speculate as to what a testator intended. If the intention cannot be intelligently read out of the language used by the testator, such language must be rejected. Where a testator had but one piece of real estate and devised to his wife "the undivided real estate of which I die seized", this was a patent ambiguity and the clause was void for uncertainty, and the real estate passed as intestate property. In the construction of wills the law, in doubtful cases, leans in favor of an absolute, rather than a defeasible, estate, of a vested, rather than a contingent one, of the primary, rather than the secondary, intent; of the first, rather than the second, taker, as the principal object of the testator's bounty; and of a distribution as nearly conforming to the general rules of inheritance as possible.

"The validity of every devise or disposition of real estate by will must be governed by the law of the place where the land is situated, and this includes not only the form and mode of execution of the will, but also the lawful power and authority of the testator to make such disposition."

"The validity of a bequest or disposition of personal property by last will and testament must be governed by the law of the testator's domicile at the time of his death, and this includes not only the form and mode of the execution of the will, but also the lawful power and authority of the testator to make such disposition; and especially is this true where the testator's domicile at the time of making his will continues to be the same until the time of his death."

Conditions attached to devises or bequests in wills are either conditions precedent or subsequent. A condition precedent is one which must take place or be performed before the title to the estate to which it attaches can vest; as, for example, a bequest to a college on condition that it change its name before the death of the testator is ineffectual unless a complete legal change in name is made prior to the testator's death, and this is so though the donee is blameless or the condition is impossible of performance. A condition subsequent is one which limits or defeats an estate already vested. Thus, a bequest to a son on condition that he reform within five years, is a gift on condition subsequent, and where the son died before the expiration of the five years, having lived a reformed life, this did not defeat the legacy, but the same went to his heirs. "If a condition subsequent be possi

ble at the time of making it, and becomes afterwards impossible to be complied with, either by act of God, or of the law or act of the grantor; or if it be impossible at the time of making it, or against law; the estate being once vested is not thereby divested, but becomes absolute." Legacies may be charged with the payment of annuities or debts. Void bequests fall into the residuum and go to the residuary legatee, unless otherwise indicated in the will. The word "children" when used in a will, when there are no immediate children to whom the term can apply, or where it is manifest from other words in the will that it was used in the broad sense of issue or descendants, may be construed to include grandchildren, stepchildren, illegitimate children, or remote descendants; but a devise to children will not include illegitimate children, if there are legitimate children, unless there is reasonable evidence that such was the intention of the testator.

"Every devise of land in any will shall be construed to convey all the estate of the devisor therein which he could lawfully devise, unless it shall clearly appear by the will that the devisor intended to convey a less estate."

"Any estate, right or interest in lands acquired by the testator after the making of his will shall pass thereby in like manner as if possessed at the time of making the will, if such shall manifestly appear by the will to have been the intention of the testator."

Revocation of wills.-"No will nor any part thereof shall be revoked unless by burning, tearing, cancelling or obliterating the same, with the intention of revoking it by the testator or by some person in his presence and by his direction, or by some other will or codicil in writing, executed as prescribed in this chapter, or by some other writing, signed, attested and subscribed in the manner provided in this chapter for the execution of a will; except only that nothing contained in this section shall prevent the revocation implied by law from subsequent changes in the condition or circumstances of the testator. The power to make a will implies the power to revoke the same."

Regarding this important section our supreme court has said: "Here are seven ways prescribed for revoking a will, and all other ways, except such as are implied by law, are expressly prohibited. Each of the first four is by doing a specified act to the will itself, with the intention of revoking

it. Each of the last three must not only be in writing, but also attested and subscribed in the presence of the testator by two or more competent witnesses in the presence of each other." Where a will was wholly written on the first page of a double sheet, and the testator wrote on the fourth page of the sheet, "I revoke this will", with his signature and date, but there were no witnesses, this did not constitute a revocation. The burning, tearing, cancelling or obliterating must be done with the intention of revoking the will; mere intention to revoke a will, unaccompanied by the act of burning, tearing, cancelling or obliterating, done to the will itself, is not enough. An accidental destruction of a will is not a revocation of it. An intentional alteration of a will by a legatee invalidates the will as to him at least. In Wisconsin, marriage of a woman does not revoke her will made before her marriage, but the marriage of a man, and birth of issue of such marriage, operates to revoke his will previously made. Disposing of all his property, and adopting a child as provided by law has the same effect as though the child were born in wedlock of the parents by adoption. A conveyance by the testator of real estate devised under his will works a revocation so far as the real estate conveyed is concerned, but a will of both real and personal property stands as to the personalty, although the testator may have conveyed away all the realty during his lifetime. A will made in duplicate is revoked by the revocation of one part or copy.

SECTION II.

NUNCUPATIVE WILLS.

At common law a will of personalty was valid without writing. This resulted in fraud and perjuries and led to the passage of that section of the Statute of Frauds which regulates the making of oral wills disposing of personalty. Our statute is very similar to the old English statute, and as in force in this state at the present time is as follows:

"No nuncupative will shall be good when the estate bequeathed shall exceed the value of one hundred and fifty dollars that is not proved by the oath of three witnesses, at least, that were present at the making thereof; nor unless it be proved that the testator at the time of pronouncing the same, did bid the persons present, or some of them, to bear

witness that such was his will or to that effect; nor unless such nuncupative will were made at the time of the last sickness of the deceased and in the house of his or her habitation or dwelling, or where he or she had been resident for the space of ten days or more next before the making of such will, except where such person was unexpectedly taken sick, being from home, and died before he or she returned to the place of his or her habitation."

"After six months shall have passed after speaking any pretended testamentary words no testimony shall be received to prove the same as a nuncupative will unless the said words or the substance thereof were reduced to writing within six days after the said testamentary words were spoken. Nor shall letters testamentary or probate of any nuncupative will be issued by any court until fourteen days, at least, after the decease of the testator be fully expired; nor shall any nuncupative will be at any time approved and allowed unless notice shall have first been given to the widow and other persons principally interested, if resident within the state, to the end that they may contest the same if they please. Nothing herein contained shall prevent any soldier being in actual service nor any mariner being on shipboard from disposing of his wages and other personal estate by a nuncupative will.'

The provisions of the statute must be strictly complied with. Nuncupative wills are not favored by law. Personal property only can be disposed of by a nuncupative will. The testator must bid the person present, or some of them, (two seem to be sufficient) to bear witness that such was his will, or words to that effect. The statute is not satisfied by the testator's asking persons present "to witness what he said", or "to come back and pay attention to what he said." A nuncupative will is not good unless made "at the time of the last sickness" of the testator. This has been held to mean that the testator must be in extremis, i. e., without hope of recovery. Generally speaking, a nuncupative will will not be valid when there was opportunity and time to make a written will. A nuncupative will cannot revoke a written will, nor any part thereof.

CHAPTER XXIX.

DESCENT AND DISTRIBUTION.

SECTION I.

DESCENT.

Our statutes regarding the descent of real property read as follows: "When any person shall die seized of any lands, tenements or hereditaments or any right thereto or entitled to any interest therein, in fee simple, or for the life of another, not having lawfully devised the same, they shall descend, subject to his debts, except as provided in the next section, in the manner following:

1. In equal shares to his children and to the lawful issue of any deceased child by right of representation; and if there be no child of the intestate living at his death, his estate shall descend to all his other lineal descendants; and if all the said descendants are in the same degree of kindred to the intestate, they shall share the estate equally, otherwise they shall take according to the right of representation.

2. If he shall leave no lawful issue, to his widow; if he shall leave no such issue or widow, to his parents, if living, and if either shall not be living, the survivor shall inherit his said estate. If a woman shall die leaving no issue, her estate shall descend to her husband, if she shall have one at the time of her decease, and if she shall leave surviving her neither issue nor husband, to her parents, if living, and if either shall not be living, the survivor shall inherit her said estate.

3. If he shall leave no lawful issue nor widow nor father nor mother, his estate shall descend in equal shares to his brothers and sisters and to the children of any deceased brother or sister by right of representation.

4. If the intestate shall leave no lawful issue, father, mother, brother nor sister, his estate shall descend to his next