other deeds.

In addition to the mortgage deed a note is given for the
money called a mortgage note which reads as follows :

Harrisburg, Pa., July 30, 1889.

"For value received I promise to pay to John S. Barger or
order One Thousand Dollars ($1,000), in two years from the
date hereof, with interest at six (6) per cent, per annum. This
note is secured by a mortgage of real estate of even date here-
with and recorded in the office of the , of county,

State of .

(Signature) ."

WILLS.
In order that a will may be valid in law, the person who
makes it must be of sound mind and rational judgment. He



wills. 355

must know what he is doing and the consequences of his act.
He must know who his heirs are, his liability to his children
and the probable or approximate amount of his property.

Eccentricity or peculiarity of disposition will not invalidate
a will. Delusion, when it affects the disposition of the prop-
erty, invalidates the whole will, but if the delusion is as to
some minor or unimportant part it does not affect the will. If
a contest is made against a will these points become matters of
testimony to be proved or disproved by the contending parties.

A ward or person under guardianship can not make a will.

One of the most frequent grounds for contests over wills is
undue influence, as this more frequently than anything else de-
stroys the free agency of the testator, making the instrument
the will of another and not that of the testator. A wife's
coaxing her husband to leave his property to her would not be
considered by the courts undue influence; but if the testator
is constrained by force directly or indirectly exerted, or is
nagged and pursued to death's door, into making a will con-
trary to his wishes and desires, and this state of facts can be
shown, the will would be declared invalid.

How to make a Will. Wills are written or oral. Oral wills
are called in law nuncupative. A will may be written with
any substance used for writing, ink, pencil, chalk, etc.; and it
may be written on any thing, paper, parchment, board, slate,
etc.

The form of words used in a will is not important. The
intent of the testator must be clearly expressed. All the
terms of a will should be so clear that no mistake in their
meaning would be possible.

A will may be certain or conditional in its terms of devis-
ing property.

A certain will makes absolute disposition of the property.

A conditional will makes the disposition of the property



356 THE LAW OF BUSINESS.

depend upon some future event, as the marriage of a child, or
a birth or death.

A will must be signed by the testator, although it is not
necessary that the name be placed at the bottom of the
writing; it may be written any place on the paper as a signa-
ture. He must sign in the presence of witnesses who must
see him sign. If he can not write he may direct another to
sign for him, in the presence and hearing of the witnesses.
Or he may make his mark, even if he can write.

Seals are now not generally necessary, although a few
States still require them.

The Witnesses to a will should be good; i. e., people of the
best character that can be obtained people not only of good
character as to truth but of good judgment and business
sense, so that if a contest should be made they would testify
intelligently as to the facts of signing, etc., and also to the
extrinsic circumstances and the testator's mental and physical
condition at the time. As many witnesses must sign as the
law requires (generally two) and as many more as the testator
may desire. The witnesses must sign after the testator and
after the will is completed. They must sign their own names,
or make their mark, in the presence of the testator and of
each other.

Revoking or Canceling a Will. A will may be revoked:

i . By burning, tearing or destroying it with intent to re-
voke. This must be done by the testator or some one in his
presence and by his direction.

2. By making a new w 7 ill which is signed and executed in
due form.

3. By writing across the face of the will such expressions as
"This will is cancelled," or "No longer valid," or "This will
is annulled." This must be done by the testator with the
intent to cancel the will.



wills. 357

4. By a codicil (see definitions) which must be executed
with the same formality as the original will.

5. By marriage, after making a will. This annuls the will
in most States.

If a child can prove that he was probably forgotten by his
father in his will, the court will award him his share; but if
his father left him anything, a dollar, it would bar his claim,
for that would be proof that he was not forgotten; or if it
can be proved that the father intended to disinherit his son
then his claim for a share would be barred.

Construction of a Will. The wishes of a testator will be
carried out by the executor if possible and provided they do
not conflict with some positive rule of law, and are not in
conflict with public policy. Conditions in restraint of mar-
riage are void, though a condition forbidding marriage with
one particular person would be valid, as there would be many
other eligible persons whom the devisee might marry. A
minor can not act as executor and if appointed the court will
appoint an administrator in his stead.

Burden of Proof The burden of proof as to the com-
petency of the testator is on the executor. If the witnesses
are dead and there are no suspicious circumstances oral testi-
mony will be admitted to prove handwriting. If the death of
the testator is denied, the executor must prove it.. If the man
has been absent seven years and not heard from, the law will
infer that he is dead, and act accordingly, but if he should re-
turn, all proceedings under the will are void. If a will is con-
tested the parties desiring to break it must show to the satis-
faction of the court that the will was extorted or made under
undue influence.

FORM OF A WILL.

The following form is simple and conforms to law:

Be it remembered, that I , of , in the State



358 THE LAW OF BUSINESS.

of , being of sound mind and memory, but being well

aware of the uncertainty of this life, do make this my last
WILL AND TESTAMENT:

After the payment of my just debts and funeral expenses,
I bequeath and devise as follows: (Jiere state just what you
wish to be done or omitted and use plain, simple words that
have but one constrtiction?)

In testimony whereof, I hereunto set my hand and in
the presence of three witnesses declare this to be my last will,
this 1 8th day of September, A. D. 1889.

JOHN C. HILL.

On this 18th day of September, A. D. 1889, John C. Hill,
of Cincinnati, Ohio, signed the foregoing instrument in our
presence, and declared it to be his last will, and as witness
thereof, we three do now, at his request, in his presence and
in the presence of each other, hereto subscribe our names.

WILLIAMSON D. WATTS.
M. B. BLACK.
JOHN D. BANKS.

STATE LAWS ON DEEDS AND WILLS.

The laws of the States vary somewhat in regard to the
formalities to be observed in drawing deeds and wills. The
following condensation of the State statutes will be found to
cover the important differences :

Alabama. Deeds must be witnessed. If not witnessed
they must be acknowledged and recorded. They have the
force of sealed instruments if they so purport on their face.

Wills must be in writing two witnesses attesting in the
presence of testator.

Arkansas. Deeds must be executed in the presence of,
or acknowledged before, two witnesses, who must sign, and



STATE LAWS ON DEEDS AND WILLS. 359

must be acknowledged before some qualified officer, and be re-
corded.

Wills. Testator must be twenty-one. Will must be ac-
knowledged and subscribed by testator in presence of two wit-
nesses who must sign by his request.

California. Deeds must be acknowledged, or proved,
and recorded.

Wills must be subscribed by testator, or some person in his
presence, and must be acknowledged, etc., same as Arkansas.

Colorado. Deeds must be acknowledged and recorded.
Witnesses not necessary. Scroll answers for seal.

Wills must be attested in the presence of testator by two
witnesses, and signed by him or some one at his request.

Connecticut. Deeds must be signed, sealed and acknowl-
edged, have two witnesses, and be recorded in the town or
city where the land is located.

Wills must be signed by testator and attested by three wit-
nesses. These witnesses must all be present and see the test-
ator sign, and sign in each other's presence at the same time.

Delaware. Deeds; one witness; acknowledged; recorded.

Wills signed by testator ; attested by two witnesses.

Florida. Deeds must be sealed and delivered in presence
of two witnesses, and acknowledged and recorded within six
months after execution. A scroll answers for a seal.

Wills must be attested and subscribed by three witnesses,
in presence of testator, and must be signed by testator, or by
some one authorized by him, and in his presence. Nuncupa-
tive wills must be proved by three witnesses.

Georgia. Deeds must be signed, sealed and acknowl-
edged ; attested by two witnesses; recorded within one year.
A scroll serves for a seal.

Wills. Same as Florida, except nuncupative. Persons
fourteen years old may make a will.



360 THE LAW OF BUSINESS.

Illinois. Deeds must be acknowledged and recorded.
No witnesses necessary. Scroll for seal.

Wills must have two witnesses ; signed by testator, or some
one in his presence. Witnesses must see testator or his repre-
sentative sign, and they must sign in his presence.

Indiana. Deeds must be signed, acknowledged and re-
corded. No seals or witnesses are necessary.

Wills must be attested and signed by two witnesses, and
signed by testator, or some one in his presence at his request.

Iowa. Deeds same as Indiana.

Wills same as Indiana. Nuncupative wills attested by two
witnesses convey property amounting to $300.

Kansas. Deeds must be signed by the grantor, or some
one authorized by him, and acknowledged and recorded. No
seals.

Wills must be .signed by the testator, or some one in his
presence, and attested by two witnesses ; also acknowledged in
the presence of the subscribing witnesses who saw him sign.

Kentucky. Deeds must be signed, acknowledged and
recorded. No seals.

Wills must be signed by testator or some one for him, iu
the presence of two witnesses who must sign at one and the
same time.

Louisiana. Deeds must be signed, acknowledged and
attested by the proper officer and two others, and recorded.
No seals.

Wills. there are three kinds: 1. Mystic or sealed. 2.
Nuncupative. 3. Holographic. The testator must sign a
mystic will and acknowledge it before a notary and seven wit-
nesses, who must all sign. Nuncupative wills are of two
kinds : by public act and by private act. A will by public act
is written by a notary at testator's dictation and acknowledged
in the presence of not less than three witnesses. A will by



STATE LAWS ON DEEDS AND WILLS. 36 1

private act is written either by the testator himself or at his
dictation in the presence of five non-resident witnesses. He
and they all must sign it and acknowledge it before a notary.
Holographic wills are written and signed by the testator himself.

Maine. Deeds must be signed, sealed, acknowledged and
recorded. Scroll answers for seal.

Wills must be signed by testator or some one in his pres-
ence and subscribed by three disinterested witnesses.

Maryland. Deeds must be signed, sealed, acknowledged
and recorded and have one witness. Scroll for seal.

Wills must be signed by testator or some one in his pres-
ence at his request; must have three witnesses.

Massachusetts. Deeds must be signed and sealed by
the grantor or some one duly authorized by him and acknowl-
edged and recorded. No witnesses. Scroll for seal.

Wills must be signed by testator or some one in his pres-
ence at his request, and attested and subscribed by three wit-
nesses in the presence of the testator and of each other.

Michigan. Deeds must be signed, sealed, acknowledged
and recorded, and have two witnesses.

Wills same as Massachusetts, except only two witnesses
are required.

Minnesota. Deeds same as Michigan. Scroll for seal.

Wills same as Michigan.

Mississippi. Deeds must be signed, sealed, acknowledged
and recorded. One witness. If there be no acknowledgment
two witnesses will prove the deed. Scroll for seal.

Wills. If real estate is devised by other than holographic
will, the testament must be attested by three witnesses in the
presence of testator ; but by only one if personal property is
devised.

Missouri. Deeds must be signed, sealed, acknowledged
and recorded. No witnesses necessary. Scroll for seal.



362 THE UW OF BUSINESS.

Wills must be attested by two witnesses and signed by tes-
tator or some one in his presence.

Nebraska. Deeds must be signed by grantor and one
witness in presence of each other, and be acknowledged and
recorded. No seal necessary.

Wills must be signed by testator, or some one in his pres-
ence, at his request, and attested and subscribed in his presence
by two witnesses.

Nevada. Deeds same as Missouri.

Wills must be signed by testator, or some one in his pres-
ence, and sealed ; also subscribed and attested by two wit-
nesses.

New Hampshire. Deeds must be signed, sealed, recorded
and attested by two witnesses. Scrolls will not do for seals.

Wills must be signed and sealed by the testator, or some
one in his presence, and be attested and subscribed by three
witn esses.

New Jersey. Deeds same as Missouri.

Wills must be signed by the testator, or some one in his
presence, and subscribed and attested by two witnesses, who
must have the testator's acknowledgement of the will, and
sign in his and each other's presence.

New York. Deeds must be signed, sealed, acknowledged
and recorded. If not acknowledged prior to delivery one wit-
ness must attest.

Wills must be signed by testator and two witnesses, in the
presence of each other. The witnesses must add the address
of their place of business.

North Carolina. Deeds must be signed, sealed, ac-
knowledged by one witness and recorded within two years.
Scroll for seal.

Wills must be signed by testator, or some one in his pres-
ence, and by two disinterested witnesses. Holographic wills



. STATE LAWS ON DEEDS AND WILLS. 363

are permitted if testator's signature is proved by three wit-
nesses.

Ohio. Deeds must be signed, sealed, acknowledged and
recorded. Two witnesses. Scroll for seal.

Wills must be signed by testator, or some one in his pres-
ence, and by his direction and in presence of two witnesses
and attested by them.

Oregon. Deeds same as Ohio.

Wills must be signed by testator, or some one in his pres-
ence and by two witnesses- at the same time.

Pennsylvania. Deeds same as Ohio, excepting only one
witness is necessary.

Wills same as Oregon.

Rhode Island. Deeds must be signed, sealed, acknowl-
edged, recorded and delivered. Scrolls will not answer for
seals.

Wills must be signed by the testator, or some one for him,
and by two witnesses in the testator's presence.

South Carolina. Deeds same as Ohio.

Wills must be signed by the testator and three witnesses in
his presence.

Tennessee. Deeds must be signed and recorded, and ac-
knowledged by grantor or two witnesses. No seals.

Wills must be signed by testator, or some one in his pres-
ence, and be signed and attested by two witnesses. Holo-
graphic wills are allowed if three witnesses prove testator's
signature.

Texas. Deeds must be signed, sealed and recorded. Also
acknowledged or proved by two witnesses. Scroll for seal.

Wills must be signed by testator, or some one authorized
by him, and attested by two witnesses, unless holographic.

Vermont. Deeds must be signed and sealed in presence
of two witnesses; also acknowledged and recorded in the city



364 THE LAW OF BUSINESS.

or town where the property is located. Scroll will not answer
for seal.

Wills must be signed by testator or some one authorized
by him, and by three witnesses in testator's presence.

Virginia. Deeds must be signed and sealed, and recorded
within sixty days. Scroll for seal.

Wills must be signed by testator or some one authorized
by him, and have two witnesses who sign in presence of tes-
tator and of each other, unless the will be holographic.

West Virginia. Deeds same as Ohio.

Wills must be signed by testator and two witnesses in
presence of each other. Holographic wills must be signed by
testator or some one for him.

Wisconsin. Deeds same as Ohio.

Wills must be signed by testator or some one in his pres-
ence and be attested and signed by two witnesses.



CHAPTER III.

CONTRACTS.

A CONTRACT is an agreement between competent per-
sons, upon a sufficient consideration, to do or not to
do a particular thing.

A simple or parol contract is a contract not under
seal; it may or may not be in writing.

Specialties are contracts under seal, as deeds, bonds, etc.

A verbal contract is a simple contract in words, either
spoken or written.

An oral contract is a simple contract spoken, or by the
mouth.

An express contract is one in which the terms of the agree-
ment are openly stated and understood at the time.

An implied contract is one some or all of whose terms are
presumed by the law, from considerations of reason and jus-
tice, to exist. As if I engage a man to do a certain service for
me saying nothing about pay, the law will imply that I con-
tracted to pay the value of the work.

The essential qualities of a contract are: i. Assent to all
its terms by the parties thereto. 2. A good and valid consid-
eration, which must be proved except in bills and notes and
other written contracts that bear upon their face prima facie
evidence of consideration, but this is open to contradiction by
parol testimony. 3. The thing contracted to be done must be
lawful. Fraudulent, immoral and forbidden contracts are
void. 4. The contract must not be against public policy or
the statutes. 5. As a general rule the contract must be bind-
ing on both parties, although to this there is a seeming ex-

365



366 THE LAW OF BUSINESS.

ception in the case of an infant, who may sue on his contract
though he can not be sued. An infant, however, is not con-
sidered a competent party to contract, and an agreement with
one would scarcely fall within the strict definition of a con-
tract.

Assent. What is meant by assent of the parties is their
free, mutual and reciprocal concurrence in and approval of
the terms of the contract. Assent may be express or implied,
the first being openly declared, the latter presumed by law.
It may be oral, written or symbolical. In auction sales assent
is almost entirely by signs, a nod from the bidder and a blow
from the auctioneer's hammer showing proposition and ac-
ceptance a completed contract. Assent must be to the same
thing in the same sense; it must comprehend the wdiole of the
proposition, and be exactly equal to it in extent and pro-
visions and must not qualify them by any new matter.

Ordinarily and unless otherwise stated the acceptance
must be made immediately upon hearing the proposition, but
sometimes a definite time is given within which to accept.
Any proposition may be withdrawn at any time before ac-
ceptance. Assent must be free, i. e., not obtained by violence
or intimidation. Duress to any other person will not void a
contract, as to a son to secure the father's assent; there is one
exception to this where a man's wife is held in duress to se-
cure his assent to a contract; here the law makes man and
wife one and any obligation he is forced into in order to re-
lease his wife is void.

Assent must be obtained without fraud. Fraud vitiates
everything. Obtaining assent by correspondence is some-
times attended by some very nice points of law. If I write
you that I will sell you a certain horse for $300, you are en-
titled to a reasonable time for reply, although I can withdraw
the proposition at any time. But the withdrawal takes place



CONTRACTS. 367

when you receive the notice, not when I mail it, and if you
have mailed your acceptance of the offer before my withdrawal
is received I will be held to the proposition it is a contract.

Consideration. By consideration we mean the motive or
inducement for making a contract. Our definition of a con-
tract, which is Blackstone's definition, and which was also
adopted by the celebrated jurist and author, Chancellor Kent,
includes "a sufficient consideration" as a necessary part of the
definition of a legal contract. It is argued by many good
legal minds, including Mr. Stephen, who has written an ex-
haustive and standard work on contracts, that consideration is
not necessary to the idea of a contract. While not necessary
to the idea of a contract, it is admitted by all that it is neces-
sary to its enforcement, and this is the standpoint of definition,
making it include the elements necessary to give the instru-
ment legal validity. Mr. Stephen admits that consideration is
necessary to the validity of a parol contract, and Kent says
that in specialties, in which no consideration is in fact re-
quired, one is always presumed by law, the form of the instru-
ment being held to impart a consideration. Yet we know that
a contract without consideration is called a nudum pactum (a
nude pact) or naked contract, still it is a pactum, and this
would seem to imply that a consideration is not necessary.
But without discussing further the sufficiency of a definition
it will be enough to impress the point that all contracts should
be supported by some consideration to render them valid and
enforceable. The consideration is the very life of a parol con-
tract.

The most important divisions of consideration are good
and valuable.

A good consideration is one of blood, natural love and
affection, and the like. It is used only in deeds and is good
there only between the parties; it will not be sufficient against
third parties in interest.



368 THE LAW OF BUSINESS.

A valuable consideration is one which confers some benefit
upon the party by whom the promise is made ; or some detri-
ment sustained by the party in whose favor the promise is
made. A valuable consideration is usually pecuniary or in
some way convertible into money. A very slight considera-
tion, provided it is valuable, will support a contract. A valu-
able consideration is the only kind that is good against subse-
quent purchasers and attaching creditors.

Among the common valuable considerations to contracts,
in addition to money, goods or chattels and labor are the fol-
lowing : the waiver of any legal or equitable right, at the re-
quest of another ; forbearance for a certain time to institute
suit on a valid claim ; the prevention of litigation ; marriage,
though not convertible into money, is now settled to be a val-
uable consideration. Illegal considerations can not be the
foundation for a contract. Violations of decency and morality
are in contravention of common law and public policy and
contracts for these purposes will not be supported, as to com-
mit or conceal a crime ; or a contract* for future illicit inter-
course.

A contract based upon a natural or physical impossible
consideration is void.

A consideration which appears valuable but turns out a
nullity will not support a contract, as an agreement to do what
one is already obliged to do.

Lawful object. The thing contracted to be done must be
lawful or the contract can not be enforced. It would be con-
trary to public policy, in fact, it would be encouraging wrong
doing for the courts to come to the relief of parties attempt-
ing to violate the law. All fraudulent, immoral and forbidden
contracts are void; contracts against public policy or the
statutes are void, even if the statute does not prohibit the act
but only attaches a penalty.



CONTRACTS. 369

Parties. An idiot can not make a valid contract, neither
an insane person. An infant, or a person under the age of
twenty-one, can not make a contract that will bind him, ex-
cept it be for necessaries in which case he will be held and
have to pay. And if he be married and order necessaries for
his wife and family he will be held. The court considers the
station in life and means of the infant in determining what
are necessaries. A necessity for one might be a luxury for
another. The son of a deceased millionaire would not be re-
quired to subsist on the same allowance that would be suf-
ficient and necessary for a boy of poor parentage who must