Chapter XIV: Part V: Mortgages of Real Estate (2)

A lease is regarded as personal property and, while it is an interest in real property, it is usually called a chattel real, and is treated as personal property. When the owner of a lease dies, the lease is personal property in the hands of the executor or administrator of the owner, and does not descend to the heirs of the owner as real property. In some states, long time leases, such as leases for ninety-nine years, are by statute made real property.

The practical distinction between leases for years and leases from month to month, is that in the former, the lease ends when the time covered by it expires. In a lease from month to month, a new lease is created by implication, if a tenant is permitted to hold over. This question is discussed more at length under the section, _Tenancies from Year to Year_.

=336. Subletting.= Some states by statute refuse to permit a tenant to sublet any portion of his lease, without the consent of the landlord. A landlord may stipulate in his lease that a tenant shall not sublet any portion of the premises. In the absence of statutory provisions, or stipulations in the lease, a tenant may sublet the leased premises. A transfer by a tenant of an interest in the leased premises may be an assignment, or it may be a sublease. An assignment is a transfer by a tenant of his entire interest in the premises. If _A_ rents _B's_ farm for five years, and sells his lease for five years to _C_, the transfer is an assignment. A transfer of only a portion of a tenant's interest is a sublease. If _A_ rents _B's_ farm for five years, and leases the farm for three years to _C_, the transfer is an assignment. If _A_ leases the farm to _C_ for five years, the transaction is a sublease. An assignment is a transfer of the tenant's entire interest in the leased premises. A sublease is a transfer of a part of a tenant's interest in the leased premises.

A tenant may mortgage his interest in the leased premises. A creditor of a tenant may levy upon the lease in satisfaction of a judgment, the same as upon any article of personal property.

The purpose of the statute and stipulations in a lease, forbidding a tenant to sublet the leased premises, is for the protection of the original lessor. A subtenant is not permitted to avoid a lease on the ground of such a statutory provision, or by reason of such a stipulation in a lease. For example, if _A_ rents _B's_ farm for five years, and the lease contains a stipulation that _A_ cannot sublet, if _A_ sublets the farm for three years to _C_, _C_ cannot avoid the obligation to _A_ by reason of the stipulation in the lease. The stipulation is a privilege in favor of _B_. It may be exercised by _B_ if he chooses to avail himself of the privilege. He may waive the privilege, or refuse or neglect to exercise his right. Neither _C_ nor anyone else can avail himself of this privilege.

It is sometimes quite difficult to tell just what constitutes a subletting in violation of a statutory provision or a provision in the lease. Mere privileges granted to others do not constitute sublettings. Permission granted a neighbor to use a barn for a short period, or taking roomers by the week, has been held not to constitute a subletting.

If a tenant in violation of his lease sublets a part of the premises, the original lessor may eject the sublessee, and sue the tenant for damage for breach of contract.

If a tenant exercise his right of subletting a part of the premises, he is not thereby relieved from his responsibility to pay rent under the lease. Even though the tenant agrees to accept rent from the sublessee, and apply the same on the obligation of the original lessee, this does not relieve the original tenant from his obligation to pay rent. For example, if _A_ rents _B's_ house and lot for three years for $25.00 per month, payable monthly in advance, and _B_ agrees to accept the rent from _C_, and does accept payments from _C_, this does not relieve _A_ from liability to pay _B_ the rent. _A_ is a surety, and his obligation to pay the rent to _B_ is the same as the obligation of _C_. If _B_ expressly agrees to relieve _A_ and to accept _C_ in place of _A_, he can no longer hold _A_.

=337. Tenancies at Will and at Sufferance.= A lease may be entered into, the terms of which may be terminated at the will of either party. It is for an indefinite period. Such a lease creates a _tenancy at will_. (See _Estates at Will_, chapter on Real Property.) Tenancies at will are uncommon. The usual tenancies are tenancies for years and tenancies from year to year. If _A_ permits _B_ to take possession of, and to occupy his house under an agreement that either he or _B_ may terminate the lease at the desire of either party, the tenancy is one at will. _B_ may agree to pay rent at the rate of $10.00 per week, $40.00 per month or $500.00 a year, or at any rate, without affecting the estate at will. If the estate is for an indefinite period, but is terminable at the wish of either party, no matter what the arrangement for paying the rent, it is an estate at will, as distinguished from an estate for years, and an estate from year to year.

It is sometimes held that a person who holds over with the consent of the landlord after the termination of a lease for a definite period, called _an estate for years_, is a tenant at will. For example, if _A_ rents _B's_ house for one year, and at the expiration of the year, _A_ with _B's_ consent retains possession, _A_ is a tenant at will. The tenancy may be terminated at the desire of either party, and upon notice by either party. In most jurisdictions, however, this constitutes _A_ a tenant from year to year. (See following section.)

A _tenancy at sufferance_ is created by a tenant unlawfully retaining possession of the premises after the termination of his lease, without the consent of the landlord. If _A_ rents _B's_ house for one year, and at the expiration of the year _A_, without _B's_ consent retains possession of the house, he is a tenant at sufferance. He is a trespasser, and may be ejected by _B_. Tenancies at will and at sufferance are estates in land. They are also discussed under the chapter on Real Property.

=338. Tenancies from Year to Year.= A tenancy may be created for a definite period of time to continue for similar periods unless terminated by notice of either party. Such a tenancy is called a _tenancy for years_. The tenancy may involve any definite period with the understanding that it is to continue for similar periods if not terminated by notice of the landlord or tenant. While the estate is called an estate from year to year, or a tenancy from year to year, it may be for a week, a month, a year, or a series of years, or for any definite period. If _A_ rents _B's_ house for one year, the rent to be paid at the rate of $30.00 per month, payable monthly in advance, the lease to continue for yearly periods unless either _A_ or _B_ notifies the other to the contrary, the tenancy is from year to year. If, at the expiration of the year, _A_ retains possession of the premises, having received no notice from _B_ to leave, _A_ has a lease for another year under the same terms, and so on, for succeeding years. The period may be a week, or a month, as well as a year. Sometimes leases are spoken of as leases from month to month, or from week to week, in case the lease is to continue for a month, or a week. The same principle is involved as in leases from year to year. If the tenant holds over after the expiration of the week or month, he has a lease for a similar period at the same terms.

A tenancy for years may be created by express or by implied contract. It is sometimes difficult to tell whether a tenancy is for years, from year to year, or at will. If a lease specifies that it is to cover a definite period only, it is a lease for years, and terminates at the expiration of that period. If the lease stipulates that it is to cover a definite period, and continue for similar periods unless either party terminates it by notice to the other, it is a lease from year to year. If the lease stipulates that it can be terminated at the will of either party, it is a lease at will. When the lease is oral, or created by implication, the intention of the parties must determine the nature of the lease.

Some difficulty arises in determining whether a lease is one at will, or from year to year when a tenant for years is permitted to hold over with the consent of his landlord. For example, if _A_ rents _B's_ farm for one year, and is permitted by _B_ to remain in possession after the expiration of the year, in theory, _A_ is a mere tenant at will, and can be ejected at the will of _B_. This is the law in a few jurisdictions. Most jurisdictions, however, hold that _A_, when permitted to hold over by _B's_ consent, becomes a tenant from year to year.

=339. Termination of Leases.= A lease for years is terminated by expiration of the period covered by the lease. The lease may contain covenants, breach of which may by stipulation constitute a ground of forfeiture. For example, a lease may contain a stipulation that the landlord may declare a forfeiture in case the tenant fails to pay the rent when it is due. If the tenant commits a breach of this or any other covenant made by special stipulation, a ground of forfeiture, the landlord may by notice declare the lease forfeited. This renders the balance of the lease void. Leases for years, definite periods of time, require no notice to terminate. Leases at will, and from year to year require notice on the part of the party seeking their termination to be given to the other party. For example, suppose _A_ rents _B's_ house for one year, to continue for similar periods if agreeable to both parties. To terminate the lease at the end of the year, _B_ must notify _A_ to quit the premises at the expiration of the year. If _A_, on the other hand, desires to terminate the lease at the expiration of a year, he must notify _B_ previous to the expiration of the year, of his intention to terminate the lease at the expiration of the year. If _A_ holds over without notice to _B_, or without _B's_ consent, _A_ has a lease for another year at the same terms as before.

To terminate a lease from year to year or at will, the party seeking the termination of the lease must notify the other party of his intention to terminate the lease. The states generally provide by statute the time and manner of giving such notice. In general, the notice must be in writing and must be served on the interested parties or their agents a reasonable time before the expiration of the period of the lease.

A lease may be terminated by a subsequent agreement between the parties. This is commonly known as a _surrender_. A surrender is a release of possession of the premises by the tenant, and an acceptance by the landlord. A mere abandonment of possession by a tenant without the express or implied acceptance or assent of the landlord is not a surrender. Such an abandonment might constitute a breach of contract on the part of the tenant, but it requires the assent of the landlord to terminate the lease. If _A_ rents a farm for three years at $500.00 a year, and at the expiration of two years agrees to pay _B_ $100.00 to cancel the lease, and _B_ accepts, the transaction constitutes a surrender, and terminates the lease. If _A_ merely abandons the premises without the consent of _B_, the lease still exists. _B_ can collect the rent for the remaining period covered by the lease. If _A_ abandons the premises, and notifies _B_ that he will not carry out the lease, _B_ may refuse to accept the breach, permit the premises to remain vacant, and collect the rent from _B_. _B_ may accept _A's_ breach of the contract, and terminate the lease, or he may take possession of the premises, and relet them for _A's_ benefit, notifying _A_ that he takes possession for _A's_ benefit, and not for his own. In this event, _B_ must use reasonable diligence in obtaining the highest rent possible, and if he is obliged to rent for a less amount than _A_ was to pay, _B_ can collect the difference from _A_.

=340. Liability of Parties to a Lease for Breach.= If the landlord fails to fulfill the conditions of the lease, he is liable in damages to the tenant. The damages are the difference between the rent paid under the lease, and the market value of the premises furnished. For example, if _A_ rents his house and lot to _B_ for one year at $25.00 per month, and agrees to redecorate the house, but fails to do so, _A_ may recover from _B_ the difference between $300.00, the rent paid under the lease, and the market rental of the house undecorated. If a tenant abandons the lease, the landlord may recover from the the deficiency between the rental named in the lease, and the rental he is able to obtain for the balance of the time covered by the lease.

For example, if _A_ rents _B's_ farm for three years at $500.00 a year, and at the expiration of two years, _A_ abandons the lease, if _B_ is able to obtain but $300.00 for the remaining year covered by the lease, he can recover $200.00 and expenses from _A_.

A suit for damages is not the only remedy the landlord has against a tenant for the latter's abandonment of the premises. The landlord may refuse to accept the breach on the part of the tenant, let the premises remain vacant, and collect the rent under the lease.

The landlord may enter the premises for the purpose of preventing loss or destruction of the premises without accepting the breach. The landlord may accept and cancel the remaining portion of the lease, or he may again lease the premises for the benefit of the tenant, and collect the deficiency in the rent from the tenant. This question is also discussed in the previous section.

=341. Actions for Recovery of Rent and Possession of Leased Premises.= A landlord may sue and recover judgment by bringing an ordinary action for debt when rent or any installment is due. If _A_ rents _B's_ house for one year at the rate of $25.00 per month, payable at the end of each month, and fails to pay any installment, _B_ may sue him. The judgment may be satisfied out of any property _A_ may have. If married, _A_, by statute in most jurisdictions, is entitled to a certain amount of exempt property.

If the landlord has failed to perform all of the terms and conditions of the lease, _A_ may bring a counteraction against _B_ when sued by _B_ for rent. For example, if _B_ has failed to repair the house according to the terms of the lease, _A_ may counterclaim for damages when sued by _B_ for the rent.

When the period of the lease expires, the landlord is entitled to possession of the premises. At common law, he was entitled to use the force necessary to recover possession. He is not permitted to commit a breach of the public peace in obtaining possession. Most of the states provide statutory methods for obtaining possession. A complaint is filed with a court and an officer of the court ejects the tenant by order of court. Non-payment of rent does not entitle the landlord to terminate the lease, unless the lease expressly so provides. When the lease is forfeited according to its provisions, the landlord is entitled to take possession.

TRADE=MARKS AND NAMES

=342. Trade=Marks in General.= Persons are permitted to place marks on goods manufactured or sold by them, which indicate their origin or ownership. By this means, they are able to obtain the benefit of any superiority which their goods have over goods of other manufacturers or sellers. These marks placed on goods by owners or manufacturers are called _trade-marks_. A court has defined a trade-mark to be "A word, symbol, figure, form or device, or a combination thereof adopted or devised and used by a manufacturer or seller of goods to designate the origin or ownership of the goods, and used by him to distinguish the goods from those sold or manufactured by others."

A manufacturer or seller of an article is not permitted to appropriate as a trade-mark a name commonly used to describe the article. Flour is manufactured and sold by many persons. Anyone has the right to manufacture and sell flour by that name. No one is permitted to appropriate to himself as a trade-mark the name _Flour_. A person may, however, apply an arbitrary term, not describing the thing produced, for the purpose of designating his brand of flour as distinguished from other brands of flour. While a manufacturer of flour is not permitted to appropriate as a trade-mark to be used on flour the name _Flour_, he may be permitted to use the term _Ideal_. The person first adopting the name _Ideal_ as a trade-mark in the sale of flour, acquires a property right in the name. The law will protect him in the use of this name in connection with the sale and manufacture of flour.

Any arbitrary name, sign, mark, symbol, letter or number used for the purpose of designating the origin or ownership of goods may be appropriated as a trade-mark by the person first adopting and continuing its use. A person is not permitted to adopt as a trade-mark anything which indicates the grade or ingredients, or which is descriptive of the article sold or manufactured. The reason for this rule is that otherwise a person adopting the name would have a monopoly on the production of such articles. _Crack-Proof Rubber Goods_, as applied to rubber goods; _A1 Honey_, as applied to honey, are terms descriptive of quality of goods and cannot be appropriated.

A proper name of a person is not the subject of a valid trade-mark. Persons of the same name are permitted ordinarily to use their name in the manufacture of goods of the same nature. A party is not permitted, however, to manufacture or sell his goods as the goods of another. He may not be permitted to use his own name in the sale of certain goods if another has long made and sold goods under the same name, and if purchasers are defrauded thereby, or if confusion results. This is not by reason of a person having a trade-mark in his own name, but by reason of unfair trade. This is discussed under the section on _Unfair Trade_.

=343. Trade=Marks= (CONTINUED). A name of a place or locality cannot be appropriated as a trade-mark. Any person is permitted to use the name of a place or locality to designate the origin of the goods and it is the common property of all as much as any descriptive name. A geographical name cannot be appropriated as a trade-mark. A common example of this principle is the use of the term, _Lackawanna_. This is the name of a district in Pennsylvania. A coal company endeavored to appropriate the name, but was not permitted to use it as a trade-mark. Others, mining coal in the Lackawanna district have an equal right to designate their coal by the same name. Any fanciful or arbitrary name not describing the article, may, however, be adopted as a trade-mark. A person first using such an arbitrary mark in the manufacture or sale of a particular class of goods acquires a trade-mark. He may use the mark without any intention of acquiring a trade-mark therein. If another person attempts to use the mark, no matter if without intent to defraud, he may be enjoined from its use. The owner of a trade-mark has no greater right than any other person to use the trade-mark on classes of goods different from the class on which it has been acquired. A trade-mark used on flour may also be used on stoves by another person. This principle is subject to the limitations that one person is not permitted to deceive purchasers in leading them to believe that they are purchasing the goods of another. This question is discussed under the section on _Unfair Trade_.

A trade-mark is acquired by the person first using it in connection with the sale or manufacture of goods. It is not necessary that it be adopted with the intention of being used as a trade-mark. A trade-mark may be lost by discontinuance. A trade-mark will not be allowed on an article which it is against public policy to manufacture. An example of this principle is adulterated food or medicine. A trade-mark which does not indicate that the goods manufactured or sold are the result of the personal skill of a particular person, may be sold with the business in connection with which the trade-mark is used.

=344. Trade Names.= A person is permitted to use a name other than his own for the purpose of trade. For example, John Smith may use the name _The John Smith Co._, _The Eureka Co._, _The L. X. Co._, or any arbitrary or fanciful name he may choose, so long as it does not conflict with the rights of others. Such names are called _trade names_. Their adoption and use are governed by the same legal principles as trade-marks. Trade names, however, are applied to a business, while trade-marks are brands applied to articles of manufacture or sale. As in the use of trade-marks, a person is not protected in the use of trade names which describe the article manufactured or sold. The use of the name, _Cleveland Fertilizer Co._ by John Smith, does not prevent others from using the same name. The law does not permit one party to monopolize the use of the term _fertilizer_; neither does it permit him to monopolize the geographical term, _Cleveland_. The party first adopting a trade name other than a descriptive geographical, individual, or proper name, acquires the right to use it as a trade name.

While a person cannot acquire such a right in a geographical or descriptive name, he may, by long use of it, acquire the right to prevent others from using it in such a manner as to deceive purchasers. A person is not permitted to sell his goods as the goods of another. This right to prevent others from using a name which deceives the public is not by reason of any trade name acquired, but by reason of a person unfairly making others believe they were purchasing the goods of one person, when, in reality, they are purchasing the goods of others.

=345. Unfair Trade.= A trade-mark, or a trade name cannot be descriptive of the articles sold or manufactured. Neither can a proper name or a geographical name be appropriated to a trade-mark or name. To enable a person to acquire a trade-mark or trade name, a mark or name must be adopted which in no way describes the article manufactured or sold. It must be one that is not taken from the place where the goods are manufactured or sold, or from the name of the inventor or manufacturer. It must be an arbitrary or fanciful name or mark. A manufacturer of flour may use as a trade-mark the name _Beauty Flour_, but not _Minnesota Flour_, or _Pure Flour_. A party may use as a trade-mark for men's collars the picture of a lion, but not the word _linen_. When a trade-mark or a trade name has once been used as such, the owner, unless he loses or transfers the right, acquires the sole right to its use, and may compel others to cease using it, regardless of actual damages or confusion. At the present time, the courts recognize a principle known as _unfair trade_. Even though a person has adopted a geographical name, or a name descriptive of the articles manufactured or sold as a trade name, he is permitted to enjoin others from the use of this name, if the use of the same enables the latter to sell his goods as the goods of the former. A person cannot use the name _Cleveland Fertilizer Co._, so as to acquire a trade name therein. But if the name _Cleveland Fertilizer Co._, is used by a person so long and so extensively as to acquire for its owner a broad reputation as a manufacturer of an excellent quality of fertilizer, another who adopts the name may be enjoined from its use, if purchasers are deceived thereby. This is on the ground of unfair trade.

=346. Unfair Trade= (CONTINUED). The same principle applies in the use of individual names. A person may not acquire a trade-mark in his own or in any individual or proper name, since others have the right to the use of their own name. But a person may acquire such a reputation as a manufacturer of a particular article, that if others of the same name are permitted to use their name in the same connection without distinguishing features, the public will be deceived in making purchases. For the purpose of protecting the public from being deceived, the courts sometimes enjoin persons from the use of their own name in connection with the manufacture and sale of certain articles. For example, Thomas Edison has acquired fame as an inventor and manufacturer of _Edison Batteries_. A person by the name of Edison would not be permitted to manufacture and sell electric batteries under the name of _Edison Electric Batteries_, for the reason that the public would be deceived thereby. This would be what is known as unfair trade. The same principle applies to geographical names. A geographical, individual, proper, or descriptive name cannot be used as a trade name, or a trade-mark, but they can be so used as to prevent others from using them, by reason of violating the law of unfair trade.

=347. Registration of Trade=Marks.= In 1906 the United States Congress passed the present statute relating to the registration of trade-marks. The act provides that the owner of a trade-mark used in commerce with foreign nations, the several states, or the Indian tribes may register said trade-marks by filing the same with the Commissioner of Patents. A trade-mark is acquired in the same manner as at common law. The United States act does not change the method of acquiring trade-marks, nor does it designate what constitutes trade-marks. It simply permits a person to register a trade-mark already acquired. In case of dispute, the owner has the advantage of a public record of his claim, and until he has lost his right in the trade-mark to some one who proves to have a better right, the registration is _prima facie_ evidence of ownership.

Before registering a trade-mark, the owner is required to file with the Commissioner of Patents at Washington, an application showing the nature of the trade-mark, on what goods used, and when acquired. A fee of $10.00 is required. The owner must file a verified statement that he is the owner of the trade-mark sought to be filed. Trade-marks which consist of the name of an individual, firm, or corporation, or words descriptive of the articles manufactured or sold, a geographical term, or a photograph of any living person, except with such person's consent, shall not be registered as trade-marks. When such application is filed, if the Commissioner of Patents finds that it is proper to register the same as a trade-mark, he publishes the mark in the official gazette. Anyone may oppose the registration by filing objections within twenty days after said publication. If no objection is filed, the trade-mark is registered, and a certificate of registration is furnished the applicant.

If objection to the registration of a trade-mark is made, the applicant is notified by the Commissioner of Patents. If the trade-mark interferes with another, or is descriptive of the article to which it is to be applied, the commissioner will refuse to register it. A person whose application for registration of a trade-mark has been refused by the Commissioner of Patents may appeal from the decision of the Commissioner of Patents by filing applications of appeal with the Court of Appeals of the District of Columbia.

Registered trade-marks may be assigned in connection with the good will of the business in which the trade-mark is used. Notice of such assignment must be filed with the Commissioner of Patents within three months from the time the assignment is made, to render it valid as against other innocent purchasers. Certificates of registration shall be effective for twenty years, and may be renewed for like periods upon payment of the registration fee.

After a trade-mark has been registered, anyone who considers himself injured by said trade-mark may file complaint with the Commissioner of Patents, and if the latter determines that there is an infringement, or that someone has a prior right to the trade-mark, the registration may be cancelled. Notice of registration of a trade-mark is given the public by publishing the words, _Registered U. S. Patent Office_, with the trade-mark.

Most of the states have statutes making it a crime falsely to use the trade-mark or brand of another company. The use of labels by trade unions is protected in this manner in several states.

WILLS

=348. Will Defined.= A will has been defined to be a "disposition of real property to take effect after the death of the testator." Originally, the term _will_ applied only to dispositions of real property, and the term _testament_ applied to dispositions of personal property. At present, the terms _will_ and _testament_ are not uncommonly used. But the original limitation of the term, _will_, is no longer commonly recognized. The term, _will_, is now used to describe a disposition of personal as well as real property to take effect at the maker's death.

=349. Names of Parties and Terms Commonly Used in a Will.= The person who makes a will is called the _testator_ or _devisor_. The term _testator_ is more commonly used than the term _devisor_ to designate the maker of a will. The term _devise_ is used to designate the giving of real property. If _A_ desires to give a farm to _B_ by will, the language used in the will is, "I, _A_, devise to _B_ my farm." Technically, the term _devise_ means the giving by will of real estate, but it is commonly used to designate the giving by will of personal property as well. The term _bequeath_ is used to designate the giving of personal property by will. If _A_ desires to give by will a watch to _B_, he uses the language, "I, _A_ bequeath to _B_ my watch." The beneficiary, or person designated in the will to receive real property, is called the _legatee_.

=350. Origin and Nature of Wills.= At common law, a person was permitted to give by will a portion of his personal property. He was not permitted to give real property by will. In England, the right to give real property by will was given by statute. The law of this country has always recognized the right to give real as well as personal property by will. It is not regarded as a right but rather as a privilege extended to an owner of property. This privilege is controlled by the legislatures of the states.

The states differ in their statutory requirements as to the manner of making wills, and the amount of property that may be willed to the exclusion of the wife and family. A will must be signed, acknowledged, and witnessed as required by statute, and may be rendered void if the statutory requirements are changed between the time the will is made and the death of the testator. A will is not a contract. The right to make contracts cannot be abridged by legislation. This right is a constitutional right. The constitution gives an owner of property no right to make a will. It is a privilege which may be abridged or taken away by the legislature. Most of the states give a wife a dower interest in the real estate of her husband. (See _Dower Estate_, chapter on Real Property.) A husband cannot will away his estate, depriving his wife of dower.

=351. Law Governing Wills When Testator Owns Property in One State and Resides in Another at Time of Death.= Real property is fixed and immovable. No matter where a testator resides at the time of his death, the law of the state where the real property is located governs the will relative to its disposition. If the will does not comply with the law of the state where the real property is located, the general rule is that the will cannot be enforced, even though the will is valid under the law of the state where the testator resides at the time of his death. For example, if _A_ owns real property in Cleveland, Ohio, but resides in Omaha, Nebraska, _A_ may make a valid will under the law of Nebraska which may not comply with the Ohio law. If _A_ dies, the provisions of the will cannot be enforced as to the real property in Cleveland. Personal property, on the other hand, is movable and is supposed to follow the residence of its owner. If a will is valid where the testator resides at the time of his death it is valid to pass personal property, regardless of where the personal property is located. Some states at present provide by statute that if a will is valid where the testator resided at the time of his death, it is valid to pass real property, no matter where located.

=352. Essentials of a Will.= Primarily, a will is an instrument in which a person expresses his intention to give his property to certain designated persons, to take effect upon his death. Any instrument, no matter whether it be termed a will, containing an expression of intention to have property pass to another at the death of the maker, satisfies the requirement.

To constitute a will, there must be no present interest in the property passing absolutely to the beneficiaries named in the instrument at the time the written instrument is made. A person may make a gift, a bill of sale, or a deed of property if he chooses. The title to the property passes to the purchaser or donee at once or at some future stipulated time. Such transactions are not wills. A will does not take effect until the death of the testator. It may be revoked, changed, or supplanted at the will of the testator. Any instrument that conveys a present interest is not a will. The two most essential things in determining whether an instrument constitutes a will are, first, the power to revoke the instrument, or a stipulation or language used showing that the instrument is not to take effect until the testator's death; and second, the expression of an intention of the testator to make a will. Certain formal requisites as to signature and witnessing are required by statute in different states. These requirements are discussed under separate sections.

=353. Who May Make a Will.= By statute in most states, anyone of legal age, of sound and disposing mind and memory may make a will. At common law, when a woman married, her property became her husband's. A married woman could not make a will. At present, by statute, most states provide that married women may contract concerning their separate estates. They are also permitted to make wills. A person must be of legal age to make a will. What constitutes legal age is fixed by statute in the different states. All provide that twenty-one years is the legal age for males. Some fix the legal age for females at eighteen, others at twenty-one.

What constitutes sound and disposing mind and memory is a matter of some dispute. It is conceded that idiots, imbeciles, and insane persons, while insane, cannot make wills. The mental capacity required of a person to enable him to make a will is usually stated to be that mental capacity which enables a person to describe his property, to name the natural objects of his bounty, and to understand the nature of a will. A person does not have to be in good health to make a will. He does not have to be mentally sound within the ordinary meaning of the term. He may be very ill, and weak both in mind and body. He may be eccentric, may have been insane, may be subject to illusions, or even may be under guardianship for insanity and still be able to make a will. If he is able without assistance from others to describe his property, to understand in general the nature and effect of making a will, and to name the persons who are the natural objects of his bounty, he is capable of making a will. If his mind is not sufficient to perform all of these functions he is not capable of making a will. To constitute an instrument a valid will, it is not necessary that the instrument show in itself that the testator had all these powers. He may not name all, or any of the natural objects of his bounty in the will. He may not describe all of his property. If he was capable of doing these things at the time he made the will, regardless of whether or not he exercised this capacity, the will is valid.

If a testator makes a will under such mental pressure or threat of violence that he does not act according to his wishes, the will may be avoided by reason of undue influence or duress. Undue influence may be exerted by anyone, but not necessarily by a beneficiary under the will. All solicitations or remarks or supplications to the testator to make a particular provision in a will do not constitute undue influence. The influence must be of a sort to compel the testator to act against his wishes, and to destroy his ability to act through his own mental agency.

=354. What May be Disposed of by Will.= Any property owned by the testator, whether real or personal, may be disposed of by will. Property cannot be freed from liens or incumbrances by will. If _A_ owns a farm, but _B_ has a mortgage on it, _A_ can dispose of his interest by will, _B_ retaining his interest in the mortgage as against the devisee. A husband cannot cut off his wife's dower estate by will. A person may dispose of all his real and personal property by will. A will covering all the real and personal property of the testator will pass the real and personal property acquired by the testator after he made the will.

=355. Requisites of a Will as to Form.= Ordinarily, a will must be in writing. In some jurisdictions, and under certain circumstances, oral wills are recognized as sufficient to pass certain property. These oral wills are called _nuncupative_ wills. They are discussed under a separate section. A will may be written on any kind of material, and in any language. It may be printed, written on a typewriter, written in the testator's own handwriting or by another. It may be written on one or several pieces of paper. The pieces need not be fastened together if their contents show their connection. Another instrument not set forth in the will may be incorporated into the will by reference, if the instrument can readily be identified, and was in existence at the time the will was made. A will must be signed.

The statutes of most states require that a will be signed by the testator, or by some one authorized to sign for him. A person not able to write may sign by mark. A person usually signs by mark as follows:

his
John _X_ Smith.
mark

Any mark made by the testator is sufficient. Most states require by statute that wills must be signed in the presence of two or three witnesses. These witnesses must be competent to understand the nature of the transaction. They need not necessarily be of legal age. They must affix their signatures as witnesses to the will. A beneficiary under the will should not be a witness. The witnesses of a will are required to observe the competency of the testator and his signature, in order that they may testify to these facts when the will is proven. The statutes of most states make it sufficient for the testator to acknowledge his signature in the presence of the witnesses. In this event, they need not see him sign his name to the will. The witnesses are usually required to sign the will in the presence of the testator, and in the presence of each other.

=356. Publication of a Will.= Some states provide by statute that to constitute a written instrument a valid will, the testator must acknowledge it to be a will at the time it is signed and witnessed. This act is known as _publication_. Some states do not have such a statutory provision. In the absence of statutory provisions, publication is not necessary. It is not necessary that the testator read or cause the will to be read to the witnesses to comply with the statutory requirements of publication. The witnesses must know that they are witnessing a will. Any word, expression or act on the part of the testator which notifies the witnesses that they are witnessing a will is a sufficient publication.

_A_ requested _B_ and _C_ to visit his house in the evening and witness his will. They went to _A's_ house, where _A_ presented a document to them, which he signed in their presence, and which they signed as witnesses. _A_ did not acknowledge that the instrument was a will. The court held this to be a sufficient publication. _B_ and _C_ had been informed that the instrument was _A's_ will.

=357. Contract to Make a Will.= A person may enter into a contract to make a will which will bind his estate. The party with whom such a contract is made cannot force the other party to make a will, or prevent him from revoking a will if made, but he can bring an action for damages against such party's estate if the latter dies without leaving a will according to his agreement. A will can be revoked at the desire of the testator. Revocability is one of the essential features of a will. A party may bind himself by contract to make a will in favor of a certain person. This contract does not prevent such person from revoking the will if made, but it renders the person's estate liable for breach of contract. _A_, a boy of twenty-one years of age, was told by his father, _B_, that if he would continue to work for him until he was thirty-five years of age, he would will him a certain farm, _A_ agreed to this proposition, and worked for his father until he was thirty-five years of age. _B_ subsequently died, leaving a will by which the farm was given to another son. _A_ was permitted to recover the value of the farm by suit.

These contracts require clear and convincing evidence to support recovery. _A_ agreed to board, clothe, care for, and bury _B_, his father, in consideration of _B's_ agreement to give _A_ all his property. _A_ fulfilled the terms of his contract. _B_ died leaving a will by which his property was given to _C_. _A_ was permitted to recover the value of the property by suit.

=358. Holographic Wills.= A _holographic_ will is one written entirely in the handwriting of the testator. Such wills are sometimes called _olographic_ wills. A minority of the states of this country recognize the validity of holographic wills. These wills need not be witnessed to be valid. An ordinary will may be printed, typewritten, or written by a person other than the testator. The testator must sign and publish the will, that is, he must acknowledge the instrument to be a will, in the presence of the attesting witnesses. In case of a holographic will, there need be no witnesses, acknowledgment, or publication, but the will must be entirely in the handwriting of the testator, and must be signed and dated by the testator himself.

In some jurisdictions, it is necessary that a holographic will be found among the testator's valuable papers, to constitute a valid will. _A_ died and the following document was found among his valuable papers:

$100,000.00

Four years after my death, I hereby authorize my executors to pay Francis Penn one hundred thousand dollars.

Signed _A_.

This was held to be a valid holographic will. A holographic will is frequently in the form of a letter addressed to the beneficiary.

=359. Nuncupative Wills.= Many of the states of this country recognize the validity of oral wills made under certain circumstances for the purpose of disposing of personal property. Such wills are called _nuncupative_ wills. Soldiers and sailors while in actual service may dispose of their personal property by this form of will.

Persons other than soldiers and sailors may make nuncupative wills when in their last sickness or in danger of impending death. The will is made by calling upon disinterested persons to bear witness to the will which the testator describes orally. These words, in substance at least, must be reduced to writing, usually within ten days from the death of the testator, by one of the witnesses, and signed by the witnesses. Nuncupative wills are not favored in law. They are not sufficient to dispose of real property. Some states do not recognize the validity of these wills unless they are made at the testator's dwelling. An exception to this rule is where the testator, surprised by sickness when upon a journey, dies while away from home. Nuncupative wills must be proven within six months after they are reduced to writing. _A_ was suddenly taken seriously ill at his home. He called upon _B_ and _C_, disinterested witnesses, to bear witness to his will, and directed that his personal property be given to his wife _D_. _A_ died, _B_ reduced the words of _A_ to writing within ten days after _A's_ death, and _C_ and _B_ signed as witnesses. The will was proven within six months. It was held to be a valid nuncupative will.

=360. Revocation and Alteration of Wills.= A will may be revoked at any time before the testator's death. The testator may himself revoke his will, or he may cause someone to perform some act under his direction and in his presence, which will revoke the will. The statutes of most states provide that a person may revoke a will by tearing, cancelling, obliterating, or destroying the will with the intention of revoking it. Any of these acts performed by a stranger, not in the presence nor under the direction of the testator, are void acts, and do not destroy the validity of the will. If the testator himself, tears, cancels, destroys, or obliterates the will with the intention of revoking the will, the instrument no longer has any validity or force as a will. A will is cancelled by drawing lines with a pen or pencil across the written portion of the will. A will may be revoked by a later will which expressly revokes the former, or which disposes of all the property of the testator. A later will which does not expressly revoke a former will, and which does not dispose of all the testator's property does not revoke the former will, but both are construed together. A _codicil_ is an instrument altering, revoking, changing, or adding to certain portions of a will. It must, itself, be signed, witnessed and acknowledged the same as a will, and is construed as part of the will.

=361. Lost Wills.= A will which is lost or destroyed with no intention to revoke may be proven as a will after the testator's death. If a will is partially or totally destroyed by accident, or by someone who is to profit by the total or partial destruction, the will is said to be _spoliated_, and its contents, as it existed before spoliation, may be proven after the testator's death. It must be remembered that a will may be revoked by a testator at any time. If a testator makes a will, and has it in his possession, and after his death the will cannot be found, the presumption is that he revoked the will. This presumption may be rebutted, however. If the testator tells of having a will shortly before his death, or if the will is seen, or any evidence is produced that the will was not revoked by the testator, it may be proven as a lost will. If a will is made and left for safe-keeping with a third person, inability to find it after the testator's death raises no presumption that is was revoked by the testator. To prove a lost will as a will, witnesses must be produced who know in substance the contents of the will, that it was made and that it was not revoked by the testator. If a will is partially destroyed by someone who is to benefit thereby, or by accident, the contents of the portion so destroyed may be proven as a lost will.

=362. Abatement, Advancement, and Ademption.= If a person does not have sufficient property at his death to pay the bequests and devises made in his will after payment of his debts, his devises and bequests are paid _pro rata_ out of the estate remaining after the payment of debts and expenses, unless the testator expressed a wish or intention that certain bequests or devises were to be satisfied in preference to others. In this event, the wishes of the testator must be observed. The rule requiring all devisees and legatees to receive but a portion of the property mentioned in the will, in case there is not sufficient property to satisfy all, is called _abatement_.

If a person makes a will bequeathing a certain article of personal property, or a certain amount of money to another, and if, before the will becomes operative by the death of the devisor, the latter delivers the article or pays the money to the legatee, or sells or disposes of the particular article mentioned in the bequest, the will is said to be _adeemed_, and the act by which it is adeemed is called _ademption_. In case of ademption of a particular article, the bequest is satisfied. In case a certain sum of money is bequeathed to a person by will, and the amount of money is given the legatee by the devisor, whether it satisfies the bequest, or whether it is a gift in addition to the bequest mentioned in the will, is a matter of intention on the part of the devisor. If the devisor expressly says it is a gift in addition to the bequest mentioned in the will, it will not satisfy the bequest mentioned in the will. If nothing is said which expressly shows the wish or intent of the devisor, the presumption is, that it is to apply on the bequest, or if sufficient in amount, that it satisfies the bequest. The intent of the testator may be determined by the circumstances connected with the payment. If a sum of money is paid by a testator during his lifetime to a legatee mentioned in his will, to apply on the bequest, the payment is sometimes called an _advancement_.

=363. Form of Will.=

I, John Brown, of the City of Chicago, County of Cook, and State of Illinois, being about 61 years of age, and of sound and disposing mind and memory, do make and publish this my last will and testament.

_First_, I desire that all my debts and the expenses connected with my funeral be paid.

_Second_, I give, devise and bequeath to my wife, Jane Brown, the sum of $10,000.00, all the household furniture and chattel property of every kind and nature used in and in connection with our residence, and a life estate in my two farms.

_Third_, I give and devise to my two sons, John Brown, Jr., and Clark Brown, jointly, my farm known as the "Home Place." This devise is subject to the life estate of my wife mentioned in division two of my will.