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the devises prospective, by declaring that every estate and interest descendible to heirs may be devised; and that every will made in express terms, of all real estate, or in any other terms denoting the testator's intent to devise all his real property, shall be construed to pass all the real estate which he was entitled to devise at the time of his death. The law in Massachusetts, Vermont, Pennsylvania, and Virginia, is the same as that now in New-York. In Virginia, seisin is not requisite to a devise, and a right of entry is devisable. Rights of entry are devisable, even though there be an adverse possession or disseisin ; and the will will extend prospectively, and carry all the testator's lands existing at his death, if so evidently intended. This is also understood to be the law in Kentucky, Maine, Alabama, Connecticut, North Carolina, Illinois, and Ohio, and in the latter state the statute declares that every description of property may be devised.d We have, therefore, in many
New-York Revised Statutes, vol. ii. 57, sec. 2. 5. But a devise of lands in a particular place, unless the intention be otherwise and apparent, will be confined to lands in that place owned by the testator, at the time of the will. Pond v. Bergh, 10 Paige, 140. An estate pur auter vie, though personal assets, may be devised under the term lands, and a power to sell lands may be devised. 1 Hoffman's Ch. Rep. 204. 225.
Lomax's Dig. vol. iii. p. 20. Watts v. Cole, 2 Leigh, 664.
Turpin v. Turpin, 1 Wash. Rep. 75. Hyer v. Shobe, 2 Munf. Rep. 200. Stoever v. Lessee of Whitman, 6 Binney, 416. Tilghman, Ch. J., 4 Serg. § Rawle, 435. 2 Leigh's Rep. 664. Pennsylvania Statute of Wills of 1705, and the Revised Act relating to Wills, April 8, 1833, sec. 10. Massachusetts Revised Statutes, 1835. Revised Statutes of Vermont, 1839, p. 254. Willis v. Watson, 4 Scammon Rep. 64.
Griffith's Law Register, tit. Kentucky. Lessee of Smith v. Jones, 4 Ohio Rep. 115. Statutes of Ohio, 1831. Jarman on Wills, vol. i. 43, notes, Boston edition. In Tennessee, devisees cannot come in for a share of the real estate, acquired after making the will, without bringing into hotchpot the land devised to them. Vance v. Huling, 2 Yerger, 135. Sturdevant v Goodrich, 3 ibid. 95. The English statute of distributions, of 29 Charles II., used the words "settled in his lifetime," and did not apply to a settlement or advancement by will. The Tennessee rule resembles the English law of hotchpot as applicable to estates in coparcenary.
parts, at least, of the United States, this settled test of a devisable interest, that it is every interest in land that is descendible. In England, the more recent test is a possibility coupled with an interest ;a and under either rule the law of devise is of a sufficiently comprehensive operation over the real estate. It is probable that devises receive a construction in every part of the United States as extended as that in England.
A joint-tenant has not an interest which is devisable. The reason given by Lord Coke is, that the surviving joint-tenant has an interest, which first attaches at the death of the joint-tenant making the will; and he insists, that there is a priority of time in an instant; and Mr. Butler refers to another case in which that subtlety was applied. A better reason than this refinement is, that the old law favoured joint-tenancy; and the survivor claims under the first feoffor, which is a title paramount to that of the devisee; and a devisee is not permitted to sever the joint-tenancy.
IV. The execution of the will.
The general provision on this subject is, that the will of real estate must be in writing, and subscribed by the testator, or acknowledged by him in the presence of at least two witnesses, who are to subscribe their names as witnesses. The regulations in the several states differ in some unessential points; but generally they have adopted the directions given by the English statute of frauds, of 29 Charles II. The general doctrine of inter
But see ante. p. 510, note b.
b Litt. sec. 287. Co. Litt. 185, b. Perkins, sec. 500. Butler's note, 68, to Co. Litt. lib. 3.
• In ordinary cases, it is not necessary to prove that the will was read over to the testator, or that he knew the contents of it; all this fact will be presumed, if the prescribed formalities of execution are followed. But the presumption may be repelled, and positive and satisfactory proof required, if a doubt be thrown over the case. Billinghurst v. Vickers, 1 Phillimore Eccl. Rep. 187. Day v. Day, 1 Green Ch. Rep. 549.
national law is, that wills concerning land must be executed according to the prescribed formalities of the state in which the land is situated; but wills of chattels, executed according to the laws of the place of the testator's domicil, will pass personal property in all other countries, though not executed according to their laws. The status or capacity of the testator to dispose of his personal estate by will, depends upon the law of his domicil. Mobilia personam sequuntur, immobilia situm.
By the New-York Revised Statutes, the testator is to b subscribe the will at the end of it, in the presence of at least two witnesses, who are to write their places of residence opposite their names, under the penalty of fifty dollars if they omit so to write; but the omission to do it will not affect the validity and efficiency of their attestation. Three witnesses, as in the English statute of frauds, are required, in Vermont, New-Hampshire, Maine, Massachusetts, Rhode Island, Connecticut, New-Jersey, Maryland, South Carolina, Georgia, Alabama, Mississippi. Two witnesses only are requisite, in New-York, Pennsylvania, Delaware, Virginia, Ohio, Illinois, Indiana, Missouri, Tennessee, North Carolina, and Kentucky. In some of the states, the provision as to attestation is more special. In Pennsylvania, a devise of lands in writing will be good, without any subscribing witnesses, provided the
■ Huberus, De Conflictu Legum, sec. 15. Vattel, lib. 2, c. 8, sec. 103. Coppin v. Coppin, 2 P. Wms. 291. Robinson v. Bland, 2 Burr. Rep. 1079. Abbott, Ch. J., in Doe v. Vardill, 5 Barnw. & Cress. 438. The Master of the Rolls, in Brodie v. Barry, 2 Ves. & Bea. 131. Kerr v. Moon, 9 Wheat. Rep. 565. United States v. Crosby, 7 Cranch's Rep. 115. M'Cormick v. Sullivant, 10 Wheat. Rep. 202. Darbey v. Mayer, ibid. 469. Cutler v. Davenport, 1 Pick. Rep. 81. Hosford v. Nichols, 1 Paige's Rep. 226. See, also, supra, vol. ii. 429, and Story's Com. on the Conflict of Laws, 299-307. 359-362. 391. 398-403. In the matter of Robert's will, 3 Paige, 446. 525. Countess De Z. Ferraris v. Marquis of Hertford, 3 Curteis, 468. ▸ Vol. ii. 63, sec. 40, 41.
• The Ordinance of Congress, of July, 1787, for the government of the North-west Territory, now composing the states of Ohio, Indiana, Illinois, &c., required three witnesses to a will devising real estates.
authenticity of it can be proved by two witnesses; and if the will be subscribed by witnesses, proof of it may be made by others."
The English statute of frauds required the will to be signed by the devisor, and to be attested and subscribed by the witnesses, in his presence; and this direction has been extensively followed in the statute laws of this country, and particularly in New-York, down to the recent revision of its statute law. The Revised Statutes have so far altered the former law, as to require the signature of the testator, and of the witnesses, to be at the end of the will; and the testator, when he signs or acknowledges the will, is to declare the instrument to be his last will; and he is to subscribe or acknowledge the will in the presence of each witness; and the witnesses are to subscribe their names at the request of the testator. The statute drops the direction, in the
Slight v. Wilson, 1 Dallas, 94. Huston, J., 1 Watts, 463.
In England, under the statute of frands, of 29 Charles II., c. 3, sec. 5, 6, the attestation of a will by a witness making his mark, is sufficient. Harrison v. Harrison, 8 Vesey, 185. Addy v. Grix, ibid. 504. Baker v. Dening, 8 Adolph. & Ellis, 94. The law in South Carolina and Louisiana is the same. Adams v. Chaplin, 1 Hill's Ch. Rep. 266. 9 Louis. Rep. 512. 11 ibid. 251. The words of the English statute are, that the will shall be attested and subscribed by the witnesses. The New-York Revised Statute is a little stronger, and may not admit of the same loose construction, for it says, that each attesting witness shall subscribe his name. Making his mark has however been held sufficient. George v. Surrey, 1 Mood. § Malk. 516. Chaffee v. Baptist M. C., 10 Paige, 85. So writing with a pencil is sufficient. Geary v. Physic, 5 Barnw. & Cress. 234. Brown v. B. & D. Bank, 6 Hill N. Y. Rep. 443. The statute of 1740, in North Carolina, requires in all cases of wills a plain and unequivocal act of publication. In New-Jersey the construction under their statute of 1714 is, that the testator must sign his name in the presence of the three witnesses, and the mere acknowledgment in their presence is not sufficient. Den v. Matlock, 2 Harrison Rep. 86. Den v. Mitton, 7 Halst. 70. Combs v. Jelley, 1 Green, 625.
• The testator's request may be inferred as a matter of fact by a jury, but if one of the witnesses neither saw the testator subscribe nor heard him acknowledge his signature, the proof is defective. Rutherford v. Rutherford, 1 Denio, 33.
English statute, that the witnesses are to subscribe in the presence of the testator, and the doctrine of constructive presence is thereby wisely rejected."
The English courts, from a disposition to favour wills, departed from the strict construction and obvious meaning of the statute of frauds, and opened a door to very extensive litigation. It was held to be sufficient that the testator wrote his name at the top of the will, by way of recital; and his name, so inserted, was deemed signing the will within the purview of the statute. This was the decision in Lemayne v. Stanley. The doctrine of a constructive presence of the testator has been carried
The weight of authority in England was that no formal publication of the will was requisite. 7 Taunton, 355, nor is it now required; but in NewYork it is otherwise by statute. It was held in Heyer v. Berger, 1 Hoffman's Ch. Rep. 1, that the execution of the will requires it to be signed, attested, acknowledged and declared or published, which is an independent act distinct from subscription, or acknowledgment of subscription. So it was held, after great consideration, by Sir Herbert Jenner, in the Prerogative Court of Canterbury, in Allen v. Bradshaw, (1 Curties, 110,) that a power in a feme covert to make a will of personal property to be signed and published by her in the presence of two or more witnesses, was not well exercised if the will omitted to state that it was published by her, &c., and that extrinsic evidence of the fact was not admissible.
The English statute of 1 Victoria, c. 26, dispenses with the form of publication altogether, whereas the New-York Revised Statutes require that the testator at the time of subscribing or acknowledging the will, shall declare the instrument to be his last will and testament. An actual pvblication of the will, as a will, in the presence of the subscribing witnesses, is thus made indispensable, and so it was held in Brinckerhoff v. Remsen, 8 Paige Rep. 488, S. C. 26 Wendell, 325, and the will in that case was held not to be duly executed from the want of that formality. See, also, to the same point, Chaffee v. Baptist M. C., 10 Paige, 85. New-York Revised Statutes, vol. ii. 63, sec. 40. The Mass. Revised Statutes, of 1835, require the execution of a will to pass real estate, or to charge or affect the same, to be signed by the testator, or by some other person in his presence and by his express direction, and subscribed in his presence by three or more competent wit
b3 Lev. 1. In Kentucky, the testator's name may be in any part of the will, if the same be signed by him, or by another and acknowledged by him as his signature. Sarah Miles' will, 4 Dana, 1.