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upon the antecedent law. It is declared that infants under the age of twenty-one years, and aliens, not being inhabitants of the state, are not competent to serve as executors; nor is a married woman entitled to letters testamentary, unless with the consent in 519 writing of her husband; and in that case he is deemed responsible for her acts jointly with her. A non-resident executor is required to give the like bond as is required by law of administrators; and on the objection of a creditor, or other person interested in the estate, the surrogate, on reasonable cause shown, may require the like security from any executor, either before or after letters testamentary are granted. If letters be granted upon any will, the executors not named in them cannot act until they appear and qualify; nor can an executor interfere with the estate, except to pay funeral charges, before letters testamentary are granted; and the power of an executor of an executor, to administer on the estate of the first testator, is abolished. These provisions are calculated to secure fidelity and increase confidence in the execution of a delicate and dangerous trust.
The law of Louisiana, in respect to last wills, is peculiar. Wills, under the code of that state, are of three kinds; nuncupative or open, mystic or sealed, and olographic. They are all to be in writing. The first, or nuncupative testament, is to be made by a public act before a notary, as dictated by the testator, in the presence of three, or five witnesses, according to circumstances; and to be read to the testator, and signed by the testator and witnesses; and if the testator be disabled, another person may sign it for him, in his presence, and that of the witnesses, or it may be executed by his private signature, in the presence of three, or five, or seven witnesses, according to circumstances, and they are to subscribe it. The second, or mystic testament, is to be signed by the testator, and sealed up, and presented to a notary and seven witnesses, with a declaration that it is
his will; and the notary and witnesses are to subscribe the superscription. The third, or olographic testament, is one entirely written, and signed by the testator, and subject to no other form, and may be made out of the state. The attestation of subscribing witnesses at the bottom will not mar it, for their signatures make no part of the will. No woman can be a witness to a will in any case; and no other person who takes under the will can be a witness, except it be in the case of a *520 mystic testament. These prescribed forms are
not requisite in the testaments of certain descriptions of people made abroad. Children cannot be disinherited but for one of ten causes which are enumerated, and all of which relate to filial disobedience, or atrocity, in relation to parents. Among those acts are cruelty to the parent, or an attempt on his life, or a refusal to ransom him from captivity, or to become his security when in prison. There is a provision made for cases in which the testator, or witnesses, are too illiterate to write their names; and the regulations in general are complex and singular, and, I should think, not well adapted to the judgment and taste of the people of the other states in
• Andrews v. Andrews, 12 Martin's Louis. Rep. 713. Knight v. Smith, 3 ibid. 163. Langley v. Langley, 12 Louisiana Rep. 114.
b Civil Code of Louisiana, art. 1567-1614.
The Civil Code of Louisiana, on the subject of the execution of wills, is taken from the Napoleon Code. Under that code, the French tribunals construed the law with severe strictness; and unless the testament itself proved, by the terms used in it, an absolute impossibility that there was an omission of the formalities required by the code, the will was annulled. It was at last attempted even to annul a testament for a faulty punctuation! This led to a mitigation of the antecedent rigorous doctrine, and to the establishment of the reasonable principle, that when a clause in a will is susceptible of two meanings, it shall have that construction which will give the instrument effect. Toullier, Droit Civil Français, tom. v. 390-416, and particularly No. 430. The same liberal principles of interpretation have been adopted under the same articles in the civil code of Louisiana. Seghers v. Anthe13 Martin's Louis. Rep. 73.
the Union, who have been accustomed to the more simple provisions of the English law."
V. The revocation of a will.
A will duly made according to law, is, in its nature, ambulatory during the testator's life, and can be revoked at his pleasure. But to prevent the admission of loose and uncertain testimony, countervailing the operation of an instrument made with the formalities prescribed, it is provided that the revocation must be by another instrument executed in the same manner; or else by burning, cancelling, *tearing, or obliterating the *521 same, by the testator himself, or in his presence, and by his direction. This is the language of the English statute of frauds, and of the statute law in every part of the United States.
A will may be revoked by implication, or inference of law; and these revocations are not within the purview of the statute; and they have given rise to some of the most difficult and interesting discussions existing on the subject of wills. They are founded upon the reasonable presumption of an alteration of the testator's mind, aris
Under the rule of equity, that what ought to be done is sometimes considered as done: the execution of a will may be controlled by equitable views of the subject. Thus land, which has been agreed or directed to be sold, is considered as money; and money which has been agreed or directed to be laid out in the purchase of land, is considered as land; and, therefore, in equity, money directed to be laid out in land will not pass by a will, unless executed as if the property were land; but land directed to be converted into money, will pass by a will competent to pass money.
b Vinyor's case, 8 Co. 81, b.
See the New-York Revised Statutes, vol. ii. 64, sec. 42. Griffith's Law Register. Collection of Statutes, by J. Anthon, Esq. 1 Revised Code of Virginia, c. 104, sec. 3. Massachusetts, New-Jersey, and other Revised Statute codes. The English statute of frauds did not require the will to be signed in the presence of the witnesses, but it required the instrument of revocation to be signed in their presence. The Revised Statutes of NewYork, Massachusetts, Virginia, &c., require the same precise formalities in both cases.
ing from circumstances since the making of the will, producing a change in his previous obligations and duties. The case stated by Cicero, is often alluded to, in which a father, on the report of the death of his son, who was then abroad, altered his testament, and appointed another person to be his heir. The son returned after the father's death, and the centumviri restored the inheritance to him. There is a case mentioned in the Pandects to the same effect; and it was the general doctrine of the Roman law, that the subsequent birth of a child, unnoticed in the will, annulled it. This is the rule in those countries which have generally adopted the civil law, Testamenta rumpiuntur agnatione posthumi, and there is not, perhaps, any code of civilized jurisprudence, in which this doctrine of implied revocation does not exist, and apply when the occurrence of new social relations and moral duties raises a necessary presumption of a change of intention in the testator. It is a settled rule in the English law, that marriage and the birth of a child, subsequent to the execution of the will, are a revocation in *522 law of a will of real as well as of personal *estate, provided the wife and child were wholly unprovided for, and there was an entire disposition of the whole
a De Orat. 1. 1, c. 38.
Dig. 28.5. 92. The Statute of Ohio, 1831, p. 243, makes provision for such an identical case, and revokes the will pro tanto. So, in Kentucky, under the construction given to their statute of wills, after-born and posthumous children, pretermitted in the will, and not provided for by settlements, are entitled to such shares of the estate as they would have taken if no will had been made. Haskins v. Spiller, 1 Dana's Ken. Rep. 170. So in Alabama, Aikin's Dig. 2d ed. 449. In Virginia, New-Jersey, and Connecticut, and probably in other states, it is provided by statute, that if the testator had no issue when he made his will, and dies, leaving issue, or a posthumous child be born, and the will makes no provision for such an event or contingency, the will becomes wholly void. Revised Code of Virginia, vol. i. 224. Elmer's Dig. 131. 600, 601. Statutes of Connecticut, 1838, p. 227. R. S. N. J., 1847.
c Cic. de Orat. 1.57. Inst. 2. 13. Promm. Ferriere Com. h. t. Huber, 2.1, 3. 5. Ibid. tit. 17, sec. 1.
estate to their exclusion. This principle of law is incontrovertibly established; though it is said to have been no part of the ancient jurisprudence of England; and the first case that recognized the rule that the subsequent birth of a child was a revocation of a will of personal property, was decided by the court of delegates, upon appeal, in the reign of Charles II.; and it was grounded upon the law of the civilians. The rule was next applied in the case of Lugg v. Lugg; and it was shown by Dr. Hay, in Shepherd v. Shepherd, to have been continued, down to 1770, as the uncontradicted and settled law of doctors commons, that a subsequent marriage. and a child, amounted to a revocation of a will; but that one of these events, without the concurrence of the other was not sufficient.
The rule was applied in chancery to a devise of real estate, in Brown v. Thompson; but it was received with doubt and hesitation by Lord Hardwicke, and Lord Northington. The distinction between a will of real and personal estate could not well be supported; and Lord Mansfield declared, that he saw no ground for a distinction.g The great point was finally and solemnly settled, in 1771, by the court of exchequer, in Christopher v. Christopher, that marriage and a child, were a revocation of a will of land. The court of K. B., have since
The rule that marriage and the birth of a child are an implied revocation, does not apply in cases where the whole estate is not devised by the will, nor in all cases where a man has children by a former marriage. Denman, Ch. J., in Dow v. Edlin, 4 Adolph. & Ellis, 582.
b Overbury v. Overbury, 2 Show. Rep. 253.
• 1 Ld. Raym. 441. Salk. Rep. 592.
5 Term Rep. 51, note.
e 1 Eq. Cas. Abr. 413, pl. 15. 1 P. Wms. 304, note by Mr. Cox.
f Parsons v. Lanoe, 1 Vesey, 189. Amb. 557. Jackson v. Hurlock, 2
Eden's Rep. 263.
Wellington v. Wellington, 4 Burr. Rep. 2165.
Dicken's Rep. 445.