also to defeat any portion of
10 Gk)ldtree v. Thompson, 79 Cal. 348, Ann. Cas. 1916D, 570, 92 Atl.
613, 615, 22 Pac. 50; Estate of 312.
Walkerly, 108 Cal. 627, 49 Am. St. 12 Estate of Cavarly, 119 Cal.
Rep. 97, 41 Pac. 772; Penfleld v. 406, 51 Pac. 629.
Tower, 1 N. D. 216, 46 N. W. 413; is Barton v. Thaw, 246 Pa. St.
Moore v. Moore, 47 Barb. (N. Y.) 348, Ann. Cas. 1916D, 570, 92 Atl.
257; Schettler v. Smith, 41 N. Y. 312. See, also, Anderson v. Men-
328. efee, (Tex. Civ. App.) 174 S. W.
11 Barton v. Thaw, 246 Pa. St. 904.
1674
COMMENTARIES ON THE LAW OP WILLS.
the will, the effect of which would be to violate the rule,
whatever may have been the testator's intention.^*
§ 1160. To What Interests the Rule Applies.
The rule against perpetuities applies to contingent
remainders^' and executory devises,^" but not to rever-
sions;^^ it applies to property and not to contract.^* It
embraces powers to sell, exchange, or lease property.^^
The rule is the same in relation to both personal and
real estate,^" and the same as to equitable and legal in-
terests.^^ It relates to the commencement of future es-
tates or interests and not to their duration,^^ and it is
14 Miller V. Weston, 25 Colo.
App. 231, 138 Pac. 424.
15 Madison v. Larmon, 170 111.
65, 62 Am. St. Rep. 356, 48 N. E.
556; Fisk v. Keene, 35 Me. 349;
Nightingale v. Burrell, 15 Pick.
(32 Mass.) 104; Brattle Square
Church V. Grant, 3 Gray (69 Mass.)
142, 63 Am. Dec. 725.
16 Carney v. Kain, 40 W. Va.
758, 23 S. E. 650.
iTKasey v. Fidelity Trust Co.,
131 Ky. 609, 115 S. W. 739.
18 London & South Western Ry.
Co. V. Gomm, (1882) 20 Ch. D.
562; Worthing Corp. v. Heather,
(1906) 2 Ch. 532, 75 L. J. Ch. N. S.
761, 22 Times L. R. 750, 95 L.. T.
N, S. 718, 4 B. R. C. 280.
19 Ware v. Polhill, 11 Yes. Jun.
257, 8 Rev. Rep. 144, 32 Eng. Re-
print 1087; In re Daveron, L. R.
(1893) 3 Ch. 421, 63 L. J. Ch. 54,
69 L. T. R. N. S. 752; Lawrence's
Estate (Appleton's Appeal), 136
Pa. St. 354, 20 Am. St. Rep. 925,
11 L. R. A. 85, 20 Atl. 521; Eary
V. Raines, 73 W. Va. 513, 80 S. E.
806.
20 Moore's Trustees v. Howe's
Heirs, 4 T. B. Mon. (20 Ky.) 199;
United States Fidelity & Guaranty
Co. V. Douglas' Trustee, 134 Ky.
374, 20 Ann. Cas. 993, 120 S. W.
328; Banking Co. v. Field, 84 Miss.
646, 37 So. 139; Thomas v.
Thomas, 97 Miss. 697, 53 So. 630.
The common law rule as to per-
petuities respecting personal prop-
erty is not in force in Wisconsin.
—Becker v. Chester, 115 Wis. 90,
91 N. W. 87, 650.
21 Blgelow V. Cady, 171 111. 229,
63 Am. St. Rep. 230, 48 N. E. 974;
O'Hare v. Johnston, 273 111. 4.j8,
113 N. B. 127, reversing 194 111.
App. 153.
22 Mackinnon v. Peach, 2 Keen
555, 7 L. J. Ch. 211, 48 Eng. Re-
print 741; Williams v. Teale, 6
Hare 639, 31 Eng. Ch. 239, 67 Eng.
Reprint 1155; In re Lowman, L. R.
(1895) 2 Ch. 348, 64 L. J. Ch. 567,
72 L. T. N. S. 81G; McArthur v.
PERPETUITIES AND TRUSTS TO ACCUMUbATE. 1675
therefore immaterial whether the estate is in fee, for
life or for years. In all such cases the validity of the
limitation depends upon the same point — whether the
event, upon the happening of which it is to take effect,
is certain, to occur within the period which the rule de-
fines.^^
§ 1161. Contingent and Vested Interests Distinguished.
A limitation which provides for a future estate whose
vesting is dependent upon a contingency which will not
be determined until the expiration of a life which came
into existence after the death of the testator is within the
prohibition of the rule against perpetuities,^* as is also
any inalienable and indestructible estate created to con-
tinue longer than the prohibited period.^^ No interest sub-
ject to a condition precedent is valid unless the condition is
one which must be fulfilled "within twenty-one years after
some life in being, with the period of gestation added.^"
An estate in remainder can not be created to take effect
Scott, 113 U. S. 340, 28 L. Ed. 1015, 25 Mifflin's Appeal, 121 Pa. 205,
5 Sup. Ct. Rep. 652; Lyons v. 6 Am. St. Rep. 781, 1 L. R. A. 453,
Bradley, 168 Ala. 505, 53 So. 244; 15 Atl. 525.
Mettler v. Warner, 243 111. 600, 134 26 Whitby v. Mitchell, L. R. 44
Am. St. Rep. 388, 90 N. E. 1099; Ch. Dit. 85; In re Hargreaves,
Phillips V. Harrow, 93 Iowa 92, L. R. 43 Ch. Div. 401; Tenell v.
61 N. W. 434; Bowerman v. Tay- Reeves, 103 Ala. 264, 16 So. 54;
lor, 126 Md. 203, 94 Atl. 652; True Madison v. Larmon, 170 111. 65, 62
Real Estate Co. v. True, (Me.) 99 Am. St. Rep. 35S, 48 N. E. 556;
Atl. 627; Ortman v. Dugan, (Md.) Quinlan v. Wickman, 233 111. 39,
100 Atl. 82. 17 L. R. A. (N. S.) 216, 84 N. E.
23Gambrill v. Gambrlll, 122 Md. 38; Drury v. Drury, 271 111. 336,
563, 89 Atl. 1094; Bowerman v. Ill N. E. 140; Kolb v. Landes, 277
Taylor, 126 Md. 203, 94 Atl. 652. 111. 440, 115 N. E. 539; Leonard
24 Gambrill v. Gamhrill, 122 Md. v. Haworth, 171 Mass. 496, 51
563, 89 Atl. 1094. N. E. 7.
1676
COMMENTARIES ON THE LAW OF WILLS.
after such period,^'^ the rule being that a condition prece-
dent to which an interest is subject must be one to be
fulfilled within twenty-one years after some life in being
at the creation of the interest. This rule is in force in
every state where the principles of the common law pre-
vail, excepting as it may have been modified by statute.-^
The rule against perpetuities applies to interests in
realty or personalty, whether legal or equitable,^" but has
no application to an interest which is vested, for a vested
interest by its very nature can not be subject to a con-
dition precedent.^" If there is a present right to a fu-
ture possession, though the right may be defeated by
some future event, there is nevertheless a vested estate
or interest.*^ A vested equitable interest can not fall
27 Miller v. Weston, 25 Colo.
App. 231, 138 Pac. 424; United
States Fidelity & Guaranty Co. v.
Douglas's Trustee, 134 Ky. 374, 20
Ann. Gas. 993, 120 S. W. 328.
28Drury v. Drury, 271 111. 336,
111 N. E. 140; O'Hare v. Johnston,
273 111. 458, 113 N. E. 127, re-
versing 194 111. App. 153; Law-
rence's Estate (Appleton's Ap-
peal), 136 Pa. St. 354, 20 Am. St.
Rep. 925, 11 L. R. A. 85, 20 Atl. 521.
29 O'Hare v. Johnston, '273 111.
458, 113 N. E. 127, reversing 194
III. App. 153; Gambrill v. Gam-
brill, 122 Md. 563, 89 Atl. 1094;
Lawrence's Estate (Appleton's Ap-
peal), 136 Pa. St. 354, 20 Am. St.
Rep. 925, 11 L. R. A. 85, 20 Atl.
521.
30 Sioux City Terminal R. Co.
V. Trust Co. of North America,
82 Fed. 124, 27 C. C. A. 73; Ter-
rell V. Reeves, 103 Ala. 264, 16 So.
54; Lyons v. Bradley, 168 Ala.
505, 53 So. 244; Parnam v. Far-
nam, 53 Conn. 261, 278, 2 Atl. 325,
5 Atl. 682; Tarrant v. Backus,
63 Conn. 277, 28 Atl. 46; Johnson
V. Bdmond, 65 Conn. 492, 33 Atl.
503; Lunt v. Lunt, 108 111. 307;
Lawrence v. Smith, 163 111. 149, 45
Atl. 259; O'Hare v. Johnston, 273
111. 458, 113 N. B. 127, reversing
194 111. App. 153; Andrews v. Lin-
coln, 95 Me. 541, 56 L. R. A. 103,
50 Atl. 898; Toms v. Williams, 41
Mich. 552, 2 N. W. 814; Lawrence's
Estate (Appleton's Appeal), 136
Pa. St. 354, 20 Am. St. Rep. 925,
11 L. R. A. 85, 20 Atl. 521; John-
ston's Estate, 185 Pa. St 179, 64
Am. St. Rep. 621, 39 Atl. 879;
Green v. Green, 255 Pa. 224, 99
Atl. 801; Edward's Estate, 255 Pa.
358, 99 Atl. 1010.
31 Neel's Estate, 252 Pa. St. 394,
97 Atl. 502.
PEKPETUITIES AND TRUSTS TO ACCUMULATE. 1677
within the rule/^ but a contingent equitable interest may
do so.
§ 1162. Provisions Construed as of Date of Testator's Death.
In construing a will with reference to the rule against
perpetuities, the decision must be based on facts existing
at the date of the testator 's death.^* Conditions existing
at the date of the will have no effect on the validity of
the limitation unless, of course, they remain unchanged.
For although conditions existing when the will is executed
would render the limitation void, they have no effect if,
by a change of circumstances, conditions which do not
invalidate the provision exist at the testator's death.^*
§1163. A Rule of Law: Possibility of Violation of Rule the
Test.
The rule against perpetuities is not a rule of construc-
tion but a peremptory command of the law. Its object
is to defeat the intention of any one who attempts to vio-
late it. Any instrument providing for the creation of a
future interest in property is first to be construed as if
32 111 re Randell, 38 Ch. D. 213, (1903) 2 Ch. Div. 411; McArthur v.
57 L. J. Ch. 899, 58 L. T. N. S. 626; Scott, 113 U. S. 340, 28 L. Ed.
Hopkins v. Grimshaw, 165 U. S. 1015, 5 Sup. Ct. 652; In re Steele's
342 41 L. Ed. 739, 17 Sup. Ct. 401; Eslate, 124 Cal. 533, 57 Pac. 564;
Abend T. McKendree College etc. ^°^''^°'' ^- Edmond, 65 Conn. 492.
Commrs., 174 ni. 96, 50 N. E. 1052; ^3 Atl. 503; Hosea v. JacoDs,
Flanner v. Fellows, 206 111. 136,
68 N. E. 1057.
Mass. 65; Mullreed v. Clark, 110
Mich. 229, 68 N. W. 138, 989; Hil-
len V. Iselin, 144 N. Y. 365, 39
Contra: Towle t. Doe, 97 Me. j^ ^ ^gg
427, 54 Atl. 1072. 34 picken v. Matthews, 10 Ch.
33 Dungannon v. Smith, 12 CI. Div. 264; Morgan v. Gronow, L. R.
& F. 546; Hale v. Hale, 3 Ch. Div. 16 Eq. 1; Johnson v. Edmond, 65
643; In re Wilmer's Trusts, L. R. Conn. 492, 33 Atl. 503.
1678
COMMENTARIES ON THE LAW OP WILLS.
the rule did not exist; and then to the provisions of the
instrument as construed the rule is applied.^^
In determining whether or not the provisions of a will
violate the rule as to perpetuities, the court does not
consider whether the estate or interest miay vest within
such time as not to violate the rule ; the point is whether
hy any possibility the estate or interest may not vest
until after the period prescribed by the rule.*® If so, the
rule has been violated. A future estate or interest in
35 Dungannon v. Smith, 12 CI.
& F. 546, 599; Dime Sav. & Trust
Co. V. "Watson, 254 111. 419, 9S N. E.
777; Bowerman v. Taylor, 126 Md.
203, 94 Atl. 652; Barton v. Thaw,
246 Pa. St. 348, Ann. Cas. 1916D,
570, 92 Atl. 312.
36 Thomas v. Thomas, 87 L. T.
N. S. 58; In re Wood, 3 Ch. 381,
71 L. T. N. S. 413, 63 L. J. Ch.
790; Hanley v. Kansas etc. Coal
Co., 110 Fed. 62; Rand v. Butler,
48 Conn. 293; Johnson v. Preston,
226 111. 447, 10 L. R. A. (N. S.)
564, 80 N. B. 1001; Tyler v. Fidel-
ity etc. Trust Co., 158 Ky. 280,
164 S. W. 939; Odell v. Odell, 10
Allen (92 Mass.) 1; Sears v. Put-
nam, 102 Mass. 5; Andrews v. Lin-
coln, 95 Me. 541, 56 L. R. A. 103,
50 Atl. 898; Levenson v. Manly,
119 Md. 517, 87 Atl. 261; Riley v.
Jaeger, (Mo.) 189 S. W. 1168;
Hawley v. James, 16 Wend.
(N. Y.) 61, 120; Moore v. Moore,
59 N. C. 132; Donohue v. Mc-
NichoU, 61 Pa. St. 73; Whelan v.
Reilly, 3 W. Va. 597; Eary v.
Raines, 73 W. Va. 513, 80 S. E. 806.
The application of the rule is
not determined by the character of
the estate conveyed, but by the
answer to the question, will it
necessarily vest within the time
fixed by the rule. — Hollander v.
Central Metal & Supply Co., 109
Md. 131, 23 L. R. A. (N. S.) 1135,
71 Atl. 442.
The application of the rule is
not determined by the process of
looking back upon the events
which have actually transpired to
ascertain whether the specified
contingency has in fact happened
within the period which the rule
allows, but by looking forward
from the time of the devise and
considering whether the contin-
gent event might have occurred
beyond the period of a life or
lives then in being and 21 years
and 10 months additional. Unless
the event was certain to happen
within such a period of time, a
devise dependent upon its occur-
rence is invalid. — Ortman v. Du-
gan, (Md.) 100 Atl. 82.
If the contingency can possibly
happen beyond the limits fixed,
the interest is too remote and
its creation is prohibited. — Howe
V. Hodge, 152 111. 252, 38 N. E.
PEEPETUITIES AND TRUSTS TO ACCUMULATE.
1679
property is invalid unless it is so limited that under
all possible contingencies it must of necessity take effect
within the legal period.^'^
Some authorities, however, favor so construing a will
as to avoid a conflict with the rule against perpetuities,
if it consistently can be done. A testator is presumed to
have knowledge of the law as to perpetuities*^ and it will
not be inferred that he knowingly inserted invalid pro-
visions in his will. And such construction will be given
as to uphold the wilP" whenever by so doing the intention
of the testator is not disappointed.^"
§ 1164. Cases Illustrating Application of Rule.
The rule against perpetuities is violated by a bequest in
triist for a daughter for life, and after her death to pay
1083; Lawrence v. Smith, 163 ni.
149, 45 N. E. 259; Nevltt v. Wood-
burn, 190 111. 283, 60 N. E. 500;
Dniry v. Drury, 271 111. 336, 111
N. E. 140.
37 Thomas v. Thomas, 87 L. T.
N. S. 58; Lyons v. Bradley,
168 Ala. 505, 53 So. 244; Brown
V. Columbia Finance etc. Co.,
123 Ky. 775, 30 Ky. L. Rep. 110,
97 S. W. 421; United States Fi-
delity etc. Co. V. Douglas' Trustee,
134 Ky. 374, 20 Ann. Cas. 993,
120 S. W. 328; Tyler v. Fidelity
etc. Trust Co., 158 Ky. 280, 164
S. W. 939; Schaefer v. Schaefer,
141 111. 337, 31 N. E. 136; Slade v.
Patten, 68 Me. 380; Fosdick v.
Posdlck, 6 Allen (88 Mass.) 41;
Smith V. Edwards, 88 N. Y. 92,
104; Matter of O'Hara, 95 N. Y.
403, 417, 47 Am. Rep. 53; Smith's
Appeal, 88 Pa. St. 492.
38 Van Riper v. Hilton, 78 N. J.
Eq. 371, 78 Atl. 1055.
39 Martelli v. HoUoway, L. R. 5
H. L. 532; Pease v. Cornell, 84
Conn. 391, 80 Atl. 86; Sumpter v.
Carter, 115 Ga. 893, 60 L. R. A.
274, 42 S. B. 324; Henry v. Carr,
157 Ky. 552, 163 S. W. 756; Gray
V. Whittemore, 192 Mass. 367, 116
Am. St. Rep. 246, 10 L. R. A.
(N. S.) 1143, 78 N. E. 422; Towle
V. Doe, 97 Me. 427, 54 Atl. 1072; '
Anderson v. Menefee, (Tex. Civ. .
App.) 174 S. W. 904; Allison v.
Allison's Exrs., 101 Va. 537, 63
L. R. A. 920, 44 S. E. 904; Com-
monwealth V. Wellford, 114 Va.
372, 44 L. R. A. (N. S.) 419, 76
S. E. 917.
40 Towle V. Doe, 97 Me. 427,
54 Atl. 1072.
1680 COMMENTARIES ON THE LAW OP WILLS.
the income to her children, without right of alienation,
except that at the death of any such grandchildren an
aliquot part of the property shall pass to the grandchil-
dren's descendants per stirpes, and in default of de-
scendants living at the death of such grandchildren to
pass according to the law of descent, the reason being
that in legal contemplation the grandchildren entitled to
take may be born after the testator's death, even though
the daughter is fifty-five years old when the testator
dies.*^
The rule is also violated by a devise by which an estate
is to be held in trust during the life of the testator 's son,
and after his death to be held in like trust until the death
of the testator's last surviving grandchild, the fee to be
then divided equally between the testator 's great grand-
children or their descendants.*^
A devise to heirs of a living person, unless it appears
that his children are intended, violates the statute because
until the death of such person his heirs can not be ascer-
tained, and it is possible that they may be the issue of
children yet unborn at the time of the testator 's death.*^
AVhere successive conditional devises are made to four
nephews with limitations over upon failure of surviving
descendants, and then to certain heirs, the limitations
over to the latter are in contravention to the statute
against perpetuities.**
41 trnited States Fidelity & 48 Grant v. Stimpson, 79 Conn.
Guaranty Co. v. Douglas' Trustee, 617, 66 Atl. 167; Pease v. Cornell,
134 Ky. 374, 20 Ann. Gas. 993, 120 34 conn. 391, 80 Atl. 86.
S. W. 328.
„, „ .1 ,.^ ^ rr, * 44 Rudkin V. Rand, 88 Conn. 292,
42 Tyler v. Fidelity etc. Trust
Co., 158 Ky. 280, 164 S. W. 939. ^^ -*■"• ^^^-
PERPETUITIES AND TRUSTS TO ACCUMULATE. 1681
A condition subsequent in a will requiring the children,
or some of their issue, to reside on the land forever, is
void, being indefinite and uncertain.*^
A bequest by which the absolute ownership is to be
suspended for the lives of two persons and their children
is within the rule because they may never have chil-
dren.**
A will devising the income of certain real estate to tes-
tator's daughter for life, and on her death one-half of
the income to go to her issue, if any, and the balance to
the testator's surviving heirs, does not create a per-
petuity, for the word "heirs" is used in the sense of chil-
dren.*''
A provision that the estate should be divided between
the widow and the children of the testator "when my
youngest child living at the time of my death shall arrive
at the age of forty-five years," is not void as providing
for a term beyond one life.**
A direction that no legacy, bequest or devise shall take
effect until the building and improvements to a certain
named memorial hall shall have been completed and paid
for out of the estate does not violate the rule against per-
petuities.*^
§ 1165. Time Runs From Date of Testator's Death.
A will does not become effective until the death of the
testator. Until then it is ambulatory in character and
revocable at pleasure. No disposition by will can take
45 Reynolds v. Love, 191 Ala. 48 Appell v. Appell, 177 App.
218, 68 So. 27. Div. 570, 164 N. Y. Supp. 246.
46 Craig V. Hone, 2 Edw. Ch.
(N Y ) 554. *^ Jones v. Habersham, 107 U. S.
47 Guesnard v. Guesnard, 173 174, 27 L. Ed. 401, 2 Sup. Ct. 336.
Ala. 250, 55 So. 524.
II Com. on Wills— 52
1682 COMMENTARIES ON THE LAW OP WILLS.
effect during the testator's lifetime. So with devises
and bequests, in determining the time until which the
vesting of an estate or interest in property may be post-
poned or its alienation restricted, the time is computed
from the date of the death of the testator.*"
§ 1166. Powers of Appointment: Effect of, if Void.
Where a power of appointment is given by will the rule
against perpetuities applies as well to the power as to
the appointment. If the power can be exercised at a time
beyond the limits prescribed by the rule, it is void.®^
If there be a gift over in the event of the power of ap-
pointment not being exercised, the power failing because
contrary to the rule against perpetuities, the limitation
over is good. It can be defeated only by the exercise of
the power, and the power being void, it becomes a vested
interest. The validity of the limitation over is not af-
fected by the invalidity of a preceding interest or
power.*^
§ 1167. Private Trusts Subject to Rule Against Perpetuities.
• A private trust of unlimited duration, requiring the
application of funds and fiduciary duties to that end be-
so Madison v. Larmon, 170 111. Trust Co. v. Sands, 122 App. Div.
65, 62 Am. St. Rep. 356, 48 N. E. 691, ,107 N. Y. Supp. 698; Slmp-
556; Dime Sav. Bank v. Watson, son v. Trust Co. of America, 129
254 111. 419, 98 N. B. 777; Murphey App. Dlv. 200, 113 N. Y. Supp. 370;
V. Brown, 159 Ind. 106, 68 N. B. affirmed in 197 N. Y. 586, 91 N. E.
275; Hosea v. Jacobs, 98 Mass. 1120; PenHeld v. Tower, 1 N. D.
65; Bullard v. Shirley, 153 Mass. 216, 46 N. W. 413; Johnston's Es-
559, 12 L. R. A. 110, 27 N. E. 766; tate, 185 Pa. St. 179, 64 Am. St.
Mullreed v. Clark, 110 Mich. 229, Rep. 621, 39 Atl. 879.
68 N. W. 138, 989; Lang V. Ropke, 5i Lawrence's Estate (Apple
5 Sandf. (N. Y.) 363; Matter of ton's Appeal), 136 Pa. St. 354, 20
Pilsbury, 50 Misc. Rep. 367, 99 Am. St. Rep. 925, 11 L. R. A. 85,
N. Y. Supp. 62; affirmed in 186 20 Atl. 521.
N. Y. 545, 79 N. E. 1114; Morton 52 In re Abbott, (1893) 1 Ch. 34.
PERPETUITIES AND TRCSTS TO ACCUMULATE. 1683
yond the period prescribed by the rule against perpetui-
ties, is void.^* Such a private trust may lawfully extend
for the period prescribed by the rule as to perpetuities f*
and the power of alienation of either real or personal
property may not be suspended, beyond the time limited,
by means of a trust any more than by a limitation of a
strictly legal estate.^^ This principle, however, does not
apply to trusts for charitable uses, they being in their
very nature matters of permanent duration.^®
§ 1168. Effect of Provisions Violating Rule Against Perpe-
tuities.
Provisions in a will which violate the rule against per-
petuities are, in themselves, always invalid and can not
be given effect, wherein they diifer from provisions for
accumulations which are contrary to the rule or the stat-
ute and which, in some jurisdictions, are void only as to
the excess.'^'' But if there is an alternate contingency
53 Coleman v. O'Leary's Exr., not later than the twenty-flrst
114 Ky. 388, 70 S. W. 1068; Bar- birthday of a person in being.—
num V. Barnum, 26 Md. 119, 90 Keyes v. Northern Trust Co., 130
Am. Dec. 88; Missionary Society I'l- ^PP- 508; affirmed in 227 111.
of M. E. Church, v. Humphreys, ^54, 81 N. E. 384.
91 Md. 131, 80 Am. St. Rep. 432, 55 Oilman v. Reddington, 24
46 Atl. 320; American Colonization
Soc. V. Soulsby, 129 Md. 605,
L, R. A. 1917C, 937, 99 Atl. 944;
Ortman v. Dugan, (Md.) 100
Atl. 82; Shanahan v. Kelly, 88
Minn. 202, 92 N. W. 948; Dods-
worth V. Dam, 38 Misc. Rep.
(N. Y.) 684, 78 N. Y. Supp. 264.
N. Y. 9; Cottman v. Grace, 112
N. Y. 299, 3 L. R. A. 145, 19 N. E.
839; Bigelow v. Cady,171 111. 229,
63 Am. St. Rep. 230, 48 N. B. 974;
O'Hare v. Johnston, 273 111. 458,
113 N. E. 127, reversing 194 111.
App. 153.
56 See §§ 1113, 1114, 1140, 1141.
57 Leisenring's Estate, 237 Pa.
S4 Camden Safe Deposit etc. Co. gt. 60, Ann. Cas. 1914B, 84, 85 Atl.
V. Guerin, (N. J. Eq.) 99 Atl. 105, go; Barton v. Thaw, 246 Pa. St.
A trust does not violate the rule S48, Ann. Cas. 1916D, 570, 92 Atl.
where it must come to an end 312.
1684 COMMENTAEIES ON THE LAW OF WILLS.
attached to an invalid one, and they are independent
and severable, effect will be given to the valid provisions,
rejecting the others, and the gift will not fail for such
reason.^*
In addition to being invalid, provisions attached to a
gift which violates the rule against perpetuities may have
a varying effect; they may invalidate the whole will or
they may increase a preceding estate.
Where the provisions of the attempted devise or be-
quest violate the rule against perpetuities, but it is pos-
sible to eliminate the invalid portion without doing vio-
lence to the testator's general scheme of distribution, the
court will uphold the valid portion of the will. Where,
however, the valid and invalid provisions are so inter-
dependent that the latter can not be disregarded and the
former given effect in accord with the general purpose of
the testator in disposing of his property, the whole will
must be rejected.^*
ssHalsey v. Goddard, 86 Fed. 514; Eldred v. Meek, 183 111. 26,
25; Matter of Murray, 72 App. Div. 75 Am. St. Rep. 86, 55 N. E. 536;
(N. Y.) 246. Carpenter v. Hubbard, 263 111. 571,
59 Goodier v. Jolinson, 18 Cb. D. 105 N. E. 688 ; Goldsborougb v.
441; Cooke v. Cooke, 38 Ch. D. Martin, 41 Md. 488; Heald v.
202; Gore v. Gore, 2 P. Wms. 28; Heald, 56 Md. 300; Albert v.
Gooding v. Read, 4 De G. M. & G. Albert, 68 Md. 352, 12 Atl. 11;
510; Taylor v. Frobisher, 5 De G. Palms v. Palms, 68 Mich. 355, 364,
& Sm. 191; Packer v. Scott, 33 36 N. W. 419; Stout v. Stout, 44
Eeav. 511; Halsey v. Goddard, 86 N. J. Eq. 479, 15 Atl. 843; Appell
Fed. 25; McArthur v. Scott, 113 v. Appell, 177 App. Div. 570, 164
U. S. 340, 28 L. Ed. 1015, 5 Sup. N. Y. Supp. 246; Darling v. Rogers,
Ct. 652; Miller V. Weston, 25 Colo. 22 Wend. (N. Y.) 483, 495; Post
App. 231, 138 Pac. 424; Andrews v. Hover, 33 N. Y. 593; Knox v.
V. Rice, 53 Conn. 566, 5 Atl. 823; Jones, 47 N. Y. 389; Henderson
Leake v. Watson, 60 Conn. 498, 21 v. Henderson, 113 N. Y. 1, 20
Atl. 1075; Chicago Forge etc. Co. N. E. 814; In re Butterfield (In re
V. Sanche, 35 111. App. 174; Chi- Christie), 133 N. Y. 473, 31 N. E.
cago etc. R. Co. v. Carey, 90 111. 515; Denison v. Denison, 185 N. Y.
PERPETUITIES AND TRUSTS TO ACCUMULATE.
1685
§ 1169. The Same Subject: Effect on Preceding Estates.
If the will is upheld and a limitation over in violation
of the rule against perpetuities is eliminated, it may in-
crease the prior interest or estate given. If the preceding
interest or estate is fixed and determined and is not to
be affected by any contingencies, there will be no change.
But if such preceding interest or estate is subject to be
defeated by a limitation over in the event of a certain
contingency which is declared invalid because of being in
violation of the rule against perpetuities, such preceding
estate becomes as effective as if the limitation over
had not been made. Thus, where a devise of realty""
438, 78 N. E. 162, affirming 103
App. Div. 523, 86 N. Y. Supp. 604,
93 N. Y. Supp. 1128; Philadelphia
V. Girard's Heirs, 45 Pa. St. 9,
84 Am. Dec. 470; Seeley v. Alden,
61 Pa. St. 302, 100 Am. Dec. 642;
Anderson v. Menefee, (Tex. Civ.
App.) 174 S. W. 904; Saxton v.
Webber, 83 Wis. 617, 20 L. R. A.
509, 53 N. W. 905.
60 Tilbury v. Barbut, 3 Atk. 617;
Ring V. Hardwick, 2 Beav. 352;
Nottingham v. Jennings, 1 P. Wms.
23, 25; Attorney General v. Gill,
2 P. Wms. 369; Post v. Rohrbach,
142 111. 600, 32 N. E. 687; Howe v.
Hodge, 152 111. 252, 38 N. E. 1083;
Outland v. Bowen, 115 Ind. 150,
7 Am. St. Rep. 420, 17 N. B. 281;
Moore's Trustees v. Howe's Heirs,
4 T. B. Mon. (20 Ky.) 199; United
States Fidelity & Guaranty Co. v.
Douglas' Trustee, 134 Ky. 374, 20
Ann. Cas. 993, 120 S. W. 328; Beall
V. Wilson, 146 Ky. 646, 143
S. W. 55; Slade v. Patten, 68 Me.
380; Towle v. Doe, 97 Me. 427,
54 Atl. 1072; Wallis v. Woodland,
32 Md. 101; Comegys v. Jones,
65 Md. 317, 4 Atl. 567; Graham v.
Whitridge, 99 Md. 248, 66 L. R. A.
408, 57 Atl. 609, 58 Atl. 36; Fos-
dick V. Fosdick, 6 Allen (88 Mass.)
41; Brattle Square Church v.
Grant, 3 Gray (69 Mass.) 142,
63 Am. Dec. 725; Lovering y. Wor-
thington, 106 Mass. 86; Theo-
logical Education Soc. v. Attorney
General, 135 Mass. 285; Caldwell
V. Willis, 57 Miss. 555; State v.
Tolson, 73 Mo. 320; Cleveland v.
Havens, 13 N. J. Eq. 101, 78 Am.
Dec. 90; Drummond's Exr. v.
Drummond, 26 N. J. Eq. 234;
Bonard's Will, 16 Abb. Pr. N. S.
(N. Y.) 208; Parks v. Parks, 9
Paige (N. Y.) 109; Ferris v. Gib-
son, 4 Edw. (N. Y.) 707; Leonard
v. Burr, 18 N. Y. 96; Davidson v.
Davidson's Bxrs., 8 N. C. 163, 168;
Hollowell V. Kornegay, 29 N. C.
261; Porter v. Ross, 55 N. C. 196;
1686
COMMENTARIES ON THE LAW OP WILLS.
or a bequest of personalty®^ has been made subject to con-
ditions or limitations which under the rule against per-
petuities are void as being too remote, the first benefi-
ciary takes the fee or the absolute interest therein.
In some of the states it is declared by statute that
when an attempt is made to create a perpetuity, the law
gives effect to the limitations not <too remote and declares
the others void, thereby vesting the fee in the last taker
under the legal limitations.®^
§ 1170. The Same Subject: Effect on Other Estates.
Where the vesting of title in fee simple in realty or an
absolute interest in personalty is not postponed beyond
Smith V. Townsend, 32 Pa. St.
434; Coggin's Appeal, 124 Pa. St.
10, 10 Am. St. Rep. 565, 16 Atl.
579; Hackney v. Tracy, 137 Pa.
St. 53, 20 Atl. 560; Norton v.
Fripp, 1 Speers L. (S. C.) 250;
Curry v. Sims, 11 Rich. L. (S. C.)
489; Nixon v. Rose, 12 Gratt.
(Va.) 425; Saxton v. Webber, 83
Wis. 617, 53 N. W. 905.
Where a devise constitutes a
violation of the rule against per-
petuities causing the antecedent
particular estate to fail, the heirs
at law of the testatrix are enti-
tled under the intestate laws to
immediate possession. — Kountz's
Estate, 213 Pa. St. 390, 5 Ann. Cas.
427, 3 L. R. A. (N. S.) 639,-62 Atl.
1103.
61 Ring V. Hardwick, 2 Beav.
352; Hardcastle v. Hardcastle, 1
Hem. & M. 405; McGraw v. Daven-
port, 6 Port. (Ala.) 319; Darden's
Admr. v. Burns' Admr., 6 Ala. 362;
Landman v. Snodgrass, 26 Ala.
593; Robinson v. McDonald, 2 Ga.
116; Johnson v. Negro Lish, 4
Harr. & J. (Md.) 441; Brattle
Square Church v. Grant, 3 Gray
(69 Mass.) 142, 63 Am. Dec. 725;
Sears v. Russell, 8 Gray (74
Mass.) 86; Albee v. Carpenter, 12
Cush. (66 Mass.) 382; Caldwell v.
Willis, 57 Miss. 555; State v. Tol-
son, 73 Mo. 320; Condict's Exrs.
v. King, 13 N. J. Eq. 375; Drum-
mond's Exr. v. Drummond, 26 N. J.
Eq. 234; Bonard's Will, 16 Abb. Pr.
N. S. (N. Y.) 128, 208; Patterson
V. Ellis's Exrs., 11 Wend. (N. Y.)
259; Davidson v. Davidson's Exrs.,
8 N. C. 163; Porter v. Ross, 55
N. C. 196; Train v. Fisher, 15
Serg. & R. (Pa.) 145; Cooke v.
Bucklin, 18 R. I. 666, 29 Atl. 840;
Postell V. Postell, Bailey Eq.
(S. C.) 390; Cox v. Buck, 5
Rich. L. (S. C.) 604; Nixon v.
Rose, 12 Gratt. (Va.) 425.
62 Georgia Civ. Code, (1910)
§3678; Phinizy v. Wallace, 136
Ga. 520, 71 S. E. 896.
PERPETUITIES AND TRUSTS TO ACCUMULATE. 1687
the duration of specified lives in being at the death of the
testator, no limitations imposed on an intermediate life
estate, and effective only in the meantime, can violate the
rule as to perpetuities since such limitations can not post-
pone the vesting of the fee beyond the permitted period."*
And a gift of less than an absolute interest or estate,
followed by a limitation over upon some contingency,
is not invalidated by the fact that the gift over, for some
cause, fedls to take effect and can never vest.®*
§ 1171. Gifts to a Class.
The general rule is that a will speaks as of the date of
the testator's death, and beneficiaries designated collec-
tively as a class are usually ascertained as of that date.
The testator, however, may indicate a contrary intention
and, if properly expressed, it will control.*^
A gift to a class to take effect at the death of the tes-
tator or as a legal remainder upon the termination of a
life estate, is not within the rule against perpetuities. ''''
But the testator may interpose preceding estates so that
those of the class who are to take the ultimate remainder
can not be ascertained until after such a period as vio-
lates the rule. The gift, being to a class as a whole, fails
as a whole.*'' For example, a life estate may be giA-en to
63 King V. Cotton, 2 P. Wms. 4S8; Lawrence's Estate, 136 Pa. St.
674; Low v. Burron, 3 P. Wms. 354, 20 Am. St. Rep. 925, 11 L.R. A:
262. 85, 20 Atl. 521; Loyd v. Loyd's
A bequest is not invalid because Exr., 102 Va. 519, 46 S. E. 687;
of a possibility that in a certain Saxton v. Webber, 83 Wis. 617,
contingency which may never 20 L. R. A. 509, 53 N. W. 905.
arise, a limitation over may be 65 See § 880.
invalid.— Tiers v. Tiers, 32 Hun 66 Drury v. Drury, 271 111. 336,
(N. Y.) 184; affirmed, 98 N. Y. 568. Ill N. E. 140.
64 Gore V. Gore, 2 P. Wms. 28; 67 Leake v. Robinson, 2 Mei'iv.
Goldsborough v. Martin, 41 Md. 363; Pearks v. Moseley, L. R. 5
1688 COMMENTARIES ON THE LAW OP WILLS.
the children of A living at the time of A's death, with
remainder over to their children.®* The ultimate class
might include the children of children not in esse at the
time of the testator's death. Or the gift may be to the
children of A, a living person, who shall attain the age
of thirty years, being beyond the age of majority."^ A
gift to a class which is not to become effective and vest
until a period subsequent to the testator's death, and
which at such time may include members not in esse at
the testator's demise, can not be construed as a disposi-
tion to become effective during the lives of those in
being ; but if the class be children of a female, her years
as affecting child-bearing may be taken into considera-
tion.'^"
Where a testamentary gift to a class fails because it
violates the rule against perpetuities, it fails as a
whole ;''^ but where each member of the class is to take a
fixed sum as an individual irrespective of the number,
then the gift is good as to those who are within the rule.'^
App. Cas. 714; McArthur v. Scott, With respect to the age of a
113 TJ. S. 340, 28 L. Ed. 1015, 5 woman as affecting child-bearing,
Sup. Ct. 652; Dime Sav. Bank v. see Gowen's Appeal, 106 Pa. St.
Watson, 254 111. 419, 98 N. B. 777. 288.
68 Webster v. Boddington, 26 7 1 Albert v. Albert, 68 Md. 352,
Beav. 128; Knapping v. Tomlin- 373, 12 Atl. 11; Bowerman v. Tay-
son, 10 Jur. N. S. 626; Stuart lor, 126 Md. 203, 94 Atl. 652.
V. Cockerell, L. R. 5 Ch. App. 713. 72 Wilkinson v. Duncan, 30 Beav.
69 Southern v. Wollaston, 16 111; Von Brockdorff v. Malcolm,
Beav. 166; Rowland v. Tawney, 26 L. R. 30 Ch. Div. 172; Alfred v.
Beav. 67; Thomas v. Wilberforce, Marks, 49 Conn. 473; Bowerman
31 Beav. 299; Blagrove v. Han- v. Taylor, 126 Md. 203, 94 Atl. 652;
cock, 16 Sim. 371; Smith v. Smith, Dorr v. Lovering, 147 Mass. 530,
li. R. 5 Ch. App. 342. 18 N. E. 412; Denison v. Denison,
70 Cooper v. Laroche, 17 Ch. Div. 42 Misc. Rep. (N. Y.) 295, 86 N. Y.
368, Supp. 604.
PERPETUITIES AND TEUSTS TO ACCUMULATE. 1689
§ 1172. Accumulation Defined.
Accumulation, in a legal sense, is the adding of inter-
est or income of property to the principal, pursuant to
the provisions of a will or deed, treating such interest
or income as capital and reinvesting it. The profits are
withheld from present distribution for the purpose of
creating a constantly increasing fund for distribution at
a future time.'^^ The law imposes restrictions on the
power of a testator or creator of a trust to prohibit the
present beneficial enjoyment of a fund in order to in-
crease it for a future generation.''* The purpose of such
restrictions is not to defeat the intention of the testator
as to who shall be entitled to his estate under his will,
but to prevent indefinite accumulations of wealth.''^
§ 1173. Common Law Rule as to Accumulation.
At common law the same period is allowed for the ac-
cumulation of income as is fixed by the rule against per-
petuities regarding the postponement of the vesting of
estates.''® A trust for the accumulation of income is valid
if it does not violate the rule against perpetuities, but if
73 Fordyce v. Bridges, 2 Phillim. 134, 76 Am. St. Rep. 302, 56 N. E.
497; Wharton v. Masterman, L. R. 515.
(1895) A. C. 186, 197; Estate of 75 French v. Calkins, 252 111. 243,
Steele, 124 Cal. 534, 57 Pac. 564; 96 N. E. 877.
Hussey v. Sargent, 116 Ky. 53, 25 ^6 KimhaU v. Crocker, 53 Me.
Ky L Rep 315 75 S. W. 211; 263; Fosdick v. Posdick, 6 Allen
-,_..,„„.„„ Tn-T (88 Mass.) 41, 43; Odell v. Odell,
Thorn v. De Breteuil, 86 App. Div. "^
10 Allen (92 Mass.) 1; Thorndike
405, 83 N. Y. Supp. 849; Hascall
V. King, 162 N. Y. 134, 76 Am. St.
V. Loring, 15 Gray (81 Mass.) 391;
Hooper v. Hooper, 9 Cush. (63
Rep. 302, 56 N. E. 515; Wahl's ^^^^^ ^^2; Lovering v. Worthing-
Estate, 26 W. N. C. (Pa.) 249; ^^^ ^^^ j^^^^ gg^ 39 . Kniam v.
Rogers' Estate, 179 Pa. St. 602, ^jj^^^ gg Barb. (N. Y.) 605; Hill-
36 Atl. 1130. yard v. Miller, 10 Pa. St. 326.
74 Hascall v. King, 162 N. Y. See § 1158.
1690 COMMENTARIES ON THE LAW OP WILLS.
the trust is to continue for a longer period than that fixed
by the rule, it is void.'^'^ As to whether or not the rule
is violated, the same principle applies as in a case where
the vesting of an estate is postponed, namely, if the ac-
cumulation, by any possibility, may continue beyond a
period allowed, it is void.'^® If a term of years is pre-
scribed without reference to the life or lives of persons
in being, the time limited is then but twenty-one years.'^"
Where provisions to accumulation are void, the result
is to make a present gift to the beneficiaries discharged
of the trust, and not to admit the heirs or next of kin.*"
§ 1174. The Thellusson Case.
The first mention in the law reports of perpetuities was
in a case some three centuries ago*^ which, with other
old cases, form the foundation of the rule.*^ Finally was
77 Von BrockdorfE v. Malcolm, cumulate for an absent son, "in
Li. R. 30 Ch. Div. 172; Smith v. case he can be found after dill-
Cunningham, L. R. 13 Ir. 480; gent inquiry, correspondence, and
Hoadley v. Beardsley, 89 Conn, publication for the space of
270, 93 Atl. 535; Kimball v. twenty years," the direction for
Crocker, 53 Me. 263; Odell v. accumulation was not void, inas-
Odell, 10 Allen (92 Mass.) 1; Pray much as the trustee had active
V. Hegeman, 92 N. Y. 508, 514; duties to perform.— Estate of Will-
Philadelphia V. Girard's Heirs, 45 iams, 13 Phila. (Pa.) 325.
Pa. St. 1, 84 Am. Dec. 470. A direction to accumulate all
78 Marshall v. Hollo way, 2 the testator's estate for fifteen
Swanst. 432; Curtis v. Lukin, 5 years by investment and re-
Beav. 147. investment in bonds is valid In
See § 1163. niinois.— Rhoads v. Rhoads, 43 111.
79 Lade v. Holford, 1 W. Bl. 428; 239.
Curtis V. Lukin, 5 Beav. 147; Kim- 80 Potter's Estate, 13 Phila.
ball V. Crocker, 53 Me. 263; Thorn- (Pa.) 293.
dike V. Lorlng, 15 Gray (81 Mass.) si Chudleigh's Case, 1 Coke
391. 120a, 76 Eng. Reprint 270.
Where a testatrix left to her 82 Corbet's Case, 1 Coke 83b, 76
executor an estate in trust to ac- Eng. Reprint 187; Duke of Nor-
PERPETUITIES AND TRUSTS TO ACCUMULATE. 1691
presented the will of Peter Thellusson, who died in 1797,
leaving a large estate. He willed that all his real and
personal property should be converted into a common
fund to be vested in trustees in fee, the rents and profits
to accumulate during all the lives of all the testator's
sons and of all of the testator's grandsons born in his
lifetime and living at his death, or en ventre sa mere,
and their issue. The profits were to accumulate and he
reinvested. After the death of the last survivor of those
mentioned, the estate was to be conveyed to the male
heirs of his sons. The object was to protract the power
of alienation by taking in the lives of persons who were
mere nominees without any corresponding interests. The
trust was upheld.^*
§ 1175. The Thellusson Act.
Eesulting largely from the situation presented by the
Thellusson Case, there was enacted the statute of 39 and
40 Greo. Ill, ch. 98,^* usually known as the Thellusson
Act. Many of the states of tlii s country have passed laws
based on this statute, such as New York and California.
The purpose of the statute, as the act recited, was that
all dispositions of real or personal property whereby
profits were to be accumulated and the beneficial enjoy-
folk's Case, 3 Ch. Cas. 1, 22 Eng. not Include Scotland, but was sub-
Reprint 931; 2 Swanst. 454, 36 sequently extended to Scotland by
Eng Reprint 690. *^® statute of 11 and 12 Victoria,
ch. 36, § 41. Neither did the act
S3 4 Kent Com. *285; Thellus-
son V. Woodford, 4 Ves. Jun. 227,
include Ireland, as it was passed
before the union. See, also, Ellis
4 Rev. Rep. 205, 31 Eng. Reprint ^ Maxwell, 12 Beav. 104; Hey-
117; affirmed in 11 Ves. Jun. 112, ^^^^ ^ Heywood, 29 Beav. 9.
8 Rev. Rep. 104, 32 Eng. Reprint r^-^^ statute prevails in the prov-
1030. ince of Ontario, Canada. See Stat.
84 This statute, by its terms, did 52 Vict., ch. 10, 1.
1692 COMMENTARIES ON THE LAW OF WILLS.
ment postponed, should be restricted. It prohibited any
disposition by will, deed, or otherwise, of real or personal
property under which the income or profits were to be
accumulated, wholly or partially, for a longer period than
the life of the settlor, or twenty-one years after his death,
or during minority of any person or persons living or
en ventre sa mere at the settlor's death, or during the
minority of any person or persons who would, if of full
age, be entitled to the income or profits under the trust.
The statute provided that all directions for accumulation,
contrary to its provisions should be null and void, and
that the income and profits directed to be accumulated'
should go to such person or persons as would have been
entitled thereto if such accumulation had not been di-
rected.
The statute fixed the limit beyond which accumulations
could not extend, the time running from the testator's
death, and such period could not be postponed by direct-
ing that the accumulation should begin at a date subse-
quent to the testator's demise.^^
The effect of this statute is to enforce a more strict
restraint upon the accumulation of income than is im-
posed against the vesting of an interest or estate in the
property itself. Similar statutes have been enacted in
a few of these United States, but in most jurisdictions
the common law rule prevails.
§ 1176. Statutory Reg:ulations Regarding Accumulations.
In a few states there are statutory restrictions upon
accumulations of rents and profits of real estate, whether
directed by deed or will, and in New York, Pennsyl-
86 Webb V. Webb, 2 Beav. 493; Attorney General v. Poulden, 3 Hare
555.
PERPETUITIES AND TRUSTS TO ACCUMULATE, 1693
vania, California, Alabama and Dakota the same rule
applies to personalty, also. Thus, if the accumulation
is to commence on the creation of the estate — the death
of the settlor or the execution of the conveyance — it must
be made for minors in being at the time of commence-
ment, and must terminate on their majority. If it is to
commence at any period subsequent to the creation of the
estate, it must be within the time allowed by the stat-
utes against perpetuities, and must commence at some
time within the minority of the beneficiary and terminate
at his majority.^* But in Alabama there may be an ac-
cumulation for ten years without regard to the minority
of the beneficiary.*'^ The New York statute,®® authorizing
an accumulation for the benefit of a minor, permits it
only during his minority, and requires that when the
period of accumulation ceases, the accumulated funds
shall be released from further restraint and be paid over
to the beneficiary absolutely. So a provision directing
that the interest only of a fund which has been accumu-
lating during a minority be paid to one beneficiary during
his life, and the principal, upon his death, to another, is
void.®* This is also the Pennsylvania rule.®" In Wis-
86 Stimson's Am. Stat. Law, 90 Schwartz's Appeal, 119 Pa.
§ 1443. St. 337, 13 Atl. 212; In re Edwards,
s: Ala. Code, (1876) § 2189. l^" ^^- «*• 177. 42 Atl. 469.
In Pennsylvania the statute per-
88 N. Y. Rev. Stats. 726, §37; ^.^^ ^^ accumulations only dur-
773, §3; Laws, (1896) ch. 547, j^^ ^^ ^^j^y^^ ^^^.^^ ^^^ ^^^
§ 51; Laws, (1897) ch. 417, § 4. ^^^ benefit of the minor. To be
89 Lowenhaupt v. Stanisics, 95 lawful the accumulated fund must
App. Div. (N. Y.) 171, 88 N. Y. be paid to him upon arriving at
Supp. 537; Pray v. Hegeman, 92 the age of twenty-one. All other
N. Y. 508; Hobson v. Hale, 95 accumulations are void.— Wright's
N. Y. 588; St. John v. Andrews Estate, 227 Pa. St. 69, 75 Atl. 1026;
Inst, 191 N. Y. 254, 14 Ann. Cas. Roney's Estate, 227 Pa. St. 127,
708, 83 N. E. 981. 75 Atl. 1051.
1694 COMMENTAEIES ON THE LAW OF WILLS.
consin, profits of real property can be accumulated only
for specified purposes.®^
§1177. The Same Subject: Charities.
In Wisconsin there may be accumulations for the ben-
efit of a literary or charitable corporation for a term of
twenty-one years.^^ In New York funds held in a lawful
trust by a college or literary corporation inay be accumu-
lated until the sum is sufficient for the purpose to which
it is destined.^* But although charitable trusts form an
exception to the common-law rule against accumulation,
in all those states where there are statutes limiting the
time of accumulation, charities will be governed by the
statute unless expressly excepted therefrom.** Thus, it
is held in New York that although the beneficiary be a
charity, a direction for the accumulation of interest for
twelve years is void.*^
§ 1178. Implied Directions to Accumulate.
Accumulations are forbidden no less where they result
by indirection than where they are expressly ordered.
Where the result in carrying into effect the provisions of
the will is to produce accumulations beyond the period
and not within the conditions prescribed by the statute,
the directions resulting in such accumulations are void.'"'
91 stats. Wis., §§2060-2063; In 95 In re Starr, 2 Demarest
re Stark's Will, 149 Wis. 631, 134 (N. Y.) 141.
N. W. 389'. 96 Craig v. Craig, 3 Barb. Ch.
92 Wis. Rev. Stata., (1878) (N. T.) 76; Weinmann's Estate,
§ 2061. 223 Pa. St. 508, 72 Atl. 806; Neel's
93 N. Y. Ann., 1846, ch. 74. Estate, 252 Pa. St. 394, 97 Atl.
94 Perry, Trusts, §§ 392-400, 738; 502.
Martin v. Maugham, 14 Sim. 230; The application of the income of
Kilpatrick v. Johnson, 15 N. Y. a trust estate in the payment of
322. mortgages constitutes an accumu-
PERPETUITIES AND TRUSTS TO ACCUMULATE. 1695
But if two different constructions may properly be made,
the court will favor the one which, renders the trust
valid.^'
A limitation over, not only of the capital of a fund
directed to be invested for the payment of an annuity
for life, but also of so much of the proceeds thereof
as shall remain at the decease of the annuitant, is an
implied direction to accumulate the surplus income."*
Where no disposition is made in a will as to a certain
income, the testator must be deemed by his silence to
have directed it to accumulate.®* However, if the tes-
tator directs the income of a fund to be distributed in a
certain manner until a fixed period after his death and
then the whole to be distributed, and there is no direc-
tion for accumulation, the fact that the income from the
fund provided was more than sufficient to make the pay-
ments directed by the testator and that as a matter of
fact accumulation did incidentally result, would not cre-
ate a trust to accumulate.^
lation under the Revised Statutes Income of personal estate, but the
of New^ York, and Is invalid even statutes do not permit accumula-
though it takes the form of an tions of the rents and profits of
extinguishment of indebtedness real estate except for certain spe-
and is limited to the surplus in- cified uses. — Stats. Wis., §§ 2060-
come remaining after the payment 2063; In re Stark's Will, 149 Wis.
of an annuity, and restricted to 631, 134 N. W. 389.
the lifetime of the annuitant. — 97 Arthur v. Arthur, 3 App. Div.
Hascall v. King, 162 N. Y. 134, 76 (N. Y.) 375, 38 N. Y. Supp. 1002.
Am. St. Rep. 302, 56 N. E. 515. 98 Craig v. Craig, 3 Barb. Ch.
Where no disposition is made (N. Y.) 76.
in a will as to certain incomes the 99 In re Stark's Will, 149 Wis.
testator must be deemed by his 631, 134 N. W. 389.
silence to have directed it to ac- i Hoadley v. Beardsley, 89 Conn,
cumulate. There is no legal objec- 270, 93 Atl. 535.
tion to such a direction as to ac- Where the income of a lunatic
cumulations resulting from the is more than can be properly ex-
1696
COMMENTARIES ON THE LAW OP WILLS.
§ 1179. Effect of Trust to Accumulate for Longer Period Than
Allowed by Rule or Statute.
The English, rule is that where there is a trust or direc-
tion to accumulate income or profits for a period exceed-
ing that allowed by statute, but within the common law
rule as to perpetuities, it is held valid for the statutory-
period and void only as to the excess time.^ But if the
period specified exceeds that allowed at common law
for accumulations, which necessarily violates the statute,
the trust or directions are invalid for any period what-
soever.* Pennsylvania follows the English rule.* In New
York the statute provides that a direction to accumulate
for a period longer than is permitted by statute is void
only for the excess.^ This is the general rule where stat-
utes have been passed on the subject.®
Fended for his use, it must of
necessity be accumulated for tiim
or his heirs, but that is not a
trust -which is prohibited by the
statute. — Craig v. Craig, 3 Barb.
Ch. (N. Y.) 76.
2 Matthe-ws v. Keble, L. R. 3
Ch. App. 691; Evans v. Hellier, 5
CI. & F. 114; Morgan v. Morgan,
4 De G. & Sm. 164; In re Erring-
ton, 76 L. T. N. S. 616; Frost v.
Greatorex, L. R. 2 Ch. Div. (1900)
541.
3 Browne v. Stoughton, 14 Sim.
369; Pickford v. Brown, 2 Kay &
J. 426; Turvin v. Newcome, 3 Kay
& J. 16.
4McKee's Appeal, 96 Pa. St.
277; Rhodes' Estate, 147 Pa. St
227, 23 Atl. 553; Lelsenrlng's Es-
tate, 237 Pa. St. 60, Ann. Cas.
1914B, 84, 85 Atl. 80.
5 1 N. Y. Rev. Stats., p. 774, § 4.
6 French v. Calkins, 252 111. 243,
96 N. E. 877; Kimball v. Crocker,
53 Me. 263; Collector of Taxes v.
Oldfield, 219 Mass. 374, 106 N. E.
1014; Wilson v. Odell, 58 Mich.
533, 25 N. W. 506; Hillyard v.
Miller, 10 Pa. St. 326; Rhodes'
Estate, 147 Pa. 227, 23 Atl. 553;
Leisenring's Estate, 237 Pa. 60,
Ann. Cas. 1914B, 84, 85 Atl. 80.
-Where there is a direction in a
trust for accumulations beyond
the age of minority of the lega-
tees, this Is unquestionably void.
This fact, however, does not op-
erate to destroy the trust in its
creation, but merely to avoid the
provision for the illegal accumu-
lations, with the result that the
legatees after maturity would be
entitled to receive the income of
the trust funds. — Yates' Estate,
170 Cal. 254, 149 Pac. 555.
TABLE OF CASES OF VOLUME TWO
[References are to pages,]
Abbott V. Bradstreet, 1246.
Abbott v. Essex Co., 1383.
Abbott, In re, 1682.
Abend t. McKendree College etc.
Cominrs., 1677.
Abernethj v. Catlin, 1059.
Abrahams t. Woolley, 882,
Abrey v. Newman, 1277.
Acherly v. Vernon, 1490.
Ackermau v. Fichter, 954, 1630,
1631.
Ackerman's Admrs. v. Vreeland's
Exr., 1424, 1425, 1453.
Aeklen v. Franklin, 1656.
Aekroyd v. Smithson, 1173, 1174,
1313.
Adair v. Adair, 902, 970, 986.
Adams v. Adams, 1063, 1228, 1233,
1339, 1515.
Adams v. Brackett, 1143.
Adams v. Chaplin, 1383.
Adams v. Gillespie, 1116.
Adams v. Lambert's Case, 1629.
Adams v. Massey, 1419.
Adams v. Koss, 1347.
Adams v. Spalding, 1292.
Adams v. Winne, 1085, 1089.
Adams Female Academy v. Adams,
1667.
Adams and the Kensington Vestry,
In re, 1572, 1598.
Adamson v. Ayres, 1181.
Addams v. Ferick, 1152.
Addington v. Wilson, 954.
Addison v. Addison, 1381, 1411.
II Com. on Wills— 53 (169'
Addition v. Smith, 1021, 1029.
Adnam v. Cole, 1622.
Adney v. Greattrex, 1259.
Adshead v. Willetts, 1123.
Adsit V. Adsit, 1188, 1193.
Adye v. Smith, 1620, 1626, 1659.
Ager V. Pool, 993, 1162.
Ahl V. Liggett, 1323.
Ahrens v. Jones, 1602.
Akers' Exrs. v. Akers, 1388.
Akin V. Kellogg, 1200.
Alabone, Estate of, 1005.
Albany Hospital v. Albany Guardian
Soc, 1126.
Albee v. Carpenter, 1369, 1379,
1381, 1384, 1686.
Albert v. Albert, 1257, 1684, 1688.
Albin V. Parmele, 1344.
Alcock V. Sparhawk, 1145, 1146.
Alden v. St. Peter's Parish, 1632,
1647.
Alder v. Beall, 1273.
Aldred v. Sylvester, 1312, 1461,
1463, 1475.
Aldrich v. Aldrieh, 1573.
Alexander, In re, 1524.
Alexander, Estate of, 1528.
Alexander v. Cunningham, 1358.
Alexander v. Northwestern Masonic
Aid Soc, 1264.
Alexander v. Powell, 1155.
Alexander v. Wallace, 1243, 1244.
Alfred v. Marks, 1688.
Allan V. Allan, 1638.
Allan V. Gott, 1156.
Allen V. Allen, 981, 1040, 1058, 1069,
1075, 1076, 1154, 1275, 1277.
Allen V. Claybrook, 1386.
7)
1698
TABLE OP CASES OF VOLUME TWO.
[References are to pages.]
Alien V. Craft, 1244, 1336, 1343,
1372, 1541.
Allen V. Hannum, 1215, 1217, 1219.
Allen V. Hirlinger, 1414.
Allen T. Huff, 1097.
Allen V. Jaokson, 1532, 1533.
Allen V. Macpherson, 924.
Allen V. Markle, 1375.
Allen, Matter of, 1333.
Allen V. Merwin, 1063.
Allen V. Parhara, 1104, 1372.
Allen V. Pray, 1192, 1209.
Allen V. Public Admr., 919, 921.
Allen V. Stevens, 1610, 1618, 1658,
1668.
Allen V. Trustees of Ashley School
Fund, 1381, 1383.
Allen V. White, 1473.
Allender's Lessee v. Sussan, 1268,
1270.
AUeyn v. AUeyn, 1075.
Allison V. Allison's Bxrs., 1009, 1312,
1432, 1470, 1471, 1679.
Allison V. Chaney, 1272.
Allison V. Kurtz, 1168.
Almy V. Jones, 1111, 1284, 1645,
1648, 1655.
Alsip V. Morgan, 1416.
Alsman v. Walters, 1312, 1476.
Alsop V. Bowers, 1022, 1023, 1026,
1027.
Alston's Appeal, In re, 1280.
Alton V. Brooks, 1307.
Ambler v. Norton, 1191.
Ambrose v. Hodgson, 1092.
American Academy etc. v. Harvard
College, 1655.
American Bank and Trust Co. v.
Douglass, 1165.
American Bible Soc. v. Marshall,
1608, 1658.
American Colonization Soc. v. Soulsby,
1683.
Ainerican National Bank v. First
National Bank, 1139.
Ames V. Scudder, 1462.
Ames' Will, In re, 926.
Ametrano v. Downs, 1048, 1050,
1085, 1086, 1089.
Amherst's Trusts, In re, 1552, 1555.
Amos V. Amos, 1309.
Amphlett v. Parke, 1110.
Amson v. Harris, 1272.
Ancaster v. Mayer, 1153.
Anders v. Gerhard, 1353.
Anderson v. Anderson, 909, 1462,
1463.
Anderson v. Berkley, 1265.
Anderson v. Brown, 1308, 1309, 1316.
Anderson v. Gary, 1542, 1546.
Anderson v. Hall's Admr., 1362.
Anderson v. Jackson, 1125, 1382,
1383, 1484, 1486.
Anderson v. McCullough, 1574.
Anderson v. Menefee, 1670, 1673,
1679, 1685.
Anderson v. Messinger, 1411.
Anderson v. Parsons, 1281, 1282.
Anderson v. Williams, 1566.
Anderson's Exrs. v. Anderson, 1000.
Andress' Estate, 1427.
Andrew v. Andrew, 942, 946, 1094,
1387, 1436, 1647.
Andrew v. Southouse, 1351.
Andrews v. Bishop, 1152, 1154.
Andrews v. Brumfield, 1405.
Andrews v. Jones, 943.
Andrews v. Lincoln, 1219, 1676, 1678.
Andrews v. Lowthrop, 1327.
Andrews v. Partington, 1296, 1297.
Andrews v. Bice, 1684.
Andrews v. Schoppe, 1408, 1412.
Andrews v. Senter, 1500.
Andrews v. Spurlin, 1343, 1545.
Andrews, In re, 1197.
Andrews' Will, 886.
Andros, In re, 1233.
Angell V. Angell, 1003.
Angell V. Eosenbury, 1353.
Angus V. Noble, 1024.
Anthony v. Anthony, 1245.
Appeal of Fitzpatrick, 888.
TABLE OP CASES OP VOLUME TWO.
[References are to pages.]
1699
Appel V. Byers, 1228, 1233.
Appell V. Appell, 1681, 1684.
Apple, Estate of, 1026.
Appleton V. Rowley, 1125.
Appleton's Appeal, 1486.
Apperson v. Bolton, 1207.
Apreece v. Apreece, 979, 1029.
Archer v. Barnes, 1202.
Archer v. Jacobs, 1304, 1452, 1457.
Ardesoife v. Bennett, 1209.
Ardis y. Printup, 945.
Armentrout v. Armentrout's Lega-
tees, 1157.
Armistead v. Dangerfield, 953, 1227.
Armitage v. Williams, 1299.
Armor v. Frey, 1405, 1414.
Armstrong, In re, 1011.
Armstrong v. Armstrong, 1116, 1384,
1385, 1386, 1486.
Armstrong v. Burnet, 1152.
Armstrong v. Crapo, 994.
Armstrong v. Huddlestone, 870.
Armstrong v. Reeves, 1646.
Armstrong's Appeal, 985, 1025, 1026.
Armytage v. Wilkinson, 1434.
Arnett's Exr. v. Arnett, 1204.
Arnold v. Arnold, 1024.
Arnold v. Brown, 1381.
Arnold v. Chapman, 1107, 1109.
Arnold v. Dean, 1148.
Arnold v. Kempstead, 1193, 1194.
Arnold V. Preston, 1232.
Arnold's Estate, In re, 918, 922.
Arnold's Trusts, In re, 1309.
Arnot V. Arnot, 1432, 1632.
Arthur v. Arthur, 1056, 1695.
Arthur v. Cole, 1527.
Asbury v. Shain, 970, 972, 975.
Asche V. Asche, 1169, 1187, 1192.
Ashburner v. Macguire, 1050, 1051,
1053, 1054, 1059.
Ashby V. McKinlock, 1472, 1474,
1475.
Ashford v. Haines, 1310.
Ashley v. Ashley, 1465.
Ashley v. Warner, 1471.
Ashton's Estate, 1247.
Ashton V. Langdale, 1642,
Ashwell V. Lomi, 899.
Aspen's Estate, 1243.
Asper V. Stewart, 1337.
Aspy V. Lewis, 1309.
Astley V. Essex, 1505, 1507.
Astley V. Tankerville, 1153.
Aston V. Galloway, 1163.
Atherton v. Crowther, 1256.
Atkinson v. McCormick, 1373.
Atkinson v. Sutton, 1189.
Atkinson v. Webb, 1062.
Attenborough v. Thompson, 1508.
Attorney General v. Andrew, 1625.
Attorney General v. Aspinall, 1655.
Attorney General v. Baxter, 1629,
1661.
Attorney General v. Belgrave Hos-
pital, 1640.
Attorney General v. Bishop of Lon-
don, 1663.
Attorney General v. Blizard, 1625.
Attorney General v. Bowyer, 1625.
Attorney General v. Briggs, 1667.
Attorney General v. Burdet, 1614.
Attorney General v. Carlisle, 1642.
Attorney General v. Chester, 1648.
Attorney General v. Christ's Hos-
pital, 1513.
Attorney General v. Comber, 1653.
Attorney General v. Coventry, ] 660.
Attorney General v. Day, 1642.
Attorney General v. Eastlake, 1642.
Attorney General v. Federal St.
Meeting House, 1623.
Attorney General v. Fishmonger's
Co., 1629.
Attorney General v. Fletcher, 1181.
Attorney General v. Gill, 1480, 1649.
Attorney General v. Gladstone, 1625.
Attorney General v. Glyn, 1663.
Attorney General v. Goodell; 1657.
Attorney General v. Green, 1663.
Attorney General v. Hall, 1649.
1700
TABLE OP CASES OF VOLUME TWO.
[References are to pages.]
Attorney General v. Heelis, 1624,
1626.
Attorney Genei-al v. Herrick, 1661.
Attorney General v. Hubbuck, 1167.
Attorney General v. Ironmongers Co.,
1625, 1663.
Attorney General v. Jacksoji, 1657.
Attorney General v. Kell, 1625.
Attorney Gfeneral v. Kerr, 1647.
Attorney General v. Lawes, 166^.
Attorney General v. London, 1664.
Attorney General v. Lonsdale, 1627.
Attorney General v. Master & Fel-
lows of Catherine Hall, 1540.
Attorney General v. Matthews, 1625,
1661.
Attorney General v. Mayor of New-
ark, 1646.
Attorney General v. Milner, 1108.
Attorney General v. Newbury, 1660.
Attorney General v. Oakaver, 1624.
Attorney General v. Old South Soe.,
1625, 1660.
Attorney General v. Pearson, 1629.
Attorney General v. Poulden, 1692.
Attorney General v. Price, 1253.
Attorney General v. Pyle, 1663.
Attorney General v. Eobins, 1029.
Attorney General v. Euper, 1624.
Attorney General v. Eye, 1614.
Attorney General v. Shrewsbury,
1642.
Attorney General v. South Sea Co.,
1647.
Attorney General v. St. John's Hos-
pital Bath, 1666.
Attorney General v. Stepney, 1625.
Attorney General v. Sturge, 1664.
Attorney General v. Syderf en, 1661.
Attorney General v. Tancred, 1656.
Attorney G«neral v. Todd, 1661.
Attorney General v. Vint, 1663.
Attorney General v. Warren, 1646.
Attorney General v. Webster, 1627.
Attorney General v. Whorwood, 1646.
Attwater v. Attwater. 1544.
Atwood's Estate, 959.
Atwood V. Frost, 1020.
Audsley v. Horn, 1386.
Austin V. Hyndman, 1339, 1396.
Austin V. Payne, 1327.
Avison V. Simpson, 1249.
Ayer v. Ayer, 1357.
Ayton V. Ayton, 1301.
B
Baacke v. Baacke, 1266, 1267.
Babb V. Eeed, 1622.
Babbidge v. Vittum, 1034.
Babcock, Ee, 1498.
Bachinski v. Bachinski 's Estate, 959.
Backenstoe v. Hunsicker, 1346, 1354,
1355.
Backhouse v. Wells, 1378.
Bacon's Estate, In re, 1307.
Bacon's Appeal, 1097.
Bacon v. Eansom, 1583, 1584.
Badger v. Gregory, 1307.
Badrick v. Stevens, 1053, 1058.
Bagshaw v. Spencer, 1445.
Bagster v. Fackerell, 1173.
Bagwell V. Dry, 1114.
Bailey v. Bailey, 1274.
Bailey v. Boyce, 1191.
Bailey v. Brown, 1292.
Bailey v. Patterson, 1246.
Bailey v. Boss, 1385.
Bailey v. Sanger, 1336.
Bailey v. Wagner, 982, 1001, 1052,
1303.
Bailey, In re, 1003.
Bailis V. Gale, 1350, 1351.
Baily v. Duncan, 1183.
Baines v. Ottey, 1256.
Bains v. Globe Bank & Tr. Co., 1195,
1197.
Baker v. Baker, 995, 1099.
Baker v. Batt, 902.
Baker v. Bayldon, 1239.
Baker v. Bridge, 1347, 1348.
Baker v. Brown, 1566, 1567, 1568.
TABLE OP CASES OF VOLUME TWO.
[References are to pages.]
1701
Baker v. Copenbarger, 1175, 1176.
Baker v. FaxmeT, 1022, 1035.
Baker v. Hall, 1109.
Baker v. Keiser, 1565, 1566.
Baker v. McGrew, 1385.
Baker v. McLeod's Estate, 1408,
1445.
Baker v. Eed, 1506.
Baker v. Scott, 1327, 1328, 1342.
Baker v. Wall, 1350.
Baker's Will, 924.
Bakert v. Bakert, 1595.
Balcom v. Haynes, 1273, 1274.
Baldwin v. Rogers, 1300.
Baldwin v. Sheldon, 1061.
Baldwin v. Taylor, 1362, 1385.
Bales V. Elder, 964.
Ball V. Payne, 1332.
Ball V. Phelan, 1403, 1404, 1408,
1409, 1410.
Ball V. Woolfolk, 1365.
Ballance v. Lanpliier, 1127.
Ballard v. Ballard, 1092, 1097.
Ballard v. Camplin, 1102, 1103, 1105,
1114.
Ballard v. Connors, 1312.
Ballentine v. De Camp, 1280.
Ballentine v. Wood, 1438.
Balliet's Appeal, 985, 1045.
Bancroft v. Bancroft, 1021.
Bancroft v. Ives, 955.
Bane v. Wiek, 1210.
Banjamin v. Dimmiek, 1074, 1075,
1083.
Bank of Ukiah v. Eice, 1171, 1175,
1176.
Banking Co. v. Field, 1674.
Banzer v. Banzer, 1360.
Baptist Church v. Presbyterian
Church, 1608.
Baptist Female Univ. v. Borden, 986,
1023, 1027, 1065, 1066, 1067, 1216,
1217, 1218.
Barandon's Estate, In re, 1513.
Barber v. Barber, 1281, 1282, 1286.
Barber v. Crawford, 1483.
Barber v. Davidson, 975, 978.
Barber v. Kite, 1210.
Barber v. Pittsburg, 1241, 1375,
1381.
Barber v.- Pittsburg, F. W. & C. E.
Co., 1270, 1381.
Barclay v. Wainright, 1011.
Bardswell v. Bardswell, 1574, 1597,
1598.
Barger's Appeal, 1434.
Barker v. Barker, 918, 1226, 1289,
1442.
Barker v. Pearce, 953, 1226, 1294.
Barker v. Eayner, 981, 1058, 1059.
Barker's Estate, 961, 962.
Barlaw v. Harrison, 934.
Barlow v. Barnard, 1403.
Barlow v. Bateman, 1510.
Barlow v. CofiSn, 1012.
Barlow v. Salter, 1306.
Barlow's Admr. v. Comstock's
Admr., 943.
Barnard's Lessee v. Bailey, 1353.
Barnardiston v. Carter, 1445.
Earned v. Sax, 1506.
Barnes v. Allen, 1296, 1438.
Barnes v. Grant, 1597.
Barnes v. Hanks' Admr., 1012.
Barnes v. Patch, 1261, 1262.
Barnes v. Eowley, 991.
Barnet v. Barnet, 1394, 1434.
Barnett v. Tugwell, 1282.
Barnett's Appeal, In re, 1120, 1121.
Barney's Will, In re, 899.
Barney v. Hayes, 1580.
Barnhum v. Mayor etc. of Baltimore,
1511.
Barnitz' Lessee v. Casey, 1482, 1483.
Barnitz' Appeal, 1225.
Bamum v. Barnum, 1127, 1300,
1672, 1683.
Barr v. Weld, 1647.
Barret's Estate, In re, 1281, 1287.
Barrett, In re, 1632.
Barrett v. Morriss, 1078.
1702
TABLE OP CASES OP VOLUME TWO.
[References are to pages.]
Barrier v. Kelly, 1184.
Banington v. Hereford, 1109.
Barruso v. Madan, 1493.
Barry v. Barry, 939.
Barry v. Bntlin, 893, 899, 900, 902,
903.
Barry v. Edgeworth, 1351.
Barry v. Harding, 1152.
Barstow v. Goodwin, 1238, 1395.
Bartholomew, In re, 1439.
Bartlett t. Ball, 1138.
Bartlett v. Buckland, 1418.
Bartlett v. Houdlette, 1013.
Bartlett v. King, 1626, 1638.
Bartlett V. Nye, 1610.
Bartlett v. Patton, 1424, 1425.
Bartlett v. Sears, 1289.
Bartlett v. Slater, 992, 996.
Barton v. Barton, 1530.
Barton v. Bigelow, 1458.
Barton v. Cooke, 1023.
Barton v. Eobins, 899.
Barton v. Thaw, 1671, 1673, 1678,
1683.
Bartram v. Powell, 1461, 1476.
Basan v. Brandon, 1055.
Baskin's Appeal, In re, 1274, 1278,
1280.
Bass V. Bass, 1356, 1358.
Bass V. Surls, 1337, 1338.
Bassett v. Grander, 1274, 1278.
Bassett v. Hawks, 1329.
Bassett v. Nickerson, 1347, 1356,
1414.
Batchelder v. Batehelder, 873.
Batchelder, Petitioner, In re, 1103.
Batchelor v. Macon, 1598.
Bateman v. Bateman, 1243.
Bateman v. Gray, 1298.
Bates V. Bates, 1622.
Bates v. Barry, 990, 991.
Bates V. Dewson, 1261, 1263.
Bates V. Gillett, 1333.
Bates V. McDowell, 1209.
Bates V. Spooner, 1170.
Batione's Estate, In re, 1215.
Batton V. Allen, 1080,
Baugh V. Bead, 1075.
Bawden, In re, 1022.
Baxter's Trusts, In re, 1437.
Baylor's Lessee v. Dejarnette, 1162.
Baynes v. Prevost, 1444.
Beachcroft v. Beachcroft, 1231.
Beacroft v. Strawn, 1388.
Bealafeld v. Slaughenhaupt, 1228.
Beall V. Fox's Exrs., 1607, 1654,
1664, 1685.
Beall V. Mann, 899, 927.
Seals' Exr. v. Storm, 939.
Beard v. Knox, 941, 1181.
Beard v. Westcott, 1486.
Beardsley v. Hotchkiss, 948.
Beatson v. Bowers, 1413.
Beaubien v. Cicotte, 919.
Beaulieu v. Cardigan, 1201.
Beaumont v. Meredith, 1622.
Beaumont v. Oliveira, 1624, 1627.
Beck V. Burn, 1444.
Beck V. McGillis, 1041, 1044, 1048,
1051, 1057, 1089.
Becker v. Becker, 942, 943, 1505,
1532, 1541.
Becker v. Chester, 1168, 1169, 1674.
Beckett v. Stuart, 884.
Beckley v. Leffingwell, 1305.
Beck's Estate, In re, 895, 936, 991.
Beckwith v. Beckwith, 1308.
Beckwith v. Rector etc., 1632.
Bedford, Matter of, 989.
Bedford v. Bedford's Admr., 1016.
Bedford's Appeal, In re, 1383, 1384.
Beebe t. McFaul, 933.
Beebe v. Estabrook, 1069, 1224.
Beekman v. Beekman, 895.
Beekman v. Bonsor, 1654.
Beekman v. Hudson, 1503, 1529.
Beekman v. Vandeveer, 1212.
Beeston v. Booth, 1033.
Beetson v. Stoops, 1204.
Beidman v. Sparks, 1217.
Bell V. Nye, 1216.
Bell V. Phyn, 1124.
TABLE OF CASES OP VOLUME TWO.
[References are to pages.]
1703
Bell T. Smalley, 1267.
Bell V. Towell, 1435.
Bell County v. Alexander, 1491.
Bellasis v. Uthwatt, 1065.
Bellas' Estate, 1598, 1599.
Bellham, In re, 1308.
Bellstein v. Bellstein, 1409.
Belslay v. Engel, 1324, 1326.
Bench v. Biles, 1142, 1158.
Bender v. Fleurie, 1376.
Bending v. Bending, 1183, 1192.
Benedict v. Wilmarth, 1199, 1200.
Benesch v. Clark, 1414.
Benn v. Dixon, 1447.
Bennett v. Akin, 1161.
Bennett v. Bennett, 1069, 1504.
Bennett y. Chappin, 1542.
Bennett v. Gallaher, 1168, 1170.
Bennett v. Harper, 1179.
Bennett v. Hutchinson, 939.
Bennett v. Packer, 1210, 1213, 1362,
1402, 1505, 1529.
Bennett v. Piatt, 1065, 1066.
Bennett v. Kobinson, 1526.
Bennett v. Toler, 1235.
Bennett's Trust, In re, 1303.
Benson v. Corbin, 1364.
Benson, Matter of, 1009, 1112.
Benson v. Whittam, 1592.
Bentley v. Oldfield, 1352.
Benton, Estate of, 918.
Benyon v. Benyon, 1016.
Benyon v. Maddison, 1436, 1458.
Benz V. Fabian, 1358.
Berg V. Anderson, 1245, 1384.
Bergen, Matter of, 970, 974, 980.
Bergen v. Wyckoff (In re Sned-
ecker), 970, 974.
Berkeley v. Swinburne, 1434.
Bernard v. Minshull, 1571.
Bernard v. Mountague, 1464.
Berry v. Berry, 1223, 1224.
Berry v. Williamson, 1326.
Beshore v. Lytle, 1213.
Besse v. Pelloehoux, 944.
Best V. Farris, 1276.
Best's Settlement Trusts, In re,
1255, 1256.
Bethea's Exr. v. Smith, 1369, 1384.
Bethell v. Green, 983.
Bethlehem Borough v. Perseverance
Fire Co., 1624.
Betts V. Betts, 1131.
Betz V. Farling, 1454.
Bible V. Marshall, 1179.
Bickford v. Chalker, 1443.
Bickham v. Cruttwell, 1153.
Biddle \. Carraway, 1025.
Biddle's Appeal, 1434, 1583, 1589.
Biddle 's Estate, In re, 1270.
Biedler v. Biedler, 1015.
Biels V. Biels, 1598.
Bigelow V. Cady, 1670, 1674, 1683.
Bigelow V. Clap, 1284, 1315.
Bigelow V. Pierce, 1061.
Biggerstaff v. Van Pelt, 1450.
Biggleston v. Grubb, 1081.
Biggs V. MeCarty, 1292, 1338, 1343,
1385.
Bill V. Payne, 1111, 1133, 1281.
Billar v. Loundes, 1589.
Billinghurst v. Vickers, 828, 899.
Billings V. "Welch, 1544.
Billingsley v. Tongue, 1097, 1129.
Bing V. Burrus, 1546.
Bingham v. "Weller, 1373.
Binnerman v. Weaver, 1526, 1530.
Birch, In re, 1539.
Bird V. Gilliam, 1456.
Bird v; Luckie, 1250.
Birdsall v. Hewlett, 1092, 1107.
Birmingham v. Kirwan, 1187, 1188,
1193.
Birmingham v. Lesan, 1492.
Birney v. Eichardson, 1364.
Biscoe V. Biscoe, 1384.
Biscoe V. Jackson, 1665.
Biscoe V. Thweatt, 1632, 1634.
Bishop V. Bishop, 1096.
Bishop 's Heirs v. Hampton, 950.
Bisson v. West Shore B. Co., 1277.
Bivens v. Phifer, 1278.
1704
TABLE OF CASES OF VOLUME TWO.
[References are to pages.]
Blaek, Estate of, 896, 897, 982.
Black V. CaitmeU, 1228, 1235.
Blaek v. Herring, 1520.
Blaek v. Foljambe, 881, 889.
Blaek v. Jones, 1240, 1244, 1245.
Black V. McAulay, 1496.
Black V. Webb, 1373.
Blaekler v. Boott, 1060, 1061.
Blackler v. Webb, 1272, 1277.
Blaekmore v. Blaekmore, 1244.
Blackstone Bank v. Davis, 1543,
1545, 1546, 1552, 1557, 1560.
Blackstone v. Blackstone, 971, 1051,
1052.
Blackwell v. Bull, 1261, 1406.
Blagrove v. Coore, 1055.
Blagrove v. Hancock, 1688.
Blair v. Duncan, 1652.
Blair v. Wilson, 1193.
Blake v. Bunbury, 1180, 1183.
Blake v. Stone, 1321, 1344.
Blake's Estate, In re, 982, 1007,
1008.
Blakemore, Succession of, 1052.
Blakeslee v. Pardee, 1012, 1016.
Blakey 's Heirs v. Blakey 'a Exx., 870,
926.
Blamire v. Geldart, 1444.
Blanchard v. Blanchard, 1313, 1441,
1446, 1448.
Blanchard v. Brooks, 1398.
Blanchard v. Maynard, 1434.
Bland v. Bland, 1245.
Bland t. Lamb, 1130.
Bland v. Wilkins, 1107.
Bland's Admr. v. Bland, 1559.
Blaney v. Blaney, 983, 1000, 1126.
Blann v. Bell, 1157.
Blasson v. Blasson, 1227.
Blewitt V. Roberts, 1311.
Blewitt V. Stauffers, 1311.
Blight V. Blight, 996.
Blinn v. Gillett, 1115.
Bliss V. American Bible Society,
1610, 1625.
Bliss V. Bliss, 1571.
Bliss V. Linden Cemetery, 1639.
Bliss V. Sheldon, 944.
Bliven v. Seymour, 1035, 16M.
Blolasky v. Gaily, 1168.
Blossom V. Sidway, 1253.
Blount V. Hipkins, 1150, 1152.
Blount V. Moore, 1170.
Blower v. Morret, 1027, 1033, 1034.
Blume V. Hartman, 928.
Blunt V. Gee, 1201, 1207, 1208.
Blythe v. Hinckley, 1233.
Board of Education of City of Albu-
querque V. Bernalillo Co. School
Dist., 1632.
Boatman v. Boatman, 1432, 1466.
Boddington, In re, 1266.
Body V. Strahan, 1422.
Boeing V. Owsley, 1207.
Bogert, Matter of, 1061.
Boggess V. Kichards' Admr., 943.
Bohon T. Barrett's Exr., 1570, 1571.
Boland v. Tiernay, 1175.
Boling V. Miller, 1408.
Bolles V. Bacon, 1106, 1111.
Bolles V. Smith, 1288.
Boiling V. Boiling, 1206.
Bolman v. Marsh, 1415.
Bolton, In re, 1232, 1233.
Bonard's Will, 1685, 1686.
Bond, In re, 1574.
Bond's Appeal, In re, 1224.
Bond V. Moore, 1403, 1404, 1409,
1460.
Bonham v. Bonham, 995, 1023, 1025.
Bonner v. Bonner, 1329.
Bonner, In re, 1261.
Bonnie's Guardian v. Haldeman,
1197.
Bonse's Will, 929.
Boone v. Tipton, 1500.
Booth V. Ammerman, 992, 996.
Booth V. Baptist Church, 1092, 1093,
1112, 1610.
Booth V. Booth, 998, 1440, 1461.
Booth V. Coulton, 995.
Bootle V. Blundell, 1151.
TABLE OF CASES
[References
Boraston's Case, 1443.
Borden v. Borden, 1085.
Borden v. Downey, 1466.
Borden v. Kingsbury, 1395.
Borguer v. Brown, 1313.
Borland v. Welch, 946.
Born V. Horstmann, 1535.
Bostick V. Blades, 1494, 1523, 1524,
1526, 1529, 1530, 1533.
Boston Safe Deposit & Trust Co. v.
CoUier, 1566.
Boston Safe Deposit & Trust Co. v.
Plnmmer, 972, 981.
Boston Safe Deposit Co. v. Sticli,
1349, 1351.
Bothamley v. Sherson, 975, 1152.
Bottom V. Fultz, 1195, 1196.
Boughton v. Boughton, 1157, 1178.
Bouknight v. Brown, 1229.
Bouk's Estate, Matter of, 972, 978,
1008.
Boulton V. Beard, 1296.
Bowditch V. Andrew, 1263.
Bowditch V. Ayrault, 1168.
Bowen v. Dorrance, 988.
Bowen f. Hackney, 1258.
Bowen v. Hoxie, 1036.
Bowen, In re, 1649.
Bowermam v. Taylor, 1675, 1678,
1688.
Bowers v. Bowers, 960, 1262, 1339,
1385.
Bowers v. Porter, 1395.
Bowker v. Bowker, 1162, 1445.
Bowlby V. Thunder, 1572.
Bowue V. Witt, 1261.
Bowser v. Mattier, 1362.
Box V. Barrett, 1180, 1185.
Boyce v. Boyce, 1492.
Boyce v. Corbally, 1538.
Boyd V. Boyd, 899.
Boyd V. Sachs, 1530.
Boyd V. Weber, 1375.
Boyer v. Allen, 1529.
Boykin v. Boykin, 1030, 1118, 1119.
OP VOLUME TWO.
are to pages.]
1705
Boylan v. Meeker, 921.
Boyle V. Boyle, 1572, 1586.
Boyse v. Eossborough, 870, 872, 873,
889, 896, 900, 910, 912, 932.
Brabham v. Crosland, 1223.
Brackey v. Brackey, 869, 912.
Bradbury v. Jackson, 1421.
Bradford v. Bradford, 1513, 1517,
1518.
Bradford v. Brinley, 988.
Bradford v. Foley, 1434.
Bradford v. Haynes, 1000.
Bradford v. Leake, 1127, 1547.
Bradlee v. Andrews, 1245, 1261,
1262, 1263.
Bradley v. Barlow, 1296.
Bradley v. Bradley, 959.
Bradley v. Cartwright, 1375.
Bradley v. Peixoto, 1543, 1548.
Bradley v. Eichardson, 1308.
Bradley v. Saddler, 945.
Bradley v. Warren, 1358, 1404.
Bradley v. Westcott, 1355, 1356,
1422.
Bradley, In re, 1129.
Bradley's Estate, In re, 1283.
Bradley's Will, In re, 1044.
Bradshaw v. Melling, 1238.
Bradstreet v. Clark, 1500.
Bradway v. Holmes, 1417.
Brady v. Brady, 1053.
Bragaw v. BoUes, 1002.
Brainerd v. Cowdrey, 977.
Bramell v. Adams, 1100, 1253.
Bramhall v. Ferris, 1552.
Brandenburg v. Thorndike, 1218.
Brandies v. Cochrane, 1032, 1551,
1552.
Brandon v. Aston, 1555, 1561.
Brandon v. Brandon, 1248, 1429.
Brandon v. Eobinson, 1541, 1552,
1556, 1560, 1561.
Brandt's Appeal, In re, 1160.
Brann, Matter of, 976.
Branson v. Bailey, 1670.
1706
TABLE OF CASES OF VOLUME TWO.
[References are to pages.]
Branson v. Hill, 1311, 1312.
Brant v. Brant, 1025.
Brant v. "Virginia Coal & Iron Co.,
1413.
Branton v. Branton, 953, 961, 962.
Branton v. Buckley, 1289.
Brasher v. Marsh, 1580.
Bratt, In re, 1520.
Brattle Square Church v. Grant,
1674, 1685, 1686.
Bray v. Pullen, 1283.
Brazil v. Toner, 1433.
Breck v. State, 914.
Breed v. Pratt, 899.
Breedon v. Tugman, 1440.
Ereen's Estate, 942.
Breidenstein v. Bertram,. 961.
Brendel v. Hansen, 1399.
Brennan v. Brennan, 1140, 1147,
1157.
Brennan v. Moran, 1013.
Brennan v. Winkler, 1655.
Brenner's Estate, In re, 1085.
Brent v. Washington's Admr., 1250,
1257.
Bresler, In re, 1057.
Breton v. Mockett, 1424.
Brett V. Eigden, 1092.
Brewer v. Hamor, 964.
Brewster v. McCall's Devisees, 1130.
Brewton v. Brewton, 1072.
Brian v. Tylor, 1293.
Brice v. Trustees of All Saints Mem.
Chapel, 1632.
Brick V. Brick, 870, 874.
Bridge v. Abbot, 1258.
Bridgman v. Dove, 1153.
Bridwell v. Swank, 899.
Briggs V. Hosford, 970.
Briggs V. Penny, 1574, 1576.
Briggs V. Shaw, 1267, 1270.
Briggs V. Walker, 1255.
Brigham v. Peter Bent Brigham Hos-
pital, 1606, 1640, 1647.
Brigham v. Shattuck, 1130.
Bright V. Chapman, 946, 948.
Bright V. Lareher, 1157.
Bright 's Trust, In re, 1444.
Brightman v. Brightman, 1383.
Brightman v. Morgan, 1197.
Brill V. Wright, 1141.
Brimmer v. Sohier, 1310.
Brink v. Masterson, 1156.
Brisbin v. Huntington, 1228, 1234.
Bristed v. Weeks, 904.
Bristol V. Atwater, 1436, 1460, 1472,
1477, 1482.
Bristow V. Warde, 1185.
British Museum v. White, 1627, 1655.
Britt V. Eawlings, 1396.
Brittain v. Carson, 1271, 1277.
Britton v. Miller, 1293.
Britton v. Thornton, 1162, 1354,
1484.
Broadbent v. Barrow, 972, 1665.
Broaddus v. Turner, 1125.
Broadhurst v. Morris, 1329, 1388.
Broadway Nat. Bank v. Adams,
1558, 1563, 1564.
Broadwell v. Broadwell's Admr.,
973, 975.
Brocklebank v. Johnson, 1296, 1439,
1464.
Brograve v. Winder, 1299.
Brohm v. Berner, 1004, 1356.
Brokaw v. Hudson's Exrs., 1061,
1122, 1258.
Brombacher v. Berking, 992, 1398.
Bromley v. Atwood, 1062.
Bromley v. Wright, 1444.
Bronsdon v. Winter, 1053, 1060.
Brook V. Badley, 1612.
Brook V. Chappell, 1604.
Brooke v. Warwick, 1055.
Brooke's Estate, In re, 1458, 1461.
Brookover v. Branyan, 1356, 1358,
1541.
Brooks V. Belfast, 1094.
Brooks V. Brooks, 1004.
Brooks V. Collins, 1261.
Brooks V. Evetts, 1244, 1322.
TABLE OF CASES OF VOLUME TWO.
[References are to pages.]
1707
Brooks T. Reynolds, 1553, 1558.
Brooks' Estate, 904.
Brooks' Will, In re, 1362, 1401, 1538.
Brooksbank, In re, 1180.
Broome v. Monek, 1184.
Brothers v. Cartwright, 1168.
Brothers v. McCurdy, 1547, 1548.
Brotzmann, Appeal of, 1401.
Brotzman's Estate, 995.
Brower 's Exrs. ' Lessee v. Fromm,
1627.
Brown, In re, 1429.
Brown, Estate of, 995, 1041.
Brown's Estate, In re, 1039, 1044,
1118, 1266, 1287.
Brown's Will, In re, 1538.
Brown v. Ancient Order United
Workmen, 1266.
Brown v. Bigg, 1310.
Brown v. Bolton, 1228.
Brown v. Brown, 959, 1028, 1030,
1086, 1087, 1327.
Brown v. Columbia Finance etc. Co.,
1679.
Brown v. Concord, 1608.
Brown v. Conger, 945.
Brown v. Harmon, 1243, 1263.
Brown v. Higgs, 1434, 1570.
Brown v. Kelsey, 1610.
Brown v. Kerby, 964.
Brown v. Knapp, 1146.
Brown v. Lawrence, 1458, 1459.
Brown v. Meeting St. Baptist Soc,
1647.
Brown v. Nelms, 955.
Brown v. Peck, 1533.
Brown v. Pocoek, 1570.
Brown v. Quintard, 1219, 1403.
Brown v. Eamsey, 1272, 1277.
Brown v. Rogers, 1373.
Brown v. Thorndike, 1085.
Brown v. Wadsworth, 1318, 1327,
1328.
Brown v. Ward (Borden v. Ward),
1180.
Brown v. Williams, 1304.
Brown v. Wooler, 1444.
Brown's Guardian v. Strother's
Admr., 1415.
Brownbaok v. Kclster, 1455.
Browne, Estate of, 1589, 1600.
Browne v. Hammond, 1283, 1300.
Browne v. Hope, 1122.'
Browne v. Lord Kenyon, 1311.
Browne v. McGuire, 1059.
Browne v. Stoughton, 1696.
Browning v. Budd, 927.
Brownson v. Lawrence, 1155.
Brownsword v. Edwards, 1124.
Bruce v. Bissell, 1304, 1457, 1459,
1475.
Bruce v. Central M. E. Church, 1632.
Bruce v. Charlton, 1440.
Bruch's Estate, 1528.
Bruek v. Tucker, 1084.
Brudenell v. Boughton, 1142.
Bruere v. Cook, 1638.
Brumfield v. Drook, 1121.
Brundage v. Brundage, 974.
Brundage's Estate, In re, 1288.
Brunk v. Brunk, 1401.
Brunning, Matter of, 991.
Brunsden v. Woolridge, 1626.
Brunson v. King, 1583, 1592.
Bryan v. Aikin, 1427, 1430.
Bryan v. Bryan, 946.
Bryan v. Duncan, 1397.
Bryan v. Howland, 1588.
Bryan v. Mansion, 1239.
Bryant v. Easterson, 1423.
Bryant v. Thompson, 1513, 1521.
Bryden v. Willett, 1280.
Bryon, In re, 1229.
Buchanan's Appeal, In re, 1160.
Buchanan v. Kennard, 1622, 1640,
1641.
Buchanan v. McLennan, 1204.
Buchanan v. Pue, 1028.
Buck, In re, 1666.
Buckle V. Eawcett, 1238.
Buckley v. Gerard, 959.
BuckmastOT, Re, 1338.
1708
TABLE OP CASES OP VOLUME TWO.
[References are to pages.]
Bucknei t. Buckner, 1305, 1466.
Buckner v. Martin, 1062, 1063, 1065,
1066.
Budd V. Posey, 1268.
Buel V. Southwick, 1271.
Bufear V. Bradford, 11.13, 1385,
1386.
Buflfington v. Fall Eiver Nat. Bank,
1209.
Bugbee v. Sargent, 1144.
Buggins V. Yeates, 1598.
Buhrmeister, Estate of, 1599.
Buist V. Dawes, 1318, 1477.
Buist V. Walton, 1482.
Bull V. Church, 1191.
Bull T. Hepworth, 1139.
Bull V. Kentucky National Bank,
1559, 1563.
Bull V. Kingston, 1359.
Bull V. Pritchard, 1296.
Bullard v. Benson, 1211.
Bullard v. GofEe, 1350.
Bullard v. Leach, 978.
Bullard -V. Shirley, 1682.
Bulley's Estate, In re, 1443.
Bullock V. Bennett, 1478.
Bullock V. Bullock, 1295.
Bullock V. Bownes, 1250, 1251, 1257,
1274, 1304.
Bullock V. Seymour, 1382, 1384,
1385, 1475.
Bullock V. Zilley, 1265.
Bunce v. Bnine, 961.
Bunch V. Hurst, 1437, 1440.
Bundy v. Bundy, 1333.
Bundy v. McKnight, 877, 897, 919.
Bunner v. Storm, 1277.
Bunting v. Speek, 1450, 1455, 1457,
1461.
Burbank v. Burbank, 1640, 1641,
1642.
Burbank v. Whitney, 1654.
Burchett v. Woolward, 1500.
Burd Orphan Asylum v. School Dis-
trict, 1624.
Burdet v. Hopegood, 953.
Burdis v. Burdis, 1489, 1497, 1501.
Burgess v. Eobinson, 1505.
Burgin v. Patton, 1277.
Burke v. Annis, 1349.
Burke v. Burke, 1356, 1630, 1634.
Burkhalter v. Burkhalter, 1191.
Burkinshaw v. Hodge, 1011.
Burleigh v. Clough, 1357, 1358, 1418,
1466, 1472, 1475, 1477.
Burleyson v. Whitley, 1113, 1501.
Burlington v. Fosby, 964.
Burnes v. Burnes, 1572, 1573, 1574,
1577, 1589.
Burnet v. Dennison, 1372.
Burnet's Exrs. v. Burnet, 1272, 1273.
Burnett v. Burnett, 1405.
Burnett v. Strong, 1493.
Burnham v. Burnham, 1501.
Burnham v. Comfort, 1040, 1041,
1067, 1076.
Burns v. Allen, 958, 960.
Burnside's Succession, 1127.
Burr's Exrs. v. Smith, 1608, 1625,
1656.
Burridge v. Bradyl, 1027.
Burrill v. Boardman, 1486.
Burrough v. Foster, 1381.
Burt V. Hellyear, 1262.
Burt V. Herron's Exrs., 1571, 1599.
Burt V. Quisenberry, 876, 882.
Burt V. Sturt, 1108, 1130.
Burtis' Will, Matter of, 913, 933.
Burton v. Conigland, 1433.
Burton v. Newbery, 1127.
Burton v. Powers, 1354.
Bush V. Bush, 917.
Bushnel v. Carpenter, 1440.
Bush V. Cunningham's Exrs., 1512.
Bush V. Lindsey, 964.
Butcher v. Leach, 1440.
Butcher v. Kemp, 1193.
Butland v. Gillespie, 1640.
Butler V. Lowe, 1295.
Butler V. Ralston, 1372.
Butler V. Stratton, 1272.
Butman v. Porter, 944.
TABLE OF CASES OP VOLUME TWO.
[References are to pages.]
1709
Butricke v. Broadhurst, 1201.
Butter V. Ommaney, 1302.
Butterfield, In re, 1684. ■
Buttcrfield v. Haskins, 1124, 1295.
Buxton V. Inhabitants of Exbridge,
1377.
Buzalsky v. Buzalsky, 882.
Buzby 's Appeal, In re, 1247, 1251.
Buzby V. Roberts, 1291.
Byard v. Conover, 886.
Byng V. Byng, 1389.
Bynum v. Hill, 1158.
Byram v. Sutton, 995.
Byrne, E-lute of, 903.
Byrne v. Hume, 988.
Byrne v. Weller, 1357.
Byrnes v. Stilwell, 953.
c
Cable V. Cable, 1251.
Cable's Appeal, In re, 1160.
Cadmus v. Combes, 1143.
Cadogan v. Ewart, 1268, 1459.
Cady Y. Cady, 1102, 1109.
Caffery's WiU, 869, 872, 879, 911,
913.
Cage V. Russell, 1515.
Cager, Matter of, 1414.
Caldwell v. Fellows, 945.
Caldwell v. Kinkead, 1439, 1440.
Caldwell v. Miller, 964.
Caldwell v. Willis, 1671, 1685, 1686.
Calef, Estate of, 897.
Calhoun v. Cook, 1394.
Calkins, Estate of, 872.
Call V. Shewmaker, 1545.
Callaghan's Estate, 953, 954.
Callahan v. Robinson, 1215.
CalUs V. Kemp, 1373, 1396.
Calmes v. Carruth, 1318.
Calvin v. Springer, 1473.
Cambridge v. Rous, 1004, 1009, 1131.
Camden Safe Deposit etc. Co. v.
Guerin, 1683.
Cameron v. Ah Quong, 1572, 1590.
Cameron v. Parish, 1179.
Gamp V. Camp, 1081.
Camp V. Cleary, 1556.
Campbell v. Beaumont, 1361.
Campbell v. Campbell, 926, 1155.
Campbell v. Carlisle, 875, 898.
Campbell v. Clark, 1223, 1279, 1293.
Campbell v. Clough, 1507, 1657.
Campbell-Kawannanakoa v. Camp-
bell, 1554.
Campbell v. Rawdon, 1246, 1293.
Campbell v. Weakley, 1432.
Campbell v. Wilson, 1214.
Campbell's Estate, In re, 868, 896,
975, 976.
Canada's Appeal, 911, 920, 921.
Canaday v. Baysinger, 1360, 1406.
Canedy v. Jones, 1355.
Canfield v. Bostwick, 1144.
Canfield v. Canfield, 1100, 1168,
1173.
Cannel v. Buckel, 942.
Canning v. Canning, 1346.
Cannon v. Apperson, 1199, 1273,
1503.
Cannon v. Baker, 1414.
Cannon v. Barry, 1327, 1328.
Gannon v. Rueastle, 1238.
Canterbury v. Wyburn, 1612.
Cantine v. Brown, 1395.
Caplin's Will, In re, 1570.
Capron v. Capron, 1102.
Card V. Alexander, 1112, 1266.
Carder v. Board of Gomrs., 1210.
Carey's Estate, 884, 897.
Carithers' Estate, In re, 896.
Carmen's Estate, 1210.
Carmen v. Kight, 940.
Carmichael v. Lathrop, 1058, 1067,
1072, 1077.
Carne v. Long, 1622.
Carney v. Kain, 1674.
Carpenter v. Boulden, 1124, 1383. ,
Carpenter v. Hazelrigg, 1310.
Carpenter v. Heard, 1117.
Carpenter v. Hubbard, 1684.
Carpenter v. Miller, 1609.
1710
TABLE OP CASES OP VOLUME TWO.
[References are to pages.]
Carpenter v. Snow, 952, 958, 959.
Carpenter v. Van Olinder, 1324.
Carpenter's Estate, 972, 1017, 1018,
1023.
Carper v. Crowl, 1212, 1216.
Carr v. Branch, 1171.
Carr v. Effinger, 1354.
Carr v. Estill, 1338, 1339.
Carr v. Jennerett, 1351.
Carr v. MeCamm, 899, 927.
Carr v. Porter, 1411.
Carr's Estate, In re, 1538.
Carroll v. Burns, 1337.
Carson v. Carson, 1097, 1406, 1474,
1572.
Carstensen's Estate, 1437.
Carter v. Balfour's Admr., 1638.
Carter v. Carter, 1504.
Carter v. Dixon, 902.
Carter v. Haswell, 1109.
Carter's Heirs v. Carter's Admrs.,
1497.
Carter v. Strickland, 1573, 1579,
1581, 1585, 1590, 1598.
Carter v. Whitcomb, 1636.
Cartwright v. Cartwright, 1533.
Cartwright v. Vawdry, 1228.
Carven's Will, 888.
Carver v. Oakley, 1294.
Carver v. Burgess, 1437.
Carwardine v. Carwardine, 1475.
Cary v. Abbot, 937, 1628, 1629, 1661.
Cary v. Cary, 1571.
Cary Library v. Bliss, 1641.
Casgrain v. Hammond, 1542.
Caskey v. Brewer, 1383.
Caspar v. Walker, 1507.
Cassell V. Cooke, 1411.
Cassem v. Kennedy, 1498.
Cassilly v. Meyer, 1453, 1454.
Castner's Appeal, 1222.
Caston V. Gaston, 1199.
Catholic Mut. Ben. Association t.
Eirnane, 950.
Catholic University v. O'Brien, 884.
Caton v. Caton, 945.
Cauffman v. Cauffman, 1215.
Caulk V. Pox, 946.
Caulk 's Lessee v. Caulk, 1385.
Cavarly, Estate of, 1673.
Caw V. Robertson, 1498.
Cawfield v. Brown, 1067.
Cawthon v. Coppedge, 1067.
Cawthorn v. Haynes, 919.
Caywood v. Jones, 1226, 1289.
Chace v. Chace, 945, 959, 960, 1443.
Chadwiek v. Chadwick, 1094, 1104.
Chaffers v. Abell, 1438.
Chalmers v. Storil, 1190.
Chamberlain v. Berry's Exr., 1216.
Chamberlain v. Chamberlain, 1211,
1664.
Chamberlain v. Owings, 1348.
Chamberlain v. Springfield, 1403.
Chamberlain v. Stearns, 1620, 1621.
Chamberlain v. Taylor, 973.
Chamberlain v. Young's Exr., 1433.
Chambers v. Brady, 879.
Chambers v. Chambers, 921, 10131
Chambers v. Kerns, 1052.
Chambers v. St. Louis, 1664.
Chambers v. Union Trust Co., 1387.
Chandos v. Talbot, 1108, 1162.
Chaney v. Chaney, 1214.
Chapin v. Cooke, 1505, 1529.
Chapin v. Crow, 1432.
Chapin v. Holyoke Young Men's
Christian Association, 1637.
Chapin v. Marvin, 1494.
Chapin v. School District No. 2,
1656.
Chaplin v. Lerojix, 1136.
Chaplin's Trust, In re, 1286.
Chapman v. Allen, 1080.
Chapman v. Bradley, 1233.
Chapman v. Chapman, 1255.
Chapman v. Hart, 1055.
Chapman v. Newell, 1639.
Charch v. Charch, 1181, 1183. ,
Charge v. Goodyear, 1260.
Charitable Donation Comrs. v. Walsh,
1629.
TABLE OP CASES OF VOLUME TWO.
[References are to pai;es.]
1711
CliarUon v. Miller, 1112, 1266.
Chase v. Cartright, 1003.
Cliase V. Chase, 1570.
Cha^^c V. Darby, 997.
Chase v. Dickey, 1634, 1635.
Chase V. Loekerman, 977, 978, 1024.
Cliase V. Salisbiiry, 1355.
(Jhase V. Stockett, 1609.
Chasniar v. Bueken, 1293.
Chauneey, In re, 1034.
Chaworth v. Beech, 987.
Chaworth v. Hooper, 1436.
Cheatham v. Nashville Trust Co.,
1610.
Cheesbrough v. Millard, 1166.
Chenault v. Crooke, 1163.
Chenault v. Seott, 1209.
Cheney v. Selman, 1285.
Cheney v. Teese, 1435.
Chesebro v. Palmer, 1281, 1380,
1384.
Cheshire v. Goldsmith, 1261.
Chesirs v. Smith, 1501.
Chester County Hospital v. Hayden,
986.
Chestnut v. Strong, 1440.
Chew V. Nieklin, 1170.
Chew's Appeal, 1459, 1517.
Chicago, B. & Q. E. Co. v. Wasser-
raan, 958.
Chicago etc. E. Co. v. Carey,. 1684.
Chicago Forge etc. Co. v. Sanche,
1684.
Chichester v. Coventry, 1042, 1072.
Chichester v. Oxendon, 1351.
Chidester's Estate, 891.
Children's Aid Society v. Loveridge,
870.
Chiles V. Bartleson, 1395.
Chilson V. Eogers, 941.
Chipps V. Hall, 1318, 1323, 1328,
1457, 1472.
Chism's Admr. v. Williams, 1369.
Christie, In re, 1684.
Christler's Exr. v. Meddis, 1423,
1424.
Christopherson v. Naylor, 1286.
Christ's Hospital v. Grainger, 1648.
Christy v. Ogle's Exrs., 1405.
Christy v. Marmon, 946.
Chrystie v. Phyfe, 1124, 1388.
Chudleigh's Case, 1690.
Church V. Bull, 1182.
Church of Christ v. Eeorganized
Church, 1660.
Church V. Church, 1112.
Church-Extension of M. E. Church v.
Smith, 1615.
Church V. Kerable, 1180.
Church V. McLaren, 1195.
Churchill v. Bee, 1200, 1203.
Churchill v. Churchill, 1224.
Churchill v. Mlarks, 1546, 1555, 1501.
Chwatal v. Schreiner, 1237.
City of Philadelphia, Appeal of, 1582.
City of Eichmond v. Davis, 1647.
Clafl3u V. Claffin, 1546.
Claffin V. Tilton, 1282.
Clagett V. Worthington, 1326.
Clanton v. Estes (Vason v. Estes),
1378, 1461.
Clapp V. Ingraham, 1032, 1552.
Clapp V. Stoughton, 1440.
Clark V. Browne, 1051, 1059.
Clark V. Cammann, 1115, 1258, 1433.
Clark V. Clark, 943, 1020, 1369, 1435.
Clark V. Guise, 1195.
Clark V. Jetton, 1040, 1057, 1076.
Clark V. Kingsley, 1072.
Clark V. Lynch, 1273.
Clark V. Middlesworth, 1199, 1200.
Clark V. Morehoug, 1281.
Clark V. Sewell, 1065.
Clark V. Shawen, 1432.
Clark V. Smith, 1136.
Clark V. Stansbury, 910.
Clark V. Taylor, 1622.
Clark V. West, 963.
Clark V. Wilson, 1067.
Clark's Trusts, In re, 921, 1167,
1169, 1447.
Clarke, In re, 1648.
1712
TABLE OF CASES OF VOLUME TWO.
[References are to pages.]
Chrke V. Andover, 1009.
Clarke v. Berkeley, 1056.
Clarke v. Blake, 951, 953.
Clarke v. Bogardus, 1060, 1062.
(Clarke v. Boorman's Exrs., 1321.
Clarke v. Butler, 1433.
Clarke v. Cordis, 1242, 1243.
Clarke v. Leupp, 1336, 1383, 1588,
1589.
Clarke v. Lubbock, 1447.
Clarke v. Parker, 1525, 1538, 1539.
Clarkson v. Hatton, 1223.
Clavering v. Ellison, 1493.
Clay V. Chenault, 1356.
Clay V. Hart, 1199, 1201.
Clay V. Wood, 1576, 1584, 1594.
Claypool V. Norcross, 1628.
Clayton v. Aikin, 1020, 1028, 1029,
1030, 1047, 1049, 1068.
Clayton v. Lowe, 1268, 1269.
Cleare v. Cleare, 928.
Cleaver v. Cleaver, 1100, 1235, 1263.
Cleaver v. Spurling, 1515.
Clemens v. Heckscher, 1326.
Clement v. Hyde, 1626.
Clements v. Eeese, 1401.
Clementson v. Gandy, 1181, 1183.
Clendening v. Clymer, 1072, 1074,
1075, 1076, 1096.
Cleveland v. Cleveland, 994.
Cleveland v. Havens, 1685.
Cleveland's Will, Matter of, 886.
eleven. Estate of, 1647.
Clifford V. Koe, 1379.
Clifford V. Lewis, 1141.
Clift V. Moses, 1168.
Clifton V. Burt, 1026.
Clifton V. Goodbun, 1231.
Clifton V. Lombe, 1596.
Clive V. Clive, 1152.
Cloberry v. Lampen, 1439.
Clore V. Smith, 1312.
Close V. Farmers' Loan & Trust Co.,
1411.
Cloud V. Clinkinbeard, 1062, 1064,
10G5, 1066.
Clough V. Clough, 1419.
Clow V. Brown, 947.
Clulow's Trust, In re, 1108.
Clute V. Bool, 1558.
Clyde V. Simpson, 1162.
Coane v. Earned, 1012.
Coape V. Arnold, 1325.
Coates V. Stevens, 1211.
Cobb V. Battle, 1219.
Coberly v. Earle, 1403.
Cochran v. Hudson, 1399.
Cochrane v. Schell, 1240.
Cockcraft v. Eawles, 903.
Coekeram v. Coekeram, 920.
Cockin's & Harper's Appeal, In re,
1330, 1337.
Cockrill V. Armstrong, 1572, 1589.
Coekrill v. Maney, 1414.
Codman v. Brigham, 1608, 1640.
Coe V. De Witt, 1372.
Coe V. Hill, 1533, 1535.
Coffin V. Coffin, 899.
Coggeshall v. Pelton, 1624, 1642,
1655.
Cogswell, In re, 1437.
Coit V. Comstock, 1639, 1648.
Colbert v. Bings, 946.
Colburn, Estate of, 1619, 1645.
Colburn v. Hadley, 1102, 1121.
Colby V. Dean, 1506.
Colby V. Duncan, 1435.
Cole V. American Baptist Home Mis-
sion, 949.
Cole V. Cole, 1150, 1359.
Cole V. Creyon, 1312.
Cole, Matter of, 991, 1066.
Cole V. Niles, 1105.
Cole V. Robinson's Exrs., 1385.
Cole V. Sewall, 1308, 1469.
Cole V. Wade, 1570.
Coleman-Bush Investment Co. T.
Figg, 1308.
Coleman v. Coleman, 987.
Coleman v. Jackson, 1102, 1118.
Coleman and Jarrom, Fn re, 1282,
1292.
TABLE OF CASES OF VOLUME TWO.
[References are to pages.]
1713
Coleman v. O'Leary's Exr., 1630,
1645, 1682.
Coles V. Ayres, 1270.
Coley V. Ballance, 1114.
Colgate's Exr. v. Colgate, 1191, 1192.
Collector of Taxes v. Oldfield, 1696.
Colleton V. Garth, 1055, 1210.
CoUett V. Collett, 1500, 1S25, 1537.
Collier v. Collier, 1175, 1278.
Collier v. Grimesey, 1168.
Collier v. Slaughter's Admr., 1525,
1537.
Collier's Will, 1461.
Collins V. Carlisle's Heirs, 1570.
CoUins V. Carman, 1210.
Collins V. Glamorgan's Admr., 1545.
Collins V. Collins, 1102, 1210, 1293,
1411.
Collins V. Hoxie, 1228, 1277.
Collins V. Wakeman, 1110.
Collins V. Williams, 1337, 1338.
Collis V. Eobins, 1151.
CoUister v. Fassitt, 1576, 1588, 1591,
1601.
Colored Industrial School v. Bates,
1199.
Colt V. Patchen, 870, 874.
Colton V. Colton, 1572, 1580, 1583,
1588, 1591, 1595, 1599.
Colvert V. Wood, 1215, 1216.
Combs' Appeal, 927, 1210.
Combs V. Combs, 1356.
Combs T. Hughes, 1108, 1386.
Comegys v. Jones, 1685.
Comfort V. Brown, 1331.
Comfort V. Mather, 1118.
Commissioners of Charitable Dona-
tion and Bequests v. De Clifford,
1649.
Commissioners of Freedman's Sav.
& Tr. Co. V. Earle, 1551.
Commons v. Commons, 1397.
Commonwealth v. Drew, 908.
Commonwealth v. Duffield, 1032.
Commonwealth v. Gillespie, 908.
Commonwealth v. Kiel, 1114.
II Com. on Wills— 54
Commonwealth v. Nase, 1096, 1100.
Commonwealth v. Stauffer, 1522,
1529, 1532.
Commonwealth v. Wellford, 1679.
Commonwealth v. Young Men's
Christian Association, 1636.
Compher v. Browning, 932.
Comport V. Austen, 1464.
Comstock V. Hadlyme E. Soc, 909,
910.
Conant v. Stone, 1104.
Condict's Exrs. v. King, 1017, 1686.
Gondii v. Bigalow, 1172.
Condon's Estate, In re, 1360.
Conger v. Lowe, 1324, 1335, 1359.
Conklin v. Conklin, 1246.
Conkliu V. Davis, 1274.
Connecticut Trust & Safe Dep. Co.
V. Chase, 1049.
Connelly v. O'Brien, 1433.
Conner v. Stanley, 943.
Connor, In re, 1232.
Connor v. Gardner, 1403.
Connor v. Sheridan, 1507.
Conover v. Conover, 887.
Couover v. Cade, 1338, 1368, 1871,
1375, 1385, 1389, 1420.
Conoway's Lessee v. Piper, 1394.
Conrad v. Long, 937, 1500, 1501,
1533.
Conron v. Conron, 1149.
Constable v. Bull, 1575.
Constable v. Camp, 1138.
Constable v. Tufnell, 879.
Converse v. Mix, 875, 877, 888.
Converse v. Nichols, 1163.
Conway v. Vizzard, 917.
Cooch V. Clark, 1102.
Cook V. Couch, 1352.
Cook V. Councilman, 1322, 1343.
Cook V. Dawson, 1145.
Cook V. Ellington, 1596.
Cook V. Hayward, 1115.
Cook V. Holmes, 1394.
Cook V. Lanning, 1158.
Cook V. McDowell, 1445.
1714
TABLE OF CASES OP VOLUME TWO.
[References are to pages.]
Cook V. Munn, 1097.
Cook V. Providence First TJniversal-
ist Church, 1244.
Cook V. Universalist Gen. Conven-
tion, 1609.
Cook's Exr. v. Cook's Admr., 1214.
Cooke V. Bueklin, 1686.
Cooke V. Cooke, 1684.
Cooke V. Fidelity Trust etc. Co.,
1207.
Cooke V. Husbands, 1398.
Cooke V. Meeker, 993,, 995.
Cooke V. Morihouse, 1126.
Cooke V. Stationers' Co., 1109.
Cooke V. Turner, 1512, 1515.
Cooley V. Dewey, 963.
Coombs V. Anderson, 1373.
Cooney v. Whitaker, 1024.
Cooper V. Cooper, 1180, 1184, 1215,
1374, 1401, 1453.
Cooper V. Cooper's Exr., 1199, 1201.
Cooper's Estate, In re, 901, 903,
1172.
Cooper V. Hepburn, 1300, 1306.
Cooper V. Macdonald, 1308.
Cooper V. Mitchell, 1305.
Cooper V. Eemsen, 1534, 1535, 1536.
Cooper's Trust, In re, 1108, 1109.
Cooper V. Wyatt, 1561, 1562.
Coore V. Todd, 1024.
Cope V. Cope, 964.
Copeland v. Barron, 1422.
Copeland, Matter of, 1573.
Coppage V. Alexander's Heirs, 1494,
1532.
Coppin V. Coppin, 1028, 1107.
Corbet's Case, 1690.
Corbptt V. Corbett, 1542.
Corbett v. State, 914.
Corbett 's Trust, In re, 1307.
Corbin v. Mills' Exrs., 971, 984.
Corbin v. Wilson, 1439.
Corbitt V. Corbitt, 1243.
Corby v. Corby, 1395, 1590.
Corby's Estate, In re, 973, 1002,
1024, 1026.
Cornelius v. Den, 1545.
Cornish v. Wilson, 1144.
Cornwell v. Mt. Morris M. E. Church,
1054.
Cornwell v. Riker, 919.
Corporation of Bridgnorth v. Col-
lins, 1261.
Corriell v. Ham, 1189.
Corrigan v. Beid, 1000, 1023, 1029.
Corry v. Lamb, 1209.
Corwine v. Corwine, 1158.
Cory's Exr. v. Cory's Admr., 1199,
1414.
Cory Universalist Soc. v. Beatty,
1625.
Coryton v. Helyar, 1101, 1123, 1403,
1665.
Costabadie v. Costabadie, 1591.
Cottman v. Grace, 1610, 1659, 168.t.
Cotton V. Cotton, 1274.
Cottrell V. Moreman, 1467.
Couch V. Eastham, 910, 1354, 1355.
Couch V. Gorham, 1382, 1473.
Coulam V. DouU, 960.
Coulson V. Holmes, 1085.
Council of Augusta v. Kadcliffe,
1455.
Council V. Mayhew, 870, 893, 912.
Courter v. Stagg, 1528.
Courtney v. Mathes, 953.
Coutts v. Acworth, 1180.
Covenhoven v. Shuler, 1425, 1426.
Cowdry v. Hitchcock, 1199.
Cowles V. Cowles, 1057.
Cowley V. Knapp, 1117.
Cowley, In re, 1241.
Cowley V. Twombly, 1535, 1536.
Cowling V. Dodge, 1328.
Cowman v. Harrison, 1575.
Cowper V. Scott, 1162, 1184.
Cox V. Buck, 1686.
Cox V. Cox, 961, 962.
Cox V. Fonblanque, 1552.
Cox V. Garst, 1214.
Cox V. Johnson, 1141.
Cox V. Marks, 1369.
TABLE OF CASES OP VOLUME TWO.
[References are to pages.]
1715
Cox V. Von Ahlefeldt, 965, 966.
Cox V. Wills, 1417.
Coyle's Appeal, 1239.
Crabb v. Crabb, 1182.
Craig V. Ambrose, 1264.
Craig V. Beatty, 1132.
Craig V. Craig, 1694, 1695, 1G96.
Craig V. Hone, 1681.
Craig V. Leslie, 1174, 1175.
Craig V. Watt, 1402.
Craig's Heirs v. Walthall, 1199.
Craighead v. Given, 1114.
Grain v. Wright, 1365.
Cramer v. Cramer, 970, 1105.
Cramer v. Crumbaugh, 902.
Crandall v. Hoysradt, 1503.
Crandell v. Barker, 1318, 1322, 1323,
1411.
Crane, Matter of, 1445.
Cranmer v. McSwords, 1164.
Craven's Will, 869, 897, 1242.
Craw V. Craw, 1403.
Crawford v. Clark, 1312, 1315, 1453,
1472, 1484, 1485.
Crawford, Matter of, 1071.
Crawford v. McCarthy, 972, 978,
985, 986, 987.
Crawford v. Thomas, 1608.
Crawford v. Thompson, 1523, 1524,
1526, 1531.
Crawford v. Trotter, 1369.
Crawley v. Crawley, 1130.
Crawley v. Kendrick, 1102.
Crawshay, In re, 1604.
Creary v. Coggeshall, 1476.
Creeelius v. Horst, 1282.
Creed v. Creed, 1024, 1150.
Crenshaw v. Carpenter, 1197.
Crenshaw v. Creek, 1211.
Crerar v. WUliams, 1110, 1134, 1520,
1647.
Cresap v. Cresap, 1422.
Creswell's Admr. v. Jones, 1571, 1588.
Creswell's Lessee v. Lawson, 1489.
Creveling's Exrs. v. Jones, 1011,
1014, 1015.
Crew's Admr. v. Hatcher, 1433.
Crichton v. Grierson, 1621.
Criley v. Chamberlain, 1372.
Criner v. Geary, 1360.
Cripps V. Wolcott, 1311.
Crisp V. Crisp, 1461.
Crispell v. Dubois, 899. '
Crissick's Will, 918, 921.
Crist V. Crist, 1085.
Critz' Heirs v. Pierce, 904.
Croan v. Maraman's Guardian, 1115,
Crocker v. Chase's Estate, 925.
Crockett v. Crockett, 1387.
Crockett y. Robinson, 1329.
Crofoot's Will, In re, 1366.
Croft V. Adam, 1570.
Croft V. Slee, 1108.
Croizet's Heirs v. Gaudet, 966.
Croly V. Croly, 1378.
Croly V. Weld, 1022, 1024.
Crombie v. Cooper, 1000.
Cromer v. Pinckney, 1258.
Crompton v. Sale, 1075.
Crone's Appeal, In re, 1149, 1159.
Cronise v. Hardt, 1172, 1173.
Crook V. Hill, 1226, 1231.
Crook V. Whitley, 1223, 1258.
Crooke v. Brooking, 1224.
Crooke v. De Vandes, 1122, 1268.
Groom v. Herring, 1244.
Cropley v. Cooper, 1115, 1303.
Crosbie v. Murray, 1179.
Crosby v. Wendell, 1402.
Cross V. Hoeh, 1395, 1411.
Crossett-Lumber Go. v. Piles, 949.
Grossman v. Field, 1267.
Crouch V. Davis, 1063, 1066.
Crowder v. Clowes, 1012, 1409.
Crowder v. Stone, 1308.
Crowe V. Menton, 1087.
Crowley v. Grouch, 1399.
Croxall V. Shererd, 1327, 1328, 1371,
1373, 1455, 1457, 1462.
Crozier v. Bray, 1434, 1435, 1478.
Crozier v. Crozier, 1378.
Crozier 's Appeal, In re, 1195, 1197.
1716
TABLE OF CASES OF VOLUME TWO.
[References are to pages.]
Crum V. Bliss, 1111.
Cruse V. Barley, 1109, 1110, 1440.
Cruse V. Howell, 1298.
Cruse V. Kidd, 1419.
Cruwys v. Colman, 1262, 1574, 1596.
Cudney v. Cudney, 896, 917, 921.
Cufeee V. Milk, 1376.
Culhane v. Pitzgibbons, 1350.
Cullin's Appeal, 1502.
Culsha V. Cheese, 1095.
Cumberland v. Codrington, 1155.
Gumming 's Estate, In re, 1071.
Cummings v. Cummings, 990, 1235,
1393.
Cummings v. Plummer, 1222, 1223.
Cummings v. Shaw, 1415.
Cunningham v. Cunningham, 939,
1133.
Cunningham v. Dungan,. 1118, 1119.
Cunningham v. Murray, 1272.
Cunningham v. Shannon, 1210.
Cunningham's Devisees v. Cunning-
ham's Heirs, 1004.
Curdy v. Berton, 1604.
Gureton v. Massey, 1120.
Curling's Admrs. v. Curling's Heirs,
1661, 1663.
Curran v. Green, 993.
Currie, In re, 1032.
Gurry v. Curry, 1485.
Curry v. Pile, 1013.
Curry v. Sims, 1686.
Curtis V. Curtis, 1297.
Curtis V. Fowler, 1354, 1438.
Curtis V. Iliitton, 1650.
Curtis V. Loiigstreth, 1372.
Gushing v. Blake, 1327, 1328.
Gushing v. Burrell, 1279.
Cushman v. Cushman, 1507.
Gushman v. Horton, 1244.
Cuthbert v. Peacock, 1062.
Cutter V. Butler, 939.
Cutter V. Doughty, 1383.
Cutting, Estate of, 946.
Gutting V. Cutting, 1032.
D
Daboll V. Moon, 1496, 1523, 1535.
Da Costa v. De Pas, 1628.
Da Costa v. Keir, 1384.
Dady v. Hartridge, 983. ■
Daggett V. Slack, 1274.
D'Aguilar v. Drinkwater, 1539.
Dale's Appeal, 888.
Dale V. Dale, 883, 886.
Dale V. White, 1433, 1441.
Dallinger v. Merrill, 1422.
Dalmazzo v. Simmons, 1365. ,
Daly T. Attorney General, 1665.
Damrell v. Hart, 1359, 1361.
Dana v. Dana, 1466.
Dana v. Sanborn, 1446.
Danforth v. City of Oshkosh, 1611,
1647, 1658, 1668.
Daniel v. Thompson, 1385.
Daniel v. Whartenby, 1318, 1321,
1322, 1323, 1341.
Daniell v. Daniell, 1311.
Dann V. Canfield, 1006,
Darbison v. Beaumont, 1241, 1246.
Darden's Admr. v. Burns' Admr.,
1685.
Darden v. Harrill, 1082.
Darden v. Orgaiu, 985.
Darling, In re, 1632.
Darling v. Eogers, 1684.
Darnall v. Adams, 1000.
Darrel v. Molesworth, 1479.
Darst's Will (Hurley v. O'Brien),
876.
Dashwood v. Lord Bulkeley, 1539.
Dashwood v. Peyton, 1180.
Daugherty v. Daugherty, 1189.
Daugherty v. Eogers, 1057, 1081.
Davenhill v. Fletcher, 1028, 1029,
1030.
Davenport v. Eskew, 1343.
Davenport v. Hambury, 1237.
Davenport v. Hassol, 1250.
Daverson, In re, 1674.
Davidson v. Boomer, 1210.
TABLE OP CASES
[References
Davidaon v. Dallas, 1307, 1308.
Davidson v. Davidson's Exrs., 1685,
1686.
Davidson v. Davis, 1198.
Davidson v. KoeMer, 1399, 1436.
Davidson v. Proctor, 1444.
Davie v. Stevens, 1390.
Davie v. Wynu (Dane v. Wynn),-
1285.
Davies' Admr. v. Steele's Admr.,
1381.
Davies v. Bailey, 1253, 1263.
Davies v. Bush, 1028.
Davies v. Davies, 1258.
Davies v. Fowler, 970.
Davies v. Lowndes, 1504, 1510.
Davis V. Angel, 1491, 1505, 1523.
Davis' Appeal, In re, 1158, 1420.
Davis V. Cain's Exr., 974, 980.
Davis V. Calvert, 870, 877, 896, 905,
906, 907.
Davis V. Close, 1050, 1068.
Davis V. Davis, 1255.
Davis V. Elmes, 1107.
Davis V. Gardiner, 1144.
Davis V. Gray, 1500, 1506.
Davis V. Heppert, 1415.
Davis V. Hodge, 1477.
Davis V. Hutehings, 1004.
Davis, In re, 1665.
Davis v. Mailey, 1357.
Davis V. People, 994.
Davis V. Eichardson, 1422.
Davis V. Eipley, 1365.
Davis v. Sanders, 1281, 1339.
Davis V. Whittaker, 1057, 1067
1076, 1081.
Davis V. Williams, 1348.
Davys v. Boucher, 1040, 1056, 1059,
1076.
Dawson v. Bourne, 1386.
Dawson v. Dawson, 1076, 1231.
Dawson v. Killet, 1438, 1444.
Dawson v. Oliver-Massey, 1525, 1537.
Day V. Day, 927, 928, 1124, 1152.
OF VOLUME TWO. 1717
are to pages.]
Day V. Slaughter, 1563.
Dazey v. Killam, 1097.
Deacon v. Cobson, 1573, 1581, 1599.
Dean, In re, 1646.
Dean v. Hart, 1215, 1217.
Dean v. Negley, 887, 891, 892.
Dean v. Nunnally, 1405, 1414.
Dean v. Bounds, 971, 975.
Deane v. Hansford, 1869.
DeBarante v. Gott, 944.
DeBardelaben v. Stoudenmire, 944.
DeBeauvoir v. DeBeauvoir, 1241,
1242.
DeBernal's Estate, In re, 983, 1024.
Debeze v. Mann, 1056.
Deboe v. Lowen, 1379, 1383.
DeCamp v. Dobbins, 1608, 1654.
Decker v. Decker, 1086, 1127.
Decker v. Poor Directors, 1567.
Deech v. Thorington, 1291.
Deemer v. Kessinger, 1323, 1328,
1333.
Deepwater K. Co. v. Honaker, 1541.
Defflis v. GoWschmidt, 1295.
Deg V. Deg, 1195.
DeGaragnoi v. Liardet, 1308.
Degraw v. Clason, 990.
DeHart's Will, In re, 927.
Deichman v. Arndt, 1066.
DeKoven v. Alsop, 1429.
Delafield v. Parish, 894, 895, 896,
899.
De la Hunt, Ee, 1348.
DeLane v. Moore, 944.
Delaney, Matter of, 976.
Delaney v. McCormaek, 1300.
Delaney 's Will, Matter of, 970.
Delauney v. Burnett, 1257.
DeLaurencel v. DeBoom, 1271, 1606.
DeLaveaga's Estate, In re, 926.
Delay v. Vinal, 1199.
Delbert's Appeal, 1436.
DeLisle v. Hodges, 1032.
Deller v. Deller, 942, 946.
Demoss v. Demoss, 1210.
Demmcrt v. Schnell, 886, 902.
1718
TABLE OF CASES OF VOLUME TWO.
[References are to pages.]
Den V. Bagshaw, 1481.
Don V. Crawford, 1300, 1450, 1456.
Den V. Hance, 1498.
Den V. Pierson, 1368.
Den V. Schenck, 1384.
Den V. Taylor, 1383.
Denise Exrs. t. Denise, 1385.
Denison's Appeal, In re, 921.
Denison v. Denison, 1684, 1688.
Denn d. Webb v. Puckey, 1377, 1388.
Denn v. Little, 1505.
Denn v. Mellor, 1354.
Dennett v. Dennett, 1313, 1318, 1451.
Dennis v. Weekes, 921.
DePeyster v. Michael, 1545.
Desnoyer v. Jordan, 944.
DeThemmines v. DeBonneval, 1628.
Detwiller v. Hartman, 1622, 1639.
DeVaughn v. Hutchinson, 1326, 1327,
1334.
Devaynes v. Noble, 1178.
DeVeaux v. DeVeaux, 1298.
Devecmon v. Shaw, 1216.
Devine v. StefEen, 1108, 1121.
Devisme v. Mellish, 1274.
Devisme v. Mello, 1292.
Dew V. Kuehn, 1395.
Dewar t. Brooke, 1437.
Dewar v. Maitland, 1203, 1209.
Dewey's Estate, In re, 1573, 1581,
1582, 1591, 1600.
Dewitt V. Eldred, 1160.
Dewitt V. Yates, 1013, 1014, 1016.
DeWitte v. DeWitte, 1293.
DeWolf V. Lawson, 1648.
Dexter v. Evans, 1581.
Dexter v. Gardner, 1647.
Dexter v. Phillips, 996.
Dexter v. President etc. of Harvard
College, 1133.
Dey V. Dey's Admr., 1028, 1034,
1158.
Deyo V. Morss, 1137.
Diamond v. Eotan, 1541.
Dick V. Pitchford, 1562.
Dicken v. Clarke, 1433.
Dickin v. Edwards, 1150.
Dickinson v. Dillwyn, 946.
Dickinson v. Griggsville Nat. Bank,
1420, 1422, 1453.
Dickinson v. Overton, 1016.
Dickinson v. Purvis, 1096, 1100.
Dickinson v. Worthington, 1163.
Dickson, Ex parte, 1158.
Dickson, In re, 1137.
Dickson v. Montgomery, 1664.
Dickson v. Robinson, 1191, 1193.
Dickson v. Satterfield, 1343.
Dickson v. United States, 1502. <
Dickson's Estate, In re, 1001, 1554.
Dieke v. Dieke, 1566.
Digby V. Legard, 1044.
Dildine v. Dildine, 1118, 1127, 1210,
1282.
Dilley v. Love, 1070.
Dilliard v. Connoway, 1530.
Dillman v. Cox, 1067.
Dillon V. Harris, 1125, 1539.
Dillon V. Parker, 1178, 1180.
Dime Sav. Bank v. Watson, 1678,
1682, 1688.
Dimond v. Bostoek, 1282.
Dingley v. Dingley, 1294, 1303.
Disley v. Disley, 1393, 1401.
District of Columbia y. Washington
Market Co., 1655.
Ditson V. Ditson, 945.
Dittmar v. Gould, 1560.
Dixon, Estate of, 1555.
Dixon V. Cooper, 1102.
Dixon V. Helena Society, 991.
Dixon V. McCue, 1181.
Doane v. Lake, 960, 962.
Dobal's Estate, In re, 879, 896, 931.
Dobson V. Bowness, 1001.
Dodd V. Winship, 1436.
Dodge V. Dodge, 1191.
Dodge V. Pond, 1170, 1171.
Dodge V. Williams, 1170.
Dodge's Appeal, In re, 1244, 1263.
Dodgson's Trust, In re, 1445.
Dodin V. Dodin, 1414.
TABLE OF CASES OF VOLUME TWO.
[References are to pages.]
1719
Dodson V. Hay, 1464.
Dodson V. Taylor, 1138.
Dodsworth v. Dam, 1683.
Doe V. Applin, 1378.
Doe V. Biddle, 1419.
Doe V. Brabant, 1116, 1478.
Doe d. Barnfield v. Welton, 1408.
Doe V. Carter, 1556.
Doe V. Chichester, 1183.
Doe V. Clarke, 1226.
Doe V. Cooper, 1388.
Doe V. Considine, 1312, 1432, 1437,
1441, 1455, 1458, 1459, 1472, 1475,
1476.
Doe (Poor's Lessee) v. Considine,
1303, 1304.
Doe V. Craigen, 1373.
Doe v. Cundall, 1349.
Doe V. Dacre, 1465.
Doe V. Davies, 1388.
Doe V. Elvy, 1481.
Doe V. Fawcett, 1351.
Doe d. Gallini v. Gallini, 1336.
Doe V. Garliek, 1354.
Doe V. Garrod, 1388.
Doe d. Gill v. Pearson, 1543.
Doe V. Halley, 1388.
Doe V. Howell, 1479.
Doe ex dem. Ingram v. Eoe, 1292.
Doe V. Jackman, 1336.
Doe V. Jones, 1551.
Doe V. Lawson, 1251, 1252.
Doe V. Morgan, 1475.
Doe V. Pearson, 1558.
Doe V. Perryn, 1303.
Doe V. Pratt, 1145.
Doe V. Provoost, 1303.
Doe V. Eiehards, 1354.
Doe V. Koberts, 1352.
Doe V. Roe, 1281.
Doe V. Eoper, 1352.
Doe V. Kucastle, 1378.
Doe V. Smith, 1388.
Doe V. Sparrow, 1268.
Doe d. Shelley v. Edlin, 1111.
Doe d. Stewart v. Sheffield, 1101,,
1130, 1133.
Doe d. Thwaites v. Over, 1252, 1253.
Doe d. Usher v. Jessep, 1124.
Doe V. Vardill, 1233.
Doe V. Vaughan, 1385.
Doe d. Watts v. Wainwright, 1308.
Doe V. Watson, 1124, 1125.
Doe V. Webber, 1484.
Doe V. Yates, 1510.
Doebler's Appeal, In re, 1384.
Doerner v. Doerner, 1305.
Doggett V. Mosley, 1228.
Dohn's Exr. v. Dohn, 1445.
Dohn V. Dohn, 1440.
Dolan V. Macdermot, 1626.
Dolan, In re, 1029.
Dolan V. Meehan, 914, 915.
Dolbeer's Estate, In re, 896, 926.
DoUiver v. DoUiver, 870.
Domestic and Foreign Missionary
Soc. V. Pell, 1098.
Dominick v. Sayre, 1262.
Dommett v. Bedford, 1552, 1556,
1561.
Don's Estate, In re, 963.
Donahue, In re, 1243.
Donaldson v. Hall (In re Hall), 1266.
Donegan v. Wade, 1512, 1513, 1514,
1517.
Donges, Estate of, 952, 957.
Donnelly v. Edelen, 1162.
Donner's Exrs., Matter, of, 1013.
Donner's Case, 1016.
Donohoo V. Lea, 1087.
Donohue v. McNichol, 1405, 1406,
1478.
Donovan, Estate of, 872, 897.
Donovan's Lessee v. Donovan, 1352.
Doran v. Mullen, 913.
Dorin v. Dorin, 1228.
Dormay v. Bori-adaile, 1145.
Dorsey v. Dodson, 1127, 1129, 1133.
Dorsey v. Dorsey, 1359.
Doty V. Chaplin, 1369, 1411.
Doty V. Teller, 1373, 1374.
1720
TABLE OP CASES OP VOLUME TWO.
[References are to pages.]
Dougal V. Fryer, 1545.
Dougart's Succession, 1102.
Dougherty's Estate, 1632.
Dougherty, Matter of, 1020.
Douglas V. Andrews, 1316.
Douglas V. Baber, 1026, 1144.
Douglass V. Douglass, 980.
Douglass, Estate of, 1634, 1635, 1646.
Doughten v. Vandever, 1642.
Dove V. Torr, 1246, 1248, 1250.
Dover v. Alexander, 1230.
Dover v. Gregory, 1145.
Dow V. Doyle, 1113, 1282.
Dowd V. Tucker, 1603.
Dowling V. Dowling, 1408, 1409.
Downey v. Murphy, 899, 927.
Downing v. Marshall, 1096, 1116,
1288, 1293, 1479, 1654.
Downing v. Nicholson, 1283, 1285,
1291, 1292.
Downing v. Wherrin, 13S4, 1482.
Dowson V. Bell, 1182, 1194.
Dowson V. Gaskoin, 1003.
Doyal V. Smith, 1494.
Doyle V. Andis, 1320, 1322, 1325,
1327, 1332, 1343.
Doyle V. Mullady, 1380.
Doyle V. Whalen, 1665.
Dozier v. Dozier, 1133.
Drake's Appeal, 893.
Drake v. Ellman, 1001, 1237.
Drant v. Vause, 1088.
Dresel v. King, 1127.
Dresser v. Dresser, 1573.
Drew V. Wakefield, 1235, 1252, 1504,
1653.
Drew's Estate, In re, 1024, 1025.
Driver v. Eerrand, 1150.
Druee v. Dennison, 1183.
Drummond's Exr. v. Drummond,
1685, 1686.
Drury v. Drury, 1675, 1676, 1679,
1687.
Drury v. Inhabitants of Natick, 1624.
Dryden v. Owings, 970, 975, 980.
Drysdale, Succession of, 914.
Du Bochet, In re, 1228.
Dubois V. Van Valen, 1401.
Duck V. McGrath, 1139.
Ducker v. Burnham, 1445, 1448, 1467.
Duckett V. Butler, 1322.
Duckworth v. Jones, 1176.
Duckworth v. Jordan, 1127, 1175. .
Duddy V. Gresham, 1493, 1538.
Duensing v. Duensing, 956.
Duffield v. Pike, 1169.
Duffield V. DufSeld, 1432.
Duffield V. Robeson, 900, 902.
Duffy's Estate, In re, 1505.
Duffy V. Hargan, 1250.
Dugan V. HoUins, 1025, 1026.
Dugdale, In re, 1542.
Duggan V. Slocum, 1606.
Duke of Norfolk's Case, 1690.
Dukes V. Faulk, 1241, 1244, 1274,
1277.
Dulany v. Middleton, 998, 1133,
1486, 1609.
Dummer v. Pitcher, 1182, 1211.
Dummerston v. Newfane, 1190.
Duncan v. De Tampert, 1461, 1466,
1476.
Duncan v. Martin, 1369.
Duncan v. Township of Franklin,
1023, 1028, 1037.
Duncan v. Watts, 1029.
Dundas v. Wolfe-Murray, 1462.
Dunford v. Jackson's Exrs., 1027.
Dungan v. Kline, 1373.
Dungannon v. Smith, 1677, 1678.
Dunham v. Averill, 1069.
Dunham v. Ehodes, 1030.
Dunlap's Appeal, In re, 1275.
Dunlap V. Garlington, 1369.
Dunlap V. Ingram, 1512.
Dunlap V. Shreve, 1097, 1225.
Dunn V. Sargent, 1436.
Dunn's Exrs. v. Eenick, 1027.
Dunne v. Byrne, 1632.
Dunne v. Dunne, 1508.
Dunning v. Dunning, 1212, 1230.
Dunphy, Estate of, 1554.
TABLE OP CASES OF VOLUME TWO.
[References are to pages.]
1721
Dupont V. Hutchinson, 1277.
Du Pout V. Du Bos, 1376.
Dupree's Admr. v. Gary, 1211.
Durfee's Petition, In re, 1183.
Durfee v. Pomeroy, 1398.
Durham's Admr. v. Clay, 1008.
Durham v. Clay, 1090.
Durham, Lord, v. Wharton, 1042.
Durham v. Rhodes, 1167, 1210.
Durkee v. Smith, 1647.
Durling v. Loveland, 899, 902.
Durnell v. Corfield, 900, 902.
Durrani v. Friend, 1050.
Duryea v. Duryea, 1383.
Dusbiber v. Melville, 1536.
Dusemnerry v. Johnson, 1440.
Dwyer's Estate, In re, 1088.
Dye V. Beaver Creek Church, 1414,
1656.
Dye V. Young, 919.
Dygert v. Remerschneider, 945.
Dyke v. Sweeting, 1187.
Dykeman v. Jenkins, 1640, 1647.
Dyose v. Dyose, 1035.
E
Eade v. Eade, 1571.
Eagle Fire Ins. Co. v. Cammet, 1411.
Eales V. Drake, 1032.
Earl of Shrewsbury v. Hope-Scott,
1498.
Earle v. Wilson, 1232.
Earls V. McAlpine, 1544.
Early v. Middleton, 1013.
Earnhart v. Earnhart, 1324.
Earp's Appeal, 1429.
Eary v. Raines, 1674, 1678.
Easterly v. Keney, 1558.
Eastis V. Montgomery, 874.
Eatley's Will, In re, 875, 896, 900,
931.
Eaton V. Barker, 1311, 1447.
Eaton V. Broderick, 1406.
Eaton V. Eaton, 1360.
Eaton V. Sanxter, 1551.
Eaton V. Watts, 1571, 1582.
Ebbetts V. Quick, 1382.
Eberhart v. Rath, 946.
Eberta v. Eberts, 1309.
Ebey v. Adams, 1176.
Eby's Appeal, In re, 1244, 1264.
Eeeard v. Brooke, 1123.
Eckert v. Flowry, 686, 873, 907.
Edding-3 v. Long, 1242.
Eddy 's Exr. v. Hartshorne, 1572.
Edelen v. Dent, 1063, 1065, 1066.
Edelen v. Middleton, 1381, 1384,
1484.
Edgworth v. Edgworth, 1465.
Edmondson v. Dyson, 1327, 1328,
1330.
Edmunds v. Fessey, 1230.
Edmunds v. Waugh, 1438.
Edward, Estate of, 1676.
Edwards' Appeal, 1170.
Edwards, In re, 946, 1693.
Edwards v. Bibb, 1383, 1384, 1385.
Edwards v. Edwards, 1267, 1384,
1484.
Edwards v. Gibbs, 1466.
Edwards v. Hammond, 1437.
Edwards v. Rainier 's Exrs., 1013.
Edwards v. Smith, 1640.
Edwards v. Symonds, 1310.
Eeles V. England, 1592.
Effinger v. Hall, 1168.
Egan, In re, 1004.
Egerton v. Brownlow, 1493.
Egg V. Devey, 1513.
Egger V. Egger, 947.
Ehrisman v. Sener, 1557, 1564.
Eichelberger v. Barnitz, 1270, 1379,
1381, 1384.
Eisner v. Koeliler, 1074, 1093, 1435.
Ekern v. Erickson, 871, 921.
Elberts v. Elberts, 1363.
Elder v. Lantz, 1131.
Eldred v. Meek, 1684.
Eldridge v. Eldridge, 1464. ■
Ellard v. Ferris, 1041, 1072, 1077,
1087.
1722 TABLE OP CASES
[References
EUicott T. EUicott, 1489, 1501.
Elliot V. Elliot, 1235, 1504, 1595.
Elliot V. Pessenden, 1100, 1253.
Elliott V. Carter, 1025, 1350.
Elliott V. Davenport, 1106.
Elliott V. Smith, 1310.
Elliott's Will, 877, 901.
Ellis V. Aldrich, 1028, 1029, 1030,
1031.
Ellis V. Birkhead, 1419, 1535, 1537.
Ellis V. Ellis, 1491.
Ellis V. Lewis, 1183, 1192, 1193.
Ellis V. Maxwell, 1691.
Ellis V. Page, 1136.
Ellis V. Walker, 977, 979.
Ellison V. Airey, 1304.
Elmesley v. Young, 1248, 1249.
Elmsley v. Madden, 1629.
Elton V. Eason, 1330, 1331.
Elton V. Elton, 1441.
Elwin V. Elwin, 1464.
Ely V. Ely, 1640.
Embree, Matter of, 1445.
Embury v. Sheldon, 1270, 1312.
Emery v. Batehelder, 1021, 1023,
1024, 1037.
Emery v. Emery, 932.
Emery v. Union Soc. of Savannah,
1089.
Emes V. Hancock, 1162.
Emuss V. Smith, 1088, 1153.
Enders v. Enders, 1045.
Enders' Exr. v. Taseo, 1584.
Endicott v. Endicott, 1193.
Engclthaler v. Engelthaler, 1403.
England v. Fawbush, 918.
England v. Vestry of Prince George's
Parish, 1001.
Engle 's Estate, 1445.
English V. Cooper, 1110, 1133.
English V. English's Exrs., 1199.
Ennis v. Pentz, 1254.
Eno V. Tatam, 1154.
Enos Estate, 879, 889.
Enos, Matter of, 1066.
OP VOLUME TWO.
are to pages.]
Ensley v. Ensley, 951, 962.
Entwistle v. Markland, 1445.
Episcopal Academy v. Philadelphia,
1622.
Erickson v. Eobertson, 939, 940.
Ericson v. Willard, 1572, 1596.
Errington, In re, 1696.
Erskine v. Whitehead, 1621, 1653,
1667.
Eskridge v. Farrar, 1161.
Esterbrook v. Gardner, 885.
Esterbrook's Estate, In re, 910.
Esty V. Clark, 1097, 1100, 1252, 1253,
1263.
Etter V. Greenwalt, 1159.
Eutaw Place Baptist Church v. Shiv-
ley, 1609.
Evans' Appeal, 1199, 1210, 1401,
1405.
Evans v. Beaumont, 1075.
Evans v. Cockeram, 1151, 1155. '
Evans v. Davies, 1228.
Evans v. Fisher, 1137.
Evans v. Folks, 1466.
Evans v. Hellier, 1696.
Evans v. Hunter, 970, 980.
Evans v. Inglehart, 1424, 1453.
Evans v. Jones, 1238.
Evans v. Marsey, 1231.
Evans v. Weatherhead, 1330.
Evanturel v. Evanturel, 1512, 1515.
Everett v. Garr, 1033, 1608, 1621.
Everett's Will, In re, 894, 902.
Everitt v. Lane, 973, 977.
Everman v. Everman, 1128.
Evers v. Challis, 1458, 1470.
Ewen V. Perrine, 881.
Ewing V. Barnes, 1323, 1324, 1329.
Ewing V. Standefer, 1318, 1396, 1397.
Ewing V. Shropshire, 1372.
Ewing 's Heirs v. Handley's Exrs.,
1223.
Exchange & Deposit Bank v. Stone,
1181, 1199, 1204, 1211.
Eyer v. Bock, 1274.
Eyre v. Maraden, 1307, 1315. .
TABLE OP CASES OF VOLUME TWO.
[References are to pages.]
1723
Fabens v. Fabens, 1264.
Faber v. Police, 1456.
Fagan v. Jones, 973.
Fahens v. Fahens, 1242.
Fahrney v. Holsinger, 1245.
Fahs V. Fahs, 1526.
Fair, Estate of, 1554.
Pair's Estate, In re, 1299.
Fairbank v. Pairbank, 873, 912.
Fairchild v. Crane, 1369.
Pairchild v. Edson, 1602.
FaireMld v. Marshall, 1209.
Fairfax v. Brown, 1361, 1362.
Fairfax v. Heron, 1354.
Fairfield v. Bushell, 1240.
Fairfield v. Lawson, 1668.
Fairman v. Beal, 1405.
Falabella 's Will, In re, 931.
Palkner v. Butler, 1258.
Falson v. Moore, 1396.
Farewell v. Farewell, 1641, 1643.
Farleigh v. Kelley, 914.
Farlin v. Sanborn, 1414.
Parling, In re, 1652.
Farmer v. Kimball, 1272, 1277.
Farmers' Loan & Tr. Co., In re,
1281, 1287.
Farmers' Loan & Trust Co. v. Kip,
1140, 1165.
Farmers' Loan & Trust Co. v. Mc-
Carthy, 1035.
Farmers' Loan & Trust Co. v. Os-
born, 1147.
Parmington Sav. Bank v. Curran,
1215.
Farnam v. Farnam, 996, 1015, 1256,
1257, 1258, 1676.
Farnham v. Phillips, 1072, 1076.
Farnsworth v. Cole, 1211.
Farnsworth v. Wliiting, 1102, 1117,
1121, 1123.
Farnum v. Bascom, 983, 1000, 1034.
Farr v. Thompson, 889.
Farr v. Thompson (Cheves), 891.
Farrar v. Ayres, 909, 1346.
Farrell v. Parrell, 1003.
Fauber v. Keim, 1141.
Faversham v. Eyder, 1641, 1642.
Fawkner v. Watts, 1080.
Faxon v. Faxon, 1399.
Fay V. Pay, 1398.
Fay V. Sylvester, 1458.
Fearing v. Swift, 1412.
Feeht v. Henze, 1140, 1147, 1156.
Feit's Exrs. v. Vanatta, 1222, 1300.
Pell V. Biddolph, 1281, 1282.
Fellowes v. Durfey, Admx., 1573.
Fellows V. Miner, 1610, 1664.
Felt V. Eichards, 1365, 1541, 1542.
Feltman v. Butts, 1240.
Felton V. Billups, 1397.
Fenby v. Johnson, 1482.
Pennell v. Fennell, 1219.
Fennell v. Henry, 1078, 1082, 1083.
Penstermaker v. Holman, 1347, 1394,
1412.
Ferguson v. Hedges, 1129, 1217,
1218.
Ferguson v. Mason, 1228, 1230.
Ferguson v. Stuart's Exrs., 1174,
1243.
Ferrer v. Pyne, 1273, 1274.
Ferris Estate, 879.
Ferris v. Gibson, 1685.
Ferris v. Smith, 1346, 1348.
Person v. Dodge, 1461, 1462.
Festing v. Allen, 1296, 1462.
Featorazzi v. St. Joseph's Cath.
Church, 1630, 1632.
Fetrow v. Krause, 1065.
Fewell V. Fewell, 1353.
Fidelity Ins. etc. Co. 's Appeal, 976.
Field V. Burbridge, 1443.
Field V. Drew Theological Seminary,
1506, 1647.
Field V. Hitchcock, 1423.
Field V. Peckett, 1157.
Fielding v. Preston, 1001.
Fields V. Lewis, 1432.
Pifer V. Allen, 1410.
1724
TABI;E OF CASES OF VOLUME TWO.
[References are to pages.]
Kfield V. Van Wyck's Exr., 1516,
1518, 1609, 1653, 1658, 1659.
Pinch V. Hollingsworth, 1255.
Pinch V. Hull, 1158.
Findley's Exrs. v. Pinclley, 947, 1210.
Fink V. Fink's Exr., 1609.
Finlason v. Tatlock, 1010.
Finlay v. King's Lessee, 1489, 1490,
1491, 1493, 1504, 1523.
Finley v. Hunter, 1628.
Fire Ins. Patrol v. Boyd, 1642.
First Baptist Church v. Eoberson,
1654.
First M. E. Church of Ft. Madison v.
Donnell, 1632.
Firth V. Denny, 1218.
Fischer v. Steepler, 1332.
Fish, In re, 1228.
Fisher v. Boyee, 1204.
Fisher v. Hill, 1097.
Fisher v. Johnson, 1439.
Fisher v. Keithley, 1039, 1040.
Fisher v. Koontz, 946.
Pisher, Matter of, 972, 974.
Fisher v. Skillman's Exrs., 1272.
Pisher v. Wagner, 1102.
Pisher v. Wister, 1547.
Pisk V. Attorney-General, 1133.
Fisk V. Keene, 1674.
Fiske V. Fiske, 1133.
Piske V. Fiske 's Heirs and Devisees,
1102, 1414.
Pissell's Appeal, In re, 1272.
Fite V. Beasley, 1001, 1004, 1009,
1093, 1130,1622, 1640.
Fitzhugh V. Hubbard, 1180, 1181,
1183, 1186.
Fitzpatrick, Appeal of, 888, 897.
Pitzpatrick's Estate, 1247.
Fitzpatrick v. Fitzpatrick, 1339,
1386.
Pitzsimmons v. Harmon, 1575.
Pitzwilliams v. Kelly, 1152.
FJagg V. Teneick, 1088.
Planary v. Kane, 1365.
Planner v. Fellows, 1305, 1677.
Planner v. Planner, 955.
Fleming v. Morrison, 909.
Fletcher, In re, 1064.
Fletcher v. Smiton, 1351.
Plickwir's Estate, In re, 992.
Flint V. Wisconsin Trust Co., 1240,
1241, 1244, 1245.
Flood V. Strong, 1162.
Flora V. Anderson, 964, 1228.
Florey's Exrs. v. Plorey, 924.
Floyd V. Floyd, 983, 1000, 1201.
Floyd V. Smith, 1582.
Fogg V. Clark, 1352.
Foley V. Burnell, 1426, 1552.
Foley V. Parry, 1596.
Folger V. Titcomb, 1398. '
Polk V. Whitley, 1372.
Ponereau v. Ponereau, 1442.
Fonnereau v. Poyntz, 1022, 1035.
Pontain v. Eavenel, 1607.
Fontaine v. Tyler, 976.
Poose V. Whitmore, 1573, 1588, 1589,
1593, 1598, 1600.
Foot V. Stanton, 929.
Footner v. Cooper, 1352.
Forbes v. Ball, 1592.
Forbes v. Forbes, 1413, 1642.
Forbes v. Harrington, 1140.
Ford V. Ford, 1047, 1050, 1058, 1078,
1097, 1168, 1169, 1170, 1215, 1216.
Ford V. McBrayer, 1341, 1343.
Fordyce v. Bridges, 1689.
Forest Hill Cemetery Co. v. Creath,
1639.
Forest Oil Co. v. Crawford, 1338,
1385.
Forester v. Watford, 1198, 1199.
Forsaith v. Clark, 1351.
Porsbrook v. Porsbrook, 1387.
Porster v. Civill, 1158.
Forster v. Sierra, 1242.
Fort V. Gooding, 1106.
Forth V. Chapman, 1268.
Porwood T. Porwood, 946.
Posdick V. Cornell, 1483.
Posdiek v. Posdick, 1679, 1685, 1689.
TABLE OF CASES
[References
Fosher t. Fields, 1353.
Fosher v. Guilliams, 1195.
Foster v. Cooke, 1194.
Foster v. Holland, 1462.
Foster v. Smith, 1359.
Foster v. Stewart, 1352.
Foster v. Wilson, 1575, 1578, 1581,
1584.
Fothergill v. Fothergill, 896, 92G.
Fouke V. Kemp 's Lessee, 1223.
Fountain County Coal ete. Co. v.
Beckleheimer, 1343.
Foveaux, In re, 1646.
Fowkes V. Pascoe, 1058, 1080.
Fowler v. Ingersoll, 1486.
Fowler v. Willoughby, 989, 1045.
Fowler's Will, In re, 926, 927.
Fowlkes V. Wagoner, 1546.
Fox y. Davis, 1535.
Fox V. Fox, 1437, 1442, 1574, 1593.
Fox V. Hicks, 1115.
Fox y. Phelps, 1493, 1495.
Fox V. Porter, 1485.
Fox V. Eumery, 1217, 1358.
Fox, Will of, 1643.
Pox's Appeal, 1579.
Foy T. Foy, 1640.
Frahm'a Estate, In re, 1053, 1054.
Frail v. Carstairs, 1129, 1294.
Frame v. Stewart, 1351.
France 's Estate, 1450.
Francis v. Clemow, 1158.
Francis v. Wilkinson, 876.
Franham v. Barker, 1512.
Frank v. Frank, 987, 1434.
Frank v. Stovin, 1378.
Frankenheimer, Matter of (Gans'
Will, In re), 1033.
Franklin v. Franklin, 914.
Franklin v. Hastings, 1641, 1647,
1650.
Franklin v. Lay, 1377.
Frantz v. Bohemian Eoman Cath.
Cent. Union, 1510.
Fraser v. Byng, 1012.
Fraser v. Chene, 1318, 1372.
OP VOLUME TWO.
are to pages.]
1725
Fraser v. Dillon, 1275.
Frazer, In re, 1191.
Frazer's Admr. v. Bevill, 1425.
Frazier v. Frazier, 1114.
Frazier v. Frazier 's Exrs., 1287.
Frederick v. Gray, 1518.
Freeman v. Colt, 1336.
Freeman v. Freeman, 1462.
Freeman v. Knight, 1274, 1277.
Freeman v. Maxwell, 1361.
Freeman v. Parsley, 1237.
Freeman v. Phillips, 1540.
Freeman's Estate, In re, 1129.
Freemantle v. Bankes, 1076.
Freemantle v. Freemantle, 1227.
Freer v. Freer, 1060.
Freke v. Barrington, 1215.
Frelinghuysen v. New York Life
Ins. & Tr. Co., 1110.
Freme v. Clement, 1096.
Freme's Contract, In re, 1017.
French v. Calkins, 1640, 1689, 1696.
French v. Campbell, 1350.
French v. Davies, 1193, 1194.
French v. Hatch, 1420.
French v. Mastin, 1144.
French, Matter of, 1422.
Fretwell v. Stacy, 1029.
Prey, Estate of, 938, 941.
Friend's Estate, 1518, 1519.
Frierson v. General Assembly, 1654.
Frogley v. Phillips, 1259.
Frost V. Blackwell, 1499, 1501.
Frost V. Emanuel, 1618. ;
Frost v. Greatorex, 1696.
Fry V. Merchants' Ins. Co., 1214.
Fry V. Porter, 1525, 1537.
Fry V. Smith, 1092.
Fryer v. Morris, 1053, 1058, 1059.
Fullagar v. Stockdale, 1332.
Fullenwider v. Watson, 1586.
Fuller V. Fuller, 1092.
Fuller, In re, 1247.
Fuller v. Wilbur, 1401.
Fuller V. Yates, 1182, 1187.
Fulton V. Andrew. 927.
1726
TABLE OF CASES OF VOLUME TWO.
[Heferences are to pages.]
Fulton V. Fulton, 1108, 1191, 1369.
Furneas v. Cox, 1439.
Furness v. Pox, 1162.
Furnish v. Rogers, 1401.
Fussey v. White, 1119, 1122.
G
Gable v. Ellender, 1381.
Gadd V. Stoner, 1417.
Gage V. Gage, 960, 961.
Gaines Succession of, 913, 914, 933.
Gaither v. Gaither, 927.
Gale V. Gale, 948, 1059.
Gallagher v. Crooks, 1235, 1253.
Gallagher v. Redmond, 984.
Gallagher v. Rowan's Admr., 1173,
1174.
Gallagher's Appeal, In re, 1158.
GaU'ego's Exrs. v. Attorney-General,
1033, 1609.
Galligan v. McDonald, 1358, 1474.
Gallinger v. Farlinger, 1541, 1544.
Galloway v. Darby, 1102, 1126.
Galton V. Hancock, 1153.
Gamboa's Trusts, 1247, 1252.
Gambrill v. Gambrill, 1675, 1676.
Gannon v. Albright, 1347, 1349, 1363,
1380, 1382, 1476.
Gannon v. Pauk, 1873.
Gans' Estate, Matter of, 981.
Ga Nun v. Palmer, 1051.'
Garbut v. Hilton, 1538.
Garden v. Pulteney, 1386.
Gardiner v. Corson, 1493.
Gardiner v. Guild, 1293.
Gardiner v. Slater, 1439, 1525.
Gardner v. Gardner, 870, 1160.
Gardner v. Hatton, 1053.
Gardner v. Heyer, 1231, 1235.
Gardner, In re, 1115.
Gardner, Matter of, 1587.
Gardner v. McNeal, 970, 981, 985,
1049.
Gardner v. Printup, 981.
Garland v. Garland, 1558, 1563.
Garland v. Smiley, 1115.
Garner v. Wills, 1196, 1197.
Garrard v. Kendall, 1129.
Garraud, Estate of, 960, 964.
Garrett's Estate, 1102.
Garrick v. Camden, 1249, 1250, 1264.
Garrison v. Little, 1620, 1623, 1641,
1644, 1645.
Garth v. Baldwin, 1331.
Garth v. Garth, 1057, 1080.
Garth v. Meyriek, 1012, 1014.
Garthshore v. Chalie, 1211.
Garthwaite's Ex. v. Lewis, 1133.
Garvey v. Hibbert, 1291.
Gaskin v. Rogers, 991.
Gass V. Wilhite, 1630, 1661, 1663.
Gassiot, In re, 1648.
Gassman's Estate, In re, 1028.
Gaster v. Gaster's Estate, 938.
Gates V. Seibert, 1228, 1304.
Gath V. Burton, 1497.
Gaukler v. Moran, 1354, 1355.
Gaw V. Huffman, 1145.
Gawler v. Standerwicke, 1444.
Gay, Estate of, 1639, 1657.
Gay V. Gillilan, 886, 898, 899, 913,
932.
Gedney's Will, In re, 931.
Gee V. Corporation and Mayor of
Manchester, 1268, 1269, 1384.
Gee V. Liddell, 1065.
Geer v. Winds' Exrs., 959.
Geiger v. Geiger, 1214.
Gelbach v. Shively, 974, 985, 1027.
Gelston v. Shields, 1230, 1231.
Gentry v. Jones, 1423.
Geoff roy y. Gilbert, 1256.
George v. George, 1501.
George v. Robb, 961.
Georgia Infirmary v. Jones, 984, 1049,
1050.
Gerhard's Estate, In re, 1328.
Gerke v. Purcell, 1624.
German Mutual Ins. Co. v. Lushey,
952.
Gernet v. Lynn, 1404.
TABLE OP CASES
[References
Gerrish T. Gerrish, 953, 956.
fierrish v. Nason, 928.
Gei-vis V. Gervis, 1024.
Getman, Matter of, 976.
Gharky, Estate of, 934.
Gibbens v. Gibbens, 1119.
Gibbins v. Eyden, 983, 999.
Gibbins v. Gibbins, 1529.
Gibbon v. Gibbon, 1211.
Gibbons v. Mahon, 1429.
Gibbons v. Ward, 1102.
Gibbs V. Marsh, 1570.
Gibbs V. Rumsey, 1109, 1110.
Gibony v. Foster, 888.
Gibony v. Hutcheson, 1183.
Gibson v. Bennett, 943.
Gibson v. Bott, 992, 993.
Gibson v. Brown, 1333, 1346, 1349,
1394, 1405.
Gibson v. Dooley, 892, 937.
Gibson v. Gibson, 917, 1192.
Gibson v. Hardaway, 1382.
Gibson, In re, 1287.
Gibson v. McNeely, 1234, 1235.
Gibson v. Moulton, 1228.
Gibson v. Seymour, 1105, 1478.
Giddings v. Gillingham, 1105, 1458.
Giddings v. Seward, 972, 985.
Giddings v. Smith, 1376.
Gidley v. Lovenberg, 1397, 1399,
1607.
Gidney v. Chappell, 893, 898.
Gihon, Matter of, 896.
Gilbert v. Boorman, 1297.
Gilbert v. Chapin, 1572, 1592.
Gilbert v. Gilbert, 868, 1102.
Gilbert's Appeal, In re, 1161.
Gilbertson v. Gilbertson, 1150.
Gilbreath v. Alban, 982.
Gilchrist v. Stevenson, 1069.
Giles V. Anslow, 1588.
Giles V. Little, 1528.
Gilkey v. Paine, 1430.
Gilkis V. Marsh, 1371, 1373, 1381.
Gill V. Attorney General, 1652.
OP VOLUME TWO.
are to pages.]
1727
Gill V. Grand Tower Mining etc. Co.,
1094.
Gill V. Shelley, 1229, 1230.
Gillespie v. Schuman, 1292.
Gillespie v. Winston's Trustee, 1547.
Gillett V. Gillott, 1115.
Gilliam v. Brown, 1062, 1063, 1066.
Gilliam v. Underwood, 1273.
Gillins, In re, 980.
Gillman v. Daunt, 1297.
Gilman v. Eeddington, 1383, 1683.
Gilmer v. Gilmer, 1049.
Gilmer's Legatees v. Gilmer's Exrs.,
972, 974, 980, 987.
Gilmer v. Stone, 1650.
Gilmore v. Gilmore, 910.
Gilmore v. Jenkins, 1114.
Gilmor's Estate, In re, 1123, 1181.
Gilpatrick v. Glidden, 1603.
Gilreath v. Gilreath, 877.
Gilroy v. Richards, 1184, 1109.
Gimblett v. Purton, 1298.
Gingrich's Estate, In re, 1159.
Gingrich v. Gingrich, 1459.
Ginter v. Ginter, 871, 875.
Girand v. Girand, 1173.
Girard Trust Co. v. Russell, 1641,
1643.
Girdlestone v. Doe, 1122.
Gist V. Pettus, 1373.
Gittings V. McDermott, 1010, 1101,
1122, 1242.
Given v. Hilton, 1167.
Givens v. Ott, 1127.
Givin, Matter of, 1202.
Glading v. St. Matthew's Church,
1662, 1665.
Glanvill v. Glanvill, 1464.
Glass V. Dunn, 1025.
Gleason v. Fayerweather, 1353, 1539.
Gleespin's Will, 871, 875.
Glore V. Soroggins, 1405.
Glover v. Baker, 1635.
Glover v. Condell, 1327, 1328, 1330,
1331, 1484, 1485.
Glover v. Harris, 1396, 1397.
1728
TABLE OF CASES OF VOLUME TWO.
[References are to pages.]
Glover v. Krause, 1066.
Glover v. Patten, 1066.
GoddaTd v. Amory, 1258, 1259.
Goddard v. May, 1117.
Goddard v. Pomeroy, 1158.
Godfrey v. Davis, 1304.
Godfrey v. Humphrey, 1347, 1351.
Godman v. Simmons, 1454.
Godshalk v. Akey, 1421.
Goetz's Estate, In re, 1102.
Goff V. Britton, 959.
GofE V. Penzenhafer, 1489, 1499.
Goggin's Estate, Matter of, 999.
Going V. Emery, 1621, 1654, 1664.
Golds V. Greenfield, 1107.
Goldsborough v. Martin, 1684.
Goldsmid v. Goldsmid, 1539.
Goldsmith v. Petersen, 1357.
Goldthorp 's Estate, Matter of, 954.
Goldtree v. Thompson, 1322, 1486,
1671, 1673.
Gooch V. Association for Relief of
Aged Indigent Females, 1G26.
Gooch V. Gooch, 1295, 1299.
Good V. Fiehthorn, 1585.
Goodale v. Mooney, 1608.
Goodbar v. Lidikey, 870, 919.
Goodell V. Union Association etc.,
1608.
Goodfellow's Estate, In re, 987, 1041.
Goodfellow V. Goodfellow, 1191.
Goodhart, In re, 875, 876.
Goodier v. Johnson, 1684.
Gooding v. Bead, 1684.
Goodloe V. Goodloe, 893.
Goodrich v. Lambert, 1318.
Goodridge v. Sohaefer, 1226, 1289.
Goodright v. Jones, 1465.
Goodright v. "White, 1241, 1246.
Goodright v. Wright, 1092.
Goodtitle v. Herring, 1321.
Goodwin v. Lee, 1153.
Goodwin v. McGaughey, 1430.
Goodwin's Trust, In re, 1228.
Gorden, Matter of, 1186, 1188, 1193.
Gordon v. Burris, 925.
Gordon v. Duff, 976.
Gordon's Estate, In re, 902, 903.
Gordon v. Gordon, 1231.
Gordon v. Harris, 868.
Gordon v. Pendleton, 1092, 1099.
Gordon v. Small, 1241.
Gordon v. Smith, 1013.
Gordon v. Stevens, 1193.
Gore V. Clark, 1229.
Gore V. Gore, 1684, 1687.
Gore V. Stevens, 1092, 1126, 1129.
Gorgas' Estate, In re, 1111, 1112.
Gorham v. Daniels, 1190.
Gorin v. Gordon, 945.
Goring v. Bickerstaffe, 1671.
Gorkow's, Matter of, 964.
Gorst V. Lowndes, 1505.
Gotch V. Foster, 1462.
Gotzian, Matter of, 1029, 1183, 119l,
1193, 1210.
Goudie v. Johnston, 1422, 1427.
Gough V. Manning, 1537.
Gould V. Taylor Orphan Asylum,
1170.
Gould V. Winthrop, 1151.
Gourdin v. Shrewsbury, 1300.
Grace v. Perry, 1414, 1418.
Grace v. Webb, 1530.
Graham v. Flower, 1386.
Graham v. Graham, 947.
Graham v. Lee, 1546, 1562.
Graham v. Whitridge, 1248, 1672,
1685.
Grand Prairie Seminary v. Morgan,
1657, 1663.
Granger v. Granger, 1326, 1336, 1481,
1482.
Grant v. Dyer, 1125.
Grant v. Lynam, 1253, 1262.
Grant v. Parham, 1190.
Grant v. Stimpson, 1680.
Grave v. Salisbury, 1068, 1072, 1073.
Gravenor v. Hallum, 1107, 1109.
Graves v. Dolphin, 1541, 1552.
Graves, Estate of, 1620, 1645, 1650.
Graves v. Hughes, 1060.
TABLE OF CASES OF VOLUME TWO.
[References are to pages.]
1729
Graves T. Mitchell, 1011.
Gray's Admr. v. Pash, 1226, 1289.
Gray v. Bailey, 1076, 1112, 1281.
Gray y. Gorbit, 1129.
Gray's Estate, In re, 1112.
Gray v. Henderson, 1170.
Gray t. Parks, 957.
Gray's Settlement, In re, 1248.
Gray v. West, 114;).
Gray t. Whittemore, 1679.
Gray v. Williams, 1181.
Graydon's Exr. v. Graydon, 1523,
1524, 1525, 1530.
Graydon t. Hicks, 1538.
Grayson t. Deakin, 1194.
Grayson v. Tyler's Admr., 1432.
Greatorex v. Gary, 1194.
Green's Appeal, In re, 1258.
Green v. Benham, 943.
Green v. Dunlop, 1163.
Green v. Dunn, 1127.
Green t. Green, 1676.
Green v. Hathaway, 1084.
Green t. Hewett, 933.
Green ▼. Howard, 1252.
Green v. Huntington, 1257.
Green v. Johnson, 1168.
Green v. Marsden, 1261, 1351, 1597.
Green v. Pigot, 1436.
Green v. Spicer, 1554, 1560.
Greene v. Dennis, 1126, 1130, 1656.
Greene T. Greene, 1150, 1548.
Greene v. Rathbun, 1158.
Greene ▼. Ward, 1409.
Greenwalt t. Keller, 1414.
Greenwood, In re, 1500.
Greenwood v. Cline, 886.
Greenwood v. Greenwood, 1013, 1168.
Greenwood v. Penny, 1184.
Greenwood v. Eothwell, 1378.
Greer v. Belknap, 1095.
Greet v. Greet, 1462.
Greifet v. Willman, 1358.
Gregg V. Coates, 1513.
Gregley v. Jackson, 964.
Gregory v. Edmondson, 1572.
II Com. on Wills — 55
Gregory v. Lansing, 1045, 1085.
Gregory v. Smith, 1261, 1262.
Gregson's Estate, In re, 1314.
Gretton v. Haward, 1185.
Greville v. Tylee, 899.
Grey v. Pearson, 1124.
Grey's Trusts, In re, 1233, 1234.
Gridley v. Andrews, 1158.
Gridley v. Gridley, 1503.
Grieve v. Grieve, 1339.
Grieves v. Rawley, 1259.
Griffin v. Graham, 1654.
Griffin v. Morgan, 1361.
Griffin v. Shepard, 1432.
Griffin v. Working Women's Home
Assn., 933.
Griffith ». Canning, 1211.
Griffith V. Derringer, 1329, 1342.
Griffith V. Diffenderflfer, 921.
Griffith's Lessee v. Woodward, 1124.
Griffith v. Plummer, 1328.
Griffiths v. Griffiths, 1466.
Grim's Appeal, In re, 1025, 1410.
Grimball v. Patton, 1496.
Grimes' Exrs. v. Harmon, 1656.
Grimes v. Shirk, 1324.
Grimshawe v. Pickup, 1125.
Grimshaw's Trusts, In re, 1442.
Grissell v. Swinhoe, 1180.
Griswold v. Greer, 1385, 1456.
Griswold v. Sawyer, 1257.
Groce v. Eittenberry, 1226.
Groesbeok v. Groesbeck, 943.
Grogan v. Ashe, 1057, 1058, 1081.
Grogan v. Garrison, 946.
Grose v. McMullens, 1140. '
Gross' Estate, In re, 1293.
Gross V. Sheeler, 1331.
Grosvenor v. Bowen, 1438. ^
Grote's Estate, 1521.
Grotenkemper v. Bryson, 1163.
Grout V. Townsend, 1372.
Grove, In re, 1233.
Grove's Trusts, In re, 1443.
Groves v. Cox, 1383.
Groves v. Wright, 1423.
1730
TABLE OV CASES OF VOLUME TWO.
[References are to pa^es.]
Grow V. Dobbins, 1138.
Gruenewald v. Neu, 1255, 1257, 1411.
Grumble v. Jones, 1480.
Grundmann v. Wilde, 912.
Guenther's Appeal, 1097.
Guesnard v. Guesnard, 1681.
Guillamore v. O 'Grady, 924.
Guitar v. Gordon, 1097, 1283.
Guliek's Exrs. v. Gulick, 1350.
Gulliver v. Ashby; 1504, 1509.
Gulliver v. Wickett, 1479.
Gully V. Exter, 1354.
Gully V. Gregoe, 1571.
Gumble v. Pfluger, 1658.
Gundry v. Pinniger, 1247, 1250.
Gunning's Estate, In re, 937, 1501.
Gurley v. Armentraut, 914.
Gurnee, Matter of, 992.
Gusler v. Miller, 1200.
Guthrie's Appeal, In re, 1323, 1327,
1333, 1336, 1337, 1343, 1375, 1388.
Guthrie v. Guthrie's Exr., 970.
Guthrie v. Price, 929.
Guy V. Sharp, 1012.
Gwin's Estate, In re, 941, 1182.
Gwynne v. Gell, 1162.
H
Habergham v. Eidehalgh, 1294.
Habershon v. Vardon, 937, 1632.
Hackney v. GrifBn, 1243, 1277.
Hackney v. Tracy, 1686.
Haddock v. Trotman, 924. '
Hadley v. Hopkins Academy, 1664.
Hadloek v. Gray, 1336.
Ilafer v. Hafer, 942.
Hagan v. Yates, 882.
Hagenmeyer v. Hanselman, 1631.
Hagenmeyer's Will, In re, 1631,
1658.
Hagger v. Payne, 1303.
Hahn v. Hutchinson, 1557.
Haight V. Eoyce, 1318, 1347, 1533,
1540, 1600.
Hailey v. McLauriu's Estate, 970,
989.
Haines v. Allen, 1626, 1641, 1643.
Hair v. CaldweU, 938, 1415.
Hair v. Goldsmith, 1190.
Hair v. Hair, 942.
Haldeman v. Haldeman, 1372, 1388.
Haldemau v. Oppenheimer, 1158.
Hale V. Hale, 1169, 1486, 1677.
Hale V. Marsh, 1415.
Hall's Estate, 888.
Hall 's Heirs v. Hall 's Exr., 868, 870.
Hall, In re, 1067, 1257.
Hall's Lessee v. Vandergrift, 1379,
1387.
Hall V. Bray, 1088.
Hall V. Brewer, 1138.
Hall V. David, 1440.
Hall v. Chaffee, 1381, 1385.
Hall v. Gradwohl, 1318.
Hall V. Goodwyn, 1346.
Hall V. Hall, 876, 878, 1198, 1199,
1210, 1237, 1300.
Hall V. Hankey, 1322.
Hall V. Harvey, 1103.
Hall V. Hill, 1194.
Hall V. Hancock, 1226, 1227, 1295.
Hall V. Marshall, 1214.
Hall V. Priest, 1369, 1379, 1381, 1384.
Hall V. Smith, 1026, 1112, 1181, 1209,
1288.
Hall V. Terry, 1115.
Hall V. Thayer, 1377.
Hall V. Tiifts, 1540, 1541, 1546.
Hallett V. Thompson, 1559.
Hallett, In re, 1223.
Hallifax v. Wilson, 1303, 1444.
Halliwell v. Tanner, 1153.
Hallowell's Estate, 1025.
Hallowell v. Phipps, 1222.
Halsey v. Gee, 1410.
Halsey v. Goddard, 1470, 1497, 1684.
Halsey v. Paterson, 1256.
Halstead v. Hall, 1313.
Halton V. Foster, 1248, 1249.
Hambling v. Lister, 1060.
Hamden v. Rice, 1620, 1624, 1641,
1642.
TABLE OF CASES OF VOLUME TWO.
[References are to pages.}
1731
Hamilton v. Hamilton, 1023, 1025.
Hamilton v. Smith, 908.
Hamilton v. Pitcher, 1386.
Hamilton v. Porter, 1159, 1160.
Hamlet v. Johnson, 1129.
Hamlett v. Hamlett's Exr., 1300.
Hamlin v. Osgood, 1096.
Hammond's Estate, Matter of, 1171.
Hammond v. Hammond, 1502.
Hanchman v. Attorney-Greneral, 1109.
Hancock, In re, 1215.
Hancox v. Abbey, 1150, 1151.
Hand v. Marcy, 1120, 1121, 1122,
1211.
Handberry v. Doolittle, 1299, 1300,
1301, 1898.
Handley t. Palmer, 1171.
Handley v. Wrightaon, 1253, 1254.
Handy v. McKim, 1326.
Hanes v. Central Hlinois Utilities
Co., 1337, 1338.
Hank v. McComas, 1217.
Hankin's Estate, 1401.
Hanley v. Drumm, 942.
Hanley v. Elansas etc. Coal Co., 1678.
Hanna v. Hawes, 1328.
Hanna's Appeal, In re, 1149, 1495.
Hannah v. Duke, 1464.
Hannigan's Estate, 880.
Hanrahan v. O 'Toole, 931.
Hansbrough's Exrs. v. Hooe, 1040.
Hansbrough v. Hoee, 1073.
Hansbrough v. Trustee of Presbyte-
rian Church, 1356.
Hansel V. Hubbell, 1380.
Hansford v. Elliott, 1312.
Hanson v. Graham, 1441.
Hanson v. Hanson, 939, 941.
Hapgood V. Houghton, 1512.
Haraden v. Larrabee, 1248.
Harcum's Admr. v. Hudwell, 1175.
Hard v. Ashley, 1011, 1111.
Hardage v. Stroops, 1342.
Hardaker's Estate, 1415.
Hardcastle v. Hardcastle, 1686.
Hardenburg v. Blair, 1557.
Hardin's Exr. v. Hardin, 1364.
Harding v. Glyn, 1253, 1304, 1570,
1590.
Harding's Admr. v. Harding's Exr.,
1179, 1195.
Hardy, In re (Wells v. Berwick),
1033.
Hardy v. Mayhew,' 1427.
Hardy v. Richards, 1198.
Hardy v. Scales, 1211.
Hare v. ferrisburg Congreg. Sec,
1466.
Hargreaves, In re, 1675.
Barker v. Eeilly, 1173.
Harker's Appeal, 1541.
Harkness v. Lisle, 1541, 1545.
Harlan v. Manington, 1324, 1325,
1328, 1329.
Harland's Estate, In re, 1127.
Harland v. Trigg, 1575, 1596, 1597.
Harley v. Harley, 1084.
Harlow v. Bailey, 1528.
Harmen v. Dickenson, 1409.
Harmon v. Brown, 1494, 1538.
Harp V. Parr, 918.
Harper's Appeal, In re, 1029.
Harper v. Archer, 950, 1226.
Harper v. Blean, 1348.
Harper v. Bibb, 970, 976, 986, 988.
Harper v. Phelps, 1575.
Harriman v. Harriman, 1654.
Harrington v. Pier, 1009, 1174, 1610.
Harris v. Berry, 1385.
Harris v. Carpenter, 1118, 1119.
Harris t. Davis, 1123, 1434.
Harris v. Fly, 1140, 1146, 1163.
Harris v. Harris' Estate, 1252.
Harris v. Ingledew, 1142.
Harris v. Newton, 1248, 1249.
Harris v. Philpot, 1277.
Harris v. Bhode Island Hospital
Trust Co., 1066, 1067.
Harris v. Smith, 1384, 1385.
Harris v. Watkins, 1145, 1146.
Harrison's Appeal, 924.
Harrison v. Brophy, 1630, 1631.
]732
*abijE of cases of volume two.
[References are to pages.]
Harrison y. Denny, 985, 989.
Harrison's Exr. v. Stockton's Exr.,
1421.
Harrison's Estate, In re, 1016, 1258,
1285.
Harrison v. Poote, 1396, 1509.
Harrison v. Harrison, 1182, 1497,
1501.
Harrison v. Harrison's Admr., 1574.
Harrison v. Jaekson, 1053.
Harrison v. Naylor, 1444.
Harrison v. Foreman, 1447.
Harrison v. Trader, 942.
Harrison v. Ward, 1249.
Harrison's Will, 875, 877, 878.
Hart V. Brewer, 1629.
Hart V. Brown, 979.
Hart V. Durand, 1230.
Hart V. Johnson, 1070.
Hart V. Middlehurst, 1032.
Hart V. Thompson's Admr., 1383,
1483.
Hart's Trusts, In re, 1441.
Hart V. Williams, 1158.
Hartland v. Murrell, 1145.
Hartley v. Tribber, 1231.
Hartop V. Whitmore, 1068.
Hartopp V. Hartopp, 1057.
Harvard College v. Balch, 1445.
Harvard College v. Theological Edu-
cation Society, 1657.
Harvey v. Aston, 1498.
Harvey, In re (Godfrey v. Harben),
1032.
Harvey v. SuUens, 899.
Harvey's Estate, In re, 1283, 1551.
Harvey v. Harvey, 1258, 1438.
Harvey v. Staeey, 1293, 1302.
Harwell v. Benson, 1465.
Harwood's Appeal, 1116.
Hascall v. Cox, 1242.
Hascall v. King, 1689, 1695
Haseldine, In re, 1231.
Haseltine v. Shepherd, 1529, 1530.
Haskell v. Sargent, 1272.
Haskins v. Spiller, 962.
Hassel v. Hassel, 1142.
Hastie's Trust, In re, 1229, 1232.
Hastilow v. Stobie, 928.
Hastings v. Engle, 1323, 1337.
Hatch V. Bassett, 1210.
Hatch V. Caine, 1412.
Hatch V. Ferguson, 1403.
Hatch V. Skelton, 1153.
Hatfield v. Pryme, 1296.
Hatfield v. Sohier, 1300.
Hattersley v. Bissett, 1085, 1179.
Haughton v. Harrison, 1304, 1434,
1479.
Haughton v. Haughton, 1523,
Havens v. Havens, 1210.
Havens v. Sackett, 1181, 1182, 1184.
Haverstick's Appeal, 1245.
Haward v. Peavey, 1172.
Hawes v. Humphrey, 1086.
Hawhe v. Chicago & W. I. E. Co.,
957.
Hawkes v. Enyart, 1507.
Hawkins v. Everett, 1297.
Hawkins v. Hansen, 1489.
Hawkins v. Hawkins, 1152.
Hawkins v. Skeggs' Admr., 1494.
Hawksworth v. Hawksworth, 993,
1126.
Hawley v. Bradford, 1214.
Hawley v. James, 1678.
Hawley v. Northampton, 1346, 1376,
1379, 1480.
Haworth's Appeal, In re, 1160.
Haws v. Haws, 1310.
Hayden v. Barrett, 1228, 1235.
Hayden v. Connecticut Hospital foi
Insane, 1640.
Hayden v. Stoughton, 1129, 1504.
Haydock's Exrs. v. Haydock, 871.
Hayes, Estate of, 936.
Hayes v. Hayes, 1054, 1581.
Hayes v. King, 1280.
Hayes v. Martz, 1363.
Hayes v. Seaver, 1026.
Hayes v. Seavey, 938, 939.
Hayes v. Pratt, 1640.
TABLE OiP CASES OP VOLUME TWO.
[References are to pages.]
1733
Hayes v. Welling, 1046.
Hayes v. West, 917.
Hayes v. Whitall, 993.
Haynes v. Carr, 1607.
Haynie v. Dickens, 1199, 1209.
Haynsworth v. Pretty, 1136.
Hays V. Harris, 1581, 1590.
Hays V. Jackson, 1137, 1158.
Hayton's Trust, In re, 1409.
Hayward v. Howe, 1379.
Hayward v. Loper, 1068.
Haywood v. Shreve, 1456.
Heald v. Heald, 1095, 1684.
Healey v. Toppan, 1423, 1424, 1425.
Healy v. Eastlake, 1411.
Heard v. Horton, 1241, 1246, 1536.
Heater v. Van Auken, 1228, 1231.
Heath v. Bancroft, 1276.
Heath v. Bishop, 1562.
Heath v. Dendy, 1029.
Heath v. McLaughlin, 1021, 1023.
Heath v. Perry, 1464.
Heath v. White, 964.
Heathe v. Heathe, 1291.
Heather v. Winder, 1369, 1378.
Heatherington v. Lewenberg, 990,
1158.
Heaton's Estate, In re, 1430.
Heberle, Estate of, 1554.
Hebert v. Handy, 1163.
Heberton v. McClain, 1440.
Heck V. Clippenger, 1262.
Hedderieh v. Hedderich, 959.
Hedge's Trusts, In re, 1143.
Hedgman, In re, 1650.
Heffner v. Knepper, 1383.
Heifferieh v. Heifferich, 1414.
Height's Will, In re, 1534.
Heilman v. Heilman, 1432, 1466.
Heisler v. Sharp, 1066.
Hcisse V. Markland, 1298.
Helm T. Frisbie, 1336.
Helm V. Leggett, 1529.
Heming v. Clutterbuck, 1012.
Hemsley v. HoUingsworth, 1096.
Henagan v. Harllee, 1166.
Henchman v. Attorney-General, 1107.
Henderson v. Atkins, 1162.
Henderson, In re, 1255.
Henderson v. Green, 1000, 1216.
Henderson v. Harness, 1541.
Henderson v. Henderson, 990, 996,
1321, 1343, 1684.
Henderson v. Vaulx, 1424, 1427.
Hennessy v. Patterson, 1271, 1326,
1455.
Henning v. Vamer, 999.
Henry County v. Winnebago Swamp
Drainage Co., 1641.
Henry v. Carr, 1679.
Henry v. Griffis, ,1035.
Henry v. Henry, 1061.
Hensman v. Fryer, 983, 1024.
Henvell v. Whitaker, 1145.
Heptinstall v. Gott, 1109.
Herbert's Guardian v. Herbert's
Exr., 1355.
Herbert v. Post, 1115.
Herbert's Trusts, In re, 1229, 1230.
Herbert v. Wren, 1193, 1203.
Herd v. Catron, 1531.
Herkimer v. McGregor, 1067.
Herman's Will, 867, 871, 905, 909,
910, 911, 921, 925, 931.
Herneiseu v. Blake, 1273.
Heron v. Heron, 1029.
Heron v. Stokes, 1389.
Heroy v. German Catholic Church,
1147.
Herr's Estate, 872.
Herr's Estate, In re, 931.
Herrick v. Franklin, 1331.
Herring v. Wickham, 948.
Herring v. Watson, 932.
Herrington v. Budd, 1089.
Hersee v. Simpson, 1459.
Hershey v. Meeker County Bank,
1416.
Herstor v. Hcrster, 868, 883, 904,
905, 906.
Hertz V. Abrahams, 1371, 1378, 1380,
1881.
1734 TABLE OP CASES
[References
Hervey-Bathnrst v. Stanley, 1493.
Heseltine v. Heseltine, 1055.
Heaketh v. Magennis, 1311.
Hesketh v. Murphy, 1626, 1654.
Heslet V. Heslet, 981.
Hess' Will, 868, 870, 871, 874, 875,
878, 880, 890, 891, 896, 902, 905,
906, 912, 917, 932.
Hess V. Hess, 1322.
Hess V. Singler; 1585, 1594, 1598.
Hessig V. Hessig's Gruardian, 1140.
Hester v. Hester, 919.
Hetherlngton v. Oakman, 1124.
Heuser v. Harris, .1625, 1667.
Hewes v. Dehon, 1151.
Hewitt, Estate of, 1638.
Hewitt V. Cox, 1214.
Heyes v. Moerlein, 1029.
Heywood v. Heywood, 1691.
Hibbert v. Hibbert, 1253, 1254.
Hibbits V. Jack, 1494.
Hibler v. Hibler, 1027, 1115.
Hickling v. Fair, 1440.
Hicks V. Boss, 990.
Hicks V. Skinner, 944.
Hicks V. Smith, 1234.
Hiester v. Yerger, 1375.
Higginbotham v. Comwell, 1192,
1216.
Higgins Estate, 872, 878, 900.
Higgins V. Waller, 1433.
High's Estate, In re, 1133.
High V. Worley, 1170.
Hileman v. Bouslaugh, 1336.
Hilford V. Way, 1158.
Hill V. Bahrns, 918, 1621.
Hill V. Bloom, 1078.
Hill V. Bowers, 1272.
Hill V. Cornwall & Bros. Assignee,
1197.
Hill V. Crook, 1229, 1230, 1231, 1233.
Hill V. Downes, 1540.
Hill V. Gianelli, 1405, 1411.
Hill V. Gray, 1542.
Hill V. Harding, 975.
OP VOLUME TWO.
are to pages.]
Hill V. Hill, 960, 1202, 1204, 1270,
1273, 1481.
Hill V. Moore, 1163, 1164.
Hill V. Page, 1253, 1574.
Hill V. Safe Deposit Co., 1308.
Hill V. Spruill, 1277.
Hill V. Toms, 1051.
Hill's Admr. v. Grizzard, 1163.
Hillen v. Iselin, 1677.
Hillis V. Hillis, 1108.
Hills V. Wirley, 1109.
Hillsdale College Trustees v. Wood,
1589.
Hillyard v. Miller, 1608, 1669, 1670,
1689, 1696.
Hilton V. Hilton, 1173.
Hinchman v. Stiles, 1214.
Hinkle's Appeal, In re, 1354, 1355,
1358, 1414, 1466.
Hinkle v. Hinkle, 947.
Hinckley's Estate, 1115, 1127, 1647.
Hinkley v. House of Kefuge, 1216,
1218.
Hinckley v. Thatcher, 1625, 1638.
Hinson v. Ennis, 1212.
Hinton v. Milburn's Exrs., 1245.
Hinton v. Pinke, 979.
Hippesley v. Homer, 924.
Hiscoe, In re, 995.
Hitchcock V. Board of Home Mis-
sions, 1638.
Hitchcock V. Clendennin, 1420.
Hitchings v. Wood, 899.
Hite, Estate of, 1213, 1217, 1220,
1230, 1512.
Hittell, Estate of, 1286, 1287.
Hoadley v. Beardsley, 1690, 1695.
Hoare v. Osborne, 1222, 1287.
Hoath V. Hoath, 1443.
Hobgen v. Neale, 1237. .
Hobson V. Hale, 1169, 1693.
Hobson V. Hnxtable, 1450.
Hobson v. Lower, 1414.
Hobson V. Moorman, 921, 922.
Hobson V. Trevor, 943.
Hoch's Estate, In re, 1274.
TABLE OF CASES OP VOLUME TWO.
[References are to pages.]
1735
Hoehstedler v. Hochstedler, 1336,
1343.
Hoekensmith v. Slusher, 956, 959.
Hooker v. Gentry, 1170.
Hockley v. Mawbey, 1378.
Hodges V. Isaac, 1291.
Hodges ' Legacy, In re, 1504.
Hodges V. Peacock, 1015.
Hodgin V. Toler, 1168.
Hodgman's Estate, In re, 989, 1210.
Hodgson, In re, 1032.
Hodgson V. Halford, 1511, 1525.
Hodgson V. Eawsou, 1162.
Hodgson V. Shaw, 1137.
Hoeffer v. Clogan, 1630, 1631.
Hoes V. Van Hoeson, 1150.
Hoff's Appeal, In re, 1152, 1154.
Hoff's Estate, In re, 1270.
Hoffman v. Beltzhoover, 1566, 1567.
Hoffman v. Cronwell, 1016.
Hoffman v. Hoffman, 871.
Hoffman's Will, In re, 1008, 1109.
Hoffman v. Wilding, 1137.
Hofsas V. Cummings, 1554.
Hogan V. Curtin, 1524.
Hogan's Heirs v. Hogan 's E'xr.,
1127.
Hogan V. Jackson, 1352.
Hogeboom v. Hall, 1490, 1508.
Hogg v. Cook, 1259.
Hogg V. Jones, 1460.
Hoggard v. Jordan, 1201, 1203.
Hohman, In re, 1503.
Hoit V. Hoit, 1518.
Hoke V. Herman, 1059.
Holbrook's Estate, In re, 1496, 1522,
1527, 1529.
Holbrook v. Harrington, 1113, 1282.
Holbrook v. Holbrook, 1430.
Holbrook v. McCleary, 1126.
Holcomb V. Lake, 1312.
Holden v. Wells, 1472.
Holder v. Holder, 1587.
Holdich v. Holdich, 1194.
Holford V. Wood, 1013.
Holland v. Alcock, 1630, 1632, 1668.
Holland v. Cruft, 1374.
Holland v. Peck, 1609, 1658.
Hollander v. Central Metal & Supply
Co., 1670, 1678.
Holliday v. Divon, 1353.
Hollinrake v. Lister, 1505.
HoUis V. Drew Theological Seminary,
1618, 1619.
HoUister, In re, 1512.
Hollister v. Shaw, 1016.
Holloway v. Clarkson, 1256.
HoUoway v. Holloway, 1251.
Holloway v. Eadcliffe, 1256, 1257.
Hollowell V. Kornegay, 1685.
Hollyday v. HoUyday, 1017.
Holman, Appeal of, 1423.
Holman v. Price, 1279.
Holman 's Will, 873, 874.
Holme V. Shinn, 1305.
Holmes v. Holmes, 1075.
Holmes v. Mackenzie, 1002.
Holmes v. Williams, 1348, 1473.
Holt V. Holt, 1517.
Holt V. Pickett, 1396.
Holt V. Eice, 1204.
Holt V. Sindrey, 1231.
Holt V. Wilson, 946.
Holyand v. Lewin, 1096.
Homer v. Gould, 1444.
Homer v. Landis, 992.
Home V. Pillans, 1268, 1384.
Hone's Trusts, In re, 1099.
Hone V. Van Schaick, 1222, 1226,
1227.
Honywood v. Forster, 1183.
Hood V. Bramlett, 1416.
Hood V. Dawson, 1353.
Hood V. Oglander, 1575.
Hook V. Eigers, 1293.
Hooley v. Hatton, 1010, 1013, 1014,
1016.
Hooper v. Bradbury, 1484.
Hooper v. Hooper, 1113, 1282, 1689.
Hooper v. Smith, 1398.
Hoopes V. Dundas, 1526.
Hoopes' Estpte, 1409.
1736
TABLE OF CASES OF VOIvUME TWO.
[References are to pages.]
Hoover v. Hoover, 1160.
Hoover v. Smith, 1243.
Hoover v. Strauss, 1338, 1339.
Hope V. Wilkinson, 1140.
Hopkins v. Crossley, 1606, 1609, 1658.
Hopkins v. Grimshaw, 1689, 1647,
1677.
Hopkins v. Giunt, 1586.
Hopkins v. Hopkins, 1671.
Hopkins v. Keager, 1398.
Hopkins v. Keazer, 1361, 1362, 1396.
Hopkins' Trusts, In re, 1239, 1429.
Hopper V. Sellers, 905, 907.
Hoppock V. Tucker, 1288, 1386.
Horah v. Knox, 904.
Horlock, In re, 1062.
Horn V. Foley, 1360.
Horn V. Pullman, 910.
Hornberger v. Miller, 1290.
Hornby, In re, 1286.
Home V. Lyeth, 1330, 1343.
Horner's Exr. v. McGaughy, 1063,
1065, 1066.
Hornsey v. Casey, 1209.
Horridge v. Ferguson, 1123.
Horsey 's Lessee v. Horsey, 1492.
Horsley v. Chaloner, 1291.
Horsley v. Hilburn, 1373.
Horton v. Earle, 1102, 1111, 1121.
Horton v. Troll, 963.
Horton v. Upham, 1380.
Hosea v. Jacobs, 1677, 1682.
Hosea v. Skinner, 1051.
Hosford v. Eowe, 942.
Hoshauer v. Hoshauer, 927.
Hoskins v. Hoskins, 1074.
Hoss V. Hoss, 1489, 1497, 1501.
I-Iosser's Succession, 963.
Hotham v. Somerville, 1551.
Houohens' Guardian v. Houchens,
1395.
Hough's Estate, In. re, 1526.
Houghteling v. Stockbridge, 994.
Houghton V. Kendall, 1225, 1274.
Houser v. Ruffner, 1425.
Ilovey V. Dary, 1129.
Hovey v. Hovey, 1199.
Howard v. American Peaee Soc,
1608, 1625.
Howard v. Carusi, 1355, 1356, 1357
1542, 1587.
Howard v. Collins, 1311.
Howard v. Howard, 1564.
Howard v. Howard's Admrs., 1277.
Howard v. Trustees, 1281.
Howard v. Watson, 1186, 1187.
Howard v. Wheatley, 1512.
Howarth v. Dewell, 1589.
Howarth v. MUls, 1233.
Howbert v. Cauthorn, 1313, 1457.
Howe V. Earl of Dartmouth, 982.
Howe V. Fuller, 1362.
Howe Lumber Co. v. Parker, 1209.
Howe V. Gregg, 1396.
Howe, Goods of, 1265.
Howe V. Hodge, 1678, 1685.
Howe V. Kern, 1155.
Howe V. Wilson, 1654.
Howel V. Hanforth, 996.
Howell V. Barden, 919.
Howell V. Gifford, 1244, 1257.
Howell V. Taylor, 875.
Howell V. Tyler, 964, 1235, 1271,
1273.
Howland v. Slade, 12G0, 1283, 1284.
Howse V. Chapman, 1626, 1642.
Howze V. Mallett, 1046.
Hoxie V. Chamberlain, 1356.
Hoxsey v. Hoxsey, 1356.
Hoxton V. Grifath, 1272, 1273.
Hoyle V. Jones, 1386.
Hoyt V. Hoyt, 1158.
Hubbard v. Hubbard, 882, 1029.
Hubbard v. Lloyd, 1297.
Huber's Appeal, In re, 1343.
Hudson V. Wadsworth, 1382, 1385,
1450, 1457.
Hughes V. Boyd, 1531.
Hughes V. Cannon, 1453.
Hughes V. Fitzgerald, 1581, 1589.
Hughes V. Hughes, 962, 1224, 1226,
1437.
TABLE OF CASES OP VOLUME TWO.
[References are to pages.]
1737
Hughes V. Knowlton, 1228.
Hughes V. Meredith, 902.
Hughes v. Murtha, 889..
Hughes V. Nicklas, 1330.
Hughoy V. Eiehelberger, 1078.
Huidekoper v. Douglas, 1500.
Hulburt V. Emerson, 1314.
Hulin V. Squires, 1003, 1004, 1009,
1111.
Hull y. Bealls, 1324, 1336.
Hulme V. Hulme, 1447.
Hulton's Estate, In re, 1142.
Humberstone v. Stanton, 1116, 1478.
Humble v. Shore, 1111.
Hume V. Randall, 1416.
Hume V. Edwards, 1024.
Humes v. Wood, 1023.
Humphries v. Davies, 1236.
Humphries v. The Little Sisters,
1624.
Humphrey v. Eobinson, 970.
Humphrey v. Tayleur, 1113.
Humphreys v. Humphreys, 1048,
1054, 1061.
Hunt's Appeal, In re, 1169.
Hunt's Estate, In re, 1285.
Hunt V. Evans, 1204.
Hunt V. Fowler, 1626.
Hunt V. Hunt, 964, 1125, 1589, 1592.
Hunt V. Moore, 1437.
Hunter v. Attorney-General, 1652.
Hunter v. Hunter, 1189.
Hunter v. Judd, 1463.
Hunter v. Stembridge, 1571, 1597.
Hunter's Trusts, In re, 1443.
Huntington v. Jones, 1553.
Huntress v. Place, 1271.
Hurlburt v. Emerson, 1247.
Hurst V. Beach, 1014, 1016.
Hurst V. Hurst, 1558.
Hurt Y. Brooks, 1362.
Hussey v. Berkeley, 1223.
Hussey v. Castle, 945.
Hussey v. Sargent, 1689.
Huston V. Bead, 1111.
Hutcheon v. Mannington, 1441, 1445.
Hutcheson v. Hammond, 1110.
Hutchings v. Davis, 1168, 1174.
Hutchinson v. Fuller, 981.
Hutchinson, In re, 1262, 1357.
Hutchinson, Succession of, 1589.
Hutchinson and Tenant, In re, 1572,
1589, 1598.
Hutson V. Dodge, 1421.
Hutton V. Simpson, 1092.
Huxford V. Milligan, 1360, 1361.
Hyde v. Baldwin, 1203, 1512, 1518.
Hyde's Exrs. v. Hyde, 1608.
Hyde v. Woods, 1562.
Ibbetson v. Beckwith, 1351.
Ibbitson, In re, 1172.
limas V. Neidt, 1362.
Hlinois Christian Missionary Soc. v.
American Christian Missionary
Soc, 1547.
Inderwick v. Tatchell, 1313.
IngersoU v. Ingersoll, 1484.
Ingersoll's Appeal, 1381.
Inglis V. Sailors' Snug Harbor, 1647,
1648.
Ingraham v. Ingraham, 1606, 1640.
Ingram v. Praley, 1576.
Ingram v. Smith, 1246.
Ingram v. Wyatt, 899.
Innes v. Johnson, 970, 976.
Inness v. Mitchell, 1024, 1033.
Ion V. Ashton, 1144, 1150.
Irby V. McCrae, 995.
Iredell v. Iredell, 1298.
Ireland v. Parmenter, 1243.
Irish v. Smith, 1266.
Ironmonger's Co. v. Attorney-Gen-
eral, 1666.
Irvine v. Irvine, 1347, 1363, 1366.
Irvine v. Putnam, 1359.
Irwin's Succession, 1059.
Isaac V. Gompertz, 1661.
Isaacson v. Webster, 1443.
Iseman v. Myres, 1131.
1738
TABLE OF CASES
[References
Isler V. Isler, 1180, 1183.
Ison V. Halcomb, 1139.
Ivin's Appeal, In re, 1264,
Izon V. Butler, 1106.
Jackson, In re, 1520.
Jackson v. Alsop, 1121.
Jackson v. Blanshan, 1483.
Jackson v. Bull, 1354, 1359, 1369.
Jackson v. Chew, 1308, 1383.
Jackson v. Embler, 1346.
Jackson v. Hardin, 874, 878.
Jackson v. Housel, 1347.
Jackson v. Hurloek, 1107, 1109.
.Tackson f. Jackson, 885, 1239, 1438.
Jackson v. Kniffen, 917.
Jackson v. Martin, 1394.
Jackson v. Pease, 1020, 1025.
Jackson v. Phillips, 1458, 1620, 1624,
1630, 1632, 1641, 1645, 1650, 1654,
1655, 1661, 1662, 1695.
Jackson v. Robins, 1357, 1358, 1414.
Jackson v. Schutz, 1545.
Jackson v. Staats, 1482.
Jackson v. Westerfield, 1517, 1518,
1519.
Jackson v. Wight, 1490, 1508.
Jackson v. Winne, 1440.
Jacobs V. Amyatt, 1378.
Jacobs V. Jacobs, 1242, 1274.
.Jacobs V. Prescott, 1261.
James v. James, 1129, 1130.
James v. Hanks, 1173.
James v. Smith, 1259.
Jameson v. Jameson's Admx., 1311.
Jamison v. Craven, 1361.
Jamison v. Hay, 1097, 1281, 1283.
Janney v. Sprigg, 1122.
Jaqties v. Swasey, 1071.
.Jarboe v. Hey, 1244.
Jauretche v. Proctor, 1545.
Joffery v. Honywood, 1386.
Jenkins v. Freyer, 1293, 1302.
OF VOLUME TWO.
are to pages.]
Jenkins v. Hall, 1390.
Jenkins v. Hughes, 1377, 1387.
Jenkins v. Horwitz, 1507.
Jenkins v. Jenkins, 1236.
Jenkins v. Jones, 1054.
Jenkins v. Powell, 1068, 1072.
Jenkins v. Van Schaack, 1495.
Jenner v. Turner, 1525.
Jennings v. Conboy, 1356.
Jennings v. Jennings, 1185, 1215.
Jennings v. Smith, 1210.
Jenour v. Jenour, 1311.
Jersey v. Jersey, 1093, 1282.
Jervis v. Bruton, 1370.
Jesson V. Wright, 1336.
Jewell V. Appolonio, 980.
Jewett V. Berry, 1495.
Jewett V. Feldheiser, 1214.
Jewett V. Jewett, 997, 1293.
Jodrell, In re, 1229.
John V. Bradbury, 1356.
John V. Smith, 1657.
John's Estate, In re, 1657, 1658.
John's Will, In re, 1649.
Johns Hopkins University v. Garrett,
1351, 1365.
Johnson v. Askey, 1244.
Johnson v. Baker, 1439.
Johnson v. Ballou, 1280.
Johnson v. Beldon, 1067, 1081, 1084.
Johnson v. Brasington, 1237.
Johnson v. Brown, 915.
Johnson v. Champion, 1257.
Johnson v. Chapman, 1036.
Johnson v. Child, 1033.
Johnson v. Clarkson, 1628.
Johnson v. Conover, 985, 989.
.Johnson v. Cushing, 1032.
Johnson v. Edmond, 1257, 1676,
1677.
Johnson, Estate of, 1676.
Johnson v. Parrell, 1158.
Johnson v. Folsom, 1104.
Johnson v. Foulds, 1504.
Johnson v. Goss, 976, 980, 1151,
1210.
TABLE OF CASES
[References
Johnson v. Holifleld, 1110, 1133,
1639.
Johnson v. Johnson, 931, 1098, 1117,
1211, 1356, 1372, 1411, 1419, 1668.
Johnson v. Mayne, 1638.
Johnson v. Negro Lish, 1686.
•Johnson v. Patterson, 1072.
Johnson v. Poulson, 1158.
Johnson v. Preston, 1542, 1548, 1678.
Johnson v. Keed, 1493.
Johnson v. Valentine, 1305.
Johnson v. Washington Loan & Tr.
Co., 1114, 1115, 1294, 1459.
Johnson v. Whiton, 1366.
Johnson's Appeal, In re, 1236.
Johnson's Trustee v. Johnson, 1219.
Johnston, Estate of, 1682.
Johnston v. Duncan, 1200.
Johnston v. Knight, 1277.
Johnston v. Spicer, 943.
Johnston v. Swann, 1627.
Johnstone, In re, 1059.
Johnstone v. Taliaferro, 1228.
Jonas V. Weires, 1458.
Jones' Appeal, In re, 1300, 1301.
Jones V. Bacon, 1357, 1360, 1541.
Jones V. Badley, .1602.
Jones V. Bramblet, 1501.
Jones V. Bruce, 1150.
Jones V. Caldwell, 1168, 1172.
Jones V. Collier, 1194.
Jones V. Creveling's Eirs., 1013.
Jones V. Doe, 1406.
Jones V. Evans, 1429.
Jones' ExTS. v. Stites, 1387, 1394.
Jones Estate, In re, 1112, 1163, 1266.
Jones V. Gane, 1007, 1008.
Jones V. Gerock, 1208.
Jones V. Godrich, 873, 903.
Jones V. Green, 1060.
Jones V. Habersham, 1445, 1500,
1527, 1606, 1618, 1627, 1649, 1651,
1653, 1659, 1681.
Jones V. Hensler, 1099.
Jones V. Hunt, 1283.
OF VOLUME TWO.
are to pages.]
1739
Jones V. Jones, 1096, 1182, 1211,
1318, 1374, 1414, 1497, 1501, 1507,
1524.
Jones V. Kelly, 1173.
Jones V. Knappen, 1215, 1216, 1217,
1218.
Jones V. Leeman, 1357.
Jones V. Lloyd, 1210, 1243.
Jones V. Mackilwain, 1461.
Jones V. Mason, 1058, 1072.
Jones V. Massey, 1433.
Jones V. Miller, 1336, 1473.
Jones V. Mitchell, 1109, 1126.
Jones V. Port Huron Engine & T.
Co., 1542.
Jones V. Eees, 1321, 1322, 1331.
Jones V. Sothoron, 1369.
Jones V. So^thall, 1095.
Jones V. Suffolk, 1538.
Jones V. Watford, 1657, 1666.
Jones V. Williams, 1621, 1626, 1642,
Jordan v. Adams, 1336.
Jordan v. Holkham, 1530.
Jordan v. James Dunn & Ontario
Loan etc. Co., 1507.
Jordan v. Eoach, 1372.
Jordan's Admr. v. Bichmond Home,
998.
Jordan v. Universalist etc. Trustees,
1634.
Joseph V. TJtitz, 1441.
Josetti V. McGregor, 1343.
Jossey V. White, 1394.
Jourolmon v. Messengill, 1557, 1563.
Joy, In re, 1646.
Judd V. Judd, 1466.
Judd V. Pratt, 1181.
K
Kaiser v. Brandenburg, 981.
Kakuska v. Eoubyk, 1149, 1156,
1159.
Kalbach v. Clark, 1430.
Kalbfleisch v. Kalbfleisch, 1290.
Kamp's Exr. v. Hallenberg, 1115.
1740
TABLE OF CASES OF VOLUME TWO.
[References are to pages.]
Kane's Estate, In re, 1348.
Kansas City Land Co. v. Hill, 1305.
Kasey v. Fidelity Trust Co., 1674.
Katlian's Will, In re, 1498, 1514,
1519.
Kauffman v. Gries, 1572.
Kaufman's Est., 872.
Kavanaugh, In re, 1630, 1632.
Kavanaugh v. Morland, 1378, 1379.
ICayhart v. Whitehead, 1513.
Kean's Lessee v. Hoffecker, 1277.
Kean's Will, In re, 1086.
Kearney v. Gruikshank, 990, 996.
Kearney v. Kearney, 1402.
Kearney v. St. Paul Missionary See.,
1095.
Kearna v. Kearns, 975, 981.
Kearsley v. Woodcock, 1561.
Keegan's Estate, 873.
Keeler v. Lauer, 940.
Keelin v. Brown, 1145.
Keeling v. Smith, 1539.
Kehoe v. Wilson, 1629.
Keim's Appeal, 1338, 1387.
Keller v. Lees, 1306.
Kelley v. Hogan, 1484.
Kelley v. Kelley, 1126.
Kelley v. Snow, 940.
Kelley v. Vigas, 1243, 1274, 1278.
Kelly V. Kelly, 1267.
Kelly V. Nichols, 1623, 1639, 1640.
Kelly V. Eiohardson, 973, 983, 985,
1000.
Kelly V. Stinson, 1407.
Kelso V. Lorillard, 1311.
Kelty V. Burgess, 893.
Kemp, Estate of, 1001, 1002.
Kemp V. Haynes, 1509.
Kemp V. Kemp, 1356.
Kempton, In re, 1210.
Kenaday v. Sinnott, 970, 971, 972,
974, 985, 1041, 1044, 1054.
Kendall v. Granger, 1655.
Kendall v. Kendall, 1355, 1411.
Kenebel v. Scrafton, 1229.
Keniston, In re, 1412.
Keniston v. Adams, 1122.
Keniston v. Mayhew, 1248.
Kennard v. Kennard, 1457, 1460.
Kennedy v. Alexander, 1413.
Kennedy v. Badgett, 1069.
Kennedy v. Kennedy, 945, 1373.
Kennedy v. Nedrow, 1186, 1191,'
1199.
Kennedy v. Upshaw, 916, 933.
Kennell v. Abbott, 1107, 1109.
Kennon v. McKoberts, 1132.
Kenny, In re, 1638.
Kent V. Armstrong, 1473, 1474.
Kent V. Barker, 963, 964.
Kent V. Kent, 1102, 1127, 1281.
Kent V. Morrison, 1412.
Kentish v. Kentish, 1142.
Kenyon v. See, 1436.
Keplinger v. Keplinger, 1365, 1394,
15.70, 1579.
Kepple's Appeal, In re, 1353.
Ker V. Wauehope, 1185.
Kerlin's Lessee v. Bull, 1436.
Kerngood v. Davis, 1274.
Kerr v. Bryan, 1361, 1385.
Kerr v. Dougherty, 997, 1131.
Kerr v. Middlesex Hospital, 994.
Kerrigan v. Leonard, 903.
Kerrigan v. Tabb, 1631.
Kessinger v. Kessinger, 892.
Kessner v. Phillips, 1542, 1564.
Kesterson v. Bailey, 1326.
Ketchum v. Stearns, 873.
Ketchum v. Walsworth, 1211.
Keteltas v. Keteltas, 1264.
Key V. Jones, 1215.
Key V. Key, 1116, 1352.
Key's Estate, 1331.
Keyes v. Northern Trust Co., 1G83.
Kibler's Admx. v. Whitcman, 1440.
Kidder's Exrs. v. Kidder, 953.
Kidney v. Coussmaker, 1156, 1157,
1195, 1199.
Kilborn's Will, 878, 883, 931.
Kilgore v. Kilgore, 1305.
Killam v. Allen, 1689.
TABLE OF CASES OF VOLUME TWO.
[References are to pages.]
1741
Kilpatrick v. Johnson, 1694.
Kimball v. Crocker, 1689, 1690, 1696.
Kimball v. Story, 1010, 1121, 1122,
1254.
Kimberley v. Tew, 1447.
Kimberly, Matter of, 1286.
Kimbro v. Johnston, 1271.
Kindberg's Will, In re, 900, 931.
Kindig V. Smith, 1125.
King, In re, 1281.
King V. Beek, 1322, 1336, 1369.
King V. Burchell, 1377, 1378, 1481.
King V. Byrne, 953, 955.
King V. Cleaveland, 1256.
King V. Cotton, 1687.
King V. Crawford, 1115.
King V. Deal, 1384.
King V. Denison, 1160.
King's Estate, In re, 1281, 1289.
King V. Evans, 1342.
King V. Frick, 1270.
King V. GUson, 884.
King V. Grant, 1494.
King V. Gridley, 1034, 1503.
King V. Isaacson, 1439.
King V. Johnson, 1334.
King V. King, 1365, 1461.
King, Matter of, 972, 980, 1781.
King V. MelUng, 1321, 1377, 1387.
ICing V. Miller, 1366.
King V. Phillips, 1402.
King V. Savage, 1239, 1240, 1375.
King V. Scoggin, 1117.
King V. Thissell, 963, 964.
King V. Withers, 1296.
King V. Woodhull, 1009, 1131.
Kingman v. Winchell, 1564.
Kingsland v. Leonard, 1226.
Kingsland v. Eapelye, 1377.
Kingsley v. Broward, 1450, 1451.
Kinleside v. Harrison, 870.
Kinnaird v. Williams' Admr., 1215.
Kinnan v. Card, 1294.
Kinnard v. Daniel, 947.
Kinney v. Kinney's Exr., 1608.
Kinsella v. Caffrey, 1409.
Kirby'S Estate, 1337.
Kirehner v. Earchner, 1216.
Kirk V. Cashman, 1222.'
Kirk V. Eddowes, 1082.
Kirk's Estate, In re, 1030.
ICirk V. Eurgerson, 1372, 1381.
Kirk V. Richardson, 1348.
Kirk V. Woodford, 1081.
Kirkholder's Estate, In re, 1513,
1519, 1522.
Kirkpatrick v. Bedford, 1015.
Kirkpatrick v. Jenkins, 922.
Kirkpatrick v. Kirkpatrick, 1413.
Kirkpatrick v. Rogers, 1144, 1228.
Kise V. Heath, 883, 886.
Kis'er v. Kiser, 1330.
Kitehell v. Beaeh, 883, 923.
Kletsehka v. Kletschka, 884.
Kline's Appeal, In re, 1031.
Kling V. Williams, 908.
Klumpert v. Vrieland, 1657, 1661.
Knapping v. Tomlinson, 1688.
Knecht's Appeal, In re, 1028.
Knefler v. Shreve, 1588.
Knight V. Boughton, 1575.
Knight V. Cameron, 1441.
Knight V. Ellis, 1369.
Knight V. Knight, 1246, 1443, 1574,
1575.
Knight V. Selby, 1354.
Knight V. Thompson, 1464.
Knight's Estate, 1621.
Knightley v. Knightley, 1144.
Knotts v. Bailey, 1158.
Knotts V. Stearns, 950.
Knowlton v. Sanderson, 1441.
Knox, In re, 1510, 1525.
Knox V. Jones, 1684.
Knox V. Knox, 1578, 1595. '
Knox V. Knox's Exrs., 1640.
Knox V. Wells, 1466.
Koenig's Appeal, In re, 1353.
Koep V. Koep, 1200.
Kohler, In re, 990, 992, 993.
Kolb V. Landes, 1670, 1675.
Kolmer v. Miles, 1373, 1374.
1742
TABLE OF CASES OP VOLUME TWO.
[References are to pages.]
Konvalinka T. Schlegel, 1182, 1187,
1191, 1192.
Korf V. Gerichs, 1354.
Kountz' Estate, 1455, 1470, 1G86.
Kronshage v. Varrell, 1628.
Kunkel v. Macgill, 985.
Kurtz V. Wiechmann, 1361.
Kuster v. Yeoman, 959.
Kyle v. Conrad, 1077, 1078.
Labarre v. Hopkins, 1529, 1533.
Laoey, In re, 1273.
Laohland 'a Heirs v. Downing 's Exrs.,
1273, 1279, 1340, 1387.
Lackawanna Iron & Coal Co.'s Peti-
tion, In re, 996.
Lackland v. Walker, 1628, 1642,
1667.
Lacy V. Anderson, 1178.
Ladd's Estate, In re, 1016.
Ladd V. Harvey, 1381, 1384.
Ladd V. Ladd, 973, 980.
Laguerenne's Estate, 1118.
Laird's Appeal, 1226.
Lake v. Copeland, 970, 983.
Lamar v. Crosby, 1226, 1227.
Lamb v. Lamb, 919, 1127.
Lamb v. Lamb (Lamb v. Forsyth),
1133.
Lamb v. Lippincott, 913.
Lambe v. Drayton, 1451, 1474.
Lambe v. Eames, 1261, 1336, 1572,
1573.
Lambe v. Parker, 1089.
Lambert v. Morgan, 1171.
Lampert v. Haydel, 1557, 1563, 1564,
1565.
Lamphier v. Despard, 1150.
Lancaster v. Flowers, 1531.
Lance v. Aglionby, 1150.
Lancefield v. Iggulden, 983, 999,
1020.
Land v. Devaynes, 1055.
Land v. Shipp, 1214.
Landman v. Snodgrass, 1686.
Lane v. Crutchfield, 1401.
Lane v. Eaton, 1647.
Lane v. Goudge, 1114, 1441, 1443.
Lane, In re, 1053.
Lane v. Lane, 1343.
Lane v. Moore, 921.
Lang V. Eopke, 1682.
Lang V. Vaughan, 1048.
Langdon v. Astor's Exrs., 1045,
1057, 1068, 1076, 1088, 1089.
Langdon v. Ingram 's Guardian, 1545,
1546.
Langford, Estate of, 872.
Langles, Succession of, 1113.
Langley v. Tilton, 1412.
Langley v. Westchester Trust Co.,
1102, 1133.
Langman v. Marbe, 1360, 1532, 1541.
Langslow v. Langslow, 1180.
Langstroth v. Golding, 1022.
Langworthy v. Chadwick, 1453.
Lanoy v. Athol, 947.
Lansing v. Haynes, 1266.
Lantz V. Massie, 1457, 1467.
Lapham v. Martin, 1482.
Lapham's Will, In re, 1442.
Lapsley v. Lapsley, 1307, 1379.
Large v. Cheshire, 1490.
Larkin v. Mann, 1150.
Larkins v. Larkins, 1113.
Lash V. Lash, 1129, 1175, 1176.
Latham v. Udell, 879, 888.
Latimer v. Waddell, 1542.
Latta V. Brown, 1216, 1217.
Laurens v. Eead, 1158.
Lavaggi v. Borella, 1158.
Laval V. Staffel, 1540.
Laveaga, Estate of, 1017, 1018.
Lavender v. Daniel, 1214.
Lavery v. Egan, 1244.
Lavinburg's Estate, 883.
Law V. Cloud, 1507.
Lawrence's Appeal, 1207.
Lawrence v. Barber, 1013.
Lawrence v. Cook, 1578, 1592, 1601.
TABLE OF CASES OF VOLUME TWO.
[References are to pages.]
1743
Lawrence's Estate, 1674, 1676, 1682,
1687.
Lawrence t. Lawrence, 1082, 1182,
1270, 1373, 1380, 1381.
Lawrence, Matter of, 1218.
Lawrence v. Phillips, 1308, 1315.
Lawrence v. Singleton, 1540.
Lawrence v. Smith, 1674, 1676.
Lawson v. Stitch, 978, 979.
Lawton t. Corlies, 1244.
Laxton v. Eedle, 1443.
Layman v. Conrey, 869, 927.
Leaeroft v. Maynard, 1017.
Leadbeter v. Cross, 1465.
Leake v. Eobinson, 1442, 1687.
Leake v. Watson, 1684.
Lear v. Leggett, 1562, 1564.
Lear's Estate, In re (Tompkins v.
Lear), 1067.
Leask t. Hoagland, 1061.
Leather t. Gray, 1372.
Leavitt t. Beime, 1558.
Lechmere t. Carlisle, 1076.
Lechmere and Lloyd, In re, 1297.
Lee V. Baird, 1168.
Lee V. Colston, 1517.
Lee V. Dill, 902, 1258.
Lee T. Lee, 900, 1251, 1318.
Lee T. McFarland, 1115.
Lee V. Pain, 1294, 1298.
Lee v. Sanson, 1334, 1342.
Lee v. Tower, 1210.
Leeming, In re, 1060.
Leeming v. Sherratt, 1296.
Lees v. Marsey, 1255.
Lees T. Mosiey, 1336, 1378.
Lefevre T. Lefevie, 1131, 1182, 1210.
Lerevre t. Toole, 1158.
Lefler v. Eowland, 1097.
Legard v. Hodges, 1624.
Legate v. Sewell, 1321.
Legge V. Asgill, 1626.
Lehman v. Lindenmeyer, 912.
Lehndorf v. Cope, 1373.
Lehnhoff v. Theine, 1103.
Leigh v. Leigh, 1229, 1282, 1294,
1298.
Leigh V. Norbury, 1237.
Leinaweaver v. Stoever, 1210.
Leisenring, Estate of, 1683, 1696.
Leiter v. Sheppard, 1340, 1387.
Leith, Ex parte, 1272, 1277.
LeJeime v. Budd, 1539.
Le Maitre v. Bannister, 1598.
Lemen v. McComas, 1354.
Lemp V. Lemp, 1360, 1582, 1594.
Lennen v. Craig, 1350.
Lennon, Estate of, 1631.
Lenox v. Lenox, 1433.
Lenz V. Prescott, 1378.
Leonard v. Burr, 1649, 1685.
Leonard v. Harney, 1256.
Leonard v. Haworth, 1248, 1675.
Leonard v. Kingsland, 1385.
Leonora v. Soott, 1115.
Leppes V. Lee, 1470, 1471.
Le Eougetel v. Mann, 1001.
Leroy v. Charleston, 1436.
Lester v. Garland, 1490.
Lester's Estate, In re (Webb v.
Johnson), 1245.
Letehworth's Appeal, In re, 1250.
Lett V. Randall, 994, 1210.
Levengood v. Hoople, 1401, 1505.
Levenson v. Manly, 1672, 1678.
Leverett's Heirs v. Carlisle, 871,
880.
Levy V. Levy, 1654, 1656.
Lewis V. Allenby, 1650.
Lewis V. Darling, 1158,
Lewis Estate, 966.
Levfis V. Fisher, 1258.
Lewis V. Howe, 1432.
Lewis v. Lewis, 1143, 1185, 1216.
Lewis V. Mynatt, 1253.
Lewis V. Palmer, 1399.
Lewis V. Puxley, 1387.
Lewis V. Sedgwick, 1022, 1024, 1026.
Lewis V. Waters, 1465.
L'Hommedieu, In re, 1127.
Lide's Admrs. v. Lide, 888.
1744
TABLE OF CASES OF VOLUME TWO.
[References are to pages.]
r>!fford V. Sparrow, 1384.
Lightfoot V. Maybery, 1245.
Lill T. Lill, 1310.
Lilly V. Menke, 1219.
Limpus V. Arnold, 1082.
Lincoln v. Lincoln, 1350.
Lincoln, Lady v. Pelham, 1272, 1277.
Lincoln v. Perry (Perry v. Aldrich),
1244, 1264.
Lindemeier v. Lindemeier, 1547.
Lindlay's Lessee v. Eiddle, 1324.
Lindsay v. Pleasants, 1133, 1173,
1174.
Lindsay v. Eose, 1565.
Lindsey v. Lindsey, 1507.
Lindsey v. Stephens, 870.
Lines y. Darden, 1571, 1580.
Lingan v. Carroll, 1130.
Lingo V. Smith, 1414, 1456, 1459,
1460, 1463.
Linley v. Taylor, 1194.
Linney v. Peloquin, 954.
Linscott V. Trowbridge, 1455.
Linton v. Laycock, 1303.
Lion V. Burtiss, 1479.
List V. Eodney, 1343.
Lister v. Bradley, 1438, 1462, 1464.
Lister v. Smith, 909.
Literary Fund v. Dawson, 1609.
Little V. Giles, 1528.
Little V. Newburyport, 1621, 1636.
Livesey v. Livesey, 1439.
Livingston v. Greene, 1270, 1312,
1459.
Livingston v. Livingston, 1088, 1089.
Lloyd v. Branton, 1526, 1537.
Lloyd v. Fulton, 944, 947.
Lloyd V. Lloyd, 1443, 1552, 1555,
1589.
Lobb V. Lobb, 959.
Lobley v. Stocks, 1011.
Locke v. Lamb, 1439.
Locker v. Bradley, 1114.
Lockhart v. Hardy, 1153.
Loekwood v. Lockwood, 888, 897.
Lookirood v. Nelson, 947.
Lockwood 's Appeal, 1245.
Loddington v. Kinie, 1377.
Lodge v. Weld, 1256.
Loeb V. Struck, 1412.
Lofton V. Moore, 1159.
Lofton V. Murchison, 1390.
Logan V. Lennix, 963.
Logan V. Whitley, 947.
LohmuUer v. Mosher, 1363, 1452.
Lomax v. Lomax, 1150.
Lombard v. Boyden, 1111.
London & South Western Ry. Co. v.
Gomm, 1674.
London University v. Yarrow, 1646.
Long V. Blackall, 1247, 1251.
Long V. Dennis, 1125.
Long V. Laming, 1321.
Long V. Long, 1084, 1121.
Long V. Eicketts, 1525, 1537, 1538.
Long V. Wier, 1179.
Longford v. Purdon, 869.
Loockerman v. McBlair, 1227, 1291.
Loosing V. Loosing, 1356, 1414.
Lopez V. Lopez, 1004.
Lord Bindon v. Earl of Suffolk,
1310.
Lord V. Bourne, 1242, 1263.
Lord V. Bunn, 1553.
Lord V. Comstock, 1318, 1322, 1331.
Lord V. Lord, 1029, 1138, 1191, 1212,
1219.
Lord V. Moore, 1277, 1386.
Lorieux v. Keller, 959.
Loring v. Arnold, 1404.
Loring v. Blake, 1072.
Loring v. Eliot, 949, 1328.
Loring v. Thompson, 1023.
Loring v. Thorndike, 1234, 1243.
Lorings v. Marsh, 959.
Loscombe v. Wintringham, 1628.
Losey v. Stanley, 1305.
Losey v. Westbrook, 1271.
Lott V. Meacham, 1453, 1454.
Lotta V. Brown, 1185.
Louisville Driving etc. Assoc, v.
Louisville Trust Co., 1307.
TABLE OF CASES
[References
Louisville Presb. Theol. Seraiaary v.
Fidelity Trust etc. Co., 1022.
Louisville Trust Co. v. Southern Bap-
tist Theological Seminary, 1045,
1079.
Louisville v. ^Ycrue, 1638.
Love V. L 'Estrange, 14G2.
Love V. Windham, 1671.
Loveren v. Donaldson, 1102, 1121.
Lovering v. Lovering, 1127.
Levering v. Worthington, 1685, 1689.
Lovett V. Buloid, 1383.
Lovett V. Gillender, 1540.
Lovett V. Lovett, 905.
Low V. Burron, 1687.
Low, Estate of, 1046.
Low V. Harmony, 1223.
Low V. Low, 1072.
Low V. Eamsey, 1159.
Lowe V. Carter, 1278.
Lowe V. Manners, 1537.
Lowenhaupt v. Stanisics, 1693.
Lowery v. Hawker, 960, 961, 962.
Lowes V. Lowes, 1194.
Lowman, In re, 1674.
Lowther v. Cavendish, 1497.
Loyd V. Carew, 1671.
Loyd V. Loyd, 1530, 1531.
Loyd V. Loyd's Exr., 1687.
Loyd V. Spillet, 1515, 1518.
Lucas V. Cannon, 878.
Lucas V. Carline, 1445.
Lucas V. Goldsmid, 1261, 1262, 1375.
Lucas V. Lockhart, 1572.
Lucas V. McNeill, 1413.
Luce V. Harris, 1259.
Luckett V. White, 1146.
Luckey v. McCray, 1356.
Lucy V. Gardiner, 1153.
Luebbert v. Brockmeyer, 876.
Lugar V. Harman, 1277.
Lunt V. Lunt, 1676.
Lupton V. Lupton, 1158.
Lurie v. Eadnitzer, 958.
Lusby V. Cobb, 1250.
Tiusk V. Lewis, 1501, 1628.
II Com. on Wills— 56
OF VOLUME TWO. 1745
are to pages.]
Lutkins v. Leigh, 1153.
Lydon v. Campbell, 1154.
Lyle V. Richards, 1371.
Lyles V. Digges' Lessee, 1343.
Lyman v. Coolidge, 1111.
Lynch v. Lyons, 1064.
Lynch v. Spiccr, 1003, 1022.
Lynch 's Estate, 977, 1026.
Lynn v. Hall, 1226, 1289, 1293.
Lynn v. Worthington, 1304.
Lyon V. FideHty Bank, 1256.
Lyon, In re, 1072.
Lyon V. Lyon, 1233, 1234.
Lyon's Estate, In re, 1070.
Lyons v. Advocate General, 1663,
1665.
Lyons v. Bradley, 1671, 1675, 1676,
1679.
Lyons v. Lyons, 1230.
Lyons v. Yerex, 1264.
Lytle V. Beveridge, 1322, 1409.
M
Maberly r. Strode, 1124.
Maearee v. Tall, 1351.
Macdonald v. Irvine, 970.
Macduff, In re, 1652, 1666.
Mace V. Mace, 1366.
Machen v. Machen, 1369.
Machu, In re, 1493, 1541, 1556, 1561.
Macleary, In re, 1543.
Mackall v. Mackall, 875, 901.
Mackenzie v. Mackenzie, 1011.
Mackey, In re, 969.
Macknet's Exrs. v. Macknet, 1108.
1108.
Mackinnon y. Peach, 1674.
MacLaren v. Staiuton, 1400.
MacLean v. Williams, 1276, 1279.
Macnab v. Whitbread, 1597.
Macnamara v. Whitworth, 1352.
Madden v. Ikin, 1466.
Maddison v. Chapman, 1124, 1182,
1433, 1465.
1746
TABLE. OF CASES OF VOLUME TWO.
[References are to pages.]
Maddox v. Maddox's Adrars., 1523,
1524, 1525, 1538.
Maddox v. State, 1271.
Maddox v. Yoe, 1528.
Maden'v. Taylor, 1308, 1316.
Madison v. Larmon, 1240, 1452, 1457,
1460, 1470, 1671, 1G74, 1075, 1682.
Maeck v. Nason, 1401.
Magaw V. Field, 1288.
Magee v. O'Neill, 1495, 1498, 1511.
Magill V. Brown, 1614, 1619, 1624,
1626, 1650.
Maguire v. Moore, 1277.
Mahon, In re, 1310, 1440, 1459.
Mahoney v. Burdett, 1268.
Main v. Kyder, 891.
Mainwaring v. Beevor, 1299.
Maitland v. Adair, 1106.
Majtlen v. Maitlen, 1139.
Major V. Herndon, 1571, 1588.
Major V. Knight, 903.
Mallary, Estate of, 1412.
Mallet V. Smith, 1513, 1516, 1517.
Malloon v. Fitzgerald, 1539.
Mallory v. Mallory, 1466.
Man V. Ballet, 1660.
Mandel v. McClave, 1214.
Mandelbaum v. McDonnell, 1401,
1458, 1541, 1545, 1546.
Manderson v. Lukens, 1475, 1480.
Mangum v. Piester, 1381.
Manhattan Eeal Estate Assn. v. Cud-
lipp, 1432.
Maniee v. Manice, 1481.
Manier v. Phelps, 1288.
Manierre v. Welling, 1541, 1542,
1543, 1548.
Manifold, Appeal of, 1016.
Manigault v. Deas' Admrs., 1411.
Manley v. Piske, 1659.
Manlove v. Gaut, 982.
Mann v. Copland, 1151.
Mann v. Hyde, 1100, 1127, 1133.
Mann v. Jackson, 1529.
Mann v. Mann, 1005.
Mann v. Thompson, 1292, 1295, 1303.
Mannan v. Mannan, 1213.
Manners v. Philadelphia Library Co.,
1633.
Manning v. Chambers, 1552.
Manning t. Riley, 944, 945.
Manning v. Thurston, 1057.
Mannion's Estate, 875.
Mannix v. Purcell, 1639.
Mannox v. Greener, 1398, 1400.
Mansfield v. Mansfield, 1401.
Mansfield v. Nett, 963.
Manson v. Manson, 1158.
Mansfield v. Shelton, 1413.
Manton v. Tabois, 1051.
Marden v. Leimbaeh, 1414.
Markham v. Hufford, 1491, 1507.
Markham v. Ivatt, 1133.
Markille v. Eagland, 1356.
Marks v. Marks, 1265, 1671.
Marples v. Bainbridge, 1526.
Marsellia v. Thalhimer, 950.
Marsh v. Marsh, 1149, 1254.
Marsh v. Means, 1646.
Marsh v. Tyrrell, 888.
Marsh v. Wheeler, 1440.
Marshall v. Aizlewood, 1541.
Marshall v. Bentley, 1444.
MaMall V. Grime, 1329.
Marshall's Eirs. v. Hadley, 999.
Marshall v. Hatzfelt, 1085.
Marshall v. Hill, 1349.
Marshall v. HoUoway, 1152.
Marshall v. Bench, 1039, 1056, 1067.
Marston v. Marston, 1507.
Martelli v. HoUoway, 1679.
Marti, Estate of, 1580, 1594, 1598.
Martin, In re, 895, 897, 931, 972,
975, 982, 1007, 1022, 1502.
Martin v. Battey, 1197, 1206.
Martin v. Kirby, 1312.
Martin v. Lachasse, 1102, 1116.
Martin v. Long, 1484.
Martin v. Margham, 1561.
Martin v. McCausland, 1352.
Martin v. Martin, 1452, 1540.
Martin v. Osborne, 973, 974.
TABTjE of cases op \OLUJME TWO.
[References are to pages.]
1747
Martin v. Seigler, 1529.
Martin v. Trustees of Mercer Uni-
versity, 1283.
Martling v. Martling, 1322, 1323.
Marvin v. Ledwith, 1455.
Marwiek v. Andrews, 1503.
Marx V. McGlynn, 870, 898, 903, 917,
920, 923.
Maryland Grange Agency v. Leo,
1557, 1563.
Miiskell V. Farrington, 1149.
Mason, In re, 995.
Mason v. Ammon, 1340.
Mason v. Bloomington Library Assn.,
1641.
Mason v. Bowen, 869.
Mason's Exrs. v. Trustees of Meth-
odist Episcopal Church, 1011.
Mason v. Pate's Exr., 1330, 1395.
Mason v. Ehode Island Hospital
Trust Co., 1557, 1565.
Mason v. White, 1305.
Massey's Appeal, 1128.
Massey v. Hudson, 1116, 1465.
Massey v. Sherman, 1571.
Massie v. Hiatt's Admr., 950.
Massie v. Jordan, 1384.
Massie v. Massie, 1513.
Massingill v. Downs, 154D, 1550.
Masters v. Hooper, 1254, 1274.
Masters v. Scales, 1330, 1447.
Masterson v. Harris, 963.
Masterson v. Pullen, 1167.
Masterson v. Townshond, 1406.
Mather v. Mather, 1397, 1398.
Mathews v. Keble, 1108, 1130.
Mathewson v. Wakelee, 1163.
Mathieson v. Craven, 1327, 1328.
Mathis V. Mathis, 973.
Matthows, Matter of, 982, 1023.
Matthews v. Daniel, 1369.
Matthews v. Keble, 1696.
Matthews v. Studley, 990.
Matthews v. Targarona, 985, 986,
1026, 1028, 1030, 1037.
Matthis V. Rhea, 1422.
Mattison v. Mattison, 1557.
Mattison v. Tanfield, 1277.
Maulding v. Scott, 1452.
Maurice v. Graham, 1482.
Maxwell v. ^eatherston, 1096, 1121.
May V. May, 1057, 1068, 1073, 1081.
May V. Bradlee, 917, 921.
May V. Lewis, 1250, 1396, 1482.
May V. Sherrard's Legatees, 970,
1044.
May V. Walter's Exrs., 1305.
May V. Wood, 1439.
Mayall, In re, 990.
Maybank v. Brooks, 1121.
Maybury v. Grady, 1000, 1024, 1025,
1029, 1141.
Mayer v. Hover, 1278.
Mayer v. Walker, 1335.
Mayes v. Karn, 1398.
Mayfield v. Wright, 1214.
Maynard v. Cleaves, 1564.
Maynard v. Mechanics' Nat. Bank,
1054.
Maynard v. Wright, 1124, 1238.
Mayo V. Bland, 973, 975.
Mayo V. Carrington, 1352.
Mayo V. Harrison, 1356.
Mayor of Lyons v. East India Co.,
1664.
Mayott V. Mayott, 1260.
Mazyck v. Vanderhorst, 1384.
M'Afee, In re, 981.
McAleer v. Schneider, 1394.
McAlister v. Burgess, 1638.
McAllister v. McAllister, 1608.
McAllister v. Tate, 1348.
McArthur v. Scott, 1115, 1304, 1309,
1312, 1438, 1441, 1442, 1445, 1674,
1677, 1684, 1688.
McAuley v. Wilson, 1609.
McBee v. Bowman, 933.
McBride v. Smyth, 1436.
McCabe v. Spruil, 1242.
MoCall's Appeal, 1437, 1461.
MeCallister v. Brand's Heirs, 1196.
McCanu v. Barclay, 1329.
1748
TABLE OP CASES OP VOLUME TWO.
[References are to pages.]
McCartney v. Osburn, 1272, 1303.
Mccarty's Will, In re, 900.
McCleary v. Ellis, 1543, 1,556.
McClellan y. Mackenzie, 1364.
McClintock v. Meehan, 1361, 1411.
McClintock's Appeal, In re, 1081.
McClure v. Evans, 1070.
McClure v. Melendy, 1396.
McClure 's Appeal, 1168.
McClyment, In re, 1459.
McCoUough's Adrar. v. Anderson,
1466. .
McComb, Ex parte, 990.
McConnell v. Smith, 1350.
McConnell v. Wildes, 926.
McCord V. Ochiltree, 1664, 1666.
MeCord v. Wright, 1166.
McCorkle v. Black, 1383.
McCormick v. Burke, 1242.
McCormick v. Hanks, 1067.
McCormick v. Interstate Consol.
Eapid-Transit Ey. Co., 1204.
McCormick Harvesting Maeh. Co. v.
Gates, 1557.
McCormick v. Grogan, 1603, 1604.
McCorn v. McCorn, 1147.
McCourtney v. Mathes, 954.
McCoury 's Exrs. v. Leek, 1406, 1407.
McCoy V. McCoy, 886.
McCraeken v. McOracken, 961.
McCravey v. Otts, 1543, 1548.
McCrea's Estate, 1247.
McCroan v. Pope, 1388.
McCrum v. McCrum, 952.
MeCulloeh's Appeal, 965, 1526.
McCuUoch V. Campbell, 878.
McCuUoiigli 's Aclmr. v. Anderson,
141S.
McCurdy v. Otto, 1554.
MeCurdy v. McCullum, 1600.
McDoiirman v. Hodnett, 1082.
McDevitt, In re, 872, 878, 912.
McDonald v. Bryce, 1108, 1130.
McDonald v. Massachusetts Gen.
Hospital, 1625.
McDonald v. McDonald, 933.
McDonald v. O'Hara, 1176.
McDonald v. Pittsburg etc. Ry. Co.,
1228.
McDonald v. Shaw, 1620.
McDonald v. Taylor, 1446.
McDonogh v. Murdock, 1647, 1648.
McDowell v. Burton, 973.
M'Dowell V. Caldwell, 1137.
McDuffie V. Montgomery, 1575.
McElfresh v. Schley, 1210.
McElwain v. Wliitacre, 1322.
M'Fadden v. Hefley, 1025.
McPadin v. Catron, 878.
McFall V. Kirkpatrick, 1342.
McEall V. Sullivan, 1073.
McGee v. McGee, 942.
McGinnis v. McGinnis, 1184.
McGirr v. Aaron, 1627.
McGlaughlin v. McGlaughlin, 1034.
McGoldrick v. Bodkin, 1023, 1025,
1140, 1147, 1157.
McGraw v. Davenport, 1686.
McGreevy v. McGrath, 1104.
McGregor v. Comstock, 1371.
McGregor v. McGregor, 1183.
McGregor v. Toomer, 1305.
McGuire v. Brown, 1213.
McGuire v. Evans, 980.
McGuire, Appeal, In re, 1362, 1494.
McGunnigle v. McKee, 1234, 1237.
McHugh V. McCole, 1111, 1173, 1611,
1630,1631.
Mcllvain v. Hockaday, 1640.
McBvaine v. Gethen, 1522, 1526.
Mclntire v. Melntire, 962.
Mcintosh's Estate, In re, 1015.
Mclntyre v. Ramsey, 1374.
McKay, Matter of, 1030, 1033.
McKee v. McKee, 1399.
McKee 's Appeal, 1387.
McKellar, In re, 1002, 1098.
McKelvey v. McKelvey, 1273, 1277.
McKiernan v.. Beardslee, 1100, 1121.
McKillop v. Burton's Adrar., 1163.
McKim V. Harwood, 1357, 1358.
McKinster v. Smith, 1547, 1562.
TABLE OF CASES OP VOLUME TWO.
[References are to pages.]
1749
MoKnight v. McKnight, 1415.
McKnight v. Read, 1227.
McKrow V. Painter, 1531.
McLachlan v. McLachlan, 1493.
McLachlan v. Taitt, 1296, 1444.
McLaughlin v. Barnum, 1180.
McLaughlin v. Penney, 1432, 1445.
McLean v. Eobertson, 1028.
McLean v. Williams, 1243.
McLenahan v. McLenahan, 1151.
McLoughlin v. McLoughlin, 1158.
McMahan v. Newcomer, 1336.
McMahon v. Ryan, 870, 873.
McManus' Estate, 1211.
McMaster v. McMaster 's Exrs., 1272,
1277.
McMichael v. Russell, 1214.
McMichael v. Hunt, 1356.
McMillen's Estate, 959.
McMuUin v. Leslie, 1406.
McMurry v. Stanley, 1580.
McNaughton v. McNaughton, 1052.
McNeal v. Pierce, 1105.
McNeal v. Sherwood, 1329.
McNeilledge v. Barclay, 1272.
McNeilledge v. Galbraith, 1253, 1272.
McNichoU V. Ives, 1234.
McNutt V. McNutt, 946, 949.
McEee's Admr. v. Means, 1473, 1474,
1475, 1476, 1482, 1592.
McReynolds v. Counts, 1215, 1218.
McEeynokls v. Smith, 932.
McTaggart \. Thompson, 1088, 1089.
McVeigh's Estate, In re, 1582, 1593.
McWilliams' Appeal, In re, 1170.
M 'Williams v. Nisly, 1545, 1546.
Meacham v. Graham, 1364.
Mead v. Hide, 1153.
Meadowcroft v. Winnebago County,
1240.
Mealey's Estate, 927.
Mebane v. Mebane, 1562.
Mccum V. Stoughton, 981.
Medford v. Pope, 1231.
Medicott v. Bowes, 1444.
Medill V. Snyder, 1204, 1205.
Medlock v. Merritt, 1204.
Mee V. Gordon, 1363.
Meech v. Estate of Meech, 1190,
1192.
Meeds v. Wood, 1465.
Meehan v. Brennen, 1580.
Meek v. Pox, 1523, 1524, 1527, 1530.
Meek v. Perry, 899.
Meeker v. Draffen, 1112.
Meeker v. Meeker, 889, 1092, 1093.
Meeting St. Baptist Soc. v. Hail,
1664.
Mefford v. Dougherty, 1385
Mehane v. Womack, 1116.
Meier v. Buchter, 885, 886, 911.
Meily v. Knox, 982, 1085.
Melchor v. Burger, 1211.
Mellen v. Mellen, 1175, 1176.
Mellish V. Mellish, 1388.
Mellish V. Vallins, 1154.
Mellon 's Estate, In re, 1265.
Melton V. Camp, 1466, 1468.
Melton V. Davidson, 950.
Mendenhall v. First New Church
Soc, 1635.
Mendenhall v. Mendenhall, 1202.
Mercer v. Hopkins, 1328.
Mercur's Estate, 1422.
Meredith v. Heneage, 1575, 1597.
Merkel's Appeal, 1083.
Merriam v. Merriam, 985, 989.
Merriam v. Simonds, 1284.
Merrigan, Estate of, 1452, 1523.
Merrill v. American Baptist Mission-
ary, 1372.
Merrill v. Emery, 1420, 1424, 1500,
1502.
Merrill v. Morton, 1258.
Merritt v. Abendroth, 1348.
Merritt, Matter of, 1023, 1034.
Merritt v. Merritt, 995.
Merry v. Hill, 1466.
Merryman v. Merryman, 1340.
Meserve v. Haak (Hook), 1281, 1289.
Meserve v. Meserve, 1276.
Mosick v. New, 1394.
1750
TABLE OP CASES OP VOLUME TWO.
[References are to pages.]
Messenger v. Andrews, 1503.
Metcalf s Estate, In re, 1139.
Metcalf V. First Parish in framing-
ham, 970.
Metham v. Devon, 1231, 1232.
Methodist Church v. Bemington,
1630.
Methodist Episcopal Church v. Clark,
1658.
Methodist Episcopal Church v. Heb-
ard, 986.
Metteer v. Wiley, 1186, 1189.
Mcttler V. Warner, 1675.
Metzen v. Schopp, 1415.
Meyers v. Watson, 955.
Miall V. Brain, 1193, 1194.
Michael v. Marshall, 931.
Michael v. Morey, 948.
Michell V. Michell, 1150.
Mickey's Estate, In re, 1516, 1526.
Mickley's Appeal, In re, 1270.
Middlesex Banking Co. v. Field,
1383.
Middleswarth 's Admr. v. Blackmore,
1271, 1381.
Middleton v. Rice, 1526.
Mildmay's Case, 1540.
Miller's Appeal, 1067, 1073, 1083.
Miller's Estate, In re, 867, 868, 873,
879, 894, 895, 921, 925, 936, 939,
946, 1000, 1204, 1234/1237, 1518,
1524, 1529, 1530.
Miller's Exr. v. Malone, 981.
Miller 's Exr. v. Commonwealth, 1624.
Miller's Lessee v. Hurt, 1389.
Miller, Matter of, 1479.
Miller v. Atkinson, 1609, 1626, 1658.
Miller v. Buell, 1212.
Miller v. Caragher, 1122.
Miller v. Colt, 1441.
Miller v. Emans, 1383.
Miller v. Gilbert, 1401.
Miller v. Harding, 1334.
Miller v. Huddlestone, 995, 1034.
Miller v. Levi, 1471.
Miller v. Livingstone, 921.
Miller v. Macomb, 1470.
Miller v. Malone, 1086, 1090.
Miller v. Metcalf, 1102.
Miller v. Miller, 888, 889, 1180, 122g,
1233, 1472, 1476.
Miller v. Payne, 1081.
Miller v. Porter, 1626, 1630.
Miller v. Eobinson, 1387.
Miller v. Eowan, 1621.
Miller v. Stepper, 1211.
Miller v. Thurgood, 1183, 1193.
Miller v. Weston, 1674, 1676, 1684.
Miller v. Wilson's Admr., 1305.
Miller's Will, In re, 1450.
Miller v. Worrall, 1005. '
Millett V. Ford, 1324, 1336.
Millikin v. WelUver, 1195, 1198, 1199,
.1200, 1217.
Mills v. Davison, 1647.
Mills V. Farmer, 1626, 1657, 1666.
Mills V. Harris, 1172.
Mills V. Newberry, 1129, 1490, 1492,
1573, 1655.
Milsom V. Awdry, 1309.
Milwaukee Protestant Home v.
Becher, 1110.
Miner, In re, 962.
Ministers etc. of Episcopal Church v.
Wallace, 1137.
Minkler v. Simons, 1403.
Minns v. Billings, 1646.
Minors v. Battison, 1570.
Minot V. Baker, 1133, 1657.
Minot V. Doggett, 1115, 1305.
Minot 'V. Harris, 1250.
Minot V. Minot, 951.
Minot V. Paine, 1429.
Minot V. Purrington, 1305.
Minot V. Tappan, 1246.
Minter's Appeal, 1096, 1273, 1275.
Misenheimer v. Sifford, 1143.
Missionary Soc. v. Chapman, 1610,
1651.
Missionary Soc. of M. E. Church v.
Calvert's Admr., 1638.
TABLE OF CASES
[References
Missionary Society of M. E. Church
V. Humphreys, 1683.
Missouri Historical Soc. v. Academy
of Science, 1622, 1623, 1657.
Missouri Pacific Ey. Co. v. Baier,
1250.
Mitchell, Estate of, 1572, 1589.
Mitchell V. Mitchell, 878, 896, 1304,
1432, 1511, 1578.
Mitchell V. Morse, 1350, 1542.
Mitchell V. Vest, 1066.
Mitford V. Reynolds, 1626, 1642,
1653.
Moakley v. Eiggs, 1492.
Mobley v. Lyon, 933.
Modliu V. Kennedy, 1396.
Moffatt's Exrs. v. Strong, 1369, 1473,
1476, 1485.
Moflfett V. Elmendorf, 1286.
Mogg V. Mogg, 1295.
Moggridge v. Thackwell, 1012, 1657,
1661, 1663, 1666.
Mohn's Appeal, In re, 1215.
Mohn V. Mehn, 1149, 1159.
Molly Varnum Chapter, D. A. E.,
V. Lowell, 1652.
Monarque v. Monarque, 1393, 1398.
:Mondorf, Matter of, 896.
Mong V. Eoush, 1609, 1658.
Monroe v. Barclay, 890, 891.
Monroe v. Jones, 1149.
Montague v. Allan's Exr., 893, 903,
919, 920, 929.
Montague v. Nucella, 1123.
Montefiore v. Behrens, 1556.
Montefiore v. Guedalla, 1076.
Montgomerie v. Woodley, 1464.
Montgomery v. Brown, 1420.
Montgomery v. McElroy, 1160.
Montgomery v. Montgomery, 1351.
Mooberry v. Marye, 1346, 1354.
Moody V. Walker, 1369.
Moody V. Walters, 1460.
Moon V. Evans' Estate, 956.
Moon V. Stone's Exr., 1222, 1339,
1388.
OF VOLUME TWO.
are to pages.]
1751
Mooney v. Olsen, 911, 917, 919, 921.
Moor, In re, 1414.
Moore v. Moore, 964, 1051, 1155,
1353, 1673, 1678.
Moore, Matter of, 1014.
Moore's Admr. v. Sleet, 1457.
Moore's Exrs. v. Blauvelt, 877.
Moore's Exrs. v. Moore, 977, 1031.
Moore's Estate, 1563.
Moore v. Beckwith's Exrs., 1158.
Moore v. Cleghorn, 1354.
Moore v. Davidson; 1161.
Moore v. Dimond, 1097, 1404.
Moore v. Downey, 990, 996.
Moore v. Gray, 1390, 1432, 1463,
1476.
Moore v. Harper, 1178, 1180.
Moore v. Harrison, 942.
Moore v. Hilton, 1072.
Moore v. Lyons, 1312, 1441, 1459,
1461.
Moore v. Parker, 1378.
Moore v. Paine, 928.
Moore v. Eobbins, 1173.
Moore v. Sleet, 1461.
Moore v. Smith, 1440.
Moore's Trustees v. Howe's Heirs,
1661, 1672, 1674, 1685.
Moore v. Waller's Heirs, 1530.
Moores v. Hare, 1312, 1463.
Moran v. Moran, 1359, 1513, 1518,
1521, 1630, 1631, 1655.
Moran 's Will, In re, 1312, 1315,
1486.
Morcel's Estate, 873, 878, 889, 890,
931.
Moreau v. Detchemendy, 1371.
Morehouse v. Phelps, 1255.
Morflfew v. San Francisco & S. E. E.
Co., 1413.
Morford v. Dieffenbacker, 1405.
Morgan v. Christian, 1414.
Morgan v. Darden, 1502.
Morgan v. Gronow, 1677.
Morg-an v. McNeely, 1352.
1752
TABLE OF CASES OF VOLUME TWO.
[References are to pages.]
Morgan v. Morgan, 1382, 1415, 1443,
1529, 1696.
Morgan, In re (Le Coulteux de Cau-
mout V. Morgan), 1069.
Morgan v. Thomas, 1123, 1239, 1240.
Morgan v. WicklifEe, 1214.
Moriee v. Bishop of Durham, 1575,
1620, 1624, 1652, 1655.
Morisey v. Brown, 997.
Morley v. Bird, 1113.
Morley v. Kennoldson, 1527.
Morrell v. Morrell, 928.
Morris v. Burroughs, 1515, 1516,
1518.
Morris v. Higbie, 1140.
Morris v. Stokes, 870.
Morrison v. Bowman, 941, 1180, 1193,
1202.
Morrison v. Clarksburg Coal & Coke
Co., 1366.
Morrison v. Morrison, 960.
Morrison v. Schorr, 1363, 1398.
Morriss v. Garland's Admr., 975,
985.
Morrow v. Scott, 950.
Morse v. Blood, 1542.
Morse v. Hayden, 1497, 1501.
Morse v. Inhabitants of Natick, 1417,
1608.
Morse v. Mason, 962, 1097, 1287,
1294, 1386.
Morse v. Osborn, 1236.
Moraell v. First National Bank, 1550,
1551, 1559.
Mortimer v. Hartley, 1126.
Mortimer v. Moffatt, 1425.
Mortimer v. West, 1232.
Morton's Guardian v. Morton, 1310.
Morton v. Morton, 1097.
Morton v. Murrell, 970.
Morton Trust Co. v. Sands, 1682.
Morton v. Woodbury, 998, 1001, 1008.
Moseley v. Bolster, 1582, 1599.
Moses V. Allen, 1283.
Moses, Matter of, 1637.
Moss V. Helsley, 1117, 1128.
Motz, Estate of, 870.
Moulton, Matter of, 1138.
Mounsey v. Blamire, 1241, 1242.
Mower v. Sanford, 996.
Mowry v. Norman, 899, 910.
Mudd V. MuUiean, 1352.
Mueller's Estate, 873.
Muffett, In re, 1262.
Muirhead v. Muirhead, 1218.
Mulhaney v. Mulhaney, 1366.
Mullen V. Heldermann, 886.
Mullen V. Eeed, 1264.
MuUins V. Smith, 1027.
Mullreed v. Clark, 1677, 1682.
Mulvane v. Eude, 1346, 1356, 1358,
1359, 1394, 1413.
Munroe v. Hall, 1545.
Murchison's Exrs. v. Whitted, 1138,
1433.
Murdoch v. Murdoch, 1414.
Murdock v. Ward, 1264.
Murkin v. PhilUpson, 1437.
Murphey v. Brown, 1682.
Murphy's Estate, In re,- 880, 1281,
1286, 1287, 1658.
Murphy v. Carlin, 1578, 1595.
Murphy v. Harvey, 1385.
Murphy, Matter of, 1102, 1440.
Murphy v. McKeon, 1102.
Murphy V. Nett, 926, 934.
Murray, Matter of, 1684.
Murray v. Bronson, 1238.
Murray v. Murray, 1272.
Murray v. Tancred, 1439.
Muschamp v. Bluet, 1544.
Musgrave v. Brooke, 1510.
Muskett V. Eaton, 1296.
Mussorie Bank v. Eaynor, 1572.
Myar v. Snow, 1427.
Myer's Will, In re, 926.
Myers v. Adler, 1108, 1115.
Myers v. Anderson, 1327.
Myers v. Barrow, 962.
Myers v. Carney, 1115.
Myers v. Eddy, 1158.
Myers v. Pickett, 1396.
TABLE OP CASES
[References
Myers t. Myers, 1027.
Myers' Exrs. v. Myers, 972.
Myrick v. Heard, 1336.
N
Nagle V. Hirseh, 1528.
Naglee's Appeal, In re, 1307, 1353.
Naill V. Maurer, 943, 946.
Nailor's Children v. Nailor, 1197.
Napier v. Howard, 1295.
Nash V. Morley, 1622, 1653, 1655.
Nash V. Simpson, 1358, 1528.
Nash V. Smallwood, 1024.
Nason v. Blaisdell, 1399.
Nauman v. Weidman, 1638.
Naundorf v. Schumann, 1405.
Naville v. American Machinery Co.,
1395.
Naylor v. McEuer, 912.
Naylor v. Robson, 1311.
Neal V. Cosden, 1383.
Neal V. Davis, 957.
Neddo V. Neddo, 942.
Needles v. Ford, 1214.
Needles v. Martin, 1639, 1653.
Neel, Estate of, 1676, 1694.
Neel V. Hibard, 964.
Negro Chase v. Plummer, 1582, 1596.
Neighbour v. Thurlow, 1404, 1409.
Neil's Estate, 1094.
Neilson v. Brett, 1433.
Neistrath's Estate, In re, 1019, 1024.
Nellis V. NeUis, 1271, 1372, 1491.
Nelson, Estate of, 896.
Nelson v. Blue, 1243.
Nelson v. Davis, 1326.
Nelson v. McClanahan, 917.
Nelson v. Nelson, 1083, 1084, 1398,
1400, 1432.
Nelson v. Nelson's Exr., 1466.
Nelson v. Pomeroy, 1081, 1210.
Nelson's Admr. v. Kownslar's Exr.,
1194.
Nesbit v. Skelding, 1333.
Nesmith v. Piatt, 946.
OF VOLUME TWO.
are to pages.]
1753
Neuber v. Shoel, 940.
Neves v. Scott, 945, 949.
Nevinger's Estate, In re, 1404.
Nevins' Estate, 1398, 1400.
Nevitt V. Woodburn, 1513, 1679.
New's Exr. v. Bass, 1141.
New Albany Trust Co. v. Powell,
1045.
Newberry (Newbury) v. Hinman,
1114, 1441.
Newbold v. Prichett (Prechett),
1096, 1098.
New Castle Common v. Megginson,
1620, 1641.
Newcomb's Will, In re, 1022.
Newell V. Keith, 1066.
New England Sanitarium v. Stone-
ham, 1621, 1652.
New Haven County v. Parish Trinity
Church, 1497, 1501.
Newhouse v. Godwin, 870, 899.
Newill V. Newill, 1387.
Newkerk v. Newkerk, 1507.
Newland v. Attorney General, 1642.
Newman, Estate of, 1236.
Newman, In re, 1023.
Newman v. Johnson, 1142.
Newman v. Newman, 1296, 1415.
Newman v. Nightingale, 1122.
Newman v. Waterman, 959, 961.
Newman v. Willetts, 1399.
New Orleans v. Hardie, 1094, 1133.
Newton v. Ayscough, 1314.
Newton v. Griffith, 1346.
Newton v. Marsden, 1531.
Newton v. Odom, 1359.
Newton v. Southern Baptist Theo-
logical Seminary, 1456.
Newton's Trusts, 1122, 1242.
New York, Lackawanna & W. R. Co.,
Matter of, 1267, 1357, 1410, 1484.
New York Life Ins. Co. v. Brown,
1165, 1166, 1249.
New York Life Ins. etc. Co. v. Viele,
1237.
Nioewander v. Nicewander, 876, 882.
1754
TABLE OF CASES OF VOLUME TWO.
[References are to pages.]
Nichol V. Levy, 1552, 1556.
NichoUs V. Butcher, 1352.
Nichols V. Allen, 1576, 1655.
Nichols V. Denny, 1277, 1300, 1305.
Nichols V. Eaton, 1552, 1553, 1554,
1557, 1562, 1563, 1565.
Nichols V. Judson, 1062, 1063.
Nichols V. Nichols, 909.
Nicholson v. Drennan, 1407.
Nicholson v. Fields, 1372.
Nicholson v. Patrickson, 1287.
Niekerson v. Bragg, 1023.
Nickisson v. Cockill, 1033.
Nicol V. Scott, 1312.
Nightingale v. Burrcll, 1379, 1388,
1390, 1475, 1477, 1481, 1485, 1674.
Nightingale v. Goulburn, 1655.
Niles V. Gray, 1384, 1385.
Niles V. Mason, 1219.
Nimmo v. Stewart, 1385, 1390.
Nimmons v. Westfall, 1401.
Nixon V. Eosc, 1686.
Noble's Estate, 1411, 1412.
Noe V. Kern, 1572, 1581, 1594.
Noe V. Splivalo, 1204.
Noecker v. Noecker, 1219.
Noel V. Lord Henley, 1110.
Noel's Admr. v. Noel's Admr., 1016.
Nolte V. Meyer, 1655.
Nooe V. Vannoy, 1052.
Noon's Estate, 971, 976.
Norcott V. Gordon, 1027.
Norfleet v. Callicott, 1057.
Norris v. Beyes, 1116, 1383, 1384.
Norris v. Clark, 1191.
Norris v. Johnston, 1482.
Norris v. Morrison, 1214.
Norris v. Norris, 1055.
Norris v. Thomson's Exrs., 970,
1620.
Nort V. Healy Real Estate Co., 1413.
North Adams Univ. Soe.' v. Pitch,
1610.
North V. Martin,' 1336.
North V. Valk, 1174.
Northern Trust Co. v. Wheaton,
1007, 1446, 1456, 1463.
Northey v. Burbage, 1291.
Norton v. Eripp, 1686.
Norton v. Ladd, 1350.
Nottingham v. Jennings, 1458, 1486,
1685.
Nourse, In re, 1526.
Nourse v. Merriam, 1541.
Nowack V. Berger, 1025.
Nowland v. Welch, 1411.
Noys V. Mordaunt, 1178.
Nudd V. Powers, 1161.
Nunnally v. White's Exrs., 1474.
Nunnery v. Carter, 1497, 1502.
Nusly V. Curtis, 969, 970, 972, 975,
976, 981, 986, 1045, 1059.
Nutter V. Vickery, 1283.
Nutzhorn v. Sittig, 1085.
Nye V. Grand Lodge, A. O. U. W.,
1235, 1243.
Nyssen v. Gretton, 1157.
o
Oakes v. Oakes, 1053.
Dates V. Jackson, 1386.
Obecny v. Goetz, 951, 954, 961.
O'Brien's Appeal, 932.
O'Brien v. Heeney, 1123.
O'Brien v. O'Leary, 1357.
O'Brien v. Tyssen, 1602.
0 'Byrne v. Eeeley, 1375.
O'Callaghan v. Cooper, 1539.
Occleston v. Fullalove, 1232.
O'Connell v. O'Connell, 1360, 1365.
O'Connor's Estate, 959.
O'Day V. O'Day, 1026, 1027.
Oddie V. Brown, 1462.
Odell V. Odell, 1607, 1647, 1649,
1678, 1689.
Odenbreit v. TJtheim, 954, 963.
O'Connell v. MeCann, 1139, 1164.
O'Connell v. Murphy, 1604, 1617.
O'Driscoll V. Koger, 1201, 1211,
1437.
TABLE OF CASES OF VOLUME TWO.
[References are to pages.]
1755
0 'Fallon v. Dillon, 1550.
Ogden V. McHugh, 943.
Ogle V. Corthorn, 1386.
O 'Gorman v. Comyn, 1550.
O'Hara v. Chaine, 1194.
O'Hara v. Dudley, 1602.
O'Hara, Matter of, 1679.
O'Hare v. Johnston, 1566, 1568,
1674, 1676, 1683.
O 'Harrow v. Whitney, 1189, 1529.
O'Hearu v. O'Hearn, 1404.
Oke V. Heath, 1109, 1162.
Oldfield V. Attorney General, 1639.
Oldfield, In re, 1572, 1575.
Oldham v. Carleton, 1210.
Old South Society v. Crocker, 1621,
1623.
Olivant V. Wright, 1268.
Oliver v. Smith, 1139.
OUiflfe V. Wells, 1589, 1591, 1603.
Olmstead v. Dunn, 1312, 1315, 1432,
1436, 1438.
Olney v. Bates, 1283.
Olney v. Hull, 1247, 1301, 1314, 1461.
Olney v. Lovering, 1244, 1264.
Olsen T. Toungerman, 1557.
Olson 's Estate, In re, 880, 894.
O'Mahoney v. Burdett, 1484.
Ommanney v. Butcher, 1622.
Onderdonk v. Onderdonk, 1507.
Oneal v. Mead, 1153.
O'Neale v. Ward, 1530.
O'Neill V. Farr, 868, 889, 890, 891.
O'Neill V. Lucas, 1130.
Onslow V. South, 1440.
Opel V. Shoup, 1529.
Orford v. Churchill, 1223, 1238.
Orrick v. Boehm, 1011, 1012, 1131,
1173.
Orth V. Orth, 1573, 1585.
Ortman v. Dugan, 1675, 1678, 1683.
Ortmayer t. Elcock, 1454.
Orton's Trust, In re, 1280.
Osborn v. Athens First National
Bank, 1256.
Osborne, In re, 1430.
Osborne v. Shrieve, 1376, 1387.
Osburn's Appeal, In re, 1279.
Osgood V. Lovering, 1222.
Osgood V. Eogers, 1662.
Otis V. Prince, 1523, 1526.
Ott V. Tewksbury, 1420.
Ould V. Washington Hospital, 1620,
1623, 1633, 1647, 1648, 1650.
Outealt V. Outcalt, 1118, 1119, 1225.
Outland v. Bowen, 1548, 1685.
Overhill's Trusts, In re, 1229.
Overman's Appeal, 1563.
Overton v. Lea, 1532, 1533.
Ovey, In re, 1665.
Owen V. Eaton, 1455.
Owen V. Field, 1471.
Owens V. M. E. Church Missionary
Soc, 1620.
Owings V. Owings, 1066.
Owings V. Reynolds, 1346,
Oxley V. Lane, 1541, 1548.
Oyster v. Knull, 1339, 1347, 1579,
1580.
Oyster v. Oyster, 1338.
Pace V. Klink, 1264.
Pace V. Pace, 1541.
Pack V. Shanklin, 1658.
Packer's Estate, In re, 900,
Packer v. Scott, 1684.
Padbury v. Clark, 1182.
Page V. Eldredge, 1195.
Page V. Gilbert, 1288.
Page V. Hayward, 1504.
Page V. Leapingwell, 981, 1022, 1035,
1109, 1110.
Page V. Page, 1111, 1114, 1281, 1313.
Page V. Way, 1553.
Page V. Whidden, 1504.
Paget V. Melcher, 1436.
Paget 's Settled Estates, In re, 1509.
Paice V. Canterbury, 1666.
Pain V. Benson, 1315.
Paine v. HoUister, 942.
1756
TABI/E OP CASES OP VOI^UME TWO.
[References are to pages.]
Paine v. Parsons, 1045, 1073.
Paine v. Wagner, 1385.
Painter, Estate of, 999, 1000, 1001,
1002.
Palmateer's Will, In re, 931.
Palmer v. Armstrong, 1149.
Palmer v. Dunham, 1237, 1240.
Palmer v. Graves, 1141.
Palmer v. Horn, 1222, 1237, 1238,
1239.
Palmer v. Palmer's Estate, 976, 980.
Palmer v. Simmonds, 1575.
Palmer, Succession of, 1064.
Palmer's Settlement Trusts, In re,
1307.
Palmer v. Voorhis, 1191.
Palms V. Palms, 1684.
Papillon V. Voice, 1321.
Pardoe, In re, 1641.
Pardue v. Givens, 1507.
Parfitt V. Lawless, 869, 896, 900, 905.
Parish's Heirs v. Perris, 1385.
Parish v. Whitney, 1503.
Park V. MeCombs, 1414.
Parker, In re, 1096, 1260, 1261.
Parker v. Clarke, 1378, 1379.
Parker v. Cobe, 991.
Parker v. Coburn, 1064.
Parker v. Downing, 1193.
Parker v. Fearnley, 1146.
Parker v. Felgate, 928, 929.
Parker v. Hayden, 1189.
Parker v. Hodgson, 1444.
Parker v. lasigi, 1361.
Parker v. Leach, 1283, 1305.
Parker v. May, 1623.
Parker v. Parker, 1497, 1500, 1501.
Parker v. Sowerby, 1191, 1194.
Parker v. Travers, 1414.
Parkhurst v. Harrower, 1240.
Parkin v. Creswell, 1460.
Parkin v. Knight, 1123.
Parkinson's Trusts, In re, 1262.
Parks V. Kimes, 964.
Parks V. Parks, 1685.
Parrish v. Burkley, 1387.
Parson's Estate, In re, 969, 1024.
Parsons v. Baker, 1574, 1597.
Parsons v. Ealson, 955.
Parsons v. Best, 1592.
Parsons v. Freeman, 1089.
Parsons v. Lanoe, 1104.
Parsons v. Parsons, 921, 1433.
Parsons v. Winslow, 1524, 1526.
Partridge v. Baylis, 1116.
Partridge v. Partridge, 1060, 1508.
Paschal v. Acklin, 1607, 1626, 1G47,
1664.
Paske V. Olatt, 899, 902.
Pate V. Bushong, 1394.
Paterson v. Ellis' Exrs., 1368, 1369,
1384, 1440, 1474, 1476, 1686.'
Patrick v. Morehead, 1358, 1414.
Patterson's Estate, 874, 875, 878,
879, 911.
Patterson v. Devlin, 997.
Patterson v. Humphries, 1595.
Patterson v. Lawrence, 1032.
Patterson v. Nixon, 1350.
Patterson v. Patterson, 886.
Patterson v. Swallow, 1128.
Patton v. Allison, 902.
Pattou V. Hope, 927, 929.
Patton V. Patton, 1055, 1132.
Patton V. Randall, 1352.
Patty V. Goolsby, 1422.
Paul v. Ball, 1003.
Paul V. Compton, 1302, 1571, 1596.
Paulson's Will, In re, 1510.
Paup V. Sylvester, 997.
Pawlet V. Clark, 1633.
Paxton V. Paxtou, 1414.
Payne, In re, 1546.
Payne v. Payne, 953, 1181, 1451.
Payne v. Webb, 1272.
Payton v. Bowen, 1201.
Peake v. Pegden, 1268.
Pearce v. Billings, 980.
Pearce v. Carrington, 956.
Pearce v. Loman, 1444.
Pearce v. Kickard, 1236, 1237, 1239.
Pcarks v. Mosclcy, 1687.
TABLE OP CASES OF VOLUME TWO.
[References are to pages.]
1757
Pearman v. Twisa, 983.
Pearsall ▼. Simpson, 1465.
Pearsol y. Maxwell, 1376.
Pearson t. Carlton, 950, 951.
Pearson v. Chace, 990, 992.
Pearson v. Dolman, 1437, 1462, 1556.
Pearson v. Helliwoll, 1143.
Pearson v. Lane, 1175.
Pearson v. Pearson, 1194, 1201.
Pearsons, Estate of, 1619.
Pease v. Cornell, 1679, 1680.
Pease v. Pattison, 1665.
Pcaslee's Will, In re, 1203.
Pecliin's Estate, 1439.
Peck V. Kinney, 990, 992.
Peck V. Vandemark, 943, 948.
Peekham v. Lego, 1396.
Peery v. Peery, 922.
Peet V. Peet, 957, 958.
Pell V. Ball, 977'.
Pell V. Mercer, 1608.
Pells T. Brown, 1473, 1481.
Pember v. Inhabitants of Kingston,
1625.
Pemberton v. Parke, 1225, 1300.
Pemberton's Will, In re, 917.
Pembroke Academy Trustees v. Ep-
som School Dist., 1580.
Pembrooke v. Friend, 1155.
Pendleton v. Kinney, 1647.
Pendley v. Madison's Admr., 1396.
Penfield v. Tower, 1673, 1682.
Penn v. Guggenheimer, 1181, 1183,
1184, 120L
Pennington v. Pennington, 1372,
1386, 1493.
Pennington v. Van Houten's Exrs.,
1385.
Pennock v. Eagles, 1459.
Pennock's Estate, 1572, 1575, 1598.
Pennsylvania Co., Appeal of, 1459.
Pennsylvania University 's Appeal,
1021, 1023, 1024, 1034.
Penny v. Croul, 1642, 1647.
Pennypacker v. Pennypacker, 888.
People V. Baucher, 1632.
People v. Brooks, 1137, 1138.
People V. Brunstrom, 1590.
People V. Cogswell, 1607.
People V. Purdy, 1640.
Pepper v. Thomas, 1190, 1194.
Perin v. McMioken'a Heirs, 1609.
Perkins v. Sunset Tel. & T. Co., 947.
Perkinson v. Clarke, 1414.
Perrin v. Blake, 1319, 1320, 1323.
Perry v. Brown, 1501.
Perry v. Hackney, 1318, 1333, 1398.
Perry v. Kline, 1381.
Perry v. Maxwell, 973, 977, 1003,
1065.
Perry v. Provident Life Ins. & Inv.
Co., 1505.
Perry v. Rhodes, 1440.
Perry v. Thomas, 1314.
Perry Trusts, 1630, 1634, 1661, 1694.
Perry v. Woods, 1310.
Peters v. Bain, 1185.
Peters v. Dipple, 1447.
Peters v. Siders, 955.
Peterson's Appeal, In re, 1168.
Peterson's Estate, 959.
Peterson v. Jackson, 1373.
Petro v. Cassiday, 1492, 1500.
Pettes V. Bingham, 927, 928.
Pettingell v. Boynton, 1355.
Pettiward v. Prescott, 1351.
Petts, In re, 1265.
Pettyjohn's Exr. v. Woodroof 's Exr.,
1427.
Pewterers' Co. v. Christ's Hospital,
1649.
Peyton v. Bury, 1437, 1538.
Peyton v. Perkinson, 1364.
Pforr's Estate, In re, 1167, 1168,'
1169, 1175, 1582, 1589.
Pfuelb's Estate, In re, 1100.
Phelan v. Slattery, 1259.
Phelps V. Phelps, 1201, 1262.
Philadelphia Baptist Assn. v. Hart,
1656.
Philadelphia, City of, Appeal of,
1169, 1171, 1580.
1758
TABLE OF CASES OP VOLUME TWO.
[References are to pases.]
Philadelphia v. Davis, 1210.
Philadelphia v. Girard's Heirs, 1486,
1548, 1608, 1654, 1663, 1670, 1672,
1685.
Philadelphia v. Masonic Home of
Penn., 1621.
Philadelphia v. Women's Christian
Assoc, 1635.
Philips V. Brydges, 1327.
Philips' Will, In re, 1123.
Phillips V. Carpenter, 1243, 1263.
Phillips V. Chappell, 1084.
Phillips V. Evans, 1252.
Phillips V. Ferguson, 1173, 1523,
1524, 1525, 1537.
Phillips V. Gutteridge, 995, 1143.
Phillips V. Harrow, 1640, 1675.
Phillips V. Johnson, 1306.
Phillips V. King, 1656.
Phillips V. Low, 999.
Phillips V. McCombs, 1065.
Phillips V. MeConica, 1236.
Phillips V. PhiUips, 1073, 1081, 1105,
1580, 1601.
Philson V. Moore, 1086.
Phinizy v. Foster, 1455.
Phinizy v. Wallace, 1686.
Phipps V. Mulgrave, 1444.
Phipps V. Van Kleeck, 886.
Piatt V. Sinton, 1352, 1437.
Picard v. Mitchell, 995.
Pichoir, Matter of, 1219, 1554.
Picken v. Matthews, 1677.
Pickering v. Langdon, 1358.
Pickering v. Pickering, 1162, 1503.
Pickering v. Shotwell, 1656.
Pickering v. Stamford, 1117, 1210,
' 1211.
Pickersgill v. Eodger, 1216.
Pickett's Will, 870, 873.
Piokford V. Brown, 1696.
Pickup V. Atkinson, 1001.
Piekenbrock & Sons v. Knoer, 1196,
1197.
Pierce's Estate, In re, 990.
Pierce v. Hubbard, 1318, 13<ll.
Pierce v. Pierce, 874, 889, 891, 1584,
1589.
Pierce v. Win, 1558.
Pierey v. Piercy, 920, 922, 934.
Piercy v. Koberts, 1553.
PiersoU v. Eoop, 1410.
Picrson v. Garnet, 1596.
Pieschel v. Paris, 1666.
Pifer v. Locke, 1372.
Pigg V. Carroll, 1077.
Pigg V. Clarke, 1262.
Pigott V. Bagley, 1199.
Pike V. Stephenson, 1312, 1459, 1461.
Pike V. Walley, 1017, 1018.
Pilsbury, Matter of, 1682.
Pimel V. Betjemann, 1225, 1260,
1283, 1285.
Pinbury v. Elkin, 1296, 1485.
Pinokney v. pinckney, 1210.
Pingrey v. Eulon, 1455.
Pinhorne, In re, 1102.
Pinkham v. Blair, 1249, 1250.
Piper V. Moulton, 1639.
Pitney v. Brown, 1272, 1275.
Pittman v. Burr, 1102.
Pittman, Estate of, 1000, 1005, 1007.
Pitts v. Campbell, 1360.
Pitts V. Snowdon, 1194.
Pitts V. Van Orden, 1066.
Pitzer V. Morrison, 1477.
Place V. Burlingame, 1399.
Plaenker v. Smith, 1443.
Planner v. Scudamore, 1437.
Plant V. Weeks, 1496.
Piatt V. Elias, 890, 891.
Piatt V. Mickle, 1248.
Piatt V. Moore, 981.
Piatt V. Sinton, 1411.
Playfair v. Cooper, 995.
Pleasanton's Appeal, 1441, 1442.
Plenty v. West, 1150.
Plimpton v. Fuller, 1151.
Plitt V. Yakel, 1565.
Plum V. Smith, 1029, 1030.
Plunket V. Penson, 1137.
Pocock v. Attorney-General, 1666.
TABLE OF CASES OF VOLUME TWO.
[References are to pages.]
1759
Pole T. Somers, 1062, 1183.
Polk V. Faris, 1318, 1320, 1321, 1330.
Pollard V. Pollard, 1034.
Pollman & Bros. Coal etc. Co. v. St.
Louis, 1204.
Pollock V. Croft, 1539.
Pollock V. Worrall, 1069, 1070, 1075.
Pond V. Allen, 1033, 1115.
Poole T. Bott, 1434.
Poor V. Hudson Ins. Co., 1261.
Pope's Exrs. v. Elliott, 1562, 1567.
Pope V. Pope, 1029, 1031, 1104.
Pope V. Whitcomb, 1253, 1255, 1311.
Poppleton's Estate, 882.
Porsehet v. Porschet, 890.
Portarlington v. Darner, 1024, 1144.
Porter's Appeal, 1074, 1244.
Porter's Trust, In re, 1122, 1242,
1274.
Porter v. Howe, 1022, 1024.
Porter v. Jackson, 1159.
Porter v. Porter, 1447.
Porter t. Porter's Exr., 952, 953,
954.
Porter v. Eoss, 1685, 1686.
Porter v. Shephard, 1489.
Portington'a Case, 1540.
Portuondo, Estate of, 1218.
Posey's Lessee v. Budd, 1373.
Post V. Herbert's Exrs., 1272.
Post V. Hover, 1684.
Post V. Mackall, 1166.
Post V. Mason, 903.
Post V. Moore, 1573, 1574, 1577,
1583, 1585, 1586, 1589, 1592.
Post V. Kohrbach, 1360, 1685.
Postell V. Postell, 1686.
Potter, Estate of, 1690.
Potter, In re, 1533.
Potter V. Baldwin, 923.
Potter V. Brown, 1030.
Potter V. Couch, 1541, 1542, 1550,
1559.
Potter V. Merrill, 1564.
Potter V. Thornton, 1664.
Potter V. Worley, 1189, 1193, 1190.
Potter's Appeal, 911.
Potter's Trusts, In re, 1294.
Potts V. Breneman, 1003.
Pottstown Hospital v. New York Life
Ins. & Trust Co., 1617.
Pounds V. Dale, 959.
Pournell v. Harris, 1396.
PowilreU V. Jones, 1137.
Powel Y. Cleaver, 1058.
Powell V. Board of Domestic Mis-
sions, 1336, 1383.
Powell V. Boggis, 1331.
Powell V. Brandon, 1330.
Powell V. Glenn, 1383.
Powell V. Manson, 942.
Powell V. Morgan, 1515, 1518, 1576.
Powell V. Eawle, 1505.
Powell V. Eobins, 1145.
Powell's Distributees v. Powell's
Legatees, 1088.
Powell's Estate, In re, 1013, 1014,
1196.
Power V. Cassidy, 1015, 1168, 1211.
Powers V. BuUwinkle, 1372.
Powers V. McEachern, 1285.
Powers V. Wells, 1541.
Powys V. Mansfield, 1045, 1057, 1068,
1069, 1075.
Pratt V. Atwood, 964.
Pratt V. Douglas, 1181, 1182, 1183,
1194.
Pratt V. Mathew, 1232, 1266.
Pratt V. McGhee, 1100.
Pratt V. Miller, 1589.
Pratt V. Saline Valley Ey. Co., 1412.
Pratt V. Trustees of Sheppard etc.
Hospital, 1573, 1575, 1576.
Pratt's Lessee v. Plamer, 1232, 1263.
Pray v. Hegeman, 1693.
Preachers Aid Soc. v. Eich, 1664.
Prendergast v. Walsh, 978, 1053,
1310.
Prentice v. Janssen, 1175.
Presbyterian Board etc. v. Gulp,
1572.
Prescott V. Prescott, 1126, 1146.
1760
TABLE OF CASES OF VOLUME TWO.
[References are to pages.]
Preston t. Connecticut Mutual L.
Ins. Co., 1255.
Prettyman v. Baker, 1111.
Prevost V. Clarke, 1596.
Prey v. Stanley, 1541.
Price V. Ewell, 1401.
Price V. Hall, 1437.
Price V. Johnson, 1433.
Pride v. Fooks, 1222.
Prison Association v. Eussell's
Admr., 998, 1001, 1133.
Prison Charities, In re, 1666.
Pritchard v. Thompson, 1658, 1659.
Pritchitt V. Nashville Trust Co., 1427,
1430.
Probate Court v. Matthews, 999.
Proctor V. Clark, 1244.
Proctor V. Newhall, 1068.
Proctor V. Proctor, 1263.
Protestant Episcopal Edue. Soc. v.
Churchman 's Eepresentatives, 1609,
1656.
Provenchere 's Appeal, In re, 1287.
Prowitt V. Eodman, 1225.
Prowse V. Abingdon, 1107.
Pruden v. Paxton, 1273.
Pruen v. Osborne, 1238.
Pruner, In re, 981.
Pugh V. Pugh, 1222.
Pulitzer v. Livingston, 1670.
PuUiam v. Christy, 1405.
Pulling, Estate of, 947.
Pulsford V. Hunter, 978.
Pulteney v. Darlington, 1183.
Purcell, Estate of, 896, 900, 1572,
1584, 1589.
Purse V. Snaplin, 1022.
Pushman v. Filliter, 1574.
Putbrees v. James, 1364.
Putnam v. Story, 1436.
Pye, Ex parte, 1068, 1069, 1073.
Pyle's Appeal, 1459.
Pyle V. Price, 1505.
Pym V. Lockyer, 1042, 1043, 1068,
1069.
Pyne, In re, 1088, 1661, 1666.
Pyot V. Pyot, 1254.
Q
Quackenboss v. Kingsland, 1267,
1270, 1312.
Quarles v. Garrett, 1199, 1201.
Queen's College v. Sutton, 976.
Quennell v. Turner, 1157.
QuickC V. Leach, 1434.
Quinby v. Frost, 1156.
Quinlan v. Wickman, 1675.
Quinn v. Shields, 1627, 1658.
R
Eabb v. Graham, 954.
Eabbeth v. Squire, 1400.
Eaborg's Admr. v. Hammond's
Admr., 1483.
Eadburn v. Jervis, 990.
Eadcliffe v. Buckley, 1222.
EadelyfEe v. Bagshaw, 1433.
Eagsdale v. Parrish, 1192.
Eagwell V. Dry, 1813.
Eailey v. Milan, 1434.
Eainbolt v. East, 944.
Eaines v. Corbin, 1209, 1210.
Bains v. Hays, 1070.
Ealeigh's Estate, In re, 1264.
Ealey v. County of Umatilla, 1654.
Ealph V. Carrick, 1237, 1238, 1407.
Ealston v. Truesdell, 1876.
Ealston v. Wain, 1256.
Eambler v. Tryon, 919.
Eambo v. Eumer, 1143.
Eamsdell v. Eamsdell, 1858, 1404.
Eamsey v. Stephenson, 1277.
Eancliffe v. Parkyns, 1185.
Eand v. Butler, 1678.
Eandall v. Harrison's Exr., 1415.
Eandall v. Marble, 1524.
Eandall v. Morgan, 944.
Eandall v. Payne, 1491, 1537.
Eaudall v. Eandall, 1217, 1588, 1593.
TABLE OF CASES OP VOLUME TWO.
[References are to pages.]
1761
Eandall v. Russell, 1424.
Randall v. Tuehin, 1351.
Eandell, In re, 1665, 1677.
Eandoll v. Doe, 1303.
Randolph v. Eandolph, 1227.
Randc.lpli V. Wendel, 1381.
Ranolagh v. Ranelagh, 1308, 1404,
1109.
Rank v. Camp, 1521.
Eanldn v. Big Eapids, 1138.
Eankin v. Eankin, 889, 1171.
Eankin's Estate, In re, 1257.
Ranney v. Byers, 973.
Eansdell v. Boston, 1534, 1535, 1536,
1537.
Eapalye v. Bapalye, 1155, 1423.
Eapp V. Matthias, 1336.
Eapp V. Eapp, 1383.
Eathbourne v. Dycknian, 1350.
Eattenberry, In re, 1062, 1065.
Eavenscroft v. Jones, 1070.
Eawlings, In re, 1140, 1409.
Bay T. Alexander, 1270.
Eay V. Loper, 1083.
Raymond v. Hillhouse, 1224, 1273,
1274, 1278, 1283.
Raymond v. Northern Trust Co.,
1670.
Rayncr v. Mowbray, 1251, 1252, 1253,
1254.-
Eaynolds v. Hanna, 1262.
Read v. Gather's Admr., 1158.
Read v. Hodgens, 1629.
Read v. Patterson, 1138.
Eead v. Strangways, 1029.
Eead ». Watkins, 1356, 1475.
Eoad V. Williams, 1173.
Reade v. Livingston, 944.
Reading Trust Co., Appeal of, 1328.
Reams v. Spann, 1385.
Eeeords v. Fields, 1276.
Eedding v. Rice, 1529.
Eedfield, Estate of, 941.
Redmond v. Burroughs, 1249, 1250.
Eeed v. Buckley, 1439.
Reed v. Dickerman, 1192, 1199.
II Com. on Wills — 57
Eeed v. TJnderhill, 1172.
Eeed's Estate, 995, 1210.
Eeeder v. Antrim, 1348, 1359.
Eees, Estate of, 964.
Eees V. Eiigelback, 1503.
Eees V. Eraser, 1242.
Eees V. George, 1078.
Reeve v. Troth, 1399, 1400.
Eeeves v. Craig, 1507.
Eeeves v. Reeves, 1131, 1610.
Eeeves v. Simpson, 1322, 1327, 1328.
Eeeves v. Winnington, 1351.
Eeeves, In re, 1374, 1376, 1380.
Reid V. Brown, 991.
Eeid V. Corrigan, 1000.
Reid V. Hancock, 1529.
Eeid V. Kenrich, 946.
Reid V. Stuart, 1246.
Reid V. Voorhees, 1219.
Eeid V. Walbach, 1133.
Eeiff V. Strite, 1170, 1242.
Eeilly v. Bristow, 1338, 1339.
Eeinders v. Koppelmann, 1246.
Eeinhardt, In re, 1403, 1404.
Eeinhart v. Lantz, 1372.
Eeinoehl v. Shirk, 1270.
Remoek's Estate, 1237.
Eenner v. Williams, 1310, 1312.
Renton, Matter of, 1100, 1102.
Eenwick v. Smith, 1390.
Eeufl; V. Coleman's Heirs, 1507, 1525,
1538.
Reves v. Heme, 1523.
Bex v. Bettesworth, 939.
Rex V. Clarke, 1231.
Rex V. Newman, 1625.
Eex V. Robinson, 1556.
Eexford v. Bacon, 1011, 1023.
Reynard v. Spence, 1201.
Reyniah v. Martin, 1497, 1538.
Reynolds v. Adams, 910, 917.
Eeynolds v. Kortright, 1009, 1133.
Reynolds v. Love, 1681.
Reynolds v. Reynolds' Exrs., 1028,
1156, 1157.
Reynolds v. Robinson, 1063, 1066.
1762
TABLE OF OASES OF VOLUME TWO.
[References are to pages.]
Keynolds v. Torin, 1191.
Keynolds, In re, 1222.
Bhode Island Hospita.1 Co. v. Har-
ris, 996, 1129.
Rhode Island Hospital Trust Co. v.
Commercial Nat'l Bank, 1404.
Rhodes v. Bouldry, 1376.
Rhodes v. Holland, 1097.
Rhodes v. Muswell Hill Land Co.,
1515.
Rhodes v. Rhodes, 954, 1361, 1690.
Rhodes v. Shaw, 1466.
Rhodes, Estate of, 1696.
Rhoton V. Blevin, 955.
Rhymer's Appeal, 1095.
Rice V. Moyer, 1405, 1408, 1412.
Rice V. Rice, 948, 1000, 1026, 1057.
Rich V. Morisey, 1164.
Rich V. Rogers, 1340, 1387.
Richards v. Gill, 1163, 1164.
Richards v. Humphreys, 1045, 1055,
1057, 1062, 1072, 1081.
Richards v. Miller, 1276, 1278.
Richards v. Morrison, 1414.
Richards v. Richards, 1189.
Richardson v. Elphinstone, 1065.
Richardson v. Essex Institute, 1641,
1642, 1651.
Richardson v. Eveland, 1077, 1080,
1081.
Richardson v. Greese, 1064, 1108.
Richardson v. Hall, 1034, 1151. -
Richardson v. Johnsbn, 938.
Richardson v. Martin, 1243.
Richardson v. Morton, 1148.
Richardson v. Mullery, 1628.
Richardson v. Paige, 1361, 1453.
Richardson v. Richardson, 944, 945,
1456.
Richardson v. Spraag, 1123.
Richardson v. Wheatland, 1461.
Richardson v. Willis, 1291.
Richey v. Johnson, 1300.
Richmond v. Burroughs, 1249.
Richmond v. Vanhook, 1072.
Rickenbacker v. Zimmerman, 1067.
Rickets v. Livingston, 1060, 1061.
Eickett V. Guillernard, 1315.
Ricks' Estate, 868, 872, 875, 878,
905, 906, 907, 908, 918.
Bidden v. Johnson's Exr., 899.
Eider v. Wager, 1056, 1058.
Eidges V. Morrison, 1011, 1013, 1014,
1016.
Ridgeway v. Lanphcar, 1321, 1336,
1343.
Eidgeway v. Underwood, 1301.
Eidgley v. Bond, 1401, 1403.
Eidgley v. Ridgley, 1312.
Ridgway v. Woodhouse, 1109, 1492,
1498, 1500.
Riegelman's Estate, 1141.
Rieger v. Schaible, 946.
Rife V. Geyer, 1562.
Eiggs V. Sally, 1376, 1381.
Riker v. Cornwell, 1008.
Riley v. Jaeger, 1678.
Riley v. Riley, 944.
Ring V. Hardwick, 1685, 1686.
Ringrose v. Bramham, 1303.
Eippon V. Norton, 1553, 1560.
Rishton v. Cobb, 1497.
Bisk's Appeal, In re, 1272.
Ritter's Estate, In re, 992.
Rittgers v. Rittgers, 1194.
Rivenett v. Bourquin, 1274, 1280,
1307.
Rivers' Case, 1231.
Rivers v. Rivers, 1102.
Rizer v. Perry, 1173, 1638.
Roach V. Hammond, 1254.
Roach V. Martin's Lessee, 1379.
Boake v. Nowell, 1437.
Bobards v. Wortham, 1149.
Eobb V. Belt, 1010.
Eobb V. New York & C. Gas Coal
Co., 1393.
Bobbins v. Swain, 1080.
Robert v. Ellis, 1411.
Bobert, In re, 1082.
Bobert v. Corning, 1082.
Bobert v. West, 1387.
TABLE OP CASES OF VOLUME TWO.
[References are to pa^es.]
1763
Roberts v. Bartlett, 884.
Roberts v. Crume, 1360.
Roberts v. Lewis, 1528.
Roberts v. Ogbourne, 1246.
Roberts t. Roberts, 1466, 1468.
Roberts v. Smith, 1191.
Roberts v. Stevens, 1557, 1563, 1567.
Roberts v. Trawick, 919.
Roberts v. Walker, 1156.
Roberts' Exrs. v. Brinker, 1439.
Roberts, In re, 1102.
Robertson v. Broadbent, 972.
Robertson v. Collier, 1424, 1426.
Robertson v. Hardy, 1396, 1397.
Robertson v. Mowell, 1508.
Robertson v. Sehard, 1197.
Robeson y. Moore, 1322.
Robins v. McClure, 1092, 1129.
Robins v. Quinliven, 1336, 1375.
Robinson v. Blankenship, 1326.
Robinson v. McDonald, 1686.
Robinson v. Palmer, 1432, 1448, 1456.
Robinson v. Portland Female Orphan
Asylum, 1102.
Robinson v. Randolph, 1348, 1352,
1354.
Robinson v. Robinson, 905, 906, 907,
1388.
Robinson v. Smith, 1257, 1596.
Robinson v. Sykes, 1237, 1280.
Robinson v. Wheelwright, 1498.
Robinson's Estate, 1435, 1441.
Robley v. Robley, 1011.
Robson V. Jardine, 1145.
Roeh V. Callen, 1016.
Roche V. M'Dermott, 1634.
Rochester, In re, 1142.
Rochford v. Hackman, 1541, 1552,
1556, 1560, 1561.
Rock V. Zimmermann, 977.
Rockwell V. Bradshaw, 1290.
Rockwell V. Geery, 1036.
Roddy V. Fitzgerald, 1379.
Rodgers v. Rodgers, 1494.
Roe V. Blackett, 1352.
Roe y. Davis, 1375.
Roe V. Grew, 1378.
Roe V. Pattison, 1352.
Roe y. Vingut, 1486.
Roe V. Wright, 1351.
Rofe V. Sowerby, 1439.
Roffey y. Bent, 1556.
Rogers v. Brickhouse, 1243.
Rogers v. Parrar, 1137.
Rogers v. French, 1057, 1058, 1081.
Rogers y. Law, 1512, 1515.
Rogers v. Morrell, 1277.
Rogers v. Rogers, 1025, 1388, 1441.
Rogers y. Smith, 1290.
Rogers, Estate of, 1689.
Rollwagen v. RoUwagen, 870, 910,
911, 93L
Romaine y. Hendrickson, 1172.
Roman Catholic German Church v.
Wachter, 1158.
Roney's Estate, 1693.
Rood y. Hovey, 1447.
Rook V. Attorney-General, 1248,
1249.
Roome y. Counter, 1274.
Roome v. Phillips, 1437.
Roome y. Roome, 1056.
Roosevelt v. Thurman, 1542.
Root's Estate, In re, 1258.
Roper y. Roper, 1390.
Roquet v. Eldridge, 985, 1072.
Rose V. Hale, 1401, 1402.
Rose y. Hill, 1310.
Rose V. Porter, 1597.
Rose y. Reynolds, 1178. '
Rose V. Wortliam, 1257.
Roseboom v. Roseboom, 1336.
Rosenberg v. Frank, 1276.
Rosewell v. Bennett, 1056, 1082.
Rosher v. Rosher, 1542, 1544, 1558.
Roskrow V. Jewell, 1353.
Ross V. Drake, 1300, 1312, 1459.
Ross, Estate of, 957, 1036.
Ross V. Ross, 901, 1235, 1236, 1238,
1280, 1585.
Ross y. Tremain, 1504.
Rossborough y. Boyse, 873.
1764 tabijE op cases
[Refferenees
Rotch V. Emerson, 1607, 1621, 1627,
1658.
Roth V. Eauscheatouseh, 1356, 1359,
1365.
Botheram v. Rotheram, 983.
Roundell v. Currer, 1491, 1492.
Boundtree v. Eoundtree, 1432, 1435.
Bouse V. Branch, 1516, 1519, 1520.
Rouse's Estate, In re, 1462.
Boutt V. Newman, 990.
Eowbotham v. Dunnett, 1604.
Bowe V. Allison, 954, 961.
Rowe V. Moore, 1334.
Bowe V. Rowe, 1399, 1417.
Eowe's Exrs. v. White, 1485.
Bowell V. Barber, 944, 945.
Eowland, In re, 1505.
Rowland v. Gorsuoh, 1274.
Eowland v. Tawney, 1688.
Roy V. Monroe, 1169.
Eoy V. Bowe, 1355.
Eubel V. Buahnell, 1138.
Rucker v. Lambdin, 1482.
Rudd V. Hagan, 1559.
Rudebaugh v. Rudebaugh, 1300.
Rudkin v. Rand, 1372, 1375, 1376,
1680.
Rudolph V. Rudolph, 1098, 1102,
1284, 1303.
Rudy V. Ulrieh, 890.
Rudy's Estate, In re, 1173.
Buggies V. Randall, 1263, 1291.
Buggies' Estate, In re, 1293.
Eunkle v. Gates, 917.
Runnels v. Runnels, 1513.
Busling V. Eusling, 893, 903, 917,
922, 923, 1066.
Euss V. Euss, 1342, 1383, 1482.
Russell V. Allen, 1606, 1607, 1641,
1648, 1650, 1651, 1653, 1657, 1658.
Russell V. Buchanan, 1463.
Russell y. Eubanks, 1404.
Russell V. Hilton, 1171.
Eussell V. Minton, 1106.
Russell V. Eussell, 1236.
OF VOLUME TWO.
are to pagres.]
Russell y. Uoited States Trust Co.,
1572, 1574, 1601.
Eussell, Matter of, 1127, 1281.
Eutherford v. Green, 950, 1347.
Eutherford v. Mayo, 1199, 1201,
1204.
Rutherford v. Morris, 873.
Rutledge v. IHshburne, 1472.
Ryan v. Jones, 1137.
Ryan v. Monaghan, 1472, 1482.
Ryan v. Rutledge, 898.
Ryder, Matter of, 1420.
Ryman y. Crawford, 918.
Rymei;, In re, 1133.
s
Saberton v. Crawford's Trust, 1256.
Sacramento Bank t. Montgomery,
1554.
Safe Deposit etc. Co. v. Wood, 1443.
Salaman, In re, 1226.
Sale V. Moore, 1597.
Sale V. Thornberry, 1582.
Salisbury v. Petty, 1122.
Salmon, Estate of, 957.
Salmon v. Green, 1444.
Salt V. Chattaway, 1156.
Saltonstall v. Sanders, 1621.
Salusbuxy v. Denton, 1570.
Sammis v. Sammis, 1441.
Sampson v. Randall, 1398, 1421.
Sander, Estate of, 1224, 1235.
Sanders v. Hyatt, 1372.
Sanders v. Miller, 947, 1443.
Sandford v. Blake, 998, 1133.
Sandford v. Jackson, 1183, 1187,
1211.
Sandoe's Appeal, In re, 1185, 1215,
1216.
Sandon v. Sandon, 958, 963.
Sands v. Old Colony Trust Co., 1318,
1330.
Sanford, Estate of, 1554, 1555.
Sanford, In re, 1413.
Sanford v. Sanford, 1036, 1390.
TABLE OP CASES
[References
Sanger v. Eovello, 1565.
Santa Clara Female Academy v. Sul-
livan, 1607.
Sargeant v. Puller, 1214.
Sargent v. Cornish, 1642.
Sargent v. Sargent, 993.
Sargent v. Towne, 1346.
Sauer v. Griffin, 1137.
Sauerbier's Estate, In re, 11G9,
1172.
Saulsberry v. Saulsberry, 1547.
Saunders' Appeal, 925.
Saunders v. Haughton, 1425.
Saunders v. Bichard, 1202.
Saunders v. Saunders' Admrs., 1281,
1282, 1287.
Saunders v. Vautier, 1462.
Sauter v. MuUer, 1442.
Savage v. Burnham, 1188, 1191, 1290.
Savage v. Eobertson, 1228.
Sawyer v. Freeman, 1218.
Saxton V. Webber, 1685, 1686, 1687.
Sayer v. Sayer, 971, 1025, 1071.
Sayward v. Sayward, 1125, 1450,
1484.
Scale V. KawUns, 1409.
Seatterwood v. Edge, 1670, 1671.
Schaefer v. Bernhardt, 1100.
Schaefer v. Sehaefer, 1385, 1387,
1390, 1679.
Schafer v. Eneu, 1223.
Schaffer v. Kettell, 1272, 1282, 1288.
Schedel, In re, 1225.
Schermerhorn v. Negus, 1546.
Schettler v. Smith, 1673.
Sehieffelin v. Kessler, 1096.
Schmidt v. Schmidt, 870.
Schminke v. Sinclair, 1401.
Sehmitt v. Willis, 1214.
Schmucker's Estate v. Reel, 1575,
1576, 1581.
Sehneer v. Greenbaum, 12f53.
Schneider v. Koester, 962.
Schneider v. Schneider, 1418.
Schnitter v. McManaman, 1482
OF VOLUME TWO.
are to pages.]
176:
Sehofield v. Heap, 1073.
Schofield v. Walker, 877.
Scholl's Estate, In re, 1230.
Scholl's \^'01, In re, 1224.
School Dist. No. 1. v. Intcrnalioiia.l
Trust Co., 970, 072, 975, 985, HSG.
Schoulcr, Petitioner, In re, 1576,
1631.
SchrivcT v. Cobeau, 1052.
Schuchhardt v. Schuchhardt, 890,
891, 896.
Schultz' Appeal, 1604.
Schultz V. Schultz, 955, 959.
Schulz, Estate of, 1217.
Schuyler v. Hanna, 1456.
Schwren v. FaUs, 1359, 1360.
Scofield V. Adams, 1035.
Scofield V. Olcott, 1251.
Scoteny v. Lomer, 1441.
Scott V. Douglas, 1175.
Scott V. Ford, 1102.
Scott V. Guernsey, 1336.
Scott V. Harwood, 1295.
Scott V. Ives, 1520.
Scott V. Murray, 1402.
Scott V. Price, 1437, 1485.
Scott V. Scarborough, 1295, 1304.
Scott V. Scott, 1150.
Scott V. Stebbins, 1148, 1158.
Scott V. Tyler, 1530.
Seott V. West, 1441, 1445.
Scott, In re, 1057.
Scott's Creditors v. Scott, 1330.
Scott's Estate, In re, 1276, 1524.
Seotton V. Scotton, 1072.
Scudder's Exrs. v. Vanarsdalc, 1242,
1277.
Scurfield v. Howes, 1114.
Sea V. Winston, 1272.
Seaboard Airline Ky. Co. v. Garrett,
1401, 1402.
Seabright v. Seabright, 1249, 1250.
Seabrook v. Grimes, 1423, 1424.
Seabrook v. Seabrook, 1210.
Seabrook 's Exrs. v. Seabrook, 1241.
Seaburn 's Exr. v. Seaburn, 1609.
1766
TABLE OP CASES OF VOLUME TWO.
[References are to pages.]
y. Barter, 1388.
Seaman, Matter of, 1523.
Seaman v. Woods, 1183.
Sears v. Attorney-General, 1634.
Sears v. Chapman, 1657.
Sears v. Choate, 1175, 1557, 1566.
Sears v. Putnam, 1097, 1678.
Sears v. Bussell, 1247, 1353, 1686.
Seaver v. Lewis, 1144, 1149.
Seaward v. Wellock, 1388, 1469.
Seay v. Cockrell, 1343.
Seehrest v. Edwards, 877.
Seeombe v. Edwards, 1125.
Second Religious Society v. Harri-
man, 1657.
Security Co. v. Bryant, 1029, 1212.
Security Co. v. Hardenburgh, 1437.
Security Trust Co. v. Lovett, 1288.
Seddel v. Wills, 1308.
Seefried v. Clarke, 1580, 1595.
Seoger v. Leakin, 1330.
Seeger's Exrs. v. Seeger, 1170.
Seeley \. Alden, 1685.
Seeley v. Hincks, 1506.
Sefton V. Hopwood, 905.
Seguine v. Seguine, 870, 872, 896,
954.
Seiber's Appeal, 1132.
Seiter v. Straub, 904.
Seitziuger's Estate, In re, 1230, 1234.
Selby V. Morgan's Exrs., 1115.
Sellon V. Watts, 1027.
Selman v. Robertson, 1477, 1485.
Selover v. Coe, 1138.
Semper v. Coates, 1414.
Scmphill V. Bayly, 1526, 1537.
Senger v. Senger's Exr., 1290.
Serfass v. Serfass, 1249.
Sergeant, Ex parte, 1130.
Serle v. St. Bloy, 1153.
Sessoms v. Sessoms, 1396.
Settles V. Settles, 943.
Severns' Estate, In re, 1168, 1170,
1171.
Sewall V. Roberts, 1236.
Sewall V. Wilmer, 949.
Sexton V. Chicago Storage Co., 1506.
Seymour v. Klilbee, 1404.
Seymour v. McAvoy, 1558, 1563_
1565.
Seymour v. Sanford, 1574, 1593.
Shackelford v. Hall, 1525, 1526, 1537.
Shadbolt v. Vanderplank, 1064.
Shadden v. Hembree, 1093, 1102,
1450, 1460.
Shaffer, Succession of, 1027.
Shaf tsbuiy v. Shaftsbury, 1017, 1055,
1060.
Shailer v. Bumstead, 917, 921, 926.
Shallcross v. Pinden, 1141, 1142.
Shallcross v. Wright, 1173.
Shallenberger v. Ashworth, 1175.
Shalters v. Ladd, 1240, 1362.
Shanahan v. Kelly, 1683.
Shanek v. Arrowsmith, 1148.
Shand v. Kidd, 1123.
Shaner v. Wilson, 1403.
Shanley v. Baker, 1131. '
Shanley v. Shanley, 1216.
Shannon v. Bonham, 1456.
Shannon v. Newton, 1138.
Shannon v. People, 1231.
Shapley v. Diehl, 1323, 1340, 1343.
Sharp V. Cosserat, 1552.
Sharp T. Humphreys, 1351.
Sharp V. Sharp, 1351.
Sharp V. Wightman, 1060, 1061.
Sharp, In re, 1290, 1291.
Shattuek v. Stedman, 1303, 1437,
1440, 1461.
Shaw V. English, 1473.
Shaw V. Eord, 1475, 1542.
Shaw V. Hoard, 1411.
Shaw V. Hussey, 1357, 1358, 1405.
Shaw T. Lawless, 1598.
Shaw V. McMahon, 1281.
Shaw V. Robinson, 1244.
Shaw T. Weigh, 1377.
Shaw's Devisees v. Shaw's Admr.,
1191, 1193, 1199, 1201.
Shaw's Will, 872.
Sheafe v. Gushing, 1396.
TABLE OF CASES OF VOLUME TWO.
[References are to paires.]
1767
Shearman v. Angel, 1228, 1230.
Shee V. Hale, 1555.
Sheehan v. Kearney, 919.
Sheets y. Grubbs' Exr., 1222.
Sheets' Estate, In re, 1383.
Shelby's Exrs. v. Shelby's Devisee,
953.
Sheldon v. ChappeU, 1638.
Sheldon v. Stoekbridge, 1639.
Shell's Estate, In re, 884, 912.
Shelley v. Bryer, 1258.
Shelley's Case, 1318, 1446.
Shelton v. King, 1557.
Shepard t. Shepard, 1506.
Sheperd v. Guernsey, 1021.
Shepherd v. Nabors, 1246.
Sheppard, Estate of, v. Kendall, 934.
Sheppey v. Stevens, 870.
Sherman v. American Congrega-
tional Assn., 1497, 1501, 1502.
Sherman v. Baker, 1631, 1647.
Sherman v. Havens, 1563, 1565, 1508.
Sherman v. Lewis, 1183.
Sherman v. Skuse, 1560.
Sherratt v. Mountford, 1259.
Shethar v. Sherman, 1021.
Shevaux v. Aislabie, 1444.
Shields v. Jolly, 1638, 1663.
Shields v. Keys, 1196.
Shimer v. Mann, 1336, 1343, 1362.
Shindler v. Eobinson, 1454, 1464.
Shinn v. Motley, 1295.
Shirey v. Clark, 1365.
Shirk's Estate, 1498.
Shirt V. Westby, 1029.
Shivers v. Goar, 1513.
Shobe V. Brinson, 1166, 1167.
Shoekley v. Parvis, 1498.
Shoemak.jr's Appeal, In re, 1362.
Shoemaker v. Huffnagle, 1379.
Shoofstall V. Powell, 1379.
Shotts V. Poe, 1293.
Shotwell V. Mott, 1625, 1654.
Shotwell V. Sedham's Heirs, 1193.
Shovelton v. Shovelton, 1571, 1590.
Shower's Estate, 1542.
Shreve v. Shreve, 1327.
Shreve's Exrs. v. Shreve, 1025.
Shrew v. Jones, 1549.
Shrimpton v. Shrimpton, 1444.
Shnldham v. Smith, 1433.
Shull v. Johnson, 1259.
Shulters v. Johnson, 1158.
Shum V. Hobbs, 1439, 1464.
Shumau v. Heldman, 1508.
Shutt V. Eambo, 1271, 1312.
Shuttleworth v. Greaves, 1182, 1282.
Sias V. Chase, 1018.
Sibley v. Baker, 1166.
Sibley v. Cooke, 1122.
Sibley v. Perry, 991, 1238.
Sibthorp v. Moxton, 1107.
SicelofE V. Eedman's Admr., 1320,
1331, 1336.
Siddall, Estate of, 1399.
Sidney v. Sidney, 1068.
Sidney v. Vaughan, 1439.
Siegwald v. Siegwald, 1362.
Siegwarth's Estate, 1557.
Sigmon v. Hawn, 1178.
Sileox V. Bell, 1260.
Silcox V. Nelson, 1101.
Sill V. Sill, 1199, 1201.
Sillcoeks v. Sillcocks, 1396.
Sillick v. Booth, 1316.
Silsby V. Bullock, 939.
Silvey, Estate of, 938, 941, 1202.
Simcoke v. Grand Lodge, 1253.
Simmons v. Crook, 1230.
Simmons v. Gooding, 1249.
Simmons v. Hubbard, 993.
Simmons v. Morgan, 1398.
Simmons v. Eose, 1157.
Simmons v. Vallance, 970, 1028.
Simms v. Garrott, 1246.
Simonds v. Simonds, 1411.
Simons' Will, In re, 1262.
Simpson v. Corder, 1570, 1602,
Simpson v. Durbin, 931.
Simpson v. Hornsby, 1211.
Simpson V. Sponee, 1226, 1297.
1768 tabijE op cases
[References
Simpson v. Trust Co. of America,
1682.
Simpson v. Welcome, 1608, 1625.
Sims V. Georgetown College, 1342.
Sims V. Sims, 1057, 1076, 1148.
Sinclair v. Hone, 1104.
Singer v. Taylor, 883.
Sink V. Sink, 1401, 1402.
Sinnett v. Herbert, 1648.
Sinton v. Boyd, 1312.
Sioux City Terminal E. Co. v. Trust
Co. of North America, 1676.
Sitwell V. Bernard, 1445.
Skaggs V. Deskin, 1183.
Skeeles v. Shearly, 1551.
Skellengcr v. Skellenger, 1210.
Skinner v. Lamb, 1308.
Skinner v. Spann, 1007.
Skinner v. Wood, 1170.
Skottowe V. Young, 1233.
Skull V. Johnson, 1272.
Slack V. Bird, 1312.
Slade V. Patten, 1679, 1685.
Slade V. Talbot, 1002.
Slaney v. Slaney, 1384.
Slater, In re, 1053.
Slater v. Dangerfield, 1378.
Slattery v. Wason, 1567.
Slaughter v. Garland, 1208.
Slaughter v. Stephens, 1088.
Sleeeh v. Thorington, 1051.
Slemmer v. Crampton, 1324.
Slevin, In re, 1666.
Slingerland v. Slingerland, 942.
Sloan V. Hanse, 1120.
Slocum V. Hagaman, 1217.
Small V. Small, 870, 887, 888.
Small V. Wing, 1445.
Smart v. King, 953, 1227.
Smell v. Dee, 1440.
Smeltzer v. Goslee, 1564.
Smisson, In re, 1671.
Smith, In re, 1642.
Smith V. Ashurst, 1277, 1292.
Smith V. Barham, 1425, 1426.
OF VOLUME TWO.
are to pages.]
Smith V. Bell, 1362, 1453, 1454, 1458,
1543, 1575.
Smith V. Block, 1459.
Smith V. Boswell, 875.
Smith V. Bowen, 1570.
Smith V. Brison, 1495.
Smith V. Bush, 1140, 1157.
Smith V. Butcher, 1331.
Smith V. Campbell, 1254, 1341.
Smith V. Chapell, 942, 944.
Smith V. Chapman, 1341.
Smith V. Chester, 1314, 1457, 1459,
1463.
Smith V. Claxton, 1167, 1174.
Smith V. Collins, 1321, 1322, 1327,
1342.
Smith V. Conder, 1080.
Smith V. Cox's Committee, 1079.
Smith V. Cunningham, 1690.
Smith V. Curtis, 1272.
Smith V. Dana, 1429.
Smith V. Dolby, 927.
Smith V. Du Bose, 1229.
Smith V. Duuwoody, 1398.
Smith V. Edwards, 1440, 1679.
Smith V. Fellows, 1024.
Smith V. Pox's Admr., 1387.
Smith V. Gardner, 1214.
Smith V. Greeley, 1266.
Smith V. Greer, 1365, 1372.
Smith V. Guild, 1203, 1204.
Smith V. Harrington, 1626.
Smith V. Hastings, 1321, 1344.
Smith V. Haynes, 1281, 1289.
Smith V. Horsfall, 1238.
Smith V. Hunter, 1482.
Smith V. Isaacs, 1545.
Smith V. Jewott, 1504.
Smith V. Keller, 917, 920.
Smith V. Kimbell, 1410, 1482.
Smith V. Kniskern, 1187, 1193.
Smith T. Lampton, 987.
Smith V. Lansing, 1230, 1234.
Smith V. Lidiard, 1258, 1259.
Smith V. Lucas, 1215.
Smith V. McCann, 1550, 1559.
TABLE OF CASES OP VOLUME TWO.
[References are to pages.]
1769
Smith V. McCormick, 1332.
Smith V. McKitterick, 972, 975, 978.
Smith V. Olmstead, 941, 120^;.
Smith V. Palmer, 1256, 1257, 1444.
Smith V. Phillips, 1416.
Smith V. Pybus, 1310.
Smith V. Eiee, 1300.
Smith V. Robertson, 961.
Smith V. Eunnells, 1396.
Smith V. Schlegel, 1415.
Smith V. Smith, 1103, 1154, 1305,
1432, 1653, 1688.
Smith T. Soper, 1141.
Smith V. Steen, 954, 962.
Smith V. Stephens, 1214.
Smith V. Strong, 1069, 1076.
Smith V. Towers, 1558, 1566.
Smith T. Townsend, 1179, 1649, 1686.
Smith V. Turpin, 944.
Smith V. Winsor, 1243, 1466.
Smith, Matter of, 1109, 1115, 1198,
1200, 1300, 1338.
Smith's Appeal, In re, 979, 1059,
1369.
Smith's Estate, In re, 1036, 1640.
Smith's Will, In re, 1296.
Smither v. Willock, 1437.
Smithsonian Institute v. Meeeh,
1512, 1516, 1518.
Smithwiek v. Biggs, 1453.
Smithwiek v. Jordan, 1546.
Smoot V. Heyser's Exr., 938, 1179.
Smullin v. Wharton, 1002.
Smythies, Ee, 1058.
Snedeker v. Eulong, 896.
Snedeker v. Snedeker, 1250.
Snelgrove v. Snelgrove, 1072, 1199.
Snider v. Newsom, 1494, 1505.
Snodgrass v. Brandenburg, 1351,
1587.
Snodgrass v. Smith, 870, 873, 893,
894, 897, 899, 905, 907, 908, 918,
922, 924, 931, 932.
Snow V. Durgin, 1253.
Snow V. Foley, 1017.
Snowball's Estate, In re, 868, 920,
926.
Snowden v. Banks, 1051.
Snowdon v. Dales, 1554, 1560.
Snyder v. Toler, 959, 1593.
Snyder, Estate of, 891, 959, 971, 973,
974, 975, 980, 1193, 1433.
Society for Promoting Education v.
Attorney-General, 1495.
Soehnlein v. Soehnlein, 1430.
Sohier v. Burr, 1G54, 1657, 1666.
Sommerville v. Sommerville, 1138.
Sondheim v. Pechenbach, 1011, 1013.
Soper V. Brown, 1237, 1239.
Sorresby v. HoUins, 1650.
Sorver v. Berndt, 1224.
Souder, In re, 1419.
South V. Williams, 1107.
Southerland v. Cox, 1473, 1482.
Southern v. Wollaston, 1688.
Southgate v. Continental Trust Co.,
1013.
Sowerby's Trust, In re, 1105, 1107.
Spaan v. Anderson, 1466.
Spalding v. Hershfield, 1209.
Spalding v. St. Joseph's Industrial
School, 1608, 1655, 1668.
Spangler v. Dukes, 1210.
Sparhawk v. Cloon, 1556.
Sparks v. Dorrell, 1184.
Sparks v. Eeatal, 1409.
Sparrow v. Sparrow, 1547.
Spath V. Ziegler, 1060.
Speakman v. Speakman, 1122.
Speer v. Wilkins, 1137.
Speidel's Appeal, 1211.
Spencer v. De Witt C. Hay Library
Assn., 1133.
Spencer v. Scovil, 1359.
Spencer v. See, 1511.
Spencer v. Spencer, 1055.
Spencer v. Spruel, 1373.
Spencer, In re, 1020.
Spiers v. English, 900.
Spiller V. Madge, 1286.
Spinks V. Eobins, 1056, 1075.
1770
TABLE OF CASES OF VOLUME TWO.
[References are to psiges.]
Spinney v. Eaton, 986, 1045.
Spoiiford v. Manning, 1503.
Spong V. Spong, 1149.
Sponsler, Appeal of, 980, 1012.
Spooner v. Lovejoy, 1583.
Spracklin v. Eanier, 1295.
Spreckels, Estate of, 1554, 1555.
Sprigg V. Sprigg, 1491.
Spring V. Randall, 1560.
Springer v. Congleton, 1288.
Springer's Appeal, In re, 1143.
Springfield, In re, 1407.
Sprinkle v. Leslie, 1412.
Spurloek v. Brown, 943.
Spurloek v. Burnett, 938.
Spurrell v. Spurrell, 1311.
Spurrier v. Hobbs, 1006.
Squires v. Cook, 894, 901.
St. Amour v. Eivard, 1458,. 1472,
1473.
St. John V. Andrews, 1693.
St. John V. Dann, 1373.
St. M. Magdalen College v. Attor-
ney-General, 1647.
St. Paul's Church v. Attorney-Gen-
eral, 1650.
St. Paul's Sanitarium v. Freeman,
1482.
St. Peter's Church v. Brown, 1667.
Stackpole v. Beaumont, 1491, 1523,
1524, 1525.
Stagg V. Jackson, 1170.
Stahl's Appeal, In re, 1526.
Staigg V. Atldnson, 1192, 1206.
Staines v. Burton, 1642, 1650.
Stake V. Mobley, 1168, 1169, 1173.
Stallcup V. Cronley's Trustee, 1453.
Stamp V. Cooke, 1254, 1274,
Stanley v. Chandler, 1236.
Stanley v. Potter, 1048.
Stansbury v. Hubner, 1557.
Stanwood v. Stanwood, 1111.
Staples V. Lewis, 1257.
Stapleton v. Cheales, 1439, 1441.
Star Glass Co. v. Morey, 1336.
Starbuck v. Starbuck, 975, 982, 1051.
Stark V. Conde, 1501.
Stark V. Hunton, 1199.
Stark V. Smiley, 1493.
Stark's Will, In re, 1694, 1695.
Starling's Exr. v. Price, 1287.
Starnes v. Hill, 1332.
Starr, In re, 1694.
Starr v. McEwan, 1357.
Starr v. Minister & Truatees of Starr
Methodist Church, 1472.
Starr v. Willoughby, 1167, 1170.
State V. Addison, 1620.
State V. Assessors, 1635, 1636.
State V. Board of Commerce of Lar-
amie County, 1601, 1620, 1628.
State V. Board of Control, 1650.
State V. Bryant, 908.
State V. Cunningham, 1231.
State V. Gaughan, 1358.
State V. Gerard, 1625.
State V. Griffith, 1623, 1624.
State V. Holmes, 1210.
State V. Hunt, 938.
State V. McGowen, 1624.
State V. McVeigh, 1589.
State V. Probate Court, 1453.
State V. Eeady, 916.
State V. Smith, 1357, 1359.
State V. Tolson, 1453, 1685, 1686.
State V. Warrington's Exr., 1484.
State V. Welch, 1389, 1453.
Stearns v. Godfrey, 1495.
Stebbins, Matter of, 959.
Stedman v. Dunster, 1505.
Stedman v. Priest, 1288.
Steel V. Kurtz, 1249.
Steele, Estate of, 1677, 1689.
Steele v. Fisher, 1201, 1209.
Steele v. Steele, 963, 1138, 1204,
1212.
Steele v. Thompson, 1346.
Steevens' Trusts, In re, 1264.
Stehn V. Hayssen, 1001.
Steib V. Whitehead, 1542, 1557, 1558,
1563.
TABLE OF CASES
[References
Steiiikuehlcr v. Wempner, 932.
Stephens v. Gibbes, 1202, 1204.
Stephenson, In re, 1291, 1525, 1537.
Stephenson v. Axson, 995.
Stephenson v. Dowson, 976.
Stephenson v. Ontario Orphan Asy-
lum, 1131.
Stephenson v. Stephenson, 917, 923.
Stetson V. Eastman, 1111, 1127, 1133.
Stevens v. De La Vauix, 1498.
Stevens v. Fisher, 979, 1026.
Stevens v. Gregg, 1146.
Stevens v. Miller, 1362.
Stevens v. Shippen, 1608, 1625.
Stevens v. Van Cleve, 917.
Stevens, Estate of, 940, 955, 959,
960, 1657.
Stevenson v: Abington, 1260, 1515.
Stevenson v. Fox, 1270.
Stevenson v. Lesley, 1276, 1310, 1312.
Stevenson v. Eenardet, 945.
Stevenson v. Sullivant, 964.
Stevenson's Estate, In re, 1167, 1171.
Steward v. Middleton, 939.
Stewart v. Barrow, 1546.
Stewart v. Brady, 1545, 1546.
Stewart v. Chambers, 1035.
Stewart v. Coshow, 1639.
Stewart v. Denton, 977.
Stewart v. Elliott, 905.
Stewart v. Garnett, 1351.
Stewart v. Knight, 1338, 1340, 1366.
Stewart v. Sheffield, 1282.
Stewart v. Stewart, 1231, 1580, 1582.
Stewart v. Swaim, 996.
Stewart v. Thomasson, 1164.
Stewart v. WooUey, 1547.
Stewart's Estate (Swann's Estate,
In re), 1247.
Stewart's Exr. v. Lispenard, 927.
Stiekney's Will, In re, 1490.
Stileman v. Ashdown, 1550.
Still V. "Wood, 1165.
Stilphen, Appeal of, 975, 984, 986,
988.
Stihrcll V. Knapper, 1531.
OF VOIiUME TWO.
are to pages.]
1771
Stineman's Appeal, 1211.
Stires v. Van Eenssalaer, 1285.
Stirling v. Lydiard, 1044.
Stirling V. Stirling, 903.
Stisscr V. StisKcr, 1409.
Stivers v. Gardner, 1401, 1533.
Stockdale v. Nicholson, 1256.
Stoeker v. Harbin, 1156.
Stockton V. Weber, 1498.
Stoddart v. Nelson, 1260.
Stokes V. Norwood, 1209.
Stokes V. Stokes, 947.
Stokes V. Van Wyck, 1247.
Stoltz V. Doering, 903.
Stone V. Attorney-General, 1626.
Stone V. Bradlee, 1314, 1382.
Stone V. Cook, 1204, 1205.
Stone V. Evans, 1121.
Stone V. North, 1398.
Stone V. Parker, 1154.
Stone V. Pennock, 1065.
Stone V. Westcott, 1553.
Stonebraker v. Zollicker, 1305, 1385.
Stonestreet v. Doyle, 1126, 1131.
Storer v. Wheatloy's Exrs., 1254,
1263.
Storer 's Will, 885, 891, 912, 917.
Storrs Agricultural School v. Whit-
ney, 1627, 1647.
Storrs V. Benbow, 1295.
Storrs V. Burgess, 1281, 1301.
Stouch V. Zeigler, 1373.
Stout V. Good, 1322, 1323, 1342.
Stout V. Hart, 977, 1049.
Stout V. Stout, 1486, 1684.
Stover V. Boswell's Heir, 964.
Stover's Appeal, 1505.
Strachan's Esta,te, In re, 925.
Strahan v. Sutton, 1193.
Stratton v. Best, 1183.
Stratton v. McKinnie, 1313.
Stratton v. Physio-Medical College,
1608.
Straus V. Eost, 1494.
Strawbridge v. Strawbridge, 1365.
Stretch ». Watkins, 1464.
1772
TABLE OF CASES OP VOLUME TWO.
[References are to pages.]
Striewig's Estate, In re, 998.
Stringer's Estate, In re, 1357.
Strode v. McCormiok, 1175.
Strohm's Appeal, 1022.
Strong V. Heady, 1097, 1114.
Strong V. Smith, ]283, 1284.
Strong V. Williams, 1063, 1064, 1065,
1066.
Strother v. Barrow, 1633.
Strother v. Button, 1303, 1444.
Stuart V. Bruere, 1445.
Stuart V. Easton, 1642.
Stuart V. Stuart, 1245, 1246, 1262,
1263.
Stuart V. Walker, 1357, 1358, 1466.
Stuart V. Wrey, 1441.
Stuart, In re, 1412.
Stubbs V. Stubbs, 1386.
Sturges V. Cargill, 1409.
Sturgess v. Pearson, 1447.
Sturgis, In re, 1658.
Succession of Tilton, 1633.
Succession of Vance, 1633.
Suisse V. Lowther, 1013, 1014, 1016,
1042, 1077.
Sailings v. Eichmond, 1210.
Sullivan V. Garesche, 1483.
Sullivan v. Latimer, 1066.
Sullivan V. Louisville etc. B. Co.,
1255, 1257.
Sullivan v. Parker, 1230.
Sully V. Nebergall, 1189.
Sulzberger v. Sulzberger, 936.
Summers v. Smith, 1483.
Summit V. Yount, 1528.
Sumpter v. Carter, 1304, 1679.
Sunderland v. Hood, 890, 891.
Supreme Council v. Bennett, 1248,
1253.
Suter V. Hilliard, 1658.
Sutherland v. Harrison, 1138, 1155.
Sutherland v. Sutherland, 1186.
Sutherland v. Sydnor, 1403.
Sutton v. Askew, 1210.
Sutton V. Hancock, 957.
Sutton V. Eead, 1210.
Sutton's Estate, In re, 982, 983, 984.
Swails V. Swails, 1039, 1058.
Swaine v. Burton, 1242.
Swan V. Holmes, 1183.
Swann v. Garrett, 1175, 1176.
Swasey v. American Bible Soc, 1626,
1657.
Swasey v. Jaques, 1248, 1249, 1250.
Swearingen v. Inman, 931.
Sweeney v. Sampson, 1625.
Sweeney v. Warren, 1140.
Swenarton v. Hancock, 881.
Swenson's Estate, In re, 1292.
Swift v. Duffield, 1226, 1227.
Swift's Exrs. v. Beneficial Soe., 1622.
Swifte V. Attorney-General, 1646.
Swinebroad v. Bright, 1057, 1079.
Swinton v. Legare, 1302, 1312.
Sword's Lessee v. Adams, 1120, 1121.
Sydnor v. Palmer, 1228.
Syme v. Badger, 1203.
Symons v. James, 1146.
T
Tacoma v. Taeoma Cemetery, 1639,
1660.
Taggart v. Murray, 1123.
Tait V. Northwick, 1149.
Talbot V. Snodgrass, 1369.
Talcott V. Talcott, 1272.
Tallmadge v. SiU, 1032.
Talmage, Matter of, 1412.
Tamargo, In re, 1101.
Taney v. Fahnley, 1343.
Tanqueray, In re, 1145, 1164.
Tant9n v. Keller, 986, 1041, 1045,
1046.
Tantum v. Campbell, 1322, 1329.
Tappan v. Deblois, 1623, 1628, 1641.
Tappan's Appeal, 1491.
Tarbeil v. Smith, 1359.
Tarbell v. Tarbeil, 946.
Tarrant v. Backus, 1255, 1676.
Tate V. Tally, 1380.
Tate V. Woodyard, 1639.
TABLE OF CASES
[References
Tattersall v. HoweU, 1491, 1507.
Tatum, In re, 1172.
Tavshanjian v. Abbott, 953.
Tawney v. Long, 871.
Tayloe v. Mosher, 1468.
Taylor v. Dodd, 1025.
Taylor v. Fauver, 1274.
Taylor v. Frobisher, 1434, 1684.
Taylor v. Haskell, 1168, 1169, 1172.
Taylor v. Keep, 1620.
Taylor v. Mason, 1491, 1509.
Taylor v. MeGowen, 1471.
Taylor v. Meador, 1435.
Taylor v. Nuttle, 934.
Taylor v. Pegram, 918.
Taylor v. Popham, 1505.
Taylor v. Eeid, 1360.
Taylor v. Stephens, 111^ 1287, 1309,
1310, 1312, 1315, 1579.
Taylor v. Taylor, 1056, 1147, 1239,
1371, 1432, 1458, 1474.
Taylor v. Watson, 1262.
Taylor v. Wendel, 1155, 1495.
Taylor's Exrs. v. Trustees of Bryn
Mawr College, 1624, 1625, 1656.
Teal V. Eichardson, 1322, 1324, 1329,
1336, 1365, 1371.
Teekenbrock v. McLaugMin, 874.
Tee V. Ferris, 1602.
Teed v. Morton, 1300, 1301.
Teele t. Bishop of Derry, 1661, 1662.
Teets V. Weise, 1436.
Templeman v. Warrington, 1447.
Templeton v. Walker, 1241, 1253,
1274.
Templeton v. Wallace, 1254.
Tench v. Cheese, 1157.
Tennant v. Braie, 1533.
TennHle v. Phelps, 979.
Terhune v. Colton, 1148.
Terrell v. Reeves, 1675, 1676.
Terry v. Briggs, 1480.
Terry v. Hood, 1371, 1372.
Terry v. Keaton, 1082.
Terry's Will, In re, 1261.
Tesson v. Newman, 1318.
OF VOLUME TWO.
are to pages.]
1773
Thaw V. Falls, 1304.
Thayer y. Finnegan, 1146, 1147,
1158, 1160.
Thayer v. Spear, 1535.
Thellusson v. Woodford, 1074, 1180,
1184, 1691.
Theological Education v. Attorney
General, 1493, 1685.
Theological Seminary v. Kellogg,
1384.
Thissell v. Sft'ailJJnger, 1168, 1169.
Thomas v. Britnell, 1141.
Thomas v. Castle, 1453.
Thomas v. Ellmaker, 1624.
Thomas v. Gregg, 1430.
Thomas v. Howell, 1492, 1500.
Thomas v. Maloney, 963.
Thomas v. Miller, 1274.
Thomas v. Rector, 1159.
Thomas v. Safe Deposit etc. Co.,
1239.
Thomas v. Thomas, 1285, 1293, 1297,
1304, 1463, 1678.
Thomas v. Wilberforce, 1437, 1688.
Thomas V; Williams, 1162.
Thomas' Estate, In re, 922, 1541.
Thomason v. Julian, 955, 962.
Thompson v. Bennett, 876.
Thompson v. Betts, 1014.
Thompson v. Brown, 1608.
Thompson v. Burra, 1191.
Thompson v. Crump, 1335.
Thompson v. Garwood, 1301.
Thompson v. Gaut, 1513, 1517, 1518.
Thompson v. Hawks, 903.
Thompson v. Kyn«r, 873.
Thompson v. Luddington, 1247.
Thompson v. Myers, 1253. ,
Thompson v. Nelson, 1182.
Thompson v. Pew, 1096.
Thompson v. Robinson, 1259.
Thompson v. Schenek, 1398.
Thompson v. Shakespeare, 1622.
Thompson v. Stephens, 987.
Thompson v. Stevens, 1064.
1774
TABLE OF CASES OF VOLUME TWO.
[References are to pages.]
Thompson v. Thompson, 1022, 1152,
1154, 1506, 1628.
Thompson v. Thornton, 1253, 1254.
Thompson v. Towne, 1032, 1551.
Thompson v. Wilson, 1062.
Thompson v. Young, 1257.
Thompson's Admr. v. Churchill's
Estate, 1017.
Thompson's Estate, In re, 1004,
1008, 1210.
Thomson v. Ludington, 1314, 1456.
Thorn v. De Breteuil, 1689.
Thorndike v. Loring, 1689, 1690.
ThornhiU v. Hall, 1336.
Thornton v. Bureh, 1453.
Thorp V. Johnson, 1506.
Throckmorton v. Holt, 916.
Throop V. Williams, 1455, 1458.
Thruston v. Anstey, 1462.
Thurber v. Chambers, 1120.
Thurston, In re, 1443.
Thweatt v. Eedd, 1133.
Thynne, Lady v. Earl of Glengall,
1063, 1076.
Tibbits T. Tibbits, 1558, 1596.
Tiehenor v. Tichenor, 1144.
Tickel V. Quinn, 1031.
Tioknor v. Harris, 1137.
Tidwel V. Ariel, 1101.
Tiers v. Tiers, 1687.
Tiffin V. Longman, 1254, 1255, 1276.
Tifft V. Porter, 971, 974.
Tilbury v. Barbut, 1685.
Tilby V. Tilby, 1095.
Tilden v. Green, 1610.
Tilden v. Tilden, 1503, 1504.
Tillinghast v. Bradford, 1552, 1562.
Tillinghast v. Cook, 1274.
Tillinghast, In re, 1051.
Tillinghast 's Account, In re, 1376,
1377.
Tillman v. Davis, 1171, 1242, 1244,
1263, 1264.
Tillman v. Ogren, 1002.
Tillman v. Sullivan, 1433.
Tillson V. Holloway, 1115, 1282.
Tilton V. Tilton, 943.
Tilton, In re, 1466.
Tily V. Smith, 1445.
Timanus v. Dugan, 1341.
Timberlake v. Paris, 1081.
Tindal v. Neal, 1305.
Tingley v. Covgill, 871.
Tingley v. Harris, 1410.
Tippin V. Coleman, 1116.
Tipton V. La Hose, 1372.
Tipton V. Tipton, 1045, 1059, 1225.
Title Guarantee & Trust Co., Matter
of, 1022.
Titus V. Titus, 1034.
Titzell V. Cochran, 1380.
Toaffe V. Commee, 1311.
Tobias v. Ketchum, 1187.
Tod, Ke, 931.
Todd V. Armstrong, 1393.
Todd V. Penton, 920.
Todd V. Trott, 1287.
Todd's Estate, 1058.
Tolbcrt V. Burns, 1285.
Tola V. Hardy, 1149.
Tolson V. Tolson, 1575.
Toman v. Dunlop, 1353.
Tomldns v. Tomkins, 902, 1142.
Tomkyns v. Ladbroke, 1203.
Tomlinson v. Nickell, 1349.
Tomlison v. Bury, 975.
Tompkins v. Panton, 1404.
Tompkins v. Prentice, 966.
Tompkins' Estate, In re, 998, 1047,
1071.
Tompkins' Will, In re, 1133.
Tompson v. Wilson, 1065.
Toms V. Owen, 1591.
Toms V. Williams, 1441, 1461, 1676.
Tongue's Lessee v. Nutwell, 1381,
1384.
Toole V. Hamilton, 1639.
Tootal's Estate, In re, 1024.
Toplis V. Baker, 1106.
Toronto Gen. Trusts Co. t. Wilson,
1638.
Torre v. Browne, 995.
TABLE OF CASES OF VOLUME TWO.
[References are to pages.]
1775
Towie V. Delano, 994.
Towle V. Doe, 1671, 1677, 1679,
1685.
Towle V. Swasey, 978, 979, 1021,
1023, 1024, 1028, 1155.
Towne v. Weston, 1287.
Townley v. Bedwell, 1627.
ToTvnsend v. Townsend, 879.
Towusend's Assignee v. Townsend,
1197.
Traeey v. Butcher, 1466.
Traeey v. Shumate, 1189, 1192.
Tracy v. Tracy, 1144, 1156.
Train v. Fisher, 1686
Trappes v. Meredith, 1560.
Traver v. Schell, 1116.
Travers v. Wallace, 1322, 1329.
Treat's Appeal, 1512.
Tregonwell v. Sydenham, 1108.
Tresidder's Estate, In re, 878, 911.
Trevor v. Trevor, 945, 948.
Trimble v. Eice, 1341.
Trimlestown v. D 'Alton, 924.
Trimmer v. Bayne, 1068, 1073, 1075.
Tripp V. Nobles, 1184.
Trippe v. Fazier, 1092.
Trogdon v. Murphy, 1453.
Trott V. Vernon, 1142.
Trotter, Matter of, 1219.
Trower v. Butts, 1226.
Troy V. Troy, 1405.
True Real Estate Co. v. True, 1670,
1675.
Trumble's WiU, In re, 1008.
Trumbull v. Gibbons, 875, 1498.
Trumbull v. Trumbull, 1323.
Trustees of Amherst College v. Bitch,
1602, 1603, 1604.
Trustees of Cory Universalist Soc. v.
Beatty, 1608.
Trustees of Davidson College v.
Chambers, 1609.
Trustees etc. of Presbyterian Church
V. Guthrie, 1609.
Trustees of Young Men's Christian
Association v. Paterson, 1636.
Tucker v. Adams, 1331.
Tucker v. Bishop, 1296, 1297.
Tucker v. Field, 877.
Tucker v. Kayess, 1109.
Tucker v. Stites, 1222.
Tucker, In re, 995.
Tucker's Will, In re, 1251, 1304.
Tuell v. Hurley, 1024.
Tuerk v. Schueler, 1359.
Tufnell V. Barrell, 1307.
Tugwell V. Scott, 1229.
Tunstall v. Trappes, 1551.
Turcan, In re, 945.
Turfler's Estate, In re, 1068.
Turman v. White's Heirs, 1319,
1321.
Turner v. Anderson, 878.
Turner v. Durham, 1355.
Turner v. Ivie, 1389, 1474, 1485.
Turner V. Martin, 1105, 1107.
Turner v. Mather, 974.
Turner v. Moor, 1123.
Turner v. Patterson, 1302.
Turner v. Probyn, 1162.
Turner v. Turner, 1156.
Turner v. Withers, 1409.
Turner's Appeal, 1074.
Turner's Will, In re, 875, 876, 901.
Turnure v. Turnure, 896.
Turpin v. Turpin, 1067.
Turrentine v. Perkins, 990.
Turrill v. Davenport, 1582, 1599.
Turrill v. Northrop, 1379, 1382.
Turvin v. Newcome, 1696.
Tussaud, In re, 1072.
Tussaud's Estate, In re, 1042.
Twining v. Powell, 1072.
Twitty V. Camp, 1542, 1546.
Twitty V. Martin, 1102, 1128, 1282. ^
Twopeny v. Peyton, 1553.
Tyler v. Fidelity etc. Trust Co.,
1678, 1679, 1680.
Tyler v. Gardiner, 877, 899.
Tyler v. Wheeler, 941.
Tyler, In re, 1648.
Tyndale v. McLaughlin, 1325.
1776
TABLE OF CASES OF VOLUME TWO.
[Heferences are to pages.]
Tyndale v. Warre, 1550.
Tyrone v. Waterford, 1390.
Tyson v. Sinelaif, 1329, 1333, 1343.
u
TTdell V. Stearns, 951, 961.
tTnderhill v. Tripp, 1453.
Underwood v. Wing, 1117.
Unger v. Mellinger, 942.
TJngley v. TJngley, 945.
Union Methodist Church v. Wilkin-
son, 1626, 1654.
Union Trust Co., Matter of, 988,
1002, 1005.
United States v. Arredondo, 1492.
United States Fidelity & Guaranty
Co. V. Douglas' Trustee, 975, 1226,
1289, 1674, 1676, 1679.
United States v. Fox, 1643.
United States v. Morrison, 1549.
United States v. Parker, 1149.
United States Trust Co. v. Maxwell,
1234.
United States Trust Co. v. Mutual
Ben. L. Ins. Co., 1256.
University of Oxford v. Clifton,
1377.
University of Pennsylvania's Ap-
peal, 1117, 1122.
Unsworth v. Speakman, 1294.
Upham V. Emerson, 1293.
Upham V. Vamey, 1564.
Upham, Estate of, 998, 1008.
Upshaw V. Upsiiaw, 1199.
Upton V. Prince, 1072.
Urich's Appeal, 1337.
Usry V. Hobbs, 1115.
Utley V. Titcomb, 1015, 1016.
Utter V. Sidman, 1373.
Utz's Estate, 964, 1224, 1386.
Vaiden v. Hawkins, 971.
Van Amee v. Jackson, 1583, 1590.
Van Arsrlale v. Van Arsdale, 1210.
Van Beuren v. Dash, 1096, 1120.
Vance v. CampboU's Heirs, 1494,
1531.
Vance, Succession of, 1218, 1431.
Vance's Estate, In re, 1216, 1217,
1312.
Van Cortlandt v. Kip, 1130.
Vandemark v. Vandemark, 1086.
Van Derlyn v. Mack, 1228.
Vandervort's Estate, In re, 1497,
1512.
Vanderzee v. Slingerland, 1270, 1271,
1385, 1394, 1408.
Vandewalker v. EolUns, 1129, 1437,
1446.
Van Doren v. Olden, 1430.
Van Driele v. Kotvis, 1398, 1405.
Van Duyne v. Van Duyne's Exr.,
1203.
Van Dyke's Appeal, In re, 1181.
Van Gorder v. Smith, 1592.
Van Grutten v. Foxwell, 1326, 1327,
1342.
Van Horn v. Van Horn, 964.
Van Home v. Campbell, 1356.
Vanhorne v. Dorrance, 1498.
Van Houten v. Hall, 1446.
Van Houten v. Post, 1071, 1073,
1076, 1080, 1081, 1082.
Van Kleeck v. Ministei's etc. of Re-
formed Dutch Church, 1129, 1130,
113L
Van Ness' Will, 868, 869, 874, 911.
Van Osdell v. Champion, 1557,' 1565.
Van Pretres v. Cole, 1101.
Van Eensselaer v. Poucher, 1372.
Van Eheenen v. Veenstra, 1015.
Van Eiper v. Hilton, 1079.
Van Eiper v. Van Eiper, 1063, 1065,
1066.
Van Schaack v. Leonard, 1180.
Van Steenwyck v. Washburn, 1193,
1197, 1198.
Van Tassell v. Burger, 1088.
Vanvalkenberg v. Vanvalkenberg,
917.
TABLE OF CASES
[References
Van Vliet's Appeal, 980, 1160.
Van Voorhis v. Brintnall, 1228.
Van Wagoner's Estate, 1420, 1421.
Van Wickle v. Van Wickle, 950.
Van Winkle v. Van Houten, 1158.
Vanzant v. Morris, 1388.
Vardon's Trusts, In re, 1184.
Varney v. Stevens, 1346.
Varrell v. Wendell, 1250, 1253.
Vason V. Bell, 948.
Vason V. Estes, 1378.
Vaughan v. Bunch, 1419.
Vaughan, In re, 1639.
Vaughan y. Vaughan 's Heirs, 1210.
Vaughn v. Gator, 1385.
Vaughn v. Headford, 1386.
Vaughn v. Lovejoy, 1505, 1529, 1531.
A'aux V. Henderson, 1247.
Vawdrey v. Geddes, 1296.
Veasey v. Whitehouse, 1503.
Ventress v. BroWn, 1078.
Vermont Baptist State Conv. v.
Ladd's Estate, 1651.
Vernon v. Kirk, 927.
Vernon v. Vernon, 1188, 1192, 1211.
Vick V. Sueter, 1433.
Vickers v. Pound, 970.
"Vickers v. Stone, 1312.
Vidal V. Girard, 1615, 1623, 1624,
1625, 1626, 1664.
Vidal V. Philadelphia, 1510, 1641,
1642.
Villar V. Gilbey, 1228.
Villareal v. Galway, 1194.
Viner v. Francis, 1282, 1292.
Violett V. Brookman, 1515.
Virgin v. Virgin, 1214.
Vize V. Stoney, 1440.
Vogt V. Vogt, 1322.
Vom Saal's Will, In re, 1513.
Von Brockdorff v. Malcolm, 1688,
1690.
Von Keller's Estate, In re, 991.
Voorhecs v. Singer, 1102, 1453, 1458.
Vorley v. Richardson, 1443.
Vosseler, Matter of, 1121.
II Com. on Wills— 58
OF VOLUME TWO. 1777
are to pages.]
Vowers, Matter of, 1403.
Vreeland, In re, 1398.
w
Waddle v. Terry, 1210.
Wade V. American Colonization Soc,
1664.
Wadley v. North, 1438, 1576.
Wadsworth v. Murray, 1450, 1454.
Wager v. Wager, 1007, 1435, 1484,
1557, 1566, 1568.
Wagner v. Sharp, 1280.
Wagner v. Varner, 1235.
Wagstaff, In re, 1265.
Wahl, Estate of, 1689.
Wainewright v. Wainewright, 1409.
Wainwright's Appeal, 873, 890.
Wait V. Belding, 1354, 1394.
Waite V. Littlewood, 1308.
Wake V. Varah, 1309.
Wake V. Wake, 1194, 1201.
Wakefield v. Dyott, 1464.
Wakefield v. Wakefield, 1216, 1217.
Walcot V. Botfield, 1508. .
Walcott V. Hall, 1436, 1441.
Waldron v. Gianini, 1383.
Waldron v. Waldron, 1155.
Wales' Admr. v. Bowdish's Exr.,
1032, 1563, 1567.
Walker v. Alverson, 1447, 1456,
1458, 1459.
Walker v. Camden, 1274.
Walker v. Follett's Estate, 1158.
Walker r. Ganote, 1163.
Walker v. Griffin, 1277, 1279.
Walker v. Hyland, 951.
Walker v. Johnston, 1300, 1305.
Walker v. Killian, 1168.
Walker v. Milligan, 1410.
Walker v. Pritchard, 1348, 1423.
Walker v. Shore, 1172.
Walker v. Simpson, 1434, 1447.
Walker v. Smith, 899.
Walker v. Upson, 1209.
Walker v. Vincent, 1337, 1353, 1540.
1778
TABLE OP CASES OP VOLUME TWO.
[References are to pages.]
Walker t. Walker, 1500, 1664.
"Walker v. Walker's Exr., 1534.
Walker v. Waters, 1085.
Walker v. Wheeler, 1506.
Walker v. Williamson, 1292.
Walker, In re, 1230.
Walkerly, Estate of, In re, 936, 1171,
1204, 1673.
Wall V. Colshead, 1174.
Wall V. Dickens, 1210.
Wall V. Maguire, 1383, 1480.
Wallace v. Campbell, 1558, 1563.
Wallace v. DuBois, 1043, 1058, 1067,
1068, 1072, 1081.
Wallace v. Foxwell, 1566, 1568.
Wallace v. Hawes, 1361.
Wallace v. Hodges, 1371.
Wallace v. Minor, 1456.
Wallace t. Owen, 1067.
Wallace v. Pomfret, 1062.
Wallace v. Smith, 1545.
Wallace v. Wallace, 977, 983, 984,
985, 1000, 1023, 1025, 1026, 1430.
Waller v. Martin, 1358, 1417.
Wallgrave v. Tebbs, 1604.
Wallinger v. Wallinger, 1179.
Wallington v. Taylor, 1163.
Wallis V. Woodland, 1268, 1685.
Walls V. Stewart, 985.
Walmsley v. Yaughan, 1116.
Wain V. Emley, 1158.
Walsh V. Walsh, 1264.
Walter t. Makin, 1256.
Walter v. Walter, 1547.
Walters V. Crutcher, 1300, 1305.
Walters v. Neafus, 1008.
Walters' Appeal, In re, 1161.
Walton V. Walton, 987, 1047, 1050,
1054, 1059, 1068, 1087.
Wampler v. Wampler, 870.
Wanger's Appeal, 1212.
A¥aples' Lessee v. Harman, 1379.
War V. Bush, 1105.
Ward V. Caples, 1451, 1457.
Ward V. Dodd, 1293.
Ward V. Lant, 1072.
Ward V. Patterson, 1504.
Ward V. Sanders, 1243.
Ward V. Stanard, 1108, 1133.
W^ard V. Stow, 1246.
Ward V. Thompson, 945.
Ward V. Tompkins, 1273, 1300.
Ward V. Ward, 1036, 1111.
AVardell, Estate of, 963, 964, 1236.
Ware v. Cann, 1539, 1542.
Ware v. Minot, 1414.
Ware v. People, 1057.
Ware v. Polhill, 1674.
Ware v. Eiehardson, 1318.
Ware v. Eowland, 1251.
Ware v. Watson, 1268, 1384.
Ware, In re, 946.
Waring v. Waring, 1222.
Warnecks v. Lemboa, 1255.
Warner v. Bates, 1571, 1574, 1578,
1582, 1583, 1590, 1595.
Warner v. Beach, 1097.
W^arner v. Moir, 1508.
Warner v. Sprigg, 1323, 1343.
Warner v. Warner, 943.
Warner v. Willard, 1355.
Warner, Matter of, 1027.
Warner's Admr. v. Bronson, 1108.
Warner's Appeal, 1288.
Warner's Estate, In re, 946.
Warren v. Davies, 1146.
Warren v: Englehart, 1249.
Warren v. Morris, 1022, 1029, 1030,
1031, 1193, 1200.
Warren t. Prescott, 1236.
Warren v. Webb, 1358.
Warren v. Wigfall, 977, 1052.
Warren's Trusts, In re, 1179.
Washburn v. Seawall, 1033, 1610,
1664.
Washburn v. Van Steenwyck, 1197,
1207.
Washburn's Estate, In re, 1456.
Wasse V. Heslington, 1146.
Waterfield v. Bice, 1207.
Waterman v. Canal-Louisiana Bank
& Tr. Co., 1281.
TABLE OF CASES OF VOLUilE TWO.
[References are to pages.]
1779
Waterman v. Whitney, 920, 921.
Waters v. Collins, 1029.
Waters v. Hatch, 1013, 1014.
Waters v. Herboth, 938.
Waters v. Howard, 1065.
Waters v. Waters, 876, 882, 919, 931.
Watkins v. Cheek, 1463.
Watkins v. Pfeifter, 1361, 1381.
Watkins v. Quarlcs, 1461.
Watkins v. Sears, 1125.
Watkins v. Watkins, 949, 951, 1201.
Watkins v. Young, 1083, 1084.
Watrous v. Smith, 986.
Watrous v. Winn, 1189.
Watson V. Bonney, 1257.
Watson V. Clark, 909.
Watson V. Earl of Lincoln, 1043,
1068, 1072, 1073, 1046.
Watson V. Hayes, 1440.
Watson V. McLench, 1142.
Watson V. St. Paul E. Co., 1248.
Watson V. Saul, 1162.
Watson V. Watson, 1204.
Watson, Matter of, 1637.
Watson's Exr. v. Watson, 875.
Watterson v. Watterson, 900.
Watts V. Watts, 1087.
Wayne v. Fouts, 1168, 1176.
Wead V. Gray, 1356, 1357.
M'eart v. Cruser, 1373.
Weatherhead v. Stoddard, 1433,
1442.
AVebb V. Byng, 1390.
Webb V. Grace, 1527.
Webb V. Hearing, 1116, 1465.
Webb V. Hitehins, 1222.
Webb V. Jones, 1052, 1151.
Webb V. Sweet, 1321.
Webb V. Webb, 1244, 1420, 1421,
1422, 1433, 1692.
Webber v. Jones, 1301.
Webber v. Sullivan, 891, 895.
Webber Hospital Assn. v. McKenzie,
1640.
Weber v. Bryant, 1580, 1608.
Weber's Estate, In re, 870, 896, 912.
Webster v. Boddington, 1688.
Webster v. Brown, 1400.
Webster v. Cooper, 1506, 1509.
Webster v. Morris, 1506, 1689.
Webster v. Sughrow, 1630, 1631.
Webster v. Webster, 1113.
Webster v. Welton, 1301.
Webster v. Wiggin, 1642.
Weed T. Hoge, 981, 1002.
Weed's Will, 887.
Weeks v. Patten, 1180.
Weeks v. Weeks, 1426.
Weinmann's Estate, 1694.
Weinstein v. Weber, 1466.
Weir V. Smith, 1398.
Weis V. Bach, 945.
Weiss, Matter of, 1077.
Welby T. Welby, 1180, 1183, 1216.
Welch, Appeal of, 985.
Welch's Estate, 870.
Welch's Will, 882.
Weld V. Bradbury, 1277.
Weller v. NofEsinger, 1204, 1558.
Welles V. Olcott, 1376.
Wellona v. Jordan, 1506.
Wells V. Berwick (Hardy, In re),
1033, 1034.
Wells T. Doane, 1422, 1652.
Wells V. Houston, 1450.
Wells V. Wells, 1049, 1258, 1496.
Wells V. WiUiams, 1576.
Wells, In re, 1119, 1120, 1121, 1123,
1239.
Wells, Matter of, 1286.
Welsh V. Crater, 1004, 1249, 1250,
1251, 1264.
Welsh V. Gist, 1356, 1358, 1403.
Wendel v. Binninger, 1163.
Wendell v. Crandall, 1372.
Wertz' Appeal, In re, 1158.
Wescott V. Binford, 1324.
Wescott V. Higgins, 1285.
Wessenger v. Hunt, 1300.
West V. Moore, 1507.
West V. Eassraan, 1274.
West V. Shuttleworth, 1629.
1780
TABbE OF CASES OF VOIjUME TWO.
[References are to pages.]
West V. Smith, 1115.
West V. West, 1099, 1100, 1126, 1133,
1461.
West V. Williams, 1116.
Westoott V. Cady, 1012, 1420, 1453.
Westgate v. Farris, 1016.
Weston v. Johnson, 1039, 1042, 1067,
1072, 1076, 1077.
Weston V. Second Orthodox Congre-
gational Soe., 1414.
Weston V. Weston, 1243, 1458.
Wetherill's Estate, In re, 1305.
Wetmore v. Peek, 1122, 1127, 1155.
Wetter v. United Hydraulic Cotton
Press Co., 1411.
Wetter v. Walker, 1264.
Wharton v. Barker, 1251, 1252.
Wharton v. Gresham, 1390.
Wharton v. Masterman, 1689.
Wharton y. Wharton, 1370.
Wheaton v. Andrees, 1346, 1394.
Wheeler v. Addams, 1251.
Wheeler v. Allan, 1307.
Wheeler v. Bingham, 1526, 1537.
Wheeler v. Howell, 1158.
Wheeler v. Lester, 1503.
Wheeler v. Long, 1362.
■\^^leeler v. Smith, 1651.
Wheeler v. Walker, 1493.
Wheelock v. American Tract Society,
1655.
Whelan v. Eeilly, 1678.
Wheldale v. Partridge, 1170.
AVhcIen's Estate, 1018.
Whelpley v. Loder, 913.
Whicker v. Hume, 1624, 1625, 1653.
Whieldon v. Spode, 1157.
Whitbrcad v. St. John, 1297, 1298.
Whitby V. Mitchell, 1675.
Whitby V. Motz, 959.
Whitcomb v. Whitcomb, 870.
AVhite V. Attorney General, 1609.
White V. Chitty, 1552.
AVhite V. Curtis, 1458, 1459.
White V. Fisk, 1661.
White V. Grcon, 1025.
White V. Hight, 1357.
White V. Howard, 1653.
White V. Kane, 1164.
White V. Kauffman, 1005.
White V. Massachusetts Inst, of
Technology, 1032.
White V. Moore, 1061, 1073, 1082.
White V. Old, 1222, 1258.
White V. Eowland, 1222, 1435, 1436.
White V. Sawyer, 1530.
White V. White, 942, 1347, 1350,
1353, 1369.
White V. Winchester, 970, 1049, 1051,
1052, 1054, 1085.
White, In re, 1666.
White, Matter of, 936.
White's Exr. v. White, 1262, 1562.
White's Trusts, In re, 1665.
Whitehead, In re, 944.
Whitehead v. Lassiter, 1294.
Whitehead v. Wilson, 1170.
Whitfield V. Priekett, 1562.
Whithorn v. Harris, 1254.
Whiting, Appeal of, 1204.
Whiting V. Force, 1445.
Whiting, Matter of, 1112, 1127.
Whitman v. Moray, 917.
Whitmer's Estate, In re, 943.
Whitney v. Whitney, 1136, 1267,
1293.
Whitney's Estate, In re, 946.
Whiton V. Harmon, 1533.
Whitsett V. Brown, 1080.
Whitson V. Whitson, 991, 992.
Whittemore v. Eussell, 959.
Whitter v. Bremridge, 1437.
Whittern v. Krick, 1138.
Whitworth v. Stuckey, 1380.
Wickersham's Estate, In re, 1181.
Wickliflfe's Exrs. v. Preston, 1049.
Wiggin V. Swett, 993, 996.
Wight V. Shaw, 1458.
Wight V. Thayer, 1377.
Wilber, Ex parte, 1200.
Wilber v. Wilber, 1200.
Wilber 's Case, 1211.
tabijE op cases of volume two.
[References are to pages.]
1781
Wilberding v. Miller, 1429.
"Wilburn v. Wilburn, 1264.
Wilcocks V. Wileooks, 1076, 1158.
Wilcock 's Settlement, In re, 1540.
Wileox V. Attorney General, 1652.
Wildberger v. Cheek's Exrs., 1283.
Wilder V. Goss, 953.
Wilder v. Thayer, 1097.
AVilder v. Wheeler, 1347.
Wilderman v. Baltimore, 1653.
WJlhelm V. Calder, 1436.
AVilkes v. Harper, 1148.
Wilkes V. Lion, 1383, 1475, 1479.
Wilkins v. Ordway, 1250, 1263, 1264.
Wilkins v. Taylor, 1168.
Wilkinson v. Adam, 1230, 1231,
1403.
Wilkinson v. Chambers, 1366.
Wilkinson v. Chapman, 1351.
Wilkinson v. Duncan, 1688.
Wilkinson v. Leland, 1138.
Wilkinson v. Wilkinson, 1507, 1509,
1533, 1561, 1562.
WiUcs V. Bannister, 1260.
Willard v. Darrah, 1258.
Willbor, Petitioner, In re, 1103.
Willcox V. Willcox, 995.
Willets V. Willets, 1597.
Willett V. Carroll, 1400.
Willford's Will, 890.
Williams v. Ash, 1542.
Williams v. Baptist Church, 1575.
Williams v. Batchelor, 1068.
Williams v. Bolton, 1076.
Williams v. Campbell, 942.
Williams v. Chitty, 1142.
Williams v. Clark, 1438.
Williams v. Cowden, 1523, 1524.
Williams v. Crary, 1062, 1066.
Williams v. Dickerson, 1496.
Williams v. Duncan, 1292, 1390.
Williams v. Goude, 868, 870, 904.
Williams v. Graves, 1383.
AVilliams v. Hichbom, 1379.
Williams v. James, 1307.
Williams v Jones, 1116, 1348, 1478.
Williams v. Kershaw, 1620.
Williams v. Kimball, 964.
Williams v. Knight, 1385.
Williams v. Lomas, 1032.
Williams v. Neff, 1287.
Williams v. Parker, 1357.
Williams v. Pearson, 1283, 1657,
1664.
Williams v. Eatcliff, 1393, 1400.
Williams v. Teale, 1674.
Williams v. Weeks, 1138.
Williams v. WiUiams, 1261, 1328,
1329, 1440, 1582, 1589, 1594, 1598,
1654.
Williams v. Worthington, 1592.
Williams, Estate of, 886, 887, 888,
997, 1690.
Williams, In re, 1574.
Williams' Will, In re, 914.
Williamson v. Berry, 1305.
Williamson v. Chamberlain, 1385.
Williamson t. Daniel, 1369.
Williamson v. Field's Exrs., 1456.
Williamson v. Ledbeeter, 1369.
Williamson v. Naylor, 1105, 1107.
Williamson v. Williamson, 1030,
1246.
Willis V. Bucher, 1380.
Willis V. Hiseox, 1540.
Willis' Will, In re, 1362.
Willmott V. Jenkins, 1035.
Wills V. Foltz, 1339, 1385, 1391.
Wills V. Wills, 1296, 1417, 1461.
Wilmans v. Eobinson, 1368, 1376.
Wilmer's Trusts, In re, 1677.
Wilmot V. Wilmot, 1307.
Wilmott V. Flewitt, 1316.
Wilson V. Bayley, 1296.
Wilson V. Brett, 1465.
Wilson V. Browusmith, 980. •
Wilson V. Cox, 1207, 1208.
Wilson V. Curtis, 1399, 1400.
Wilson V. Fosket, 959.
Wilson V. Hamilton, 1201.
Wilson V. Holt, 946.
Wilson V. Kelly, 1078.
1782
TiBLE OF CASES OF VOLUME TWO.
[References are to pages.]
"Wilson V. Knubley, 1137.
Wilson V. MeKeehan, 1398.
Wilson V. Moore, 1159, 1192.
Wilson V. Moran, 899.
AVilson V. O'Leary, 1012, 1014.
Wilson V. Odell, 1132, 1696,
Wilson V. Perry, 1609, 1653, 1654.
Wilson V. Smith, 1068.
Wilson V. Spencer, 1162.
Wilson V. Taylor, 921.
Wilson V. Wilson, 1199.
Wilson, Estate of, 872, 979, 1026,
1555.
Wilson, In re, 1444.
Wilson's Appeal, 881.
Wilts V. Wilts, 975, 982, 983.
Winchell v. Winchell, 1244.
Wingrave v. Palgrave, 1433.
Wingrove v. Wingrove, 868, 869.
Winn V. Grier, 874.
Winn V. Hall, 1496, 1535.
Winslow V. Cummings, 1610, 1625,
1666.
Winslow V. Goodwin, 1435, 1461.
Winsor v. Mills, 1541, 1542, 1672.
Winter's Estate, Matter of, 1300,
1312, 1314.
Wintereast v. Smith, 1112.
Winterton v. Crawford, 1307.
Winthrop v. McKim, 1498.
Wintle, In re, 1172, 1440.
Wintour v. Clifton, 1183.
Wirth V. Wirth, 1267.
Wise V. Foote, 877.
Wistar v. Scott, 1237, 1238, 1239.
Wistler v. Webster, 1180.
Wither 's Admrs. v. Sims, 1437.
Withers v. Yeadon, 1571.
Witherspoon v. Brokaw, 1533, 1535.
Witherspoon v. Watts, 979, 1215.
Withy V. Mangles, 1249.
Witman v. Lex, 1623, 1664.
Wixon V. Watson, 1421.
Woelpper's Appeal, 1311.
Wolbert v. Beard, 1581, 1584.
Wolfe V. Van Nostrand, 1475, 1480.
Wolfe V. Wolfe, 1147.
Wolfer V. Hemmer, 1474.
Wollaston v. King, 1179, 1180.
Womack v. Backer, 1222.
Womrath v. McCorraick, 1459.
Wood V. Baron, 1390.
Wood V. Bishop, 919.
Wood V. Camden Safe Deposit etc.
Co., 1580.
Wood V. Carpenter, 926.
Wood V. Cone, 1174.
Wood V. Griffin, 1450, 1458, 1473.
Wood V. Hammond, 983, 1025, 1034.
Wood V. Mitchell, 1259.
Wood V. Penoyre, 1445.
Wood V. Robertson, 1274. '
Wood V. Sampson, 1097.
Wood V. Seward, 1589.
Wood V. Tredway, 951.
Wood V. Wood, 1262.
Wood etc. Bank v. Read, 943.
Wood, In re, 1678.
Wood's Admr. v. Wood's Devisees,
1218.
Wood's Appeal, In re, 1280.
Wood's Estate, In re, 881, 1133.
Woodburne v. Woodburne, 1268.
Woodhouselee v. Dalrymple, 1229.
Woodland v. Wallis, 1268.
Woodman v. Madigan, 1496.
Woodman v. Woodman, 1456, 1461,
1468.
Woodroof V. Hundley, 1102.
Woodruff V. Marsh, 1608.
Woodruff V. Pleasants, 1305.
Woodruff V. White, 1008.
Woodruff V. Woodruff, 1246.
Woods V. Woods, 1108.
Woodstock V. Shillito, 1310.
Woodvine v. Dean, 958.
Woodward v. Congdon, 1127.
Woodward v. Glassbrook, 1124.
Woodward v. James, 1274, 1275.
Woodward v. Walling, 1494.
Woodward, In re, 1223.
Woodward, Matter of, 1258.
TABLE OF OASES
[References
Woodward's Will, Matter of, 910,
920.
Woodworth's Estate, In re, 971, 982,
1000, 1024, 1025, 1139, 1155.
Wool V. Fleetwood, 1323, 1326.
Woolery v. Woolery, 1087.
Woolley V. Paxson, 1093, 1102, 1284.
AVooUey v. Schrader, 1178.
Woolmer's Estate, 1096.
Woolstencroft v. Woolsteneroft, 1154.
Wooster v. Cooper, 1421, 1422.
Wooten V. House, 1531.
Wootten V. Shclton, 1306.
Wordsworth v. Wood, 1311.
Workman t. Workman, 1097.
World's Columbian Exposition v.
United States, 1623.
Worlidge v. Churchill, 1316.
Wormau's Lessee v. Teagarden, 1489,
1493.
Worrill v. Gill, 1052, 1085.
Worsly V. Johnson, 1263.
Worthington Corp. v. Heather, 1649,
1674.
^Vorthington v. Evans, 1538, 1539.
■\Vrangham's Trust, In re, 1440.
Wray v. Field, 1015.
Wren v. Bradley, 1533.
Wren v. Hynes' Admr., 1313.
Wright V. Cahoon, 1380.
Wright V. Curry, 1371, 1375.
^Vright y. Denn, 1346, 1394.
Wright V. Dugan, 1118.
Wright V. Mayer, 1533, 1536.
Wright V. Trustees of M. E. Church,
1122, 1174, 1242, 1249, 1250.
Wright V. Warren, 1152.
Wright V. West, 1197.
Wright V. Wright, 1116, 1123, 1174.
Wright's Appeal, 1057, 1074, 1144.
Wright's Estate, 1693.
Wrightson v. Calvert, 1290.
^^'^u^ts> Exrs. v. Page, 1170.
Wyckoff V. Perrine's Exrs., 1058,
1106.
OF VOLUME TWO.
are to pages.]
1783
Wyman v. Woodbury, 1001.
Wyndham 's Trusts, In re, 1255.
Wynn v. Wynn, 1092.
Wynne v. Fletcher, 1508.
Wynne v. Hawlun, 1575,
Yard v. Murray, 1128.
Yard's Appeal, 1541.
Yardley v. Cuthbertson, 898.
Yarnold v. Moorhouse, 1552, 1561.
Yates, Estate of, 1696.
Yates V. Madden, 994.
Yates V. University College, 1500.
Yeap V. Ong, 1629.
Yeates v. Gill, 1101, 1282.
Yeaton v. Eoberts, 1295, 1300.
Yerkes v. Yerkes, 1173.
Yockney v. Hansard, 1012, 1013.
Yocum V. Siler, 1383.
Yoe V. McCord, 877.
Yost's Estate, 1440.
Young V. Boyd, 1193.
Young V. Davies, 1113.
Young V. Davis, 1375.
Young V. Easley, 1564, 1567.
Young V. Kinkhead's Admrs., 1347.
Young V. Mallory, 956.
Young V. Morehead, 1396.
Young V. Mutual Life Ins. Co., 1412.
Young V. Quimby, 1403.
Young V. Kobertson, 1311.
Young V. Robinson, 1097, 1282.
Young V. St. Mark's Lutheran
Church, 1607.
Young's Appeal, In re, 1272, 1273.
Young Men's Christian Association
V. Donohugh, 1637.
Young Men's Christian Association
V. Paterson, 1638.
Young V. Young, 1204.
Youngerman, Estate of, 1045, 1058,
1077.
Yung V. Blake, 949.
1784
TABLE OF CASES OP VOLUME TWO.
[References are to pages.]
z
Zahrt, In re, 1187, 1193.
Zavitz V. Preston, 1318.
Zeigler t. Eckeit, 1062.
Zeile Estate, In re, 1047.
Zeisweiss v. James, 1633, 1654.
Zeiter v. Zeiter, 1081.
Zillmer v. Landguth, 1542.
Zimmerman v. Zimmerman, 889.
INDEX FOR VOLUME TWO
[Beferences are to pages.]
ABATEMENT OF LEGACIES, 1019.
annuities, abatement of, 1023.
defined, 1019.
demonstrative legacies, abatement of, 1026.
general legacies, abatement of, 1023.
lapse distinguished from abatement or ademption, 1093.
legacies given for a valuable consideration, 1027.
order in which legacies abate, 1019.
pecuniary legacies, as a general rule, abate proportionally, 1033.
relationship of legatee to testator generally immaterial on question of
abatement, 1034.
residuary legacies, abatement of, 102JI.
specific legacies and devises, abatement of, 1024.
time of payment generally immaterial, on question of abatement, 1033.
to make up share of a pretermitted heir, 1036.
will may provide that legacies in lieu of dower abate, 1031,
"ABSOLUTELY"— Effect of use of "absolutely" in devises, 1353.
ACCELEEATION— Where widow relinquishes life estate, 1217.
ACCEPTANCE OF BENEFITS— Election, effect of acceptance of benefits
under will, 1203.
ACCOUNT — Chancery may compel trustee to account, 1660.
ACCOUNT BOOKS — Testator may indicate by reference in his will to
account books and ledgers what he intends shall be considered as
advancements, 1082.
ACCUMULATIONS, 937.
statutory regulations regarding accumulations, 1692.
trusts to accumulate; accumulation defined, 1689.
trusts to accumulate; common law rule as to accumulation, 1689.
ADDITIONAL LEGACIES— Given by codicil subject to the same condi-
tions as the original legacies, 1032.
subject to incidents of first legacies, 1016.
ADEEMED — Adeemed or satisfied legacies not revived by republication or
re-execution of will, 1045.
ADEMPTION — A conclusion of law, 1048.
ademption and satisfaction of legacies and deviseS) 1038.
ad(.'mption and satisfaction distinguished, 1041.
(1785)
1786 INDEX POK VOLUME TWO.
[References are to pages.]
ADEMPTION— (Continued) .
applicable only to specific legacies, 1044.
by act of the testator; delivery by testator to legatee, 1049.
by alienation of property bequeathed, 1052.
by change in form of property bequeathed, 1053.
by conversion after testator's death, or while he is of unsound mind,
1054.
by fulfillment of purpose for which legacy was given, 1055.
by loss or destruction of property specifically bequeathed, 1050.
by removal of property, 1054.
defined, 1039.
evidence of the testator's intention as to ademption, 1046.
lapse distinguished from abatement or ademption, 1093.
legacy of a debt paid before testator's death, 1058.
partial payment of a debt specifically devised is ademption pro tanto
only, 1059.
presumption of ademption is made in the case where the legacy and
the gift are not the same in kind, 1075.
realty directed to be converted into money, 1089.
satisfaction is of equitable origin, while ademption depends upon a
rule of law, 1044.
ADMINISTEATOES AND ASSIGNS— "And his executors and adminis-
trators and assigns" construed, 1121.
ADOPTED CHILDEEN— How considered, 1235.
rights of adopted children, 963.
"ADVANCEMENT"— "Advancement" defined, 1066, 1067, 1068.
"advancement" as used in a will, 1074.
difference between gift and legacy, 1074.
differs from a gift, 1067.
gift by parent to spouse of child, 1070.
legacy must precede advanced portion in point of time, otherwise no
deduction, 1070.
presumption as to advanced portions; general rule, 1072.
reason for presumption of satisfaction of legacy by advanced portions,
1076.
rule as to advancements applies only to those to whom the donor stands
in loco parentis, 1068.
statutory regulations as to gifts and advancements, 1078.
value thereof and interest thereon, 1077.
ADVICE — Alone, does not establish undue influence, 876.
AEEBCTION — Influence resulting from kindness or affection not wrongful,
874.
"AETEE" — ^"Erom and after" or "after" or "at" or "on" the death
of the life tenant, 1459.
INDEX FOE VOLUME TWO. 1787
[References are to pages.]
AFTER-BORN CHILDREN— After-born and posthumous children defined,
950.
after-born illegitimate children; when may take under will, 1231.
rights of after-born and posthumous children, 950.
"AFTER PAYMENT OF DEBTS," 1142.
AGE — Not deemed cause of suspicion where bequests in accordance with
natural affection, 881.
AGREEMENTS BETWEEN HUSBAND AND WIPE— As limitations on
testamentary power, 948.
AGREEMENT TO SELL— Revocation of devise; effect of agreement to
sell, 1087.
ALIENATION — Ademption by alienation of property bequeathed, 1052.
condition or restriction suspending all power of alienation, 1541.
general restraint upon alienation void, 1541.
' ' ALL ' ' — ' ' All and singular whatsoever, ' ' 1182.
"all my personal estate," 972.
" all my land, ' ' 1182.
"all my property," 1182.
"all my real and personal estate," 973.
ALTERNATIVE- Contingent remainders, 1470.
" AND "—Construing "and" as "or" and "or" as "and," 1123.
ANIMALS — Gift or devise for the benefit of useful animals for charitable
purpose, 1645.
ANNUITANT — Apportionment upon death of annuitant; when allowed, 996.
ANNUITY, 990.
abatement of, 1023.
annuity and gift of income distinguished, 991.
condition that no annuity shall be charged upon an estate devised in
fee, 1540.
defined, 989.
duration of payment, 993.
from what source delinquent installments of an annuity may be col-
lected, 994.
time when annuities are payable, 993.
ANTENUPTIAL AGREEMENT, 942.
not contrary to public policy, 942.
Statute of Frauds, 944.
APPOINTI\TENT — ^Legacy or devise in exercise of a power of appointment,
1031.
where a power of appointment is given by will the rule against per-
petuities applies as well to the power as to the appointment, 168".
1788 INDEX FOR VOLUME TWO.
[References are to pages.]
APPORTIONMENT— Upon death of annuitant; when allowed, 996.
AKGTJMENT — Alone, does not establish undue influence, 876.
"AET INSTITUTE," 1654.
"AS LONG AS HE LIVES," ia95, 1396.
' ' AS SOON AS ' ' — Held from the context not to import a contingency, 1436.
"AS SOON AS PRACTICABLE," 1170.
ASSIGNMENTS — Voluntary and involuntary assignments distinguished,
1555.
ASSOCIATIONS — Voluntary associations as trustees of a charitable trust,
1656.
"AT"— "From and after" or "after" or "at" or "on" the death of
the life tenant, 1459.
ATTACHMENT — Spendthrift trusts. Necessity of provision terminating
estate in event of attachment, 1560.
ATTEMPTED COERCION— Which leaves the testator's mind free to act
is not sufficient to establish undue influence, 878.
ATTORNEY— Principal beneficiary, 898.
"BALANCE," 1003.
"all the balance of my property," 1130.
"balance of," 1003.
"balance of all my money," 1006.
BASTARD— Bequest to, 891.
"BEHIND," 1384.
BENEFICIARIES — ^Designated both by individual names and as a class,
1286.
effect of additional words of description of beneficiaries designated as
a class, 1294.
manner of designating beneficiaries as a class; where share of each is
mentioned, 1288.
spendthrift trusts. Devises in trust to defeat claims of creditors of
beneficiaries, 1557.
BEQUEST— To a mistress or bastard, 891.
who are residuary devisees or legatees, 998.
BEQUESTS — Life estates. Personalty consumable in its use; specific and
general or residuary bequests distinguished, 1423.
"BLOOD RELATIONS," 1235.
"BODILY HEIRS," 1375.
INDEX FOE VOLUME TWO. 1789
[References are to pages.]
BONA FIDE PUECHASEBS— Charges for the payment of legacies will
follow the land in the hands of bona fide purchasers, 1163.
"BORN AFTER MY DEATH," 1298.
"BROTHERS," 1292.
BURDEN OF PROOF — Beneficiary who contends that a legacy in his favor
should not abate has burden of proof, 1036.
forgery, burden of proof of, 932.
on issue of undue influence, 929, 931.
of showing that statute to prevent lapse did not apply, 1284.
to show the absence of undvie influence, 886.
BURIAL GROUNDS — Charitable uses and trusts. Cemeteries, churchyards,
or burial grounds, 1638.
CEMETERIES — Charitable uses and trusts. Cemeteries, churchyards, or
burial grounds, 1638.
CESTUI QUE VIE, 1393.
CHANCERY may compel trustee to account: Statute of Limitations, 16G0.
CHANGE OF NAME— Conditions as to change of name, 1509.
CHARGES following the land, 1162.
exoneration of personalty from charges; personalty specifically be-
queathed, 1149.
for payment of debts and legacies, 1135.
for the payment of legacies will follow the land in the hands of iona fide
purchasers, 1163.
lapsed legacy. Contingent charges ; ' ' exception ' ' differs from ' ' charge, ' '
1108.
limitations upon charges, 1161.
on lands specifically devised, 1148.
real estate may be charged with the payment of debts and legacies by
being blended with the personalty, 1156.
upon legacies and devises for the support of the testator 'a children and
widow, or other persons, valid, 1503.
whether the charge is upon the devise or upon the devisee, 1159.
"CHARITABLE" — "Charity" and "charitable" receive a liberal inter-
pretation, 1650.
charitable uses and trusts, 1605.
gift or devise for the benefit of useful animals for charitable purpose,
1645.
CHARITABLE GIFTS— Rule as to perpetuities as affecting charitable gifts,
1646.
"CHARITABLE INSTITUTIONS"— Meaning of "charitable institu-
tions," 1650.
1790 INDEX FOE VOLUME TWO.
[References are to pages.]
CHAEITABLE TRUSTS— Cemeteries, ehurchyards, or burial grounds, 1638.
chancery may compel trustee to account: Statute of Limitations, 16(50.
charitable trusts distinguished from private trusts, 1606.
Christian associations for young men and women, 1636.
Christian Science, 1685.
corporations and voluntary associations as trustees of a charitable trust,
1656.
cy pres doctrine: English rule where object or purpose of trust fails,
1665.
cy pres: English and American chancery jurisdiction distinguished, 1660.
gifts to charity, religion, or education, 1661.
home and foreign missions, 1638.
hospitals, 1640.
how value of estate is computed under statutes limiting amount which
testator may give to charity, 1618.
libraries, 1641.
masses for repose of souls of the dead: American rule, 1629.
medals and prizes, 1645.
objects construed as not charitable, 1622.
prohibition and temperance, 1643.
public purposes, 1641.
purpose of the statutes limiting the amount of his estate which a testa-
tor may give to charity, 1617.
purpose of trust must be stated in will, 1652.
purpose of trust must not be so indefinite that chancery can not correct
abuse, 1651.
religious and pious uses, 1632.
rule against perpetuities, 1648.
statutory restrictions on gifts to charity, as to amount and time of
execution, 1615.
testamentary gifts to charity liberally construed, 1649.
trust for the benefit of a class, 1655.
trust will not fail for lack of trustee, 1656.
trustee may be vested with discretionary power of administration, 1658.
uncertainty of objects of charitable trusts, 1653.
women's suffrage, 1644.
" CHARITABLE USE" — "Charity" and "charitable use" convertible
terms, 1620.
CHAETTABLE USES — ^Doctrine of charitable uses and trusts only par-
tially accepted in some states, and wholly rejected in others, 1607.
English statutes of mortmain and charitable uses, 1611.
examples of charitable uses, 1623, 1627.
how value of estate is computed under statutes Umiting amount which
testator may give to charity, 1618.
objects construed as not cliaritable, 1622.
INDEX FOR VOLUME TWO. 1791
[References are to pages.]
CHARITABLE USES— (Continued).
purpose of the statutes limiting the amount of his estate whieh a testa-
tor may give to charity, 1617.
see Charitable Trusts.
Statute of Charitable Uses of 43 Eliz., ch. 4, 1613.
statutory restrictions on gifts to charity, as to amount and time of
execution, 1615.
"CHARITY"— "Charity" and "Charitable Use" convertible terras, 1620.
"charity" and "charitable" receive a liberal interpretation, 1650.
in a legal sense, defined, 1619.
CHARITIES — ^Perpetuities and trusts to accumulate, 1694.
see Charitable Trusts.
"CHILD"— "ChUd," "son," and "daughter" when used in the singular
tense as nomina colleotiva, word of limitation, 1387.
"CHILD OE OTHER RELATIVE," 1100.
"CHILDREN," 1069, 1292.
after-born illegitimate children ; when may take under will, 1231.
"any of my said children dying before my said wife," 1119.
as a word of limitation, 1339, 1387.
as a word of limitation; will speaks as of date of testator's death, 1390.
as a word of purchase, 1337.
"children" a word of purchase, 1385.
devise to one for life with remainder to his children or the survivors
of them, 1314.
children en ventre sa mere, 1226.
estate tail; children not in being; rule in Wild's Case, 1388.
gifts to ' ' children, ' ' who included, 1222.
"heirs" as meaning "children," 1335.
illegitimate children; when may take under will, 1227.
"the children," 1655.
omitted, object of statutes providing for children omitted from will, 953.
rights of husband, wife and children, 935.
see Adopted Children, 1235.
term "children" includes after-bom, 953.
CHRISTIAN ASSOCIATIONS— Charitable uses and trusts. Christian asso-
ciations for young men or women, 1636.
CHURCHES, 1634.
CHURCHYARDS — Charitable uses and trusts. Cemeteries, churchyards, or
burial grounds, 1638.
CIRCUMSTANTIAL EVIDENCE — Undue influence may be estabUshed
by circumstantial evidence, 911.
CLAIMS — Conditions against making claims against testator's estate, 1511.
1792 INDEX FOB VOLUME TWO.
[References are to pages.]
GLASS — -Effect of additional words of description of beneficiaries desig-
nated as a class, 1294.
gifts to a class defined, 1280.
gift to a class distinguished from a gift to an individual, 1281.
manner of designating beneficiaries as a class; where share of each is
mentioned, 1288.
members of class dying before testator, are excluded, 1284.
mistake in designating number in class, 1290.
"next of kin" as a class; as to the date which determines who are
included, 1250.
perpetuities and trusts to accumulate. Gifts to a class, 1687.
remainder over to a class upon termination of- life estate ; vested and
contingent remainders, 1304.
where beneficiaries are designated both by individual names and as a
class, 1286.
where contingency is "youngest" of class attaining specified age, 1298.
where contingency which determines membership of class occurs during
testator's lifetime, 1298.
where distribution of a testamentary gift to a class is postponed until
the members of a class shall have attained a certain age, 1296.
where gift is to those of a class who attain, or when they attain, a
certain age, 1295.
CLASSES OF BENEFICIAEIES— As of what date members of a class are
determined, 1291.
survivorship. Intention of testator, 1313.
time of determination. As to after-born members of class, 1303.
time of determination. Where enjoyment of benefits depends upon a
contingency, 1302.
to what date words of survivorship refer when gift is preceded by a
life estate, 1310.
where right to share in benefits depends upon an indefinite future
event, 1299.
where right to share in benefits depends upon termination of a preceding
estate, 1301.
words descriptive of classes of beneficiaries, 1220.
CLASSIFICATION of legacies and devises, 967.
CODICIL — Additional legacies given by codicil subject to the same condi-
tions as the original legacies, 1032.
COEECION — ^TJndue influence allied to coercion, 868.
COMMON EECOVERY — Converting estates tail to fees simple by fine or
common recovery, 1370.
COMMUNITY PROPERTY — ^When presumption arises that testator in-
tended to dispose of his own property only; community prop-
erty, 1181.
DTDEX FOE VOLUME TWO. 1793
[References are to pages.-]
CONCUBINES— Gifts to natural children and concubines, 892.
CONDITION— See Condition Precedent, Condition Subsequent.
affecting religious freedom, 1510.
against contesting will, 1512.
against contest has reference to an attempt to thwart the testator's
expressed wishes, 1520.
against contest: Where annexed to gifts of personalty: Doctrine of
in terrorem, 1514.
against contest: Where probable cause for contest exists, 1517.
against making claims against testator's estate, 1511.
change of name, as to, 1509.
devise upon conditions or in trust, 1353.
distinction between a condition and a limitation, 1495.
effect of accepting gift burdened with a condition of payment, or the
like, 1502.
examples of conditions precedent and subsequent, 1490.
forfeiture does not follow unless there is a gift over upon non-perform-
ance of the condition, 1505.
limitations distinguished from conditions, 1498.
no particular language required to create a condition, 1489.
not to induce or invite a divorce or separation, but to make a provision
for support upon the happening of either event, is valid, 1534.
occupation, study and habits, as to, 1506.
precedent or subsequent according to testator's intention, 1489.
predicated upon divorce or separation, 1533.
repugnant to estate given is void, 1539.
requiring reformation and the leading of a moral life, 1507.
requiring residence at a certain place, 1507.
restraint of marriage, 1522.
restraint of marriage: Intent of testator governs whether condition
or limitation, 1529.
restraint of marriage invalid if annexed to gift of personalty unless
there is a gift over, 1525.
restraint of marriage: Limited restraint is valid, 1523.
restraint of marriage: That beneficiary marry only with consent of
certain persons, 1537.
restraint of marriage :' Words of condition or of limitation, 1526.
restraint of remarriage of widow, 1530.
restraint of remarriage of widower, 1532.
spendthrift trusts. Condition of forfeiture if beneficiary becomes insol-
vent, 1552.
suspending all power of alienation, 1541.
testamentary gifts upon condition, 1487.
time of performance : Where will prescribes time of performance, 1504.
time within which condition must be performed; where no time speci-
fied, 1504.
rr Com. on Wills— 59
1794 INDEX FOR VOLUME TWO.
[References are to pages.]
CONDITIONAL FEES— Effect of the Statute Be Bonis on conditional
fees, 1369.
CONDITIONAL LIMITATIONS— Limitations and conditional Uinitations
defined, 1471.
CONDITIONAL OE CONTINGENT LEGACIES may lapse, 1104.
CONDITIONS PEECEDENT— See Condition.
conditions precedent and subsequent defined; conditional legacy or
devise, 1488.
general effect of conditions precedent, 1491.
where conditions precedent are impossible of performance, 1498.
CONDITIONS SUBSEQUENT— See Condition.
construction favors conditions subsequent, 1493.
general effect of conditions subsequent, 1492.
in general restraint of marriage, 1524.
where conditions subsequent are impossible of performance, 1500.
CONFIDENTIAL EELATIONSHEP, 887.
alone does not raise a presumption of undue influence, 900.
between testator and beneficiary: Parent and child, 897.
CONFLICT OP LAWS— Effect of a conflict of laws upon provisions in lieu
of dower, 1206.
CONSENT — Husband or wife may consent to the will of the other; general
or specific consent, 939.
no consideration necessary to support the consent of a husband or wife
to the disposition by the other of his or her property, 940.
CONSIDERATION — No consideration necessary to support the consent of a
husband or wife to the disposition by the other of his or her prop-
erty, 940.
CONSPIEAGY— Declarations of sole beneficiary, 924.
CONSTEUCTION favors conditions subsequent, 1493.
which will make a distribution as nearly conform to the general rule
of inheritance, 1279.
CONSTEUCTTVE CONVEESION defined, 1167.
CONTENTS OP WILL — ^Knowledge of the contents of the will may be
shown by circumstances, 929.
CONTEST — Conditions against contesting will, 1512.
conditions against contesting will: Where annexed to gifts of per-
sonalty: Doctrine of in terrorem, 1514.
condition against contest: Where probable cause for contest exists,
1517.
condition against contest has reference to, an attempt to thwart the
testator's expressed wishes, 1520.
what amounts to a contest, 1520.
INDEX FOE VOLUME TWO. 1795
[Keferenoes are to pages.]
CONTINGENCY— Effect of expressions of contingency, 1432.
CONTINGENT CHAEGES—" Exception " differs from "charge," 1108.
CONTINGENT EXECUTORY DEVISES— Vested and contingent and ex-
ecutory devises, 1473.
CONTINGENT INTERESTS— Law favoring vested rather, than contingent
interests, 1432.
perpetuities and trusts to accumulate. Contingent and vested interests
distinguished, 1675.
vested and contingent interests generally, 1431.
vested and contingent interests; gift "payable" when beneficiary
attains a certain age, 1438.
vested and contingent interests; contingency that beneficiary be living
at a designated time, 1435.
vested and contingent interests; where payment is postponed for the
convenience of the estate, 1444.
CONTINGENT REMAINDERS, 1468. See Remainders,
alternative contingent remainders, 1470.
as affected by the rule as to perpetuities, 1468.
effect on contingent remainder of termination of preceding estate, 1477.
must vest at termination of preceding estate, or be defeated; statutory
regulation, 1460.
not liable to levy and sale under execution, 1432.
not where legal estate is in trustees, 1468.
preferred in law to executory devises, 1475.
rule against perpetuities applies to contingent remainder and executory
devises, but not to reversions; it applies to property and not to
contract, 1674.
testamentary disposition of contingent and executory interests, 1454.
vested and contingent remainders defined, 1455.
vested and contingent remainders distinguished, 1456.
where two contingents are expressed, 1470.
CONTRACT — Rule against perpetuities applies to contingent remainders
and executory devises, but not to reversions; it applies to property
and not to contract, 1674.
"CONVENIENT"— If convenient, 1601.
CONVERSION — Ademption by conversion after testator's death or while
he is of unsound mind, 1054.
constructive or equitable conversion defined, 1167.
depends on intention of testator; how expressed, 1168.
effect of failure of purpose for which sale was directed, 1172.
realty converted into personalty does not bar dower, but otherwise is
distributed as personalty, 1174.
time when conversion is considered to take place, 1170.
1796 INDEX FOE VOLUME TWO.
[References are to pages.]
CONVEYANCE — Sale and conveyance of realty operate as a revocation of
a previous devise thereof, 1085.
COEPOEATE HOLDINGS— Bestrictions on corporate holdings of land in
the United States, 1614.
COEPOKATIONS — Corporations and voluntary associations as trustees of a
charitable trust, 1656.
"COUSINS"— Who included in the term "cousins," 1260, 1292.
CBEDITOE — ^Legacy to creditor as satisfaction of debt; general rule, 1062.
spendthrift trusts. Devises in trust to defeat claims of creditors of
beneficiaries, 1557.
"CUMULATIVE" as applied to legacies, 1010.
intention controls as to whether or not legacies are cumulative or
substitutional, 1010.
two gifts in diilerent instruments to the same persons; for same
amount and same expressed reason, not cumulative, 1014.
two gifts, in same will, to one person; when cumulative, 1013.
when given simpUciter, are cumulative, 1015.
with different reasons expressed, or for different amounts, are cumu-
lative, 1014.
C¥ FEES, 937.
English and American chancery jurisdiction distinguished, 1660.
English rule where object or purpose of trust fails, 1665.
"DAUGHTEE," when used in the singular tense as nomina colleotiva, is
word of limitation, 1387.
DEATH — Apportionment upon death of annuitant; when allowed, 996.
gift with limitation over in event of death of beneficiary, 1267.
DEBTOE — Legacy to debtor by creditor; no presumption that debt is for-
given, 1060.
DEBTS — As to liability of heir, devisee or legatee for debts of decedent;
common law rule, 1136.
charges for payment of debts and legacies, 1135.
common law rule as to debts secured by mortgage, 1151.
direction in will that all debts and legacies be paid, 1141.
direction in will that executor pay all debts and legacies, 1145.
gifts and debts distinguished, 1066.
order in which property is resorted to for payment of debts, 1138.
personal property of estate is primarily liable for debts and legacies,
1139.
DECLAEATIONS — Advancements, declarations against interest, 1084.
as proof of the fact of undue influence, declarations not contempora-
neous with the execution are inadmissible, 917.
as to intended manner of disposing of property: Undue influence, 918.
INDEX FOR VOLUME TWO. 1797
[References are to pages.]
DECLARATIONS— (Continued) .
forgery: Dedarations of testator. Conflict of authority, 915.
of executor or one of several beneficiaries: Not admissible in evi-
dence.
of sole beneficiary: Conspiracy, 924.
of one of several beneficiaries : Will void in part only, 923.
of testator as evidence of mental condition, 920.
of testator are not sufficient to establish the fact of undue influence,
they are admissible to show its extent and effect, 923.
of testator not proof of facts stated, 917.
oral declarations; by whom, time when made, and parties present, 1083..
DECEEPITUDE — Evidence of feebleness and decrepitude, detention and
slanders upon beneficiaries of an altered will, throws the burden
of proof upon the proponents of the codicils, 881.
DELINQUENT PAYMENTS— Interest on delinquent payments of an annu-
ity, 995.
DEMONSTEATIVE LEGACIES— Abatement of, 1026.
defined, 985.
distinction between specific and demonstrative legacies, 984.
sources from which they may be directed to be paid, 988.
"DESCENDANTS," 1238.
construed, 1099.
DESCRIPTIVE LEGACY- Specific legacy; descriptive words, 977.
DESCRIPTIVE WORDS of classes of beneficiaries, 1220.
DESIGNATING WORDS refer merely to the successive order in which the
bequests are made, 1033.
"DESIRE," 1579.
construed as equivalent to "will," 1599.
words of desire, 1579.
DESTRUCTION — Ademption by loss or destruction of property specifically
bequeathed, 1050.
DETENTION — Evidence of feebleness and decrepitude, detention and slan-
ders upon beneficiaries of an altered will, throws the burden of
proof upon the proponents of the codicils, 881.
DEVASTAVIT by executor, 1035.
"DEVISE," 1358.
DEVISES, 1472. See Executory Devises. See Legacy.
ademption and satisfaction of legacies and devises, 1038.
apparent devise of fee limited by additional provisions to a life estate,
1411.
by implication, 1403.
1798 INDEX FOR VOLUME TWO.
[References are to pages.]
DEVISES— (Continued) .
charges upon legacies and devises for the support of the testator's
children and widow, or other persons, valid, 1503.
classification of legacies and devises, 967.
creation of estate generally limited to those recognized by law, 1366.
creation of life estate by implication; devise to A upon death of B,
1406.
coupled with power of disposition, 1355.
cutting down u devise in fee by subsequent provisions in the will, 1360.
cutting down fee. Where the expressions are of doubtful meaning,
1363.
"during widowhood" or "until marriage" confers a life estate, 1401.
divorce will not cause a legacy or devise by one spouse in favor of the
other to lapsed 1266.
effect of use of word "estate" in devises, 1351.
effect of use of such words as "forever," "absolutely," or "exclu-
sively" in devises, 1353.
effect of use of such words as "property" or "real estate" in devise,
1352.
estates in i fee simple — words of limitation, 1345.
estates tail by devise, 1367.
gift or devise for the benefit of useful animals for charitable purpose,
1645.
illegal purpose, 937.
in fee simple. Gift over of what remains unexpended by devisee, 1358.
legacy or devise in exercise of a power of appointment, 1031.
liability of heir, devisee or legatee for debts of decedent; common law
riile, 1136.
life estate. Express devise not affected by subsequent doubtful expres-
sions, 1418.
of life estate coupled with an absolute and unlimited power of disposi-
tion. Statutory regulations, 1414, 1415.
of life estate with no 'gift over, 1355.
of real estate regarded as specific, 982.
of real property fails if the testator has no interest therein at his
death, 1084.
residuary devisees, who are, 998.
revocation of devise; effect of re-acquiring ownership, 1086.
spendthrift trusts. Devises in trust to defeat claims of creditors of
beneficiaries, 1557.
to charities and charitable uses, 937.
to testator's "relations," "heirs," "heirs at law," 1273.
to one for life with remainder to his children or the survivors of them,
1314.
to testator's concubine, 937.
upon condition or in trust, 1353.
INDEX FOB VOLUME TWO. 1799
[References are to pages.]
DEVISES— (Continued) .
where devisee is Charged with payment of debts, 1354.
where devise coupled with power is limited to a life estate, or power
of disposition is restricted, 1357.
where fee is devised, rights of devisee can not be limited, 1359.
words of limitation, statutory changes regarding, 1364.
' ' DEVISEE ' ' — Who are residuary devisees or legatees, 998.
DEVISES IN TETJST, 1110.
"DIE WITHOUT ISSUE," 1267.
at common law meant indefinite failure of issue, 1380.
creation of estates tail by implication; gift over if devisee "die with-
out issue, ' ' 1379.
creation of life estate by implication ; gift over if first taker ' ' die with-
out issue," 1407.
referring to death of first devisee, 1382.
referring to death of testator, 1384.
remainders and executory devises ; limitation over if first devisee "die
without issue, ' ' 1479.
statutory changes, 1381.
"DIRECT" — "wish" may be equivalent to "will" or "request" or
"direct," 1600.
DIRECTION in will that executor pay aU debts and legacies, 1145.
in wiU that all debts and legacies be paid, 1141.
"DISCHARGE," 1056.
DISCEETIONAEY EXPRESSIONS, 1590.
DISTRIBUTION postponed until the members of a class have attained a
certain age, 1296.
' ' DIVIDED ' ' among the survivors or their legal representatives share and
share alike, 1280.
DIVIDENDS — Extraordinary dividends from stock of life estates, 1428.
DIVORCE — Condition not to induce or invite a divorce or separation, > but
to make a provision for support upon the happening of either event,
valid, 1534.
condition predicated upon divorce or separation, 1533.
divorce will not cause a lapse, 1112.
divorce will not cause a legacy or devise by one spouse in favor of the
other to lapse, 1266.
DOWER .\ND HOMESTEAD, 1190.
legacy to widow in lieu of dower, 1029.
realty converted into personalty does not bar dower, but otherwise
is distributed as personalty, 1174.
wddow's right of dower, 11C6.
1800 INDEX FOE VOLUME TWO.
[References are to pages.]
DXTEESS — ^DuiesB and undue influence distinguished, 908.
requirements as to pleadings where objection is made to the probate
of a will on the ground of duress, 934.
undue influence must be of the nature of fraud or duress, 904.
"DURING HIS LIFE," 1396.
"DUEING HIS NATUEAL LIFE," 1396.
"DURING WIDOWHOOD"— Devise, "during widowhood" or "until mar-
riage" confers a life estate, 1401.
EDUCATION — Charitable uses and trusts, gifts to education, 1661.
EFFECT OF ADEMPTION, 1045.
ELECTION— Acceptance of benefits under will, 1203.
acts constituting election, 1198.
against the will; rights of widow, 1213.
by estoppel, 1200.
court may make election for donee if he be alive but incapable of acting,
1197.
creditors can not force survivor to claim statutory rights as against the
will, 1196.
defined, 1178.
doctrine as applied to wills, 1177.
doctrine founded on equitable principles, 1183.
effect on balance of will of election to take under the statute, 1218.
election in one jurisdiction is binding upon the electing party in all
other jurisdictions, 1207.
election made through ignorance, fraud or mistake may be repudiated,
1199.
gifts in trust, of life estate, or of income, 1192.
immaterial whether or not testator knew he did not own the property
disposed of, 1180.
manner in which intent to put widow to her election must be expressed,
1186.
nature of cases calling for election, 1185.
reasons for election immaterial, 1195.
right of election is personal, 1195.
rights affected by widow electing against the will, 1214.
rights of widow as affected by debts of husband, 1211.
rights of widow where property reverts to the estate because of her
remarriage, 1212.
rights of widow who elects to take under will, as to intestate prop-
erty, 1209.
waiver of dower includes claim of dower in lands conveyed by husband
alone during coverture, 1208.
when presumption arises that testator intended to dispose of his own
property only, 1181.
INDEX FOR VOLUME TWO. 1801
[References are to pages.]
ELECTION— (Continued) .
what law governs election in case of conflict, 1205.
where testator had only a partial interest in property devised, 1182.
where widow is executrix, 1202.
where widow relinquishes life estate; doctrine of acceleration, 1217.
"ENJOIN" more imperative than "wish," 1600.
ENJOYMENT — Gift for life of the right of use, enjoyment and occupation
creates a life estate, 1399.
"EQUALLY," 1278.
where testator directs division ' ' equally or share and share alike, ' ' 1276.
"EQUALLY BETWEEN," 1273.
EQUITABLE CONVERSION— Constructive or equitable conversion defined,
1167.
time when conversion is considered to take place, 1170.
ESTATE— Efeect of use of word "estate" in "devises," 1351.
creation of estates by implication, 1402.
creation of estates generally limited to those recognized by law, 1366.
devises of estates in fee simple—words of limitation, 1345.
estate expressly devised for life can not be enlarged by implication,
1404.
estates in remainder defined, 1450.
ESTATE TAIL— "Children" as a word of limitation, 1387.
' ' children " as a word of purchase, 1385.
children not in being; rule in Wild's Case, 1388.
creation of, adding words of inheritance, 1377. .
creation of estates tail by implication ; gift over if devisee ' ' die without
issue," 1379.
as to personalty, 1368.
by devise, 1367.
converting estates tail to fees simple by fine or common recovery, 1370.
estates tail defined, 1367.
estates tail in the United States; statutory regulations, 1371.
statutory requirements as to creation, 1376.
words sufficient to create an estate tail, 1374.
ESTOPPEL- Election by estoppel, 1200.
EVIDENCB — Advancements, evidence of testator's intention; statutory
regulations and provisions of the will, 1079.
declarations of testator as evidence of mental condition, 920.
evidence of the testator's intention as to ademption, 1046.
latitude allowed as to the character of evidence of undue influence, 910.
slight and uncertain evidence will not establish undue influence, 881.
parol declarations and other evidence of advancements, 1080.
parol evidence of intention to forgive debt, 1062.
1802 INDEX FOR VOLUME TWO.
[References are to pages.]
"EXCEPTION" differs from "charge," 1108.
"EXCLUSIVELY"— Effect of use of "exclusively" in devises, 1353.
EXECTJTOB — ^Declarations of executor or one of several beneficiaries: Not
admissible in evidence, 925.
"executors and administrators and assigns," 1121.
"EXECUTORY" — Executory devise not barred by fine or common recov-
ery, 1474.
EXECUTORY DEVISES— Contingent remainders preferred in law to execu-
tory devises, 1475.
executory devise defined, 1472.
executory devise converted into remainder by change of circumstances,
1478.
indestructibility of executory devises, 1473.
remainders and executory devises, 1449.
remainders and executory devises; contingency with reference to termi-
nation of preceding estate, 1465.
remainders and executory devises; postponement of enjoyment only
does not make remainder contingent, 1458.
remainders and executory devises compared, 1476.
remainders and executory devises distinguished, 1476.
remainders and executory devises; limitation over if first devisee "die
without issue," 1479.
remainders and executory devises. Eemainder may vest although appar-
ent contingencies are expressed, 1463.
remainders and executory devises; remainder wiU be construed, if
possible, as vested rather than contingent, 1461.
right of disposition in first taker repugnant to an executory devise, 1474.
remainders and executory devises; limitation over if first taker die under
age or unmarried, 1483.
rule against perpetuities applies to contingent remainders and executory
devises, but not to reversions; it applies to property and not to
contract, 1674.
rule as to perpetuities as affecting, 1485.
EXECUTORY INTERESTS in personalty, 1484.
testamentary disposition of contingent and executory interests, 1454.
EXONERATION of personalty from charges; personalty specifically be-
queathed, 1149.
EXPECTATION imports "hope," 1601.
FAMILY — Who included in the term "family," 1261.
FEEBLENESS — Evidence of feebleness and decrepitude, detention and
slanders upon beneficiaries of an altered will, throws the bunion
of proof upon the proponents of the codicils, 881.
INDEX FOB VOLUME TWO. 1803
[References are to pages.]
FEE SIMPLE— Devises of estates in fee simple, 1345.
estate devised for life or for widowhood not enlarged by use of word
"fee simple," 1362.
FIDUCIARY RELATIONSHIP, 897.
FINE — Converting estates tail to fees simple by fine or common recovery,
1370.
"FIRST," 1033.
FLATTERY does not establish undue influence, 876.
FORCED HEIRS— Law of Louisiana, 965.
nature of ownership of forced heirs, 965.
FOREIGN MISSIONS— Charitable uses and trusts. Home and foreign
missions, 1638.
"FOREVER"— Effect of use of such words as "forever," "absolutely,"
or "exclusively" in devises, 1353.
FORFEITURE does not follow, unless there is a gift over upon non-
performance of the condition, 1505.
spendthrift trusts. Condition of forfeiture if beneficiary becomes
insolvent, 1552.
FORGERY, 909.
burden of proof, 932.
declarations of testator; conflict of authority, 915.
devisee or legatee has the right, upon probable, cause, to attempt to
show that the will is a forgery without incurring the penalty of
forfeiture, 1519.
evidence of forgery: Suspicious circumstances, 914.
matters not establishing, 913.
"FOR LIFE" — Estate expressly devised for life can not be enlarged by
implication, 1404.
"FOR THE FULL TERM OF HER NATURAL LIFE," 1396.
FRAUD and undue influence distinguished, 904.
either fraud or undue influence may exist without the other, 906.
election made through ignorance, fraud or mistake may be repudiated,
1199.
requirements as to pleadings where objection is made to the probate of
n will on the ground of duress, menace, fraud or undue influence,
934.
FREE: AGENCY — Influence, to be undue, must destroy the free agency of
testator, 869.
"FROM AND AFTER" or "after" or "at" or "on" the death of the
life tenant, 1459.
1804 INDEX POE VOLUME TWO.
[Beferences are to pages.]
FULFILLMENT OF PXJKPOSE— Ademption by fulfillment of purpose for
whieh legacy was given, 1055.
GENERAL BEQUEST— Life estate. Personally consumable in its use;
specific and general or residuary bequests distinguished, 1423.
GENERAL CONSENT— Husband or wife may consent to the will of the
other, 939.
GENERAL LEGACIES— Abatement of, 1023.
defined, 972.
satisfaction of, 1056.
GENERAL POWER OF APPOINTMENT— Property appointed deemed in
equity part of assets, 1551.
GIFT — Accepting gift burdened with a condition of payment, or the like,
1502.
advancement differs from a gift, 1067.
advancement; gift by parent to spouse of child, 1070.
for benefit of useful animals for charitable purposes, 1645.
gifts and debts distinguished, 1066.
intermediate gift of income of principal which is to pass to beneficiary
at a certain age, 1441.
in trust, of life estate, or of income, 1192.
perpetuities and trusts to accumulate. Gifts to a class, 1687.
of income of personal property, 1421.
of personalty may be limited after a life estate, 1484.
statutory regulations as to gifts and advancements, 1078.
to a class defined, 1280.
to a class distinguished from a gift to an individual, 1281.
to charity liberally construed, 1649.
to charity, religion or education, 1661.
to natural children and concubines, 892.
upon condition, 1487.
with limitation over in event of death of beneficiary, 1267.
GIFT OF INCOME — ^Annuity and gift of income distinguished, 991.
"GIFT OF INTEREST," 1443.
GIFT OVER — Devise in fee simple. Gift »ver of what remains unexpended
by devisee, 1358.
"GRANDCHILDREN," 1223, 1292.
"grandchildren" held to include a posthumous grandchild, 953.
HABITS — Conditions as to habits, 1506.
"HAVE NO ISSUE," 1381.
INDEX FOR VOLUME TWO. 1805
[References are to pages.]
"HEIRS," 1273.
as a class; as to the date which determines who are included, 1245.
as a word of limitation, 1332.
as meaning "children," 1335.
husband nor wife, neither is heir or next of kin of the other, 1263.
lapsed legacy. Gift to beneficiary "or his heirs," 1122.
lapsed legacies. Gift to beneficiary "and his heirs," 1120.
liability of heir, devisee or legatee for debts of decedent; common law
rule, 1136.
"nearest," "legal," "lawful" or other similar expressions to qualify
the word "heirs," 1333.
unnecessary to limit an estate in fee simple, 1346.
who included in the term "heirs," 1240.
word of limitation and not of purchase, 1243.
"HEIRS AT LAW," 1240.
"HEIRS LAWFULLY BEGOTTEN," 1375.
"HEIRS OF THE BODY," 1375.
"HEIRS OR ASSIGNS," 1120.
"HEREINAFTER MENTIONED LEGATEES," 1287.
"HOME" — Gift of "home" on certain property during natural Ufe creates
a life estate, 1400.
HOMESTEAD — Intent to exclude the widow from her legal light must
clearly appear, 1190.
provisions limiting the right to dispose of the homestead, 936.
HOPE^' ' Wish and expectation ' ' import ' ' hope, ' ' 1601.
HOSPITALS— Charitable uses and trusts, 1640.
HUSBAND or wife — Effect of an illegal marriage, 1265.
husband or wife may consent to the will of the other, 939.
rights of husband, wife and children, 935.
"IF" held from the context not to import a contingency, 1436.
ILLEGAL conditions, 1496.
ILLEGITIMATE CHILDREN— After-born illegitimate children; when may
take under will, 1231.
heir of the mother, 1234.
effect of marriage of parents of illegitimate chUd, 1232.
rights of illegitimate children, 963.
when may take under will, 1227.
ILLICIT RELATIONSHIP alone raises no presumption of undue influ-
ence, 889.
call for close scrutiny, 891.
1806 INDEX FOE VOLUME TWO.
[References are to pages.]
IMPLICATION— Creation of estates by implication, 1402.
creation of life estate by implication, 1405.
creation of life estate by implication; devise to A upon death of B,
1406.
creation of life estate by implication. Where devise to first taker is
in fee, 1410.
IMPOSSIBLE CONDITIONS— Statutory regulations, 1499.
where conditions precedent are impossible of performance, 1498.
where conditions subsequent are impossible of performance, 1500.
INALIENABILITY of property and non-liability for debt secured through
spendthrift trusts, 1556.
"INCOME," 1398.
gifts in trust, of income, 1192.
gift, income of land, as creating life estate, 1397.
gift of income of personal property, 1421.
vested and contingent interests; effect of intermediate gift of income
of principal which is to pass to beneficiary at a certain age, 1441.
"INCOME AND INTEREST," 1398.
INDE8TEUCTIBILITY of executory devises, 1473.
"INDIGENT," 1627.
"IN EQUAL PEOPOETION," 1280.
"IN EQUAL SHAEES," 1279.
INEIEMITY not deemed cause of suspicion where bequests in accordance
with natural affection, 881.
INFLUENCE— See Undue Influence, 868.
"IN LOCO PARENTIS," 1068.
rule as to advancements applies only to those to whom the donor stands
in loco parentis, 1068.
INSOLVENT — Spendthrift trusts. Condition of forfeiture if beneficiary
becomes insolvent, 1552.
INSURANCE POLICIES— Bequest of is specific, 981.
INTENT TO OMIT CHILDEEN from wiU; how expressed, 955.
parol evidence as to intention of testator to omit child from will; con-
flict of authority, 957.
INTENTION — Advancements evidence of testator's intention; statutory
regulations and provisions of the will, 1079.
controls as to whether or not legacies are cumulative or substitutional,
1010.
conversion depends on intention of testator; how expressed, 1168.
evidence of testator's intention as to ademption, 1046.
INDEX FOR VOLUME TWO. 1807
[References are to pages.]
INTENTION— (Continued).
parol evidence of intention to forgive debt, 1062.
of testator, 1313.
question whether real estate is charged is one of intention and no
presumption of Such intention arises from gift of real and personal
property by same clause of will, 1157.
to charge legacies upon the land may be under certain circumstances
presumed, 1147.
to dispose of another's property, 1180.
INTEEEST on advancements, 1077.
on delinquent payments of an annuity, 995.
INVALID: CONDITION coupled with valid one makes result the same as
if both were invalid, 1497.
INVENTOBY — Tenant for life to give a receipt or sign inventory, 1426.
"ISSUE," 1236, 1238, 1292.
as a word of limitation or of purchase, 1377.
where limitation is to "issue" or "issue of the body," 1341.
who included in term "issue"; strict rule, 1237.
"ISSUE OF THE BODY "—Where limitation is to "issue of the body,"
1341.
ISSUES — Gift of issues of land as creating life estate, 1397.
JOINT TENANTS — ^Lapsed legacies. Gifts to joint tenants and tenants
in common, 1113.
KINDNESS — Influence resulting from kindness or affection is not wrong-
ful, 874.
KNOWLEDGE of contents of will may be shown by circumstances, 929.
of contents of will: Presumption, 927.
"LAPSE," 1093.
construed, 1099.
distinguished from abatement or ademption, 1093.
divorce will not cause a lapse, 1112.
effect of statutes to prevent lapse, 1282. '
members of class dying before testator, are excluded, 1284.
statutory regulations as to lapse, 1095.
LAPSED DEVISES — See Lapsed Legacies.
LAPSED LEGACIES AND DEVISES, 1008, 1091.
beneficiary dead when will is executed or dying before testator, 1101.
contingent charges; "exception" differs from "charge," 1108.
death of life tenant does not cause gift of remainder to lapse, 1115.
defined, 1092.
devises in trust, 1110.
1808 INDEX FOE VOLUME TWO.
[References are to pages.]
LAPSED LEGACIES AND DEVISES— (Continued).
general rule as to lapsed or void legacies or devises, 1132.
gift to beneficiary ' ' and his heirs, ' ' 1120.
gift to beneficiary "or his heirs," 1122.
gifts to joint tenants and tenants in common, 1113.
legacy charged upon real estate, 1107.
legacy given to pay a debt owing legatee, 1105.
legacy of a debt owing testator, 1106.
object of devise failing, 1112.
of tenants in common, 1114.
purpose of statutes, 1098.
testator may prevent lapse, 1117.
to whom the benefit of lapsed legacies and devises aeemeg, 1136.
words of inheritance, 1119.
"LAWFUL" or "legal" to qualify the word "heirs," 1333.
LAWFUL INFLUENCE— Influence resulting from family relations, 886.
"LAWFUL ISSUE," 1234.
"LEAVING," 1384.
LEDGEBS — Testator may indicate by reference in his will to aeeount books
and ledgers what he intends shall be considered as advancements,
1082.
LEGACIES — Ademption and satisfaction of legacies and devises, 1038.
ademption of legacy of a debt paid before testator 's death, 1058.
advancement. Legacy must precede advanced portion in point of time,
otherwise no deduction, 1070.
advancements, reason for presumption of satisfaction of legacy by
advanced portions, 1076.
charges for payment of debts and legacies, 1135.
charges upon legacies and devises for the support of the testator's chil-
dren and widow, or other persons, valid, 1503.
classified, 968.
direction in will that executor pay all debts and legacies, 1145.
direction in will that all debts and legacies be paid, 1141.
divorce will not cause a legacy or devise by one spouse in favor of the
other to lapse, 1266.
effect of failure of residuary devise or legacy, 1111.
in lieu of dower. Will may provide that such legacies abate, 1031.
intention controls as to whether or not legacies are cumulative or sub-
stitutional, 1010.
legacy in exercise of a power of appointment, 1031.
order in which legacies are stated is immaterial, 1033.
personal property of estate is primarily liable for debts and legacies,
1139.
INDEX FOE VOLUME TWO. 1809
[References are to pages.]
LEGACIES— (Continued) .
to creditor as satisfaction of debt; general rule, 1062.
to creditor. Exceptions to general rule, 1064.
to testator's "relations," "heirs," "heirs at law," 1273.
to debtor by creditor; no presumption that debt is forgiven, 1060.
to widow in lieu of dower, 1029.
who are residuary legatees, 998.
"LEGAL" to qualify the word "heirs," 1333.
"LEGAL PEKSONAL EEPRESENTATIVES, " 1255.
"LEGAL EEPRESENTATIVES "—Who are included in the term "repre-
sentatives " or " legal representatives, " 1255.
LEGATEE — Liability of heir, devisee or legatee for debts of decedent;
common law rule, 1136.
who are residuary legatees, 998.
"LEND"— -Effect of the use of the word "loan" or "lend" in creating
of life estate, 1396.
LIABILITY — As to liability of heir, devisee or legatee. for debts of decedent;
common law rule, 1136.
LIBEAEIES — Charitable uses and trusts, 1641.
LIFE ESTATE — Apparent devise of fee limited by additional provisions
to a life estate, 1411.
common law rule and statutory changes, 1394.
coupled with absolute power of disposition, 1413.
creation by implication, 1405.
creation of life estate by implication. Devise to A upon death of B,
1406.
creation of life estate by implication. Gift over if first taker "die
without issue," 1407.
creation of life estate by implication. Where devise to first taker is in
fee, 1410.
creation of life estate by implication; where devise to first taker is a
life estate, 1409.
defined, 1393.
devise coupled with an absolute and unlimited power of disposition.
Statutory regulations, 1414, 1415.
devise "during widowhood" or "until marriage" confers a life estate,
1401.
devise of life estate with no gift over, 1355.
effect of the use of the word "loan" or "lend" in creating of life
estate, 1396.
express devise not affected by subsequent doubtful expressions, 1418.
extraordinary dividends from stock, 1428.
II Com. on Wills— 60
1810 INDEX FOR VOLUME TWO.
[References are to pages.]
LITE ESTATE— (Continued).
gift for life of the right of use, enjoyment and occupation creates a
life estate, 1399.
gift of a "home" on certain property during natural life, creates a
life estate, 1400.
gift of income of personal property, 1421.
gift of rents, issues, profits, income, etc., of land, as creating life estate,
1397.
gifts in trust, of life estate, or of income, 1192.
in personalty; money, 1420.
in personalty with power of disposition, 1421.
in personalty with remainder over, 1422.
life estates. Compelling security from life tenant of personalty, 1425.
life estates. Personalty consumable in its use; specific and general or
residuary bequests distinguished, 1423.
remainder over to a class upon termination of life estate, 1304.
respective rights of life tenant and remainderman, 1426.
with limited power of disposition, 1416.
where power of disposition is not exercised, 1418.
words sufficient to create life estates, 1395.
LIFE TENANT — Respective rights of life tenant and remainderman, 1426.
"LITE TENANTS," 1396.
LIMITATIONS because of public policy, 937.
' ' chDd, " " son, ' ' and ' ' daughter ' ' when used in the singular tense as
nomina collectiva, are words of limitation, 1387.
children as a word of limitation; wiU speaks as of date of testator's
death, 1390.
common law rule as to words of limitation, 1345.
condition in restraint of marriage; words of condition or of limitation,
1526.
devises of estates in fee simple — ^words of limitation, 1345.
distinction between condition and limitation, 1495.
distinguished from conditions, 1493'.
estates tail; "children" as a word of limitation, 1387.
gift with limitation over in event of death of beneficiary, 1267.
"issue" as a word of limitation or of purchase, 1377.
limitations and conditional limitations defined, 1471.
see Statute of Limitations,
spendthrift trusts. Limitation over not essential to the termination of
the life interest, 1561.
upon charges, 1161.
upon testamentary power, in general, 936.
LIMITED EESTRAINT — Conditions in restraint of marriage: Limited
restraint is valid, 1523.
INDEX FOE VOLUME TWO. 1811
[References are to pages.]
" LIVING AT THE DEATH," 1294.
"LOAN"— Effect of the use of the word "loan" or "lend" in creating
of life estate, 1396.
LOSS — Ademption by loss or destruction of property specifically b|e-
queathed, 1050.
"MALE ISSUE," 1237.
MARBIAGE — Effect of marriage of parents of illegitimate child, 1232.
restraint of marriage. Condition that beneficiary marry only with
consent of certain persons, 1537.
see Eestraint of Marriage.
MABSHALING O? ASSETS, 1164.
rule for the marshaling of assets for the payment of the debts of a
decedent, 1138.
MASSES — Charitable uses and trusts. Masses for repose of souls of the
dead: American rule, 1629.
MEDALS — Charitable uses and trusts. Medals and prizes, 1645.
MENACE-^Eequirements as to pleadings where objection is made to the
probate of a will on the ground of menace, 934.
MENTAL COERCION — Undue influence refers to mental coercion, 867.
MENTAL CONDITION — Declarations of testator as evidence of mental
condition, 920.
MENTAL WEAKNESS — In conjunction with other matters may raise sus-
picion of undue influence, 880.
MISTAKE, 909.
election made through ignorance, fraud or mistake may be repudiated,
1199.
in designating number in class, 1290.
MISTRESS — ^Bequest to a mistress, 891.
"MONEY" held to include real property, 1005,
life estate in money, 1420.
may be specifically bequeathed, 978.
MORTGAGE — ^At common law, debts created by the testator and secured
by mortgage primarily payable out of the personal estate, 1151.
common law rule as to debts secured by mortgage, 1151.
condition that a devisee in fee shall not mortgage, 1539.
debts secured by mortgage. Expressions of intent, 1152.
revocation of devise; effect of mortgage, 1088.
MORTGAGED PBOPERTY — Testamentary gift of mortgaged property;,
modern rule, 1154.
1812 INDEX FOR VOLUME TWO.
[References are to pages.]
MOETMAIN — ^English statutes of mortmain and charitable uses, 1611.
MOTIVE — Influence, although combined with opportunity and motive,
does not render will void, 895.
precatory trusts. Where words merely express motive for gift, no
trust is created, 1588.
"MY," 980.
"MY LIFE INSURANCE," 981.
NAME — Conditions as to change of name, 1509.
NATURAL CHILDEEN— Gifts to natural children and concubines, 892.
"NEAR RELATIONS," 1253.
"NEAREST," "legal," "lawful" or other similar expressions to qualify
the word "heirs," 1333.
"NEAREST BLOOD RELATION," 1248.
"NEPHEWS," 1292.
who included in the term ' ' nephews " or " nieces, ' ' 1257.
"NET INCOME," 1398.
"NEXT OF KIN" — Distinction between gift to "next of kin" and gift
to "next of kin according to the statute," 1249.
as a class ; as to the date which determines who are included, 1250.
neither husband nor wife is heir or next of kin of the other, 1263.
who included in the term, 1248.
"NIECES" — Who included in the term "nephews" or "nieces," 1257.
NON-PERFORMANCE — Forfeiture does not follow unless there is a gift
over upon non-performanee of the condition, 1505.
"NOT OTHERWISE DISPOSED OF," 1004.
OBJECT OP DEVISE— Lapsed legacy. Object of devise failing, 1112.
OCCUPATION — Conditions as to occupation, study and habits, 1506.
gift for life of the right of use, enjoyment and occupation create a
life estate, 1399.
"OFFSPRING," 1374.
"ON," "from and after" or "after" or "at" or "on" the death of
the life tenant, 1459.
"ON THEIR ATTAINING TWENTY-ONE," 1299.
OPPORTUNITY — Influence, although combined with opportunity and mo-
tive, does not render will void, 895.
OPTIONS do not constitute a revocation of a prior specific devise, 1088.
"OR," 1122.
construed to mean "and," 1123.
INDEX FOR VOLUME TWO. 1813
[References are to pages.]
"OR HIS HEIE8," 1122.
"OR HIS HEIRS' ISSUE," 1123.
ORDER in wliieh legacies are stated is immaterial, 1033.
in which property is resorted to for payment of debts, 1138.
"OTHER" — When word "survivor" is construed to mean "other," 1306.
"OUT OF," 987.
"PAID OUT OF"— To be "paid out of," 987.
PARENT AND CHILD— Confidential relationship between parent and child,
897.
PAROL DECLARATIONS — Advancements, parol declarations and other evi-
dence, 1080.
of the testator to show that he did not intend money as a portion in
satisfaction of the legacy, 1082.
will can not be altered or revoked by parol declarations, 918.
PAROL EVIDENCE as to intention of testator to omit child from will;
conflict of authority, 957.
PARTIAL PAYMENT of a debt specifically devised is an ademption pro
tanto only, 1059.
PAY — Direction in will that executor pay all debts and legacies, 1145.
"PAYABLE" — ^Vested and contingent interests; gift "payable" when
beneficiary attains a certain age, 1438.
"PAYMENT," 1056.
charges for payment of debts and legacies, 1135.
order in which property is resorted to for payment of debts, 1138.
PAYMENT OF DEBTS — Real estate may be charged with the payment of
debts and legacies by being blended with the personalty, 1156.
see Charge, 1160.
PECUNIARY LEGACIES, as a general rule, abate proportionally, 1033.
FEB CAPITA — In what proportion beneficiaries collectively designated
take ; per capita or per stirpes, 1271.
PERPETUITIES, 937.
charitable uses and trusts. Rule against perpetuities, 1648.
charities, 1694.
contingent and vested interests distinguished, 1675.
contingent remainders as affected by the rule as to perpetuities, 1468.
defined, 1669.
effect of provisions violating rule against perpetuities, 1683.
effect on preceding estate, 1685.
executory devises as affected by the rule as to perpetuities, 1485.
gifts to a class, 1687.
1814 INDEX FOB VOLUME TWO.
[References are to pages.]
PERPETUITIES— (Continued) .
provisions construed as of date of testator's death, 1677.
rule against. See Rule Against Perpetuities.
rule as to perpetuities as affecting charitable gifts, 1646.
time runs from date of testator's death, 1681.
±\ie Thellusson Act, 1691.
trusts to accumulate, 1669.
PERSONAL PROPERTY — Life estate created by gift of income of personal
property, 1421.
primarily liable for debts and legacies, 1139.
"PERSONAL REPRESENTATIVES," 1255.
PERSONALTY— Compelling security from life tenant of personalty, 1425.'
executory interests in personalty, 1484.
gift of personalty may be limited after a life estate, 1484. '
life estate in personalty, 1420.
life estate in personalty with power of disposition, 1421.
life estate in personalty with remainder over, 1422.
remainder in personalty, 1452.
FEB STIRPES — In what proportion beneficiaries collectively designated
take ; per capita or per stirpes, 1271.
PERSUASION, 896.
alone, does not establish undue influence, 876.
PIOUS USES— See Charitable Uses and Trusts.
PLEADINGS — Requirements as to pleadings where objection is made to
the probate of a will on' the ground of duress, menace, fraud or
undue influence, 934.
"POOR"— "The poor," 1655.
POSTHUMOUS CHILDREN — After-born and posthumous children defined,
950.
rights of after-born and posthumous children, 950.
POSTNUPTIAL AGREEMENTS, 947.
POWER — Life estate coupled with absolute power of disposition, 1413.
devise coupled with power of disposition, 1355.
life estate in personalty with power of disposition, 1421.
life estate with limited power of disposition, 1416.
life estate. "Where power of disposition is not exercised, 1418.
where a power of appointment is given by will, rule against perpetuities
applies as well to power as to appointment, 1682.
where devise coupled with power is limited to a life estate, or power
of disposition is restricted, 1357.
INDEX FOE VOLUME TWO. 1815
[References are to pages.]
PEECATOEY TEUST— Construction. Eelationship of parties, 1577.
distinction where expressions are addressed to executors and not bene-
ficiary, 1580.
essential elements of precatory trusts, 1573.
early rule of construction as to precatory words, 1571.
effect of uncertainty of subject matter or objects of the trust, 1574.
gift upon "understanding" or "promise," 1602.
intention of testator governs; no universal rule of construction, 1582.
modern tendency to restrict the rule of construction of precatory words,
1572.
no particular form of language required to create a precatory trust,
1581.
precatory and secret trusts, 1569.
precatory trusts defined, 1569.
precatory expressions which have been construed not to create trusts,
1597.
precatory trusts. See Precatory Words,
precatory expressions which have been construed as creating trusts,
1596.
points to be considered in construing the effect of precatory words,
1576.
precatory words are imperative In effecting primary gifts, 1579.
points to be considered in construing the effect of precatory words, 1576.
where precatory expressions impliedly direct devisee to use fund for
maintenance of dependents, trust created, 1594.
words used must be intended to impose an imperative obligation, or no
trust is created, 1589.
where words merely express motive for gift, no trust is created, 1588.
where absolute gift is not diminished by subsequent precatory words,
1585.
PEECATOEY WOEDS referring to dependents: Where no trust is created,
1592.
see Precatory Trusts.
not held to create a trust which can not be executed, 1584,
trust created by precatory words, 1594.
various precatory words considered, 1598.
"will" a word of command, 1591.
where absolute gift is not diminished by subsequent precatory words,
1585.
"PEESENT BOEN," 1294.
PEESXJMPTION — Although gift may be to several persons by name, pre-
sumption is that they take as individuals, 1287, 1288.
advancements, reason for presumption of satisfaction of legacy by ad-
vanced portions, 1076.
as to advanced portions; general rule, 1072.
1816 INDEX FOR VOLUME TWO.
[References are to pages.]
PEESTJMPTIOIT— (Continued) .
against partial intestacy, 1007.
confidential relationship alone does not raise a presumption of undue
influence, 900.
fact that the body of the will is in decedent's handwriting affords no
presumption that he signed the will, 913.
of intention to charge where testator knows the personalty is inadequate,
1147.
of ademption where legacy and gift are not the same kind, 1075.
of satisfaction where legatee is a stranger, 1058.
of undue influence from a bequest from a ward to a guardian, 899.
question whether real estate is charged is one of intention, and no
presumption of such an intention arises from a gift of real and
personal property by the same clause of the will, 1157.
testator's knowledge of contents of will: Presumption, 927.
that omission of children was unintentional, 956.
unjust will alone causes no presumption of undue influence, 883.
where will drawn at the request and direction of a sole beneficiary pre-
sumption of undue influence, 893.
when presumption arises that testator intended to dispose of Ms own
property only ; community property, 1181.
PEETERMITTED CHILDKEN— Object of the statutes granting rights to
pretermitted children, 953.
rights of pretermitted children generally, 949.
PEETERMITTED HEIE — Abatement to make up share of a pretermitted
heir, 1036.
remedies of pretermitted heirs, 960.
PRIVATE CHAEITY — Public charity, as distinguished from private char-
ity, 1621.
PEIVATE TEUSTS. See Trusts.
charitable trusts distinguished from private trusts, 1606.
subject to rule against perpetuities, 1682.
PEIZES — Charitable uses and trusts. Medals and prizes, 1645.
PEOGEEDS FEOM SALES— Bequest of, 981.
PEOCEEDS OF EEAL ESTATE— Legacy of proceeds of real estate, 1110.
PEOFITS — Gift of profits of land as creating life estate, 1397.
PROHIBITION — Charitable uses and trusts. Prohibition and temperance,
1643.
PROMISE — Precatory trusts. Gift upon "understanding" or "promise,"
1602.
INBEX FOR VOLUME TWO. 1817
[References are to pages.]
"PEOPEETY"— Effect of use of siieh words as "property" or "real
effects" in devises, 1352.
inalienability of property and non-liability for debt secured through
spendthrift trusts, 1556.
rule against perpetuities applies to contingent remainders and executory
devises, but not to reversions; it applies to property and not to
contract, 1674.
PEOPEETY EIGHTS affected by an antenuptial agreement, 945.
PEOPOETION — In what proportion beneficiaries collectively designated
take; per capita or per stirpes, 1271.
PUBLIC CHAEITY as distinguished from private charity, 1621.
PUBLIC POLICY — Antenuptial agreement not contrary to public policy,
942.
inducing the separation of a husband and wife is against public policy,
1536.
limitations because of public policy, 937.
neither against public policy nor contrary to law for a testator to dis-
pose of his property on condition that religious observances be
complied with, 1510.
PUBLIC PUEPOSES— Charitable uses and trusts, 1641.
PUS AUTBB VIE, 1393.
PUECHASE — Estate tail; "children" as a word of purchase, 1385.
"issue" as a word of limitation or of purchase, 1377.
QUM IPSO USU CONSUMUNTUS, 1423.
EEADING OF THE WILL — Proponent need not show actual reading of
will to the testator, 928.
EEAL ESTATE— Devises of, when specific, 982.
effect of use of "real estate" in devises, 1352.
EEALTY — Converted into personalty does not bar dower, but otherwise is
distributed as personalty, 1174.
acquired after the execution of the will being covered by the residuary
clause, 1006.
RECEIPT — Tenant for life to give a receipt or sign inventory, 1426.
"EECOMMEND AND EEQUEST," 1601.
EECONVEESION defined. How effected, 1175.
EB-EXECUTION OF WILL — Adeemed or satisfied legacies not revived by
re-execution of will, 1045.
EEFOEMATION — Conditions valid which require reformation and tbe lead-
ing of a moral life, 1507.
1818 INDEX FOB VOLUME TWO.
[References are to pages.]
RELATION— Wife not a relation of her husband, 1263.
" GELATIONS " as a class; as to the date which determines who are
included, 1254.
devise or legacy to the testator's "relations," 1273.
who included in the term ' ' relatives " or " relations, ' ' 1252.
EELATIONSHIP of legatee to testator generally immaterial, on question
of abatement, 1034.
"RELATIVES" as a class; as to the date which determines who are
included, 1254.
who included in the term ' ' relatives, ' ' 1252.
construed, 1099.
"RELEASE," 1056.
RELIGION — Charitable uses and trusts. Gifts to religion, 1661.
RELIGIOUS AND PIOUS USES, 1632.
RELIGIOUS FREEDOM— Conditions affecting religious freedom, 1510.
"REMAINDER," 998.
estate in fee wiU pass by a devise of "the remainder" of the "rever-
sion" or of the "residue" where there is no limitation over, 1350.
estates in remainder defined, 1450.
executory devise converted into remainder by change of circumstances,
1478.
once vested will not lapse, 1116.
power of disposition in life tenant does not make remainder contingent,
1466.
remainders and executory devises; remainder will be construed, if pos-
sible, as vested rather than contingent, 1461.
remainders and executory devises distinguished, 1476.
remainders in personalty, 1452.
remainders and executory devises ; postponement of enjoyment only floes
not make remainder contingent, 1458.
remainders and executory devises; remainder may vest although appar-
ent contingencies are expressed, 1463.
remainders and executory devises; limitation over if first taker riie
under age or unmarried, 1483.
remainders and executory devises ; limitation over if first devisee ' ' die
without issue," 1479.
remainders and executory devises, 1449.
remainders and executory devises; contingency with reference to termi-
nation of preceding estate, 1465.
remainders. See Contingent Remainders.
remainders and executory devises compared, 1476.
residuary clause, descriptive words ; ' ' remainder, ' ' 1002.
INDEX FOE VOLUME TWO. 1819
[References are to pages.]
" REMAINDER "—(Continued) .
testamentary disposition of contingent and executory interests, 1454.
vested or contingent, 1329.
REMAINDERMAN— Life estate. RespectiTe rights of life tenant and
remainderman, 1426.
"REMAINS," 1003.
REMOVAL — Ademption by removal of property, 1054.
RENTS— Gift of rents of land as creating life estate, 1397.
' ' RENTS AND PROFITS, ' ' 1398.
"RENTS, INCOME, AND PROFITS," 1398.
REPUBLICATION — Adeemed or satisfied legacies not revived by republi-
cation or re-execution of will, 1045.
"REPRESENTATIVES"— Who included in the term "representatives"
or ' ' legal ' ' representatives, 1255.
"REQUEST"— Meaning of the word "request," 1600.
recommend and request, 1601.
"wish" may be equivalent to "will" or "request" or "direct," 1600.
RESIDENCE — Conditions requiring residence at a certain place, 1507.
RESIDUARY CLAUSE— Construction controlled by intention, 1005.
describing property in the residuary clause, effect of, 1001.
effect of realty and personalty being blended in the residuary clause,
1157.
position of the residuary clause, 1001.
real property acquired after the execution of the will whether covered
by the residuary clause, 1006.
RESIDUARY DEVISES defined, 997.
effect of failure of residuary devise or legacy, 1111.
residuary devises and legacies usually classed as general, 999.
what passes' unilcr residuary devises and bequests, 1007.
who arc residuary devisees or legatees, 998.
RESIDUARY LEGACY— See Residuary Devise,
abatement of, 1021.
classed as general, 999.
defined, 997.
specific and general or residuary bequests distinguished, 1423.
RESIDUARY LEGATEE — If waste occurs by reason of mismanagement by
the executor, so that the residue is diminished or exhausted, the
residuary legatee must bear the whole loss, 1035.
1820 INDEX FOR VOLUME TWO.
[References are to pages.!
"RESIDUE," 998, 1002, 1005.
estate in fee will pass by a devise of ','the remainder" of the "rever-
sion " or of the ' ' residue ' ' where there is no limitation over, 1350.
"BEST," 998.
residuary clause, descriptive words; "rest," 1002.
RESTRAINT OF MARRIAGE— Conditions in restraint of marriage, 1522.
condition in restraint of marriage invalid if annexed to gift of person-
alty unless there is a gift over, 1525.
condition in restraint of marriage: intent of testator governs whether
condition or limitation, 1529.
condition in restraint of remarriage of widow, 1530.
condition in restraint of remarriage of widower, 1532.
condition subsequent in general restraint of marriage, 1524.
devises operating in general restraint of marrying, 937.
RESTRAINTS ON ALIENATION, 936.
general restraint upon alienation void, 1541.
RESTRICTION — Charitable uses and trusts. Statutory restrictions on gifts
to charity, as to amount and time of execution, 1615.
condition or restriction suspending all power of alienation, 1541.
on corporate holdings of land in the United States, 1614.
"REVERSION"— Estate in fee will pass by a devise of "the remainder"
of the "reversion" or of the "residue" where there is no limita-
tion over, 1350.
REVERSIONS — ^Rule against perpetuities applies to contingent remainders
and executory devises, but not to reversions; it applies to property
and not to contract, 1674.
REVOCATION OF DEVISE— Effect of mortgage, 1088.
effect of re-acquiring ownership, 1086.
sale and conveyance of realty operate as a revocation of a previous
devise thereof, 1085.
RIGHTS OP HUSBAND or wife as limiting the testamentary power of the
other, 937.
RULE AGAINST PERPETUITIES applies to interests in realty or person-
alty, whether legal or equitable, 1676.
applies to contingent remainder and executory devises, but not to rever-
sions ; applies to property and not to contract, 1674.
cases illustrating application of rule, 1679.
development of rule, 1670.
not a rule of construction but a peremptory command of the law, 1677.
perpetuities and trusts to accumulate. Effect of provisions violating
rule against perpetuities, 1683.
private trusts subject to rule, 1682.
INDEX FOR VOLUME TWO. 1821
[References are to pages.]
EULE AGAINST PEEPETUITIES— (Continued),
see Perpetuities,
statement of rule, 1671.
the Thellusson Case, 1690.
where a power of appointment is given by will, rule against perpetuities
applies as well to power as to appointment, 1682.
EULE IN SHELLEY'S CASE, 1317.
a rule of law, 1322.
applicable to trust estates where both the freehold estate and the remain-
der are of the same quality, 1328.
applies alike to equitable and to legal estates^ 1327.
as applicable to gifts of personalty, 1329.
burden of proof, 1342.
circumstances under which rule is applicable, 1324.
' ' children " as a word of limitation, 1339.
"children" as a word of purchase, 1337.
defined, 1317.
does not apply where the limitation is to particular heirs, 1334.
effect of limitation to heirs of heirs, 1327.
effect of words of limitation and of purchase, 1332.
"heirs" as a word of limitation, 1332.
"heirs of his body," 1333.
"heirs" as meaning "children," 1335.
limitation must be to heirs of first taker, in their capacity as such heirs,
1326.
meaning of "heirs," 1323.
purpose of the rule, 1319.
reasonableness of the rule, 1320.
where the liniitation is to "issue" or "issue of the body," 1341.
where remainder is vested or contingent, 1329.
where prevails and where abolished by statute, 1342.
SALE and conveyance of realty operate as a revocation of a previous devise
thereof, 1085.
"SATISFACTION," 1056.
ademption and satisfaction of legacies and devises, 1038.
ademption and satisfaction distinguished, 1041.
advancements reason for presumption of satisfaction of legacy by
advanced portions, 1076.
is of equitable origin, while ademption depends upon a rule of law, 1044.
legacy to creditor as satisfaction of debt; general rule, 1062.
of general legacies, 1056.
where legatee is a stranger; presumption, 1058.
SATISFIED — Adeemed or satisfied legacies not revived by republication or
re-execution of will, 1045.
182^ INDEX FOE VOLUME TWO.
[References are to pages.]
"SECOND," 1033.
SECRET— Precatory and secret trusts, 1569.
SECEET TRUSTS— Creation and effect of, 1602.
necessity of promise by beneficiary, 1603.
SECURITY — ^Life estates. Compelling security from life tenant of person-
alty, 1425.
"SEED," 1374.
SEPARATION — Conditions predicated upon divorce or separation, 1533.
condition not to induce or invite a divorce or separation, but to make a
provision for support upon the happening of either event, is valid,
1534.
inducing the separation of a husband and wife is against public policy,
1536.
"SHARE AND SHARE ALIKE," 1289.
divided among the survivors or their regal representatives, share and
share alike, 1280.
where testator directs division "equally" or "share and share alike,"
1276.
"SHELLEY'S CASE"— Rule in Shelley's Case, 1317.
SLANDERS UPON BENEFICIARIES— Evidence of slanders upon bene-
ficiaries of an altered will, throws the burden of proof upon the
proponents of the codicils, 881.
SLIGHT and uncertain evidence will not establish undue influence, 881.
SOLE BENEFICIARY— Declarations of sole beneficiary: Conspiracy, 924.
SOLICITATION, 896.
"SO LONG AS," 1471.
"SON"— "Child," "son," and "daughter" when used in the singular
tense as nomina collectiva, are words of limitation, 1387.
SOUNDNESS OP MIND of testator does not imply immunity from undue
influence, 879.
SPECIFIC CONSENT— Husband or wife may consent to the will of the
other; general or specific consent, 939.
SPECIFIC LEGACIES not favored, 969.
money may be the subject of a specific bequest, 978.
of a designated piece of property made, in one instrument, to two
different persons, 1012.
SPECIFIC LEGACIES AND DEVISES, abatement of, 1024.
ademption, applicable only to specific legacies, 1044.
defined, 974.
INDEX FOE VOLUME TWO. 1823
[References are to pages. J
SPECIFIC LEGACIES AND DEVISES— (Continued),
ilescriptive words, 977.
distinction between specific and demonstrative legacies, 984.
life estates. Personalty consumable in its use; specific and general or
residuary bequests distinguished, 1423.
must be construed in the light of the situation existing at the time the
will was made, 976.
SPECIFIC PERFORMANCE of agreement between husband and wife, 948.
SPENDTHRIFT TRUSTS— Condition of forfeiture if beneficiary becomes
insolvent, 1552.
devises in trust to defeat claims of creditors of beneficiaries, 1557.
inalienability of property and non-liability for debt secured through
spendthrift trusts, 1556.
limitation over not essential to termination of the life interest, 1561.
language sufficient to create, 1556.
necessary incidents of spendthrift trusts, 1564.
necessity of provision terminating estate In event of attachment: Eng-
lish decisions, 1560.
to create a spendthrift trust, necessary that cestui que trust be restricted
of power of alienation and that property be not liable for his debts,
1565.
voluntary and involuntary assignments distinguished, 1555.
"STANDING IN MY NAME," 980.
STATUTE DE BONIS— BSect of statute de donis on conditional fees, 1369.
STATUTE OF CHARITABLE USES of 43 Eliz., ch. 4, 1613.
STATUTE OF FRAUDS— Antenuptial agreement, 944.
STATUTE OF LIMITATIONS— Charitable uses and trusts. Chancery may
compel trustee to account, 1660.
STATUTES OF MORTMAIN, 987, 1611.
STATUTORY REGULATIONS— Devise of a life estate coupled with an
absolute and unlimited power of disposition, 1415.
STOCK — ^Life estates. Extraordinary dividends from stock, 1428.
STUDY — Conditions as to study, 1506.
SUBSTITUTED DEVISEES— See Substituted Legatees.
SUBSTITUTED LEGACIES subject to incidents of first legacies, 1016.
SUBSTITUTED LEGATEES, 1118.
SUBSTITUTION — In a gift to heirs by way of substitution, persons are
ascertained at the death of him whose heirs they are, and not at
the time of distribution, 1247.
1824 INDEX FOE VOLUME TWO.
[References are to pages.]
"SUBSTITUTIONAL"— The word "substitutional" as applied to legacies,
1010.
intention controls as to whether or not legacies are cumulative or sub-
stitutional, 1010.
SUPPORT — Charges upon legacies and devises for the support of the testa-
tor 's children and widow, or other persons, valid, 1503.
"SURVIVING," 1247.
' ' SURVIVOR ' ' — When, word ' ' survivor ' ' is construed to mean ' ' other, ' '
1306.
SURVIVORS — Accrued interest of one survivor generally does not pass at
his death to remaining survivors, 1315.
devise to one for life with remainder to his children or the survivors of
them, 1314.
when gift is direct, words of survivorship refer to testator's death, 1309.
where gift to survivors depends upon a contingency, 1308.
SUSPICIOUS CIRCUMSTANCES— Beneficiary directing execution of will,
893.
evidence of forgery, 914.
suspicious circumstances dehors the will heightened by unjust provisions,
885.
TEMPERANCE — Charitable uses and trusts — prohibition and temperance,
1643.
TENANTS IN COMMON — ^Lapsed legacies. Gifts to joint tenants and
tenants in common, 1113.
lapsed legacies of tenants in common, 1114.
TERMINATION — Remainder over to a class upon termination of life estate ;
vested and contingent remainders, 1304.
TERMINATION OF PRECEDING ESTATE— Where right to share in
benefits depends upon termination of a preceding estate, 1301.
TESTAMENTARY DISPOSITION— Testator has inherent right to make,
881.
TESTAMENTARY GIFTS, upon condition, 1487.
civil law rule, 1497.
of mortgaged property; modern rule, 1154.
of life estates, 1392.
TESTAMENTARY POWER— Agreements between husband and wife as
limitations on testamentary power, 948.
limitations upon testamentary power, in general, 936.
rights of husband or wife as limiting the testamentary power of the
other, 937.
"THEIR HEIRS AND ASSIGNS," 1377.
INDEX FOR VOLUME TWO. 1825
[References are to pages.]
THELLUSSON ACT — Perpetuities and trusts to accumulate. The Thellus-
son Act, 1691.
THELLUSSON CASE— Eule against perpetuities. The Thellusson Case,
1690.
"THEN," 1247, 1251.
"THEEEOUT," 1160.
TIME — Conditions. Time of performance: Where will prescribes time of
performance, 1504.
perpetuities and trusts to accumulate. Time runs from date of testator 's
death, 1681.
within which condition must be performed ; where no time specified, 1504.
"TO BE BORN," 1298.
"TO BE PAID," 1438.
TEXJSTEE — Creation of spendthrift trust necessarily requires that legal
title be vested in trustee, 1564.
TEUSTS — See Precatory Trusts. See Spendthrift Trusts,
charitable uses and trusts, 1605.
charitable uses and trusts. Trust for the benefit of a class, 1655.
created by precatory words, 1594.
devise upon conditions or in trust, 1353.
doctrine of charitable uses and trusts only partially accepted in some
states and whoUy rejected in others, 1607.
gifts in trust, of life estate, or of income, 1192.
precatory expressions which have been construed as creating trusts, 1596.
precatory expressions which have been construed not to create trusts,
1597.
precatory trusts. Effect of uncertainty of subject matter or objects of
the trust, 1574.
precatory trusts defined, 1570.
precatory trusts. Where words merely express motive for gift, no trust
is created, 1588.
spendthrift trusts. Devises in trust to defeat claims of creditors of .
beneficiaries, 1557.
TRUSTS TO ACCUMULATE, 1669.
accumulation defined, 1689.
charities, 1694.
contingent and vested interests distinguished, 1675.
effect on preceding estates, 1685.
effect of provisions A^olating rule against perpetuities, 1683.
effect of trust to accumulate for longer period than allowed by rule or
statute, 1696.
gifts to a class, 1687.
n Com. on Wills— 61 >*
1B26 INDEX FOR VOLUME TWO.
[References are to pages.]
TETJSTS TO ACCUMULATE— (Continued),
implied directions to accumulate, 1694.
provisions construed as of date of testator's death, 1677.
time runs from, date of testator's death, 1681.
the ThoUusson Act, 1691.
UNCEETAINTY— Effect of uncertainty of subject matter or objects of
precatory trust, 1574.
"UNDER AGE," 1125.
UNDERSTANDING— Precatory trusts. Gift upon "understanding" or
"promise," 1602.
UNDUE INFLUENCE — Advice, argument, flattery or persuasion, alone,
does not establish undue influence, 876.
allied to coercion, 868.
as proof of the fact of undue influence, declarations not contempora-
neous with the execution are inadmissible, 917.
attempted coercion which leaves the testator's mind free to act not
sufficient to establish undue influence, 878.
burden of proof is upon the side seeking to establish undue influence,
895.
burden of proof to show the absence of, 886.
burden of proof on the issue of undue influence, 929.
certain cases in which undue influence may be established by 3 slight
degree of evidence, 902.
confidential relationship alone does not raise a presumption of, 900.
declarations as to intended manner of disposing of property: Undue
influence, 918.
declarations of a testator are not sufficient to establish the fact of undue
influence; they are admissible to show its extent and effect, 923.
determined by effect produced, not by means employed, 871.
duress and undue influence distinguished, 908.
either fraud or undue influence may exist without the other, 906.
fraud and undue influence distinguished, 904.
great latitude is allowed as to the character of evidence of, 910.
illicit relationship alone raises no presumption of undue influence, 889.
infiuenee, to be undue, must bear directly on the testamentary act, 871.
influence, to be undue, must destroy the free agency of testator, 869.
influence resulting from kindness or affection is not wrongful, 874.
may be established by circumstantial evidence, 911.
mental weakness, in conjunction with other matters, may raise suspicion
of undue influence, 880.
must not be remote, 873.
must be of the nature of fraud or duress, 904.
presumption from a bequest from a ward to a guardian, 899.
refers to mental coercion, 867.
INDEX FOR VOLUME TWO, 1827
[References are to pages.]
UNDUE INFLUENCE— (Continued).
requirements as to pleadings where objection is made to the probate of
a will on the ground of undue influence, 934.
soundness of mind of testator does not imply immunity from undue
influence, 879.
unjust will alone causes no presumption of undue influence, 883.
where will is drawn at request and direction of sole beneficiary presump-
tion of undue influence, 893.
UNJUST WILL causes no presumption of undue influence, 883.
may be considered as tending to show wrongful influences, 884.
suspicious circumstances dehors the will heightened by unjust provisions,
885.
"UNTIL MAEEIAGE "—Devise, "during widowhood" or "until mar-
riage" confers a life estate, 1401.
"USE," 1427.
gift for life of the right of use, enjoyment and occupation creates a life
estate, 1399.
"USE AND IMPROVEMENT," 1398.
"USE, INCOME, AND CONTROL FOR LIFE/' 1398.
USES — Charitable uses and trusts, 1605.
religious and pious uses, 1632.
VESTED AND CONTINGENT EXECUTORY DEVISES, 1473.
VESTED AND CONTINGENT INTERESTS, generaUy, 1431.
contingency that beneficiary be living at a designated time, 1435.
divesting of vested estates; interest contingent upon surviving termina-
tion of preceding estate, 1445.
effect of intermediate gift of income of principal which is to pass to
beneficiary at a certain age, 1441.
estate once vested can not be divested, when, 1447.
gift "payable" when beneficiary attains a certain age, 1438, 1439.
law favors vested rather than contingent interests, 1432.
perpetuities and trusts to accumulate. Contingent and vested interests
distinguished, 1675.
time for a defeasible estate to become absolute, 1433.
vested interest or remainder is subject of sale, 1432.
where payment is postponed for the convenience of the estate, 1444.
where the contingency occurs during lifetime of testator, 1433.
VESTED AND CONTINGENT REMAINDERS defined, 1455.
distinguished, 1456.
remainder over to a class upon termination of life estate, 1304.
VOID CONTJITIONS, 1496.
1828 INDEX FOR VOLUME TWO.
[References are to pages.]
VOID LEGACIES — Oeneral rule as to lapsed or void legacies or devises,
1132.
to whom the benefit of void legacies and devises accrues, 1129.
VOLUNTAEY ASSOCIATIONS as trustees of a charitable trust, 1656.
WAIVES OF DOWEE includes claim of dower in lands conveyed by hus-
band alone during coverture, 1208.
WASTE of personalty by executor, 1148.
"WHATEVEE REMAINS OF MONEY," 1003.
"WHAT IS LEFT," 1003.
"WHAT MAY EEMAIN," 1003.
"WHEN" held from the context not to import a contingency, 1436.
"WHILE," 1471.
"WHO MAY BE THEN LIVING," 1436.
"WIDOW," 1112.
WIDOW'S EIGHT OF DOWER, 1166.
where a widow's interest in the lands of her deceased husband has been
sold to pay her husband 's mortgage debts she has an equitable claim
to be reimbursed out of the personal estate, 1166.
"WIFE," 1112.
husband or wife may consent to the will of the other; general or specific
consent, 939.
effect of an illegal marriage, 1265.
rights of husband, wife and children, 935.
rights of husband or wife as limiting the testamentary power of the
other, 937.
WILD'S CASE — Estate tail; children not in being; rule in Wild's Case,
1388.
"WILL" — "Desire" construed as equivalent to "will," 1599.
in testamentary instruments, distinguished from word "wish," 1592.
"wish" may be equivalent to "will" or "request" or "direct," 1600.
"will." a word of command, 1591.
"WISH" — "Enjoin" more imperative than "wish," 1600.
may be equivalent to "will" or "request" or "direct," 1600.
"wish and expectation" import "hope," 1601.
"WITHOUT LEAVING ISSUE," 1381.
WOMEN'S SUFFRAGE — Charitable uses and trusts, 1644.
INDEX FOR VOLUME TWO. 1829
[References are to pages.]
WOEDS descriptive of classes of beneficiaries, 1220.
effect of words of limitation and of purchase, 1332.
of command or direction, 1584.
of description. Effect of additional words of description of beneficiaries
designated as a class, 1294.
of inheritance. Lapsed legacies. Words of inheritance, 1119.
of limitation. Devise — statutory changes regarding words of limitation,
1364.
of survivorship. To what date words of survivorship refer when gift is
preceded by a life estate, 1310.
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