Skip to main content

Full text of "Commentaries on the law of wills : embracing execution, interpretation and administration, including those rules of real property and principles of equity which affect testamentary dispositions, with full reference to American and English statutes and decisions, and also an appendix containing forms and precedents, and the leading will acts"

See other formats


(Unrn^ll ilam Bt\^oa\ SItbraty 



Cornell University Library 
KF 755.A94 
V.2 
Commentaries on the law of wills :embrac 




3 1924 018 846 356 




Cornell University 
Library 



The original of tiiis book is in 
tine Cornell University Library. 

There are no known copyright restrictions in 
the United States on the use of the text. 



http://www.archive.org/details/cu31924018846356 



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