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}



A TREATISE



LAW OF WILLS



BY

JAMES SCHOULER, LL.D.

Profbssok at Boston University Law School and Author op Treatises on
" erbcutors and administrators," " domestic relations," " bail-
MENTS " AND " Personal Property "



THIRD EDITION



BOSTON

BOSTON BOOK COMPANY

1900



9H<^S\/2^



I



Copyright, 1886,
By JAMES SCHOULER.



Copyright, 1892,
By JAMES SCHOULER.



Copyright, 1900,
Bv JAMES SCHOULER.

r



KLKCTROTTPED AWP PRINTED BT

X. MoREY & Son, UKEKyriELD, Mass.



NOTE TO THIRD EDITION.



The author has personally revised the present edition of this
volume, making use of the latest English and American cases
to illustrate his topics, upon the general plan originally pursued
in preparing this work, and necessarily with most copious ref-
erence to the essentials of a probate. In the lesser details of
preparation competent assistance has been rendered.

J. S.

August 20, 1900.

iii



^35^9



PREFACE.



This book has been prepared as a companion volume to the
author's work on " Executors and Administrators," which was
issued about three years ago, and found a rapid sale. It treats
of Wills, their nature, essentials, and mode of interpretation ;
while the former book discussed the Administration of estates,
testate and intestate, and the rights and duties of Executors
and Administrators ; and the two volumes together fairly com-
prehend the English and American law relating to Estates of
Decedents, traced historically and logically down to the present
day.

The writer's plan of treatment follows that pursued in his
former volume, and described in its preface. Abstruse and
superfluous details have been subordinated to the idea of clearly
presenting to student and practising lawyer the main principles
of our law; and, writing from an independent standpoint, the
author has not felt hampered by the necessity of parcelling out
our excellent American jurisprudence to hang in footnotes upon
the random hooks of any English treatise. English and Ameri-
can systems are here freely compared, and their lines of legal
thought placed in proper contrast. Statute models, forms of
wills, and practical suggestions to testators will be found in the
Appendix. In all matters which pertain to probate practice, it
is believed that these two volumes will be found ample for gen-
eral study and reference ; while under the final head of Testa-
mentary Construction, in this volume, all the guiding principles
are set forth, it is hoped, with sufficient fulness and precision.

The only American work which may be thought to have oc-
cupied before a field like this is the well-known and popular one
of Judge Redfield. But the peculiar preparation of that work



VI PREFACE.

was such that further revision from the author's hand was
looked for ; and with the death of that accompHshed scholar
and revered friend, more than ten years ago, and the extinction
of his family line, not only has revision failed altogether, but
other writers need no longer feel delicate in taking up the task
anew. The present author may truly say that he has found
far less assistance from that work than from those English
standard authorities, Williams and Jarman, as annotated by our
competent American editors/ The brief treatises of Hawkins
and Sir James Wigram have proved serviceable, too, under the
head of Testamentary Construction ; also Wharton and Stille
on Medical Jurisprudence, where the wills of insane persons
are discussed. All such assistance, English or American, is
fairly shown by the citations at the foot of each page ; and the
present writer has collected his own materials, besides, relying
throughout, as usual, upon his independent investigation of the
law, and bringing the decisions, English as well as American,
as nearly as possible to the date of publication.

JAMES SCHOULER.

Boston, January i, 1887.

' Williams on Executors and Administrators, 7th English edition (Perkins's
American notes), and Jarman on Wills, 4th English edition (Bigelow's American
notes) are cited in the present work.



TABLE OF CONTENTS.



PART I.

INTRODUCTORY CHAPTER.

NATURE AND ORIGIN OF TESTAMENTARY DISPOSITION.

Page

§ I. Definition of Will i

Last Will and Testament ; Testament and Testator 2

3. Gift; Devise; Bequest 3

4. Property: Real, Personal and Mixed 4

5. Legacy â–  . . . . 4

6. Wills, Written and Unwritten, or Nuncupative 5

7. Codicils, or Postscripts to Wills 5

" Will " includes " Codicil " 6

Testaments in the Civil Law ; Special Kinds ; Mystic, Holograph,

etc 6

When a Will or Testament comes into Force; Revocation and

Alteration 7

Effect of a Subsequefit Statute upon One's Will 8

Origin of Wills ; Natural Law of Succession 9

13. Origin of Wills; Historical Views of Succession 10

14. Origin of Wills in England 13

15. The Same Subject: Devises of Land 14

i6. Origin of Wills in the United States 15

17. Prevalent Rule of Succession; the Will of the State and the Will of

the Individual 15

18. The Same Subject: where the Will of the State is Paramount . . 16

19. The Same Subject : Husband and Wife 17

The Same Subject : Children unprovided for ... 18

The Same Subject: Gifts Void as creating Perpetuities, for Super-
stitious Uses, etc 19

22. The Same Subject : Gifts Subversive of Good Morals 21

23. The Same vSubject: Personal Incapacity to take under a Will ... 22

24. The Same Subject : Incapacity of Corporations 24

25. The Same Subject : Infancy, Insanity, Coverture, etc., does not in-

capacitate from taking 26

26. The Same Subject : Maxims of Testamentary Construction ... 26

vii



Vlll TABLE OF CONTENTS.

Page
§ 27. The Same Subject: General Conclusion 27

28. What may be given by a Will 28

29. The Same Subject : Property acquired after the Will was made . . 30

30. Scope of Investigation to be pursued 31



§ 31
32
33
34
35
36
37
38



PART .II.

CAPACITY AND INCAPACITY TO MAKE A WILL.
CHAPTER I.

TESTAMENTARY CAPACITY IN GENERAL.

What Persons may make a Will : General Rule ;^;^

Measure of Capacity the Same as to Property Real or Personal . . 33

Whether Crime disqualifies from making a Will 34

Whether Aliens may make Testamentary Disposition 35

The Same Subject : Theory of a Devisable Title 36

The Same Subject : Late Statutes affecting the Disability .... 37

Whether a Sovereign may make a Will 38

Wills of Seamen, etc 39

CHAPTER II.

INCAPACITY OF INFANTS.

§ 39. Incapacity of Infants founded in their Indiscretion 40

40, 41. Earlier Rule more Favorable to Infants' Wills than that of the

Present Day 40> 4i

42. Infant's Will InvaUd, where Want of Discretion, etc., is shown . . 42

43. Modern Legislation treats the Wills of Infants with Disfavor. . . 43

44. Infant's Appointment of a Testamentary Guardian 44

CHAPTER III.

INCAPACITY OF MARRIED WOMEN.

§ 45. Incapacity at Common Law arising from Coverture 45

46. Marriage a Revocation 46

47. Modern Changes effected by Courts and Legislation as to Wife's

Incapacity 47

48. Exceptions to Incapacity; Wife may bequeath with Husband's

Assent • 47



TABLE OF CONTENTS. IX

Page

§ 49. The Same Subject : American Rule 49

50. Wife's Disposition as Executrix 50

51, 52. Wife's Will of Separate Property; English Rule . . . . 51, 52

53. The Same Subject : where Spouses live apart 53

54. Wife's Will of Equitable Separate Property; American Rule . . 55

55. Modern English Statutes of Wills ....'. 55

56. 57. Wife's Will under Late American Statutes 56, 57

58. Wife's Will under the Civil Law; Present Tendency to Conjugal

Equality 59

59. Re-Execution of Will after Coverture ; Expectant Property, etc., 60

60. Devise or Bequest to the Husband ; his Marital Influence . . 61

61. Husband's Agreement as to Wife's Testamentary Disposition of her

Lands 62

62. Mutual Wills of Husband and Wife 63

63. Wife's Gift Causa Mortis 63

64. Wife's Execution of a Testamentary Power 64

CHAPTER IV.

INCAPACITY OF INSANE PERSONS IN GENERAL.

§ 65, 66. Will of an Insane Person Void ; Difficulty of Modern Tests 67, 68

67. Standard of Mental Incapacity in Wills as compared with Con-

tracts, etc 69

68. General Standard of Testamentary Capacity stated 72

69. The Same Subject : More Deference to Testator in Earlier Cases 73

70. Incapacity is more than Weak Capacity; Enfeebled Testator may

make a Will 74

71. The Same Subject : the Testator's Mind should act without Prompt-

ing ; Attention aroused, etc 76

72. The Test of Testamentary Capacity should be referred to the Par-

ticular Instrument and Transaction 77

73. Testamentary Capacity consistent with Execution of a Will in Ex-

tremis 78

74. Testamentary Capacity consistent with Insane Delusions, etc. . 79

75. Modes of testing Capacity, as between Monomania and Habitual

Insanity ,..,..... 79

76. Effect of Insanity where a Will and Codicils are executed ... 80

77. Unjust and Foolish Wills viewed with Suspicion 80

78. The Just Will of an Insane Person considered ....... 82

79. Manner of making and executing the Will 82

80. Testamentary Capacity as contrasted in Complex and Simple Estates 83

81. Will of one under Guardianship not necessarily Void .... 83

82. The Same Subject : Adjudication of Idiocy 85

83. Sound and Disposing Mind and Memory 85

84. Testamentary Capacity not dependent upon Sound Health . . 87

85. Classification of Insanity ; the Various Kinds 87

86. The Same Subject: Insanity Defined 88

87. Psychology of Mental Unsoundness, and Unity of the Disorder . 89



X TABLE OF CONTENTS.

Page
§ 88. Courts apply Practical Tests without attempting Exact Classifica-
tion 90

89. Testamentary Capacity as applied in Tests of Mental Unsoundness

or Coercion 90

CHAPTER V.

INCAPACITY OF IDIOTS, IMBECILES, AND PERSONS DEAF, DUMB, AND

BLIND.

§ 90,91. Idiots are Incapable ; What is Idiocy 92,93

92. Idiots and Utter Imbeciles have no Testamentary Capacity . . 94

93. The Same Subject illustrated 94

94. Persons born Deaf, Dumb, and Blind 95

95. The Same Subject ; Unfavorable Presumption, if any, may be over-

come 97

96. Persons Deaf, Dumb, or Blind, but not born so, presumed Ca-

pable 98

97. Liability of Deaf, Dumb, and Blind to Imposition and Error . . 98

98. The Same Subject : Wills of Blind Persons 99

99. General Conclusion as to the Wills of the Deaf, Dumb, and Blind 100

CHAPTER VI.

LUNACY AND GENERAL MENTAL DEBANGEMENT.

§ 100, loi. Scope of Present Chapter; Lunatic.^ and Others of Mental

Unsoundness in the Medium Degree 103, 104

102. Illusions are a Proof of Unsound Mind; Perversion and False

Judgment are also found 105

103. Attempts of Experts and Others to classify Insanity 105

104. Common Symptoms or Manifestations of Insanity 106

105. The Will of a Lunatic or one Mentally Diseased is Invalid . . 108

106. Effect of Restoration to Health, and Intermittent Insanity . . loS

107. Lucid Intervals 109

108. Lucid Intervals, as distinguished from Mere Abatement of Mania,

etc 109

109. Lucid Intervals in Cases which involve Testamentary Capacity . 109
no. Will may be established as made during a Lucid Interval; Burden

of Proof 113

111. Lucid Intervals ; Clear and Satisfactory Proof required .... 114

112. Circumstances Favorable to Proof of Lucid Interval; a Just and

Natural Will 115

113. Other Circumstances Favorable to Proof of Lucid Interval . . . 117

114. Lucid Interval more easily established in Delirium, etc., than in

Habitual Insanity 118

115. Proof should be scrutinized where Mental Disease is Insidious and

Slow 118



TABLE OF CONTENTS. XI

Page
§ ii6. Doubtful Instances of Mental Derangement; Paralysi, Trostration,

etc 119

117. The Same Subject illustrated: Mississippi Case 120

118. The Same Subject : Other Illustrations : Epilepsy, Apoplexy, etc. . 121

119. Mental Condition nearly Contemporaneous with the Will, etc. . . 122

120. Suicide not Conclusive of Insanity 123

CHAPTER VII.

DELIRIUM, DRUNKENNESS AND DEMENTIA.

§ 121. Delirium of Disease and its Symptoms 124

122,123. Delirium Incapacitates ; Effect of Lucid Intervals . . 125,126

124. Delirium Tremens, and Drunkenness or Intoxication in General . 127

125. The Same Subject : Drunken Habits may impair the Reason . . 12S

126. When Intoxication invalidates a Will, and the Reverse .... 129

127. Burden of Proof, etc., where Drunkenness is alleged 130

128. The Rule of Testamentary Capacity in Drunkenness illustrated . 131

129. Dementia as distinguished from Mania or Dehrium 131

130. Senile Dementia, or the Mental Decay of the Aged: Litigation on

this Ground 132

131. The Same Subject : when the Mind begins to decay 134

132. The Same Subject : Loss of Memory One of the First Symptoms

of Mental Decay 134

133. The Same Subject: Casual Observers Untrustworthy as compared

with those Famihar with the Testator 135

134. Senile Dementia disqualifies One from making a Will, but not Old

Age Alone 135

135,136. Wills of the Aged should be tenderly regarded 137

137. Instances in which Wills of the Aged have been sustained . . . 138

138. The Same Subject : Circumstances favoring Probate of the Will . 139

139. Extreme Old Age suggests Vigilance in Probate; Mental Imbecil-

ity vitiates 140

140. Instances in which Wills of the Aged have not been sustained . . 141

141. Rule of Capacity for Dementia not Different from that for Mania. 142

142. Opinions as to the Capacity of an Aged Testator carry no Great

Weight in Doubtful Cases 142

CHAPTER VIII.

MONOMANIA AND INSANE DELUSIONS.

§ 143. Monomania a Preferable Term to Partial Insanity; the Mind a

Unit 144

144. Monomania defined; how distinguished from Eccentricity; Insane

Delusions 145

145. The Same Subject : Eccentricity further distinguished 147

146. Insane Delusion has no Basis in Reason ; Reason and Evidence

cannot dispel it 148



Xll TABLE OF CONTENTS.

Page
§ 147. Delusions, Sane or Insane, in General 148

148. Delusions which do not involve Mental Incapacity 149

149. Whimsical or Eccentric Behavior Does not incapacitate .... 150

150. 151. Illustrations of Eccentric Wills 150, 152

152. Eccentric Habits may afford Evidence of Insane Delusion . . . 153

153, 154. Monomonia or Insane Delusion involves Derangement; its

Selfish Manifestations 153, 154

155, 156. English Opinions of Monomania as affecting Testamentary

Capacity 155, 157

157, 1 58. English Cases stated where Wills were refused Probate because

of Insane Delusion 159, 160

159. American Maxims as to the Effect of Monomania upon Testa-

mentary Capacity 161

160. American Cases stated where the Will of a Monomaniac was sus-

tained 163

161. American Cases stated where the Will of a Monomaniac was not

sustained 164

162. 163. Insane Delusion to be distinguished from Prejudice or Error,

as well as Eccentricity 166, 167

164. Aversion not amounting to Insane Delusion illustrated .... 168

165. Rational or Irrational, Just or Unjust, Character of the Will to be

considered 169

166. 167. Leading Principles applied to Religious Opinions; Delusions

upon Matters Supernatural, etc 170, 172

168. Wills of Persons believing in Witchcraft, Spiritualism, Clairvoy-
ance, etc 172



CHAPTER IX.



PROOF OF CAPACITY AND INCAPACITY.

§ 169. In Uncontested Cases of Probate, much is taken for granted by the

Court 175

170. In Contested Cases, the Burden of Proof is upon the Propounder

of the Will 176

171. The Rule of Burden of Proof sometimes laid down otherwise as to

Mental Capacity 177

172. Burden of proving Capacity; Presumption in favor of Sanity ; Con-

fusion of Rules 178

173. English Authorities on this Subject 178

174. American Authorities on this Subject 180

175. The Same Subject; whether Subscribing Witnesses must first tes-

tify as to Insanity 182

176. Where Evidence of Unsoundness appears from Examination of

Witnesses, Proponent must overcome it 185

177. Production of Subscribing Witnesses if possible 186

178. Testimony of Subscribing Witnesses Important, but not Conclu-

sive 187

179. English Practice as to producing the Subscribing Witnesses . . . 188



TABLE OF CONTENTS. Xlll

Page
i8o. Declaration of Deceased or Absent Subscribing Witnesses Incom-
petent as to Sanity or Insanity 189

181, 182. How Witnesses may test Capacity for themselves ; they should

not Execute unless satisfied 189, 191

183. Effect of a Statement in the Attestation Clause, vouching for the

Testator's Sanity ' 192

184. Proponent goes forward and has Right to open and close the

Case 192

184a. Prima Facie Case, how established 192

185. Questions of Validity at Issue ; Testamentary Capacity to be deter-

mined upon all the Evidence 193

186. Testamentary Capacity at the Date of the Transaction the Real

Point at Issue 193

187. Various Matters of Proof bearing upon this Issue : Insanity once

shown, presumed to continue, etc 194

188. The Same Subject : Proof of General Insanity 195

189. The Same Subject : Proof of Lucid Interval or Restoration . . 197

190. The Same Subject : Proof of Monomania or Insane Delusion . . 198

191. Proof of Drunkenness, etc 199

192. Personal History of Testator in an issue of Insanity; Autopsy,

etc 199

193. Declarations, Letters, etc., of Testator, how far Admissible as to

Mental Capacity 200

194. Miscellaneous Points as to Evidence in Such Cases 202

195. The Same Subject : Declarations of those interested under the

Will 203

196. Character of the Witnesses who testify as to Capacity .... 203

197. Whether Unprofessional Persons can give their Opinions as to

Insanity 204

198. Subscribing Witnesses, though not Experts, may testify as to Ap-
parent Sanity 205

199. 200. Whether Other Witnesses, not Experts, may state their Opin-

ions as to Sanity ; Unfavorable Decisions 207, 209

201. The Same Subject : Favorable Decisions 210

202. The Same Subject: English Rule 212

203. Restrictions where the Opinions of General Witnesses are Admis-

sible 212

204. Opinion of Physicians, Attendants, etc 214

205. The Same Subject: Medical Experts, etc 215

206. Expert Testimony Admissible as to facts observed, or hypotheti-

cally 217

207. The Same Subject : Limitations to Such Expert Testimony . . 218

208. To what Time Opinion of Witness relates ; does not extend to

Legal Capacity, etc 219

209. The Issue of Sanity is not to be concluded upon Mere Opinions;

General Conclusions 219

210. Expert Testimony further considered ; Books of Medical Science,

etc 221

211. Competency and Value of Expert Opinion 222

212. In what Manner Questions should be put to an Expert .... 223



XIV TABLE OF CONTENTS.

Page

§ 213. General Conclusion as to Expert Testimony 223

213(2. Final Observations : Proof of Sanity and Due Execution ; Effect

of Probate, Costs, etc 225

CHAPTER X.



ERROR, FRAUD, AND UNDUE INFLUENCE.

§ 214. Error, Fraud, and Undue Influence remain to be considered in

Connection with Testamentary Capacity 226

215. Fundamental Error vitiates a Will ; Effect of Partial Errors . . 226

216—218. How far Errors may be corrected in the Probate . 228, 230, 231

219. The Same Subject : expunging Something Superfluous .... 233

220. Equity Jurisdiction to correct Mistakes 234

221. Where Fraud or Force vitiates a Will 235

222. The Same Subject : Importunity and Undue Influence .... 236

223. Equity Jurisdiction of Fraud and Force; Probate Courts decide

Such Questions 237

224. General Considerations as to Fraud and Deceit . . .... 239

225. Fraud, Undue Influence, etc., vitiate when acting upon a Weak

though Capable Mind 240

226. Bodily and Mental Condition at the Time of Execution of Great

Consequence in the Issue 240

227. Undue Influence defined; Something Sinister is always imputed in

the Present Connection 241

228. How Undue Influence may be exerted 243

229-231. To invalidate a Will for Fraud, Undue Influence, etc.. Testator's

Free Agency must be overcome 245, 247, 248

231^. Bounty distinguished from Legal Duty, in Such Issues .... 249

232. Fraud, Constraint and Undue Influence relate to the Time of mak-

ing the Will and its Execution â–  . 249

233. Testament need not originate with Testator; but the Will must be

his 250

234. A Will invalidated for Fraud, Undue Influence, etc., fails as to All

whose Benefit is procured 251

235. These Maxims applied to Parental and Filial Relation 251

236. These Maxims applied to the Marital Relation ; a Wife's or

Mother's Influence, etc 252

237. The Same Subject : a Husband's Influence 255

237a. Existence of an Illicit Relation 255

238. Fraud, Undue Influence, etc., must have taken Effect; Natural or

Unnatural Will, etc 255

239. Burden of Proof, as to Fraud, Force, or Undue Influence . . . 258

240. The Same Subject : Evidence in Point freely admitted .... 260

241. Proof of Fraud, Forgery, etc 262

242. Character of the Evidence to establish Fraud or Undue Influence . 262

243. The Same Subject : Declarations of the Alleged Testator . . . 265

244. Declarations, Admissions, etc., of Legatees or Parties in Interest . 268

245. Suspicious Circumstance that the Will is drawn by the Party deriv-

ing a Benefit 269



TABLE OF CONTENTS. XV

Page
§ 246. Confidential Relation in General implies Opportunities which must

not be abused 271

247. Proof that the Testator knew the Contents of the Will .... 274

248. Probate in Part, where Fraud, Undue Influence, etc., operated in

Part 275

249. In General, a ¥\il\ Probate does not insure against a Partial Failure

in Effect 276

250. Full or Partial Failure of Probate through Incapacity, Fraud, Error,

etc 277

251. Inspection of Instrument by Jury 277

251^. Mental Capacity and Undue Influence are Distinct Issues . . . 278

251(5. Undue Influence: Subsequent Parol Assent of Testator Insufficient 27S



PART III.

FORMAL REQUISITES OF A WILL.
CHAPTER I.

WHAT CONSTITUTES A WILL.

§ 252. Wills are written or unwritten ; Modern Legislation requires most

Wills to be in Writing and duly witnessed ::j^

253. Real and Personal Property now treated alike; but not so formerly, 2S0

254. But American Statutes relating to Wills are of Local Origin . . 282

255. Holograph Wills ; how far recognized by Legislation 2S2

255a. Will drawn up by Another 2S3

256. Other Statute Peculiarities as to Form, Signature, and Attestation, 2S4

257. A Will not properly executed and attested, is Inoperative under