(See FAMILY, e. Family g. Issue (See ISSUE, vol. h. Descendants (See DESCENDANTS, vol. 5, p. 641; ISSUE, vol. II, p. 868), 410. i. Relations (See RELATIONS, vol. 20, p. 728), 410. 17. Construction of Gifts to Classes, 410. a. Distinguishing Charac- (1) In Gifts to Children, Great Grand-children, Brothers, Nephews, Nieces, Cousins, 418. (3) Gifts to Relations, 418. (4) Gifts to Heirs or Next of Kin, 419. c. Taking per Capita or per Stirpes, 420. d. Rule Where the Number of Objects Is Erroneously Referred to, 428. [430. 18. Estates in Fee and in Tail, a. What Sufficient to Pass the Fee, 430. b. Expressions Which Pass 434. (2) Devise to A, and His Issue (See ISSUE, vol. II, p. 879), 434. (3) Devise to A for Life and After His Decease to His Issue (See IsSUE, vol. 11, p. 886), 434. (4) Devise to A, or to A for Life, or to A and His Heirs, and if He Die Without Issue Over (See ISSUE, vol. 11, pp. 899, 921), 434. (5) Devise to A and His Children Rule in Wild's Case, 434. 437. c. Gift to A and the Heirs of His Body, 439. d. Gift to A and His Issue (See ISSUE, vol. 11, p. 879), 439. e. Gift to A for Life, and After His Decease to His Issue (See ISSUE, vol. 11, p. 890), 439. f. Gift to A, as to A for Life, or to A for Life and After His Decease to His Issue, with Gift Over in Default of Issue (See ISSUE, vol. 11, p. 923), 439. g. Gift to A and His Children -Rule in Wild's Case, 439. h. Rule That Words Which Create an Estate Tail in Realty, Create an Absolute Interest in Personalty, 440. i. Subsequent RestrictionsGifts for a Particular Purpose, 440. j. Effect of General Power of Disposition After Prior Gift (See REMAINDERS. vol. 20, p. 955), 44. k. Gift of Income Indefinitely, 441. 20. Vesting-Whether a Gift Is Vested or Contingent, 441. a. Of Construing an Interest to Be Vested Rather than Contingent, 441. b. Vesting of Realty, 447(1) General Principles, 447. (2) Devise to Testator's Heir, 449. (3) Devise to Youngest or Only Surviving Child, or Persons Sustaining a Particular Character, 449. (4) Devise to A At, When, If, Or Provided He Attains Twenty-one, 450. (5) Gifts to Classes (See REMAINDERS, vol. 20, p. 854), 453. mence (6) An Estate to Comon Certain Specified Events, Fails Unless All the Events Happen, 454. (7) Devise After Payment of Debts, 454c. Vesting of Legacies Payable out of Personalty, 454. (1) When the Gift and Time of Payment Are Distinct, 454. (2) When the Only Gift Is Founded in the Direction to Pay-Gift to One At, If, On, Upon, When, and After Twenty-one, 457. (3) Payment Postponed for Convenience of Testator, or to Let In Some Other Interest, 458. (4) Effect of Severance, 458. (5) Gift of Intermediate (6) Effect of Gift Over (9) Foregoing Rules Yield to a Clear Contrary Intent, 461. (10) Gift of Interest to A for Life and at His Death the Principal to B, 462. (11) Direction to Pay at Specified Time, 463. d. Vesting of Legacies Charged on Land, 463. e. Legacies Charged Upon Both Real and Personal Estate, 464. f. Legacies Charged Upon Proceeds of Converted Land, 464. g. Vesting of Mixed Funds, 465. mediate, 502. (2) When the Gift Is Postponed, 504. b. Words Referring to Death Coupled with a Contingency, 504. 26. Successive and Concurrent Interests, 507. a. Devise to a Class in Tail, 507. b. Gifts to Parent and Children (Compare supra, this title Devise to A or to A for Life, or to A and His Heirs, and if He Die Without Issue Over; also Gift to A and His Children Rule in Wild's Case), 508. c. Gifts to Parent and Issue (See ISSUE, vol. 11, p. 879), 509. 27. Joint Tenants and Tenants in Common (See JOINT TENANTS, vol. 11, p. 1057), 509. 28. Tenants by Entireties (See JOINT TENANTS, vol. 11, p. 1069), 510. 29. Interests Undisposed of, 510. a. Title of Heirs and Next of Kin, 510. b. Title of Executor to Residue Undisposed of (See EXECUTORS AND ADMINISTRATORS, vol. 7, p. 236), 512. c. Unexhausted Interest in Lands Devised for Special Purposes, 512. d. Charges on Realty-Proceeds of Land Directed to Be Sold (See LEGACIES, vol. 13, p. 42), 512. e. Charges on Mixed Funds f. Devolution of Increase in School 30. Doctrine of Lapse (See LEGACIES AND DEVISES, vol. 13, P. 34), 515. 31. Administration (See DEBTS OF DECEDENTS, vol. 5, p. 206; EXECUTORS AND ADMINISTRATORS, vol. 7, p. 165), 515. 32. Election (See ELECTION, vol. 6, p. 247), 515. 33. Conversion (See EQUITABLE CONVERSION, vol. 6, p. 664), 515. 34. Executor's Trusts (See TRUSTS AND TRUSTEES, vol. 27, p. 1), 515. I. DEFINITION.-A "will," "last will," or more accurately, "last will and testament," may be defined, in the present condition of the common and statute law, as the legal declaration of a man's intention which he wills to be performed after his death, touching either the disposition of his property, the guardianship of his children, or the administration of his estate.1 1. A will is defined by Blackstone to be "the legal declaration of a man's intention which he wills to be performed after his death." 2 Bl. Com. 499, cited with approval in Colton v. Colton, 127 U. S. 309; Frew v. Clarke, 80 Pa. St. 178. The characteristic features of this, as well as of the definition in the text, are, that the dec laration must be legal, i. if oral it must be as prescribed by the rules regulating nuncupative wills, as to which see NUNCUPATIVE WILLS, vol. 16, p. 1006; and that if written it must conform to the requirements of the governing statute. Hence, it has been said that the word "will" has a technical meaning and implies an instrument II. HISTORY AND ORIGIN.-The right of testamentary disposition, as an incident of the right of property, seems to have been recognized in some form or other, by almost all races who have executed with prescribed formalities, to take effect after death, subject to alteration, cancellation, or revocation at the volition of the maker. See 1 Jarm. on Wills (5th ed.) 16, notes by Randolph & Talcott. See infra, this title, What Constitutes a Will-Distinguishing Characteristics. A will has also been defined to be "any instrument whereby a person makes a disposition of his property to take effect after his death." Cover v. Stem, 67 Md. 449; Carey v. Dennis, 13 Md. 1. This view is also adopted by Redfield, who says that testamentary power for all practical purposes is confined in most American states to the disposition of property and the accidental control of the donees, consequent upon the conditions and limitations annexed to the bequest. I Redf. on Wills (4th ed.) 5. Now while it is undoubtedly true that any instrument intended to dispose of the testator's property after death, provided the statutory formaliities are observed, may operate as a will (Lawson's Rights, Remedies and Practice 3139, citing Wall v. Wall, 30 Miss. 91; 64 Am. Dec. 147; Babb v. Harrison, 9 Rich. Eq. (S. Car.) 111; 70 Am. Dec. 203), yet it seems clear that the term today applies equally to instruments framed exclusively with a view to appointing executors, leaving the property to pass under the Statute of Distributions as though no will had been made, Schouler on Wills (2d ed.), § 1, note 2; Barber v. Barber, 17 Hun (N. Y.) 72; Miller v. Miller, 32 La. Ann. 437; as well as to testamentary instruments appointing guardians. Wardwell v. Wardwell, 9 Allen (Mass.) 518; Ex p. Ilchester, 7 Ves. 367. Such also seems to be the meaning of the term under 1 Vict., ch. 26. See Schouler on Wills (2d ed.), § 8, note 3, and appendix. Merely Disinheriting Son.—An instrument which appoints no executor, and merely excludes one of testator's sons from participation in the estate, without making any other disposition of the property, has been held not entitled to probate. Coffman v. Coffman, 85 Va. 459. Informal Revocation.-It should also be observed that it has been held that an informal writing, letter or memorandum, which merely revokes a former testamentary disposition, is not entitled to probate. Goods of Fraser, L. R., 2 P. & M. 40. But compare Goods of Hicks, L. R., 1 P. & M. 683; Laughton v. Atkins, 1 Pick. (Mass.) 535; Goods of Durance, L. R., 2 P. & M. 406; Brenchley v. Still, 2 Rob. 162. On the other hand, a codicil not containing any disposition of property has been held entitled to probate. Brenchley v. Still, 2 Rob. 162. Synonymity of "Will," "Testament," "Last Will and Testament."-At the present day these terms are practically synonymous. Schouler on Wills (2d ed.), § 2. "Will" Includes "Codicils."-The word "will," in modern legislation, includes codicils as the generic term, the specific and statutory provisions in regard to the mode of executing wills, and personal capacity of testator, apply to codicils. Schouler on Wills (2d ed.), § 8; Bayley v. Bailey, 5 Cush. (Mass.) 245; Deering's Pol. Code Cal., § 17, p. 5; California Civ. Code, § 14, p. 5. Second Will Destroyed by Mistake.Where the subsequent will is destroyed under a mistaken impression that the former will is thereby revived, it would seem that the contents of the second will might be proved, and as proved have effect. Powell v. Powell, L. R., 1 P. & M. 209; Brown v. Brown, 8 El. & Bl. 876; Wood v. Wood, L. R., 1 P. & M. 309. It is held that the contents of such will, destroyed under the misconception that a former will is revived by the act of destruction, as established by evidence, must show clearly that the first will was thereby revoked. See Cutto v. Gilbert, 9 Moo. P. C. C. 131. This seems slightly inconsistent with the principle of "intent." advanced above the savage stage of development.1 In England, the right of bequeathing chattels, real and personal, seems to have existed from the earliest times,2 although the power, unless the testator died without either wife or issue, was subject to their right to "reasonable parts; for by the common law, as it stood according to Glanvil in the reign of Henry II., a man's goods were divided into three equal parts; one of which went to his issue or lineal descendants, another to his wife, and the third was at his own disposal; if he died without a wife he might then dispose of one moiety and the other went to his children, and so e converso; if he had no children, the wife was entitled to one moiety and he might bequeath the other; but if he died without either wife or issue, the whole was at his own disposal. The shares of the wife and issue were called "reasonable parts," and the writ de rationabili parte bonorum was given to recover them from the executors.3 Early legislation led gradually to the abolition of the doctrine of reasonable parts in various countries, until finally the Statute of 1 Vict., ch. 26 (A. D. 1837), removed all restraints from the testamentary disposition of personalty.5 After the introduction of feuds into England, and prior to the passage of the Statute of Wills, 32 Hen. VIII., there was no power, but in a few exceptional cases, to devise real estate save through the medium of a devise to uses enforced in chancery, and hence when the Statute of Uses was passed, 27 Hen. VIII., ch. 10, which converted all uses into legal estates, real estate became again incapable of being devised. To remedy this the Statute of Wills, 32 Hen. VIII., ch. 1 (explained by 32 Hen. VIII., ch. 5), 1. See Schouler on Wills (2d ed.), §§ Charles I., to be the general law of the 12, 13. 2. 2 Bl. Com. 491. 3. I Wm. on Exrs. (9th ed.) 2; 2 Bl. Com. 491, 492; Schouler on Wills (2d ed.), § 14. "It must indeed be remarked that there has been a controversy whether this was the general law of the land, or only such as obtained by custom in particular places. Fitzherbert, in his commentary on the writ de rationabili parte bonorum, contends that the distribution, which excludes the testamentary power from a certain portion of the personal estate, was in his time the common law of the land, and therefore needed not a special custom to support it. Co. Litt. 176 b, note (6), by Hargrave. And Mr. Justice Blackstone, 2 Bl. Com. 492, expresses a strong opinion to the same effect, citing Glanvil, Bracton, Magna Charta, the Year Books, and a passage from Sir Henry Finch; the last of which authorities expressly lays it down, in the reign of land. But, on the other hand, Lord Coke says that it appears by the Register, and many of our books, that there must be a custom, alleged in some county, etc., to entitle the wife and children to the writ de rationabili parte bonorum, and that so it had been resolved in Parliament." I Wms. on Exrs. (8th ed.), bk. 1, ch. 1. 4. 2 Bl. Com. 492, 493. 5. "And be it further enacted, that it shall be lawful for every person to devise, bequeath, or dispose of, by his will, executed in manner hereinafter required, all real estate and all personal estate which he shall be entitled to, either at law or in equity, at the time of his death, and which, if not so devised, bequeathed, or disposed of, would devolve upon the heir-at-law, or customary heir of him, or if he became entitled by descent, of his ancestor, or upon his executor or administrator." 1 Vict., ch. 26. 6. REMAINDERS, vol. 20, p. 908. |