Chapter VIII: Construction of Wills (1)

It is obvious that within the scope of the present work it is inexpedient to treat of this subject extensively; it is considered only necessary to advert to a few of the leading and generally recognized rules followed in the construction of wills, both here and in England.

The main purpose, in this direction, is to ascertain the true intention of the testator, from the language used in the instrument, and this intention shall prevail above every other construction which might be placed on the language. This is the cardinal rule of all construction, but it is to be taken with this limitation, that the intention will govern only so far as it is consistent with the rules of law. The general intent overrides all mere technical and grammatical rules of construction.

This intention is to be ascertained from the whole will taken together, from a full view of everything contained within "the four corners of the instrument,"[312] and not from the language of any particular provision when taken by itself; and, for the purpose of construction, a will and codicil may be considered together, and construed as different parts of the same instrument.[313] But where several parts are absolutely irreconcilable, the latter must prevail.[314]

The rule as to intention, governing in all cases, is somewhat liable to misconception, because it is susceptible of, and may be taken in, two senses.

For by intention, it may be inferred that we are to seek for some probable purpose as existing in the testator's mind at the time; or may seek to extract that intention from the meaning of the language which he has used. It is in this latter sense alone in which construction is employed. The will must be in writing, and the only question is, what is the meaning of the words used in that writing? And to ascertain this, every part of it must be considered, with the help of those surrounding circumstances which are admissible in evidence to explain the words, and to put the court as nearly as possible in the situation of the writer.

This was well expressed in Cole v. Rawlinson,[315] by Lord Holt when he said: "The intent of a testator will not do, unless there be sufficient words in the will to manifest that intent; neither is the intent to be collected from the circumstances of his estate, and other matters collateral and foreign to the will, but from the words and tenor of the will itself." The rule was well illustrated in the case of Doe v. Dring,[316] where a testator, intending, no doubt, to dispose of _all_ his property for the benefit of his family, used these words: "All and singular my _effects_ of what nature and kind soever." Lord Ellenborough said, that if he were asked his private opinion as to what the testator really meant when he used these words, he would reply, that he must be supposed to have meant that which his duty prescribed to him, to convey _all_ his property for the maintenance of his family; but as a _judge_, he was not at liberty to collect his meaning from matters _dehors_, but only from expressions used on the face of the will, and that the expression "effects" had always a meaning, in the absence of anything in the context, which necessarily excluded real estate. However, if the context shows that by the expression, "all my personal estates," the testator meant to include real property, it will be so held by reason of the clear intention manifested on the face of the will.[317]

An introductory clause expressing a testator's desire to dispose of all the property he should "leave behind him" may be referred to, to construe the will as passing all lands belonging to the testator at the time of his death.[318]

It is one of the most troublesome questions in law, as to how far parol evidence can be admitted to ascertain the intention of a testator. The principle was early established, that parol evidence should not be admitted to vary, contradict, or enlarge the terms of a will, and this is still rigidly adhered to. This was well established in what is known as Lord Cheney's Case,[319] where it is said that "otherwise it were great inconvenience that not any may know by the written words of the will what construction to make, if it might be controlled by collateral averment, out of the will."

Chancellor Kent, in Mann v. Mann,[320] examined this subject with much industry and learning, and declared the result to be: that from Cheney's Case down to this day, it has been a well-settled rule that parol evidence cannot be admitted to supply or contradict, enlarge or vary the words of a will, nor to explain the intention of the testator, except in two specific cases: 1st. Where there is a latent ambiguity arising _dehors_ the will, as to the person or subject meant to be described; and 2d. To rebut a resulting trust.

What is a latent ambiguity is thus described in the quaint but expressive language of Lord Bacon: "_Latens_ is that which seemeth certain, and without ambiguity for anything that appeareth upon the deed or instrument; but there is some collateral matter out of the deed that breedeth the ambiguity; as, if I grant my manor of S to J F and his heirs, here appeareth no ambiguity at all; but if the truth be that I have the manors both of North S and South S, this ambiguity is matter in fact, and, therefore, it shall be holpen by averment, whether of them was that the party intend should pass."

A patent ambiguity is one that is apparent on the face of the will, and is only to be remedied, by construction of the language, if possible. As, for example, if the devise is to one of the sons of J S, who has several sons, such an uncertainty in the description of the devisee cannot be explained by parol proof.[321]

As a general rule, courts do not admit parol evidence in cases of patent ambiguity; but on this head there is a difference of decision in this country. We have no uniform rule throughout the United States, either by statute or construction, as to the extent to which parol testamentary evidence is admissible. In some States, the English rules will be followed in the main, which is to admit no extrinsic evidence except to explain a latent ambiguity. But in many of the States, undoubtedly, extrinsic evidence of the testator's circumstances, as distinguished from his intention, will be admitted in aid of the construction of any expression left ambiguous by the context.[322] In New York, the courts adhere to the English rule, and admit no extrinsic evidence, except to explain a latent ambiguity.[323] In Maryland, the strict rules of construction prevail, and no parol evidence is admitted except as in England.[324] The same is the rule in Ohio.[325]

It seems to be a universally received doctrine in the American courts, that extrinsic evidence of the declarations of the testator, made at the time, before or after the execution of the will, cannot be received to show the intention of the testator by the use of particular words therein, or by its general scope; as, that by the use of the word "children" he meant to include step-children;[326] or that a bequest to the parent was intended for the children of such parent, who was known by the testator to have died; or that the term "children" was intended to include illegitimate children;[327] or in any sense to vary the express provisions of the will, or to show in what sense he used a well-settled term of law.[328] Nor are the declarations of the testator admissible to show the existence of a will at the time they were made.[329] But, in a case in Michigan, it was held, where, after the death of the testator, a will twenty-five years old was discovered in a barrel among waste papers, and either torn or worn into several pieces, which were scattered loose among the papers in the barrel, that the declarations of the testator, made after the date of the will, were admissible, not as separate and independent evidence of revocation, but as tending to explain whether the instrument was thus torn accidentally, or with intent to revoke.[330] The code of California has settled this question for that State; it excludes all declarations of the testator's intention.[331]

To ascertain the intention of the testator from the language of the instrument, certain rules of construction have been established, which have obtained the acquiescence and authority of the courts. If technical words are used by the testator, he will be presumed to have employed them in their legal sense, unless the context contain a clear indication to the contrary.[332] Courts, therefore, have no right or power to say that the testator did not understand the meaning of the words he has used, or to put a construction upon them different from what has been long received, or what is affixed to them by the law.[333] There can be no place for construction, for the discovery of the testator's intention, when he has used words of an unequivocal, definite sense in law, and, however it may frustrate any presumed worthy designs, the import of the terms as used must prevail.[334]

In Hicks v. Salitt,[335] the court said: "When a testator uses a word which has a well-known, ordinary acceptation, it must appear very certain that he has said, on the face of the will, that he uses it in another sense, before the ordinary sense can be interfered with.... In order to alter the meaning of a word, it must appear, not that the testator _might_ have meant it in a different sense, but that he _must_ have meant it in a different sense."

The right of every testator to use words in a sense different from the technical legal sense, provided it is apparent, is well established and acknowledged. Thus, in deference to the context, the word "money" has been held to pass stock in the funds;[336] though its technical meaning, according to Coke, only implies gold and silver, or the lawful circulating medium of a country.[337]

This technical meaning of the word was applied in Mann v. Mann,[338] where a testator bequeathed "all the rest, residue, and remainder of the _moneys_ belonging to his estate at the time of his decease," which was held not to comprehend promissory notes, bonds and mortgages, and other securities, there being nothing in the will itself to show that the testator intended to use the word in that extended sense. And the words "nephews and nieces" have been held to include great-nephews and great-nieces, different from the import of these terms as settled in law;[339] and the word "family" has been held to include a husband.[340]

In the case of Hussey v. Berkeley,[341] Lord Nottingham, upon the question whether the testatrix intended to include great-grandchildren under the term grandchildren, considered the fact that she had, in another part of the will, called a great-grandchild her granddaughter, as conclusive evidence of her intention to include such great-granddaughter in the residuary clause of the will, under the general description of her grandchildren.

The court is bound to give effect to every word of a will without change or rejection, provided an effect can be given to it not inconsistent with the general intent of the whole will taken together.[342] Thus, if one devises land to A B in fee, and afterwards in the same will devises the same land to C D, for life, both parts of the will shall stand; and in the construction of the law, the devise to C D shall be first.[343] But when it is impossible to form one consistent whole, the separate parts being _absolutely_ irreconcilable, the latter will prevail.[344] Thus, where the testator, by one clause of his will, bequeathed a slave to his son, remainder to his issue, remainder over; and by a subsequent clause bequeathed the same slave to his daughter, with like limitations, it was held that the clauses were inconsistent, and the last revoking the first, that the daughter was entitled to the legacy.[345]

If a testator's intention cannot operate to its full extent, it shall take effect as far as possible.[346] And where a will contains different trusts, some of which are valid, and others void or unauthorized by law; or where there are distinct and independent provisions as to different portions of the testator's property, or different estates or interests in the same portions of the property are created, some of which provisions, estates, or interests are valid, and others are invalid, the valid trusts, provisions, estates, or interests created by the will will be preserved, unless those which are valid and those which are invalid are so dependent upon each other that they cannot be separated without defeating the general intent of the testator.[347]

Words, in general, are to be taken in the ordinary and grammatical sense, unless a clear intention to use them in another can be collected.[348] Thus, in Young v. Robertson,[349] it is laid down: The primary duty of a court of construction, in the interpretation of wills, is to give to each word employed, if it can with propriety receive it, the natural ordinary meaning which it has in the vocabulary of ordinary life, and not to give words employed in that vocabulary an artificial, a secondary, and a technical meaning. Thus, a testator, in a clause of his will, provided that the share of the estate of any of his children dying without issue should be equally divided among the survivors of his children or grandchildren, and it was held that a step-daughter was not a surviving _child_ of the testator, within the intent and meaning of this clause of the will, so as to entitle her to a portion of the shares of one of the testator's daughters, who died without leaving issue, even though this step-daughter was acknowledged to be of the family, and treated there as a child.[350]

And the word "children" does not, ordinarily and properly speaking, comprehend grandchildren or issue generally; these being included in that term is only permitted in two cases, viz., from necessity which occurs where the will would remain inoperative unless the sense of the word "children" were extended beyond its natural import, and where the testator has clearly shown by _other_ words that he did not intend to use the term "children" in its proper, actual meaning, but in a more extensive sense. In Osgood v. Lovering,[351] the word was held to include grandchildren, it being apparent from the context, that this was the meaning given by the testator.[352]

This term imports legitimate children only;[353] but if it is notorious that a testator had no such legitimate children, but had others who went by reputation, and were acknowledged as his children, these can take under this term.[354]

In Lord Woodhouslee v. Dalrymple,[355] a legacy was given "to the _children_ of the late C K, who shall be living at my decease"; C K being dead at the date of the will leaving illegitimate children, (of whom three were living at the testator's death) and not having had at the date of the will, nor having ever had, any _legitimate_ children, the three illegitimate children were held to be entitled.

The word "issue" is a term of more general signification than children; it includes not only children, but all lineal descendants, however remote, for successive generations. It has been called by Lord Holt a _nomen collectivum_;[356] but this word has frequently been construed to signify children, where it was so apparent from the context.[357]

The phrase, "dying without issue," in wills, for a long time occasioned much obscurity, and was a fruitful source of litigation. Thus, if an executory devise were limited to take effect on a dying without _heirs_, or on a failure of issue, or "without leaving issue," or "without _issue_," the limitation was held to be void, because the contingency was _too remote_, as these phrases being interpreted to mean an _indefinite failure of issue_, the vesting of the estate would thus be suspended beyond the period allowed by law. But other words used in the will might control this construction, as to show that the testator intended to limit the vesting of the estate to issue living at the time of the death of the first taker. This contrary intent would be inferred by the use of the words "living," or "leaving issue behind," or "without children." Unless such qualifying words, however, were used, the words "_dying without issue_" were construed as meaning an indefinite failure of issue.[358]

The statute law of New York, and many of the States, has settled the construction of this term, as it is provided under these statutes that it shall be construed to mean _heirs_ or _issue_ living at the death of the person named as ancestor.[359]

Gifts and devises are sometimes made to a "family," and the decisions have given to the word the same construction as "kindred," or "relations."[360]

In Robinson v. Waddelon,[361] a testator gave all the residue of his effects to be equally divided between his two daughters and their husbands _and families_; the court rejected the words "husbands and families," and held that the two daughters took the residue equally and absolutely as tenants in common.

Roper has the following observations on devises and bequests to a _family_: "The word _family_, when applied to personal property, is synonymous with "kindred" or "relations." If it be asked, of what family is A, the question will be answered by being informed from what person he is descended, and whoever is related by blood to that stock is related to, and of, the family of A. This being the _ordinary_ acceptation of the word, it may nevertheless be confined to particular relations by the context of wills; or the term may be enlarged by it, so that the expression may in some cases mean _children_, or _next of kin_, and in others may even include relations by marriage."[362]

Personal chattels are not unfrequently described by reference to locality, as where a testator bequeaths the "household goods," "things," "property," or "effects" which are in or about a house. These words, it seems, in general, will not pass cash, bank notes, bonds, notes, or other _choses in action_ being in the house.[363]

In Woolcomb v. Woolcomb,[364] a testator bequeathed to his wife all his household goods, and other goods, plate, and stock, within doors and without, and bequeathed the residue of his estate to J S. It was held that the ready money and bonds did not pass by the word _goods_, for then the bequest of the residue would be void.

Bequests of "chattels and effects" are clearly adequate to pass the whole personal estate, yet where these words are collocated with household goods, they may be, and frequently are, restrained to articles _ejusdem generis_.[365]

A testator, after several legacies of bank stock and other stock and money, concluded his will as follows: "The remainder of my worldly substance, consisting of furniture, bedding, carpets, china, kitchen furniture, looking-glasses, crockery, etc., I give to my two daughters, etc.; these, with all money of mine that may remain in bank at the time of my death, with all claims or demands of whatever nature, I give to my two daughters, etc." The testator had several shares of bank stock and other stock, not specifically bequeathed. It was held that this bank stock and other stock did not pass under the above bequest.[366]

The courts of equity, even in England, do not seem disposed to apply the rule _ejusdem generis_ with so much strictness as formerly. In the late case of Swinfen v. Swinfen,[367] it was decided that in a bequest particularized by one word, followed by general words, the latter was not to be restricted to things _ejusdem generis_; as where the bequest was, "all my estate at S or thereto adjoining, also all furniture, or other moveable goods here," it was held that the live-stock and implements of husbandry in and about the premises passed by the bequest. It was also held that money in the house at the time of the testator's death passed to the legatee.

In Brown v. Cogswell,[368] where the bequest was of "all my household furniture, wearing apparel, and all the rest and residue of personal property, saving and excepting one feather bed," it was held to carry the entire residuum of personal property. A bequest of furniture in a particular house (except plate) will include plated articles in use in the house, the word "plate" meaning solid plate only. Such a bequest embraces only the articles permanently in use in the house.[369]

Words, however, in a will, which if allowed to stand would produce repugnant and inconsistent results, may be rejected.[370] Others may be supplied where there is no doubt in regard to the words intended, and others may be transposed and changed to carry out the sense and intention of the testator.[371]

The will must be most favorably and benignly expounded to pursue and effectuate, if possible, the intention of the testator,[372] and of two modes of construction, that is to be preferred which will prevent a total intestacy.[373] The strict rules of construction adopted in England, when strictly and unflinchingly applied, had often the effect of invalidating wills; but there has, of late, been evinced a tendency to relax this stringency of construction, and the proportion of wills and bequests which have been declared void for uncertainty has been constantly diminishing; and, at present, it is becoming more rare, unless through some fatal accident or miscarriage in the preparation of the instrument. The same tendency is observable in the decisions of the American courts.

Construction with the aid of precedents and analogies is only resorted to to ascertain the intention of a testator; all construction is subordinate to that single purpose; and analogy and precedent should have no further influence when they lead one side of the intention. They should only be used as our assistants to this end.

It will be found useful and appropriate, at the conclusion of this chapter, to give the seven propositions of Sir James Wigram, in his approved and reliable work respecting the admission of extrinsic evidence in aid of the interpretation of wills. He divided the subject into seven propositions, as follows:

Proposition I.--A testator is always presumed to use the words in which he expresses himself according to their strict and primary acceptation, unless from the context of the will it appears that he has used them in a different sense, in which case the sense in which he thus appears to have used them will be the sense in which they are to be construed.

Proposition II.--Where there is nothing in the context of a will from which it is apparent that a testator has used the words in which he has expressed himself in any other than their strict and primary sense, and where his words, so interpreted, are _sensible with reference to extrinsic circumstances_, it is an inflexible rule of construction, that the words of the will shall be interpreted in their strict and primary sense, and in no other, although they maybe capable of some popular or secondary interpretation, and although the most conclusive evidence of intention to use them in such popular or secondary sense be tendered.

Proposition III.--Where there is nothing in the context of a will from which it is apparent that a testator has used the words in which he has expressed himself in any other than their strict and primary sense, but his words, so interpreted, are _insensible with reference to extrinsic circumstances_, a court of law may look into the extrinsic circumstances of the case, to see whether the meaning of the words be sensible in any popular or secondary sense, of which, _with reference to these circumstances_, they are capable.

Proposition IV.--Where the characters in which a will is written are difficult to be deciphered, or the language of the will is not understood by the court, the evidence of persons skilled in deciphering writing, or who understand the language in which the will is written, is admissible to _declare_ what the characters are, or to inform the court of the proper meaning of the words.

Proposition V.--For the purpose of determining the object of a testator's bounty, or the subject of disposition, or the quantity of interest intended to be given by his will, a court may inquire into every _material_ fact relating to the person who claims to be interested under the will, and to the property which is claimed as the subject of disposition, and to the circumstances of the testator, and of his family and affairs, for the purpose of enabling the court to identify the person or thing intended by the testator, or to determine the quantity of interest he has given by his will. The same (it is conceived) is true of every other disputed point, respecting which it can be shown that a knowledge of extrinsic facts can, in any way, be made ancillary to the right interpretation of a testator's words.

Proposition VI.--Where the words of a will, aided by evidence of the material facts of the case, are insufficient to determine the testator's meaning, no evidence will be admissible to prove what the testator intended, and the will (_except in certain special cases in Proposition VII_) will be void for uncertainty.

Proposition VII.--Notwithstanding the rule of law which makes a will void for uncertainty where the words, aided by evidence of the material facts of the case, are insufficient to determine the testator's meaning, courts of law, in certain special cases, admit extrinsic evidence of _intention_, to make certain the _person_ or _thing_ intended, where the description in the will is insufficient for the purpose. These cases may be thus defined: Where the object of a testator's bounty, or the subject of disposition, (_i. e._, the _person_ or _thing_ intended) is described in terms which are applicable indifferently to more than one _person_ or _thing_, evidence is admissible to prove which of the persons or things so described was intended by the testator.

INDEX.

A.

=Abatement=--of legacies, p. 96.

=Accumulation=--how far allowed in common law, p. 143.
extraordinary case of, p. 143.
limits to, p. 145.

=Acknowledgment=--of signature to will, p. 55.

=Ademption=--of legacy, p. 97.

=Age=--of person making will, pp. 68, 69.
manner of reckoning, p. 69.
extreme, not an incapacity, pp. 86, 87.

=Alienation=--suspension of power in will, how limited, p. 146.
utmost period permitted, p. 147.

=Alfred, King=--will of, pp. 32, 33.

=Ambiguity=--latent, definition of, p. 188.
latent, parol evidence admitted to explain, p. 188.
patent, what it is, p. 188.

=Animals=--singular regard for in wills, pp. 77, 78.
regard of Louis Bonard for, p. 82.

=Annuity in will=--when to commence, p. 117.

=Attestation=--of will, p. 64.
forms of, p. 67.

B.

=Bacon, Lord=--maxim of, in regard to parol evidence, p. 129.

=Bastard=--not classed in law as a child, p. 124.

=Bequest=--meaning of, p. 93.

=Blind persons=--their capacity to make will, p. 70.

=Bonard, Louis=--will of, p. 82.
singular life and belief of, pp. 81-83.

=Bradford, Surrogate=--his principles in admitting will of aged persons,
p. 88.

=Brinckerhoff, Dorothea=--will of, p. 62.

=Burial=--directions for, in will, pp. 10, 16, 21, 77.

=Burning will=--a mode of revocation, p. 163.

C.

=Cancelation of will=--a mode of revocation, p. 163.
what shall amount to, p. 169.

=Canute=--will of, p. 32.

=Capacity=--to make will, as to age, pp. 68, 85.
physical and mental, pp. 69-71.

=Charitable uses=--devises to, formerly allowed, pp. 132, 133.
doctrine of, derived from civil law, p. 133.
doctrine of, existed in common law, pp. 135, 141.
this denied in Levy v. Levy, p. 139.
law of, has varied in New York, p. 135.
researches of Prof. Dwight on, p. 151.
what are, p. 133.

="Chattels and effects"=--what shall pass by in will, p. 198.

=Child=--does not include step-child, p. 195.
illegitimate, when a bequest to is good, p. 124.
in _ventre sa mere_ can take interest in will, p. 121.

=Children=--meaning of term in will, pp. 121, 122, 195.
imports legitimate only, p. 195.

=Clergy=--early connection of with wills, p. 33.
exclusive jurisdiction over wills, p. 35.
intervention in probate matters, p. 34.
their influence over the dying, pp. 36, 131.

=Codicil=--how far will control provision in will, p. 161.
when it will cancel a will, p. 162.
how several are to be construed, p. 160.

=Concanen, Edward=--will of, p. 111.

=Conditions=--in will, how far legal, p. 107.
illegal, p. 113.
precedent and subsequent, what are, pp. 103, 104.

=Construction=--of will, purpose of, pp. 185, 191.

=Constantinople=--bequest to poor of, p. 86.

=Corporations=--prohibited from taking by devise, p. 132.
what are allowed to take by devise in New York, p. 142.

=Coverture=--formerly incapacitated woman making will, p. 90.
not now generally an incapacity, p. 91.

=Cromwell=--singular bequest to, p. 18.

=Cruger, Harriet Douglas=--will of, p. 84.
her history and singular delusion, p. 85.

=Curtesy=--married woman cannot defeat right in will in some States,
p. 92.
married women may defeat in New York, p. 92.

=Cutting=--a will equivalent to tearing, p. 164.

D.

=Deaf and dumb=--their capacity to make will, pp. 69, 70.

=Declarations=--of testator, not admitted to show intention in a will,
p. 190.

=Delusion=--what it is, pp. 72, 75.
of Harriet Douglas Cruger, p. 85.

=Denbigh, Earl of=--singular bequest to, p. 17.

=Devise=--meaning of term, distinguished from legacy, p. 93.

=Domicile=--how determined, p. 175.
law of relating to wills part of leges gentium, p. 173.
law of governs in interpretation of wills, p. 175.
law of at time of decease governs, p. 176.

=Drunken men=--when incapable of making will, p. 71.

E.

=Eccentricity=--difference between and monomania, p. 76.
remarkable case of, p. 76.

=Ecclesiastical=--jurisdiction over wills, rise of, p. 35.
courts' decisions binding in law of wills, p. 40.

="Effects"=--meaning of in will, pp. 187, 198.
meaning of in will of Kosciusko, p. 179.

=Emptor familiæ=--position of in Roman law, p. 31.

=Erasures=--and interlineations in a will, effect of, p. 169.

=Executor=--appointment of in will, p. 52.
allowed a year to settle estate, p. 114.
duty of in paying legacy to child, p. 118.
not disqualified to receive legacy, p. 120.
responsibility of in paying legacies, p. 114.
when to pay legacy, pp. 114, 115.

F.

="Family"=--construction of term in will, pp. 192, 197.
explanation of term by Roper, p. 197.

=Female=--able to make will earlier than male in some States, p. 69.

=Females=--their fondness for animals, p. 77.

=Fraud=--preventing revocation of a will, pp. 166, 168.

=Funeral expenses=--provided for in will, pp. 11, 14.
directions for payment not necessary, p. 51.

G.

=Geigley, William=--will of, p. 108.

=Grandchildren=, construction of term in will, p. 193.

=Greenwood=, singular delusion of, p. 73.

H.

=Harcourt, Mr. Granville=--will of, p. 13.

=Hæres=--of Roman law, description of, p. 30.

=Henry VIII=--will of, providing for dean and canons of Windsor, p. 24.

=Hindoos=--no will among, p. 31.

=Holographic will=, p. 50.
singular example of in California, p. 50.

=Hunt, Benjamin F.=--will of, illustrating law of domicile, p. 176.

I.

=Insanity=--definition of, p. 72.
partial not recognized in early law, p. 73.
partial, how far invalidates a will, p. 74.

=Interest=--on legacies, when to commence, p. 116.
on specific legacies, p. 117.
on legacy before payment causes legacy to vest, p. 100.

=In terrorem=--doctrine of, pp. 111, 112.

=In extremis=--persons in allowed to make nuncupative wills, p. 43.
persons in frequently unduly influenced, p. 135.

=Intention=--governs in the construction of a will, pp. 95, 101, 185.
most considered in revocation of will, p. 168.
governs so far as consistent with rules of law, p. 185.
how ascertained, p. 185.
to operate as far as possible, if not wholly, p. 193.

="Issue"=--meaning of term in a will, p. 196.

="Issue, dying without"=--former construction of, p. 196.
meaning now by statute, p. 197.

J.

=Jefferson=--farm of, at Monticello, devised by Commodore Levy, p. 106.
given charge of fund belonging to Kosciusko, p. 179.

=Justinian=--law of as to portion reserved for children, p. 32.
limited bishop's interference in probate matters, p. 34.
limited military testament to those actually on an expedition, p. 48.

K.

=Kensett, William=--singular disposition of his body, p. 77.

=Kerr, Catharine=--will of, p. 58.

=Kidd, Captain=--treasures of, superstition regarding, p. 79.

=Kosciusko=--will of before United States Supreme Court, p. 178.
interesting facts regarding his career, p. 179

L.

=Latent ambiguity=--what is, p. 188.

=Legacy=--abatement of, p. 96.
ademption of, when takes place, p. 97.
contingent, definition of, p. 97.
conditional, and variety, pp. 103-105.
conditional, what conditions are valid, p. 103.
conditional, in restraint of marriage, p. 107.
general, examples of, pp. 93-95.
general, importance of distinction, p. 96.
in lieu of dower draws interest from death of testator, p. 117.
interest on, when to begin, pp. 116, 117.
payable out of real estate, pp. 100, 102.
payment of, pp. 114, 115.
payment of, to whom, p. 118.
pecuniary sometimes held specific, p. 95.
specific, definition of, p. 93.
specific, various examples of, p. 94.
to infants, to whom paid, p. 118.
to a class, who shall take, p. 122.
vested, when becomes, pp. 99, 100.

=Legatee=--how ascertained in some cases, p. 125.
error in description of, how remedied, p. 126.
who may be, p. 119.

=Levy, Commodore=--remarkable will of, p. 136.

=Lex domicilii=--governs will of personal property, p. 174.

=Lex rei sitæ=--governs will of real property, p. 182.

M.

=Marriage=--revokes will previously made by a woman, p. 157.
of children, attempt to control, p. 113.
restraint of, how far legal, p. 111.
of poor maids, provisions of Henry Raine for, pp. 133, 134.

=Married women=--capacity to take legacy or devise, p. 119.
legacy to, formerly paid to husband, p. 119.
power of to make will of personal property, p. 91.
law of American States is giving more enlarged privileges to, p. 91.
power of, by will in New York, p. 92.

=Masses=--legacy to say, pp. 21, 25.

=May, Thomas=--singular bequest to, p. 17.

="Money"=--strict meaning of, in a will, p. 192.
may include stock in funds, p. 192.
held to include real and personal property, p. 192.

=Monticello=--devised by Commodore Levy, p. 136.

=Monomania=--what it is, recognition of in law, p. 73.
when will avoid will, p. 75.
rise of theory in Dew v. Clark, p. 74.
different from eccentricity, p. 76.

N.

=Nephews and nieces=--who are meant by, p. 192.

=Non compos mentis=--incapacity of to make will, p. 71.
who are, p. 72.

=Nuncupative will=--its nature, p. 42.
limitations of in Statute of Frauds, p. 43.
generally limited to soldiers, sailors, and persons in extremis,
p. 43.
decision on in Cole v. Mordaunt, p. 44.
cases on numerous, since civil war, p. 49.
opinion of Kent in relation to, p. 45.
was in general use before Statute of Frauds, p. 42.
how limited in New York and California, p. 48.
limitations of, by statute in England, p. 48.

O.

=Ordinary=--his privileges in early English law, p. 37.

P.

=Parol evidence=--when admissible, pp. 123, 126, 129, 160.
of contents of lost will is received, p. 160.
is not so readily in England, p. 161.
not admitted to vary, contradict, or enlarge the terms of a will,
p. 187.
in what cases is admitted, p. 188.

=Pembroke, Earl of=--curious will of, p. 15.

=Perpetuities=--statute against, p. 150.

=Personal estate=--when a bequest of may be specific, p. 97.
may include real estate sometimes, p. 87.

=Personal property=--age at which will of may be made, p. 68.

="Personalty"=--meaning of term in will, p. 120.
law of domicile governs in wills, p. 173.

="Plate"=--meaning of term in will, p. 200.

=Power=--execution of, in a will, p. 52.

=Power of appointment=--given married women to make will, pp. 52, 91.

=Publication of will=--and in what States required, pp. 60-64.

R.

=Raine, Henry=--will of, p. 132.

=Rationabiles partes=--meaning of in early English law, p. 36.

=Reading, Mrs. Kitty Jenkyn Packe=--will of, p. 11.

=Real estate=--legacy payable out of, rule as to, p. 100.
will of, pp. 38, 69.

=Restraint of marriage=--in will, p. 107.
curious case of, p. 113.
not permitted in Roman law, p. 107.
of widow allowed in our law, p. 110.
of widower not allowed, p. 111.
in general not permitted, p. 113.

=Revocation of will=--may take place in two modes, p. 152.
an implied revocation a subject of discussion, p. 153.
by marriage of feme sole, p. 153.
implied not by birth of child, p. 153.
by marriage and birth of child implied, p. 154.
by subsequent will, when, pp. 159, 162.
not effected by writing "obsolete" on will, p. 162.
by burning, canceling, tearing, etc., p. 163.
what acts amount to in New York, p. 165.
requires two things--act and intent, p. 166.

=Ridley, Hon. Araminta Monck=--will of, p. 106.

=Robbins, James=--will of, p. 110.

=Roman will=--nature, and manner of making, p. 32.

=Roman Catholic=--not to marry a, a condition in will, pp. 106, 111.

=Roosevelt=--will of, founding hospital in New York, p. 149.

=Rose=--will of declared void, founding "Rose Benevolent Institution,"
p. 150.

S.

=Salisbury, Earl of=--singular bequest to, p. 17.

=Sandwich, Countess Dowager=--will of, p. 11.

=Scotchman=--not to marry a, a condition in a will, p. 106.

=Seal=--not required in will, except in New Hampshire, p. 52

=Seastedt, Eliza=--will of, p. 63.

=Senile dementia=--what it is, p. 86.
when an incapacity to make will, p. 87.

="Servants"=--meaning of term in a will, p. 125.

=Shakspeare=--will of, p. 21.
his singular provision for his wife, p. 22.

=Signature=--to will, effect of tearing off by a testator, p. 170.

=Society for Prevention of Cruelty to Animals=--bequest to, p. 82.

=Solon=--laws of relating to wills, p. 31.

=Specific legacy=--defined, p. 93.
interest on begins from testator's death, p. 116.

=Starkey, John=--will of, p. 14.

=Statute=--of Distributions, p. 37.
of Frauds, pp. 38, 44, 53.
of Frauds, influence of in jurisprudence, p. 38.
of Mortmain, pp. 132, 135.
of Wills, p. 38.
of 43 Elizabeth in regard to charitable uses, p. 133.
of 43 Elizabeth not in force in New York, p. 135.
of 43 Elizabeth, where in force, p. 141.

=Subscription=--to will, p. 55.

=Succession, universal=--among Romans, p. 30.

=Superstitious use=--definition of, pp. 132, 133.

=Surrogate=--derivation of term, p. 40.

T.

=Testament=--meaning of term, p. 41.

=Testamentary capacity=--generally exists, p. 68.
as to age, p. 68.

=Testamentary disposition=--law places limits on, pp. 130, 142.
limits to, in early English law, p. 36.

=Thelusson, Peter=--extraordinary will of, p. 143.

=Thompson, Mr.=--singular habits of, p. 78.

=Tonnele, John=--will of, p. 56.

=Trusts=--what are valid in a will, p. 140.

=Turner, Sharon=--will of, p. 12.

U.

=United States=--bequests to, pp. 136, 140, 150.

=Uses and trusts=--law of, to avoid Statute of Mortmain, p. 132.

V.

=Van Hanrigh, Mrs.=--will of, p. 14.

=Virginia=--bequest to, in trust, by Commodore Levy, p. 133.

W.

=West, Lady Alice=--curious will of, p. 18.

=Wife=--who will answer for in a will, p. 124.
reproachful allusions to in a will, pp. 11, 12.
affectionate allusions to in a will, pp. 13, 14.

=Will=--acknowledgment of signature to, p. 55.
appointment of executor in, p. 52.
attestation of, p. 64.
definition and nature of, p. 41.
destroying, what it signifies, p. 164.
directions in as to burial, pp. 10, 11, 16, 77.
directions in as to debts, p. 51.
divided into two classes, verbal and written, p. 42.
duplicate, effect of destroying, p. 163.
erasures in, p. 163.
holographic, and where valid, p. 50.
importance of, p. 9.
inofficious, pp. 31, 75.
introductory clause in, p. 51.
language of, immaterial, p. 53.
making, solemnity of act, pp. 9, 51.
may consist of many instruments, pp. 52, 158.
mode of writing, p. 53.
nature of, among Romans, pp. 31, 32.
not of effect until death, pp. 121, 152.
opinions of others in, freely expressed, pp. 10, 15.
of personal property, pp. 68, 121.
of real estate, p. 69.
of real estate, must conform to law where real estate is situated,
p. 182.
power of disposition by, in early law, p. 36.
publication of, where required, pp. 60-64.
qualities of, p. 152.
references to wives in, pp. 11, 12, 110.
restraints on marriage in, pp. 14, 105-108, 111.
requisites as to execution of, p. 55.
right to make did not exist in early society, p. 30.
seal not required in, p. 52.
signing of, how under Statute of Frauds, p. 54.
signing of, illustrated in cases, pp. 56, 60.
what it is necessary to contain, pp. 50, 51.
witnesses to, number required, p. 64.

=Widow=--prohibited remarrying by will, p. 108.
recommended to marry, p. 13.

=Widower=--cannot be prohibited remarrying by will, p. 110.

=Witnesses=--manner of signing by, pp. 64-66.
number required in different States, p. 64.
cannot take interest by the will, p. 119.
cutting out names of in will, effect of, p. 164.

Z.

=Zimmerman=--will of, p. 10.

FOOTNOTES:

[1] Illustrated London News, October 18th, 1873. I have selected from this reliable journal many of the examples of curious wills I give in this introduction, taken from Doctors' Commons, London.

[2] Illustrated London News, February 21st, 1874.

[3] Illustrated London News, November 8th, 1873.

[4] Black. II, 21.

[5] Thirlwall: Hist. of Greece, 187.

[6] Dwight's Introd. to Maine's Ancient Law.

[7] Tac. Germ. 2.

[8] Dig. lib. 28, tit. 2.

[9] Spence: Eq. Juris. I, 188.

[10] Selden: Orig. Prob. Juris., 15.

[11] Milton, p. 318.

[12] Selden, pp. 3, 4.

[13] Code: lib. I, tit. 3, leg. 42.

[14] Idem, leg. 41.

[15] Decret. lib. 3, tit. 26, C. 19.

[16] Marriot v. Marriot, 1 Strange 667.

[17] Black. III, 95.

[18] Matt. Paris, fo. 56.

[19] Idem, fo. 161.

[20] 1 Strange 667.

[21] Black. II, ch. 32.

[22] Hale, Hist. of Com. Law, 28.

[23] Greenleaf, Evid., vol. I, §26.

[24] Lord Hardwicke, in Ross v. Ewer, 3 Atk. 156, said: "There is nothing that requires so little solemnity as the making of a will of personal estate. There is scarcely any paper writing that will not be admitted as such."

[25] Moore, 177.

[26] Cro. Eliz. 100.

[27] It should be observed that the ecclesiastical jurisdiction over wills is now abolished in England; and, since 1857, the jurisdiction is given to the Court of Probate and Divorce.

[28] Wills--A.

[29] Swinb. Pt. I, Sec. 12.

[30] 29 Car. II, Ch. 3, Sec. 23.

[31] Dig. lib. 37, tit. 12, Sec. 1.

[32] Redfield on Wills, I, p. 184.

[33] 20 Johns. 511.

[34] Cole v. Mordaunt, 4 Ves. 196.

[35] Prince v. Hazleton, 20 Johns. 513.

[36] 1 Vict. ch. 26.

[37] 2 R. S. 60.

[38] Civil Code, 1289-90.

[39] Code, lib. 6, tit. 21.

[40] Leathers v. Greenacre, 53 Maine 561.

[41] 2 Curteis 339.

[42] 4 Bradf. 154.

[43] Such a will is valid in California, Louisiana, Tennessee, and North Carolina. In the case of Clarke v. Ransome, decided in the Supreme Court, California, October, 1875, the following document was on this ground held to be testamentary in its character:

"DEAR OLD NANCE:--I wish to give you my watch, two shawls, and also $5,000.

Your old friend, E. A. GORDON."

It appeared in evidence that for some years Mrs. Gordon and Miss Ransome, who was the person meant by "dear old Nance," had been on terms of intimacy. Mrs. Gordon had previously executed a will, by which she had devised to her brother the whole of the estate, with the exception of several specific legacies, one of which was to Miss Ransome for $1,000. It further appeared that after the will had been duly made and executed, Mrs. Gordon desired to make a further provision for Miss Ransome, and for that purpose drew up, wholly in her own handwriting, and delivered to Miss Ransome, the paper above propounded as a will. The court held that this paper should be admitted to probate as a testamentary instrument; but against this Chief Justice Wallace gave a dissenting opinion, on the ground that the paper was the mere expression of a wish, and was not intended by the decedent to operate as a will.

Vide Pacific Law Rep., Nov. 9, 1875.

[44] Redfield on Wills, I, p. 675.

[45] Swimb. Pt. I, Sec. 3.

[46] Redfield on Wills, I, p. 5.

[47] N. H. Rev. Stat. Ch. 156, Sec. 6.

[48] Hight v. Wilson, 1 Dall. 94; Arndt v. Arndt, 1 S. & R. 256.

[49] Campbell v. Logan, 2 Bradf. 90.

[50] Swimb., Pt. 4, Sec. 25.

[51] The statute of Pennsylvania requires every will to "be in writing," and the curious question was recently presented to the Court of Common Pleas of Chester County, whether a writing on a slate, intended by the decedent to be her last will and testament, came within the statute. The court thought the case not within the spirit of the statute, because a slate was neither intended for nor adapted to writing of a permanent character. The rule has been carried quite far enough by the admission to probate of wills written with lead pencils, as was done in Dyer's Estate, 3 Ecc. E. 92, and in Dickson v. Dickson, 1 Id. 222. In 21 P. F. Smith, 454, it was thought that a will should not be written or signed in pencil, on account of the facility of alteration; but the point was not decided. In Merritt v. Clason, 12 Johns. 102, a memorandum required by the Statute of Frauds, written with a lead pencil, was held sufficient, and in Clason v. Bailey, 14 Johns. 484, this point was affirmed. In Rymes v. Clarkson, 1 Phillim. 22, it was ruled that a codicil written in pencil was valid. See also Geary v. Physic, 5 Barn. and Cress. 234, and McDowell v. Chambers, 1 Strobh. Eq. 347.

[52] Jarman on Wills, 70.

[53] Civil Code, 1276.

[54] 2 Rev. Stat. 63.

[55] Doe v. Roe, 2 Barb. 200.

[56] Seguine v. Seguine, 2 Barb. 385, 395.

[57] 4 Comst. 140.

[58] McGuire v. Kerr, 2 Bradf. 244.

[59] Civil Code, 1276.

[60] Dayton on Surrog. p. 78.

[61] 1 Barb. 533. It is claimed he may subscribe in presence of one, and acknowledge it separately to the other. 4 Kent, 516; 36 N. Y. 416.

[62] 10 Barb. 608.

[63] Den v. Mitton, 7 Halst. 70.

[64] Torrey v. Bowen, 15 Barb. 304.

[65] Lewis v. Lewis, 1 Kern. 222.

[66] 1 Denio, 33.

[67] 26 Wend. 325.

[68] Not yet reported; may be in 59 N. Y.

[69] Ruddon v. McDonald, 1 Bradf. 352; Lyon v. Smith, 11 Barb. 124.

[70] Davy v. Smith, 3 Salk. 395.

[71] Doe v. Manifold, 1 M. & S. 294.

[72] Reed v. Roberts, 26 Ga. 294.

[73] Lamb v. Girtman, 26 Ga. 625.

[74] Black. II, 497.

[75] Redfield on Wills, I, 15.

[76] 2 Rev. Stat. 60.

[77] 1 Salk. 44.

[78] Black. I, 463; 2 Kent, 233.

[79] Wills, I, 20.

[80] Com. II, 497.

[81] Wills, B.

[82] Weir v. Fitzgerald, 2 Bradf. 42.

[83] Swinb. Pt. II, Secs. 1 and 6.

[84] No better illustration of this ever took place than the case of the will of Captain Ward, over whose will a remarkable contest is taking place [1875] in Detroit.

[85] Sir John Nicholl, in Dew v. Clark, 3 Add. 79.

[86] White v. Wilson, 13 Vesey, 88.

[87] The case of Lucas v. Parsons, 24 Ga. 640, was very similar to this case of Greenwood. There, the testator's delusion was in respect to his eldest son, whom he disinherited. The will was set aside.

[88] 3 Add. 75.

[89] 33 N. Y. 619.

[90] 11 Penn. L. I. 179.

[91] Taylor, Med. Jur. p. 657.

[92] Mr. William Kensett, whose will was proved in Doctors' Commons, London, in 1855, left his body to the Directors of the Imperial Gas Company, London, to be placed in one of their retorts, and consumed to ashes; if not, he directed it to be placed in the family grave in St. John's Wood Cemetery, _to assist in poisoning the neighborhood_. Generally the curious wills are home-made, but this of Mr. Kensett was made by a solicitor.

[93] Taylor, p. 658.

[94] Redfield on Wills, I, p. 84.

In June, 1828, the London papers recorded the singular will of a testator named Garland, containing the following clause: I bequeath to my monkey, my dear and amusing Jacko, the sum of £10 sterling per annum, to be employed for his sole use and benefit; to my faithful dog Shock, and my well-beloved cat Tib, a pension of £5 sterling; and I desire that, in case of the death of either of the three, the lapsed pension shall pass to the other two, between whom it is to be equally divided. On the death of all three, the sum appropriated to this purpose shall become the property of my daughter Gertrude, to whom I give the preference among my children, because of the large family she has, and the difficulty she finds in bringing them up.--Ill. London News, March 2d, 1874.

[95] 2 Bradf. 449.

[96] I am indebted to an admirable essay by Edward Patterson, Esq., of the New York Bar, for the full facts in this case.

[97] 29 Eng. L. and Eq. 38.

[98] Kinleside v. Harrison, 2 Phillm. 419.

[99] 1 Wms. Exrs. 36; Potts v. House, 6 Ga. 324.

[100] 5 Johns. Ch. 148.

[101] 2 Bradf. 360.

[102] 2 Kent 175.

[103] Tucker v. Inman, 4 M. & G. 1049.

[104] Gen. Stat., 1855.

[105] Black. II, 497.

[106] Redfield on Wills, I, 26.

[107] 2 Lans. (N. Y.) 21.

[108] Toucht. 433.

[109] 1 Atk. 417.

[110] Richards v. Richards, 9 Price 219.

[111] Toucht. 433.

[112] Selwood v. Mildmay, 3 Ves. 306; 1 Bro. C. C. 477.

[113] Ellis v. Walker, Amb. 310; Kirby v. Potter, 4 Ves. 748; Tifft v. Porter, 8 N. Y. 516.

[114] 1 Atk. 508.

[115] 3 Bro. C. C. 416.

[116] Richards v. Richards, 9 Price, 226.

[117] Barton v. Cooke, 5 Ves. 461.

[118] Walton v. Walton, 7 Johns. 258.

[119] 2 Ves. Sen. 561.

[120] Wms. Exrs. 994.

[121] 1 Roper, 215.

[122] Sayer v. Sayer, 2 Vern. 688.

[123] 5 Ves. 150.

[124] Duncan v. Alt, 3 Penn. 383.

[125] Wms. Exrs. 759.

[126] Idem. 1035.

[127] Bacon's Ab. Leg. (E); 2 Vent. 342; Moore v. Smith, 9 Watts, 403.

[128] 11 Wend. 259.

[129] 2 Vern. 673; Van Wyck v. Bloodgood, 1 Bradf. 154.

[130] Collins v. Metcalfe, 1 Vern. 462. To avoid the lapse of a legacy by the death of the legatee during the lifetime of the testator, the following States have provided against it, if any issue of the legatee be living at the death of the testator: Pennsylvania, South Carolina, Virginia, Maryland, Massachusetts, Connecticut, Vermont, New Jersey, Mississippi, Maine, Rhode Island. (4 Kent, 542.)

[131] 1 Roper, 216; 1 Paige, 33; Harris v. Fly, 7 Paige, 429; Sweet v. Chase, 2 N. Y. 73.

[132] May v. Wood, 3 Bro. 471.

[133] Barlow v. Grant, 1 Vern. 255.

[134] Duke of Chandos v. Talbot, 2 P. Wms. 612; Smith v. Smith, 2 Vern. 92.

[135] 1 Roper, 645.

[136] Bacon's Ab. Leg. (F.)

[137] 37 Miss. 114.

[138] 2 Meriv. 26.

[139] Moore v. Moore, 47 Barb. 257.

[140] 2 Salk. 570.

[141] Randall v. Payne, 1 Bro. C. C. 55.

[142] A legacy was sometimes given on condition that the legatee should not marry a Roman Catholic. As late as April, 1869, the Hon. Araminta Monck Ridley, in London, left a clause in her will that "if any or either of my said children, either in my lifetime, or at any time after my decease, _shall marry a Roman Catholic_, or shall join or enter any Ritualistic brotherhood or sisterhood, then in any of the said cases, the several provisions, whether original, substitutive, or accruing, hereby made for the benefit of such child or children, shall cease and determine, and become absolutely void."

[143] Perrin v. Lyon, 9 East. 170.

[144] Scott v. Tyler, 2 Bro. C. C. 488. This is a leading case, and the arguments of the leading counsel engaged contain much of the law on the subject. See Amb. 209.

[145] Godolp. Leg. 45.

[146] Godolp. 46.

[147] 2 Redfield, 295.

[148] Commonwealth v. Stauffer, 10 Penn. 350.

[149] L. R. 19 Eq. 631.

[150] 2 J. and H. 356.

[151] In the following instance, a testator is not content only to have his wife remain a widow--he must have her display the appropriate _insignia_ of her situation. Mr. James Robbins, whose will was proved in October, 1864, in London, declares: "That, in the event of my dear wife not complying with my request, _to wear a widow's cap after my decease_, and in the event of her marrying again, that then, and in both cases, the annuity which shall be payable to her out of my estate shall be £20 per annum and not £30." As there was no stipulation as to the time the widow's cap was to be worn, probably Mrs. Robbins found it easy to comply with the letter of the request in her husband's will, and yet indulge her own taste in the matter. In contradistinction to this was the will of Mr. Edward Concanen, proved in 1868. He says: "And I do hereby bind my said wife that she do not, after my decease, offend artistic taste, or blazon the sacred feelings of her sweet and gentle nature, by the exhibition of a widow's cap."

[152] Wills, Pt. 4, Sec. 12.