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William Herbert Page.

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A
CONCISE TREATISE



ON THE



LAW OF WILLS



BY

WILLIAM HERBERT PAGE

^Of the Columbus, Ohio, Bar, Professor
of Law in the Ohio State University. ;



CINCINNATI, O.

W. H. ANDERSON & CO,

Law Book Publishers.
1 90 1.



1901

COPYRIGHT.

W. H. ANDERSON & CO.



T

\90\



To my friend and former instructor,

WIIvIvIAM FORREST HUNTER,

Dian oj the College of Laiu of the
Ohio State University,

THIS VOLUME IS DEDICATED.



6708-^0



PREFACE.

The object of this volume is to set forth, in a form which is
easy of comprehension for the student, and with a scope and
thoroughness of statement which it is hoped will make it of
value to the practicing lawyer, the law of wills, as applied by
Federal and State C^ourts in the United States. English cases
have not been ignored ; subjects which are collateral to the law
of wills, but necessary to its complete understanding, have been
treated so as to present the subject completely and fully; the
older leading cases upon the subject have been cited; but the
greatest space and attention has been given to the law of wills
proper, and to an exhaustive consideration of the recent adjudi-
cations upon that subject in the United States.

The law of probate and contest is discussed in connection
with the law of wills, contrary to the usual custom. Questions
both of substantive law and of evidence are so involved with
questions of probate and contest that a complete though elemen-
tary statement of the latter subjects finally appeared to be the
method of treating the subject most economical in time and
space.

The law of devises and legacies is so essential to an under-
standing of the diiferent methods of deducing and enforcing
the intention of testator in states of fact different from those
originally contemplated by him, that its presence in a text-book
upon wills is not so unusual a feature as to call for comment.



iv PREFACE.

The history of the law of wills is so essential to an appre-
ciation of the present value and application of the older author-
ities, and to a clear understanding of the present state of the
law, that an outline of the general development of the law and
the particular stages in the evolution of the separate topics has
proved necessary. In wills, more than in almost any other sub-
ject, development has been hastened or modified by legislation;
as a result, the essential continuity of its evolution is less ap-
parent and needs sharper emphasis.

In arrangement of topics, questions of evidence have been
treated separately from questions of substantive law. Greater
clearness in statement is thus obtained without sacrifice of
space.

The statement of the law of wills in the space of one volume
has necessitated compression of language and treatment, but
it is hoped that tliis has not prevented that clearness of state-
ment which is indispensable to any law book of value to student

or practitioner.

William Herbert Page.

Columbus, Oliiu, Fehruai-y, 1901.



CONTENTS.



CHAPTER I.

INTRODUCTION.

PAGE.

§1. The place of the will at modern law 1

§2. Defi-nitions 2

CHAPTER n.

HISTORY OF THE LAW OF WILLS AND TESTAMENTS.

§3. Wills in primitive nations.. 4

§4. Effect of development of property rights upon the law of wills. . . 4

§5. Causes of the growing importance of the will. — Examples 5

§6. Use of the word "will" in Greek and Roman law 6

§7. Effect of Roman law of wills on the English law 6

§8. English will in pre-Norman period 7

§9. Divergence of history of will and testament under feudalism. ... 8

§10. The will at common law abolished by feudalism 9

§11. Attempt to revive wills under statute De Donis 11

§12. Exceptions to common law rule 11

§13. Wills in equity 11

§14. The Statute of Uses 12

§15. The Statute of Wills 12

§16. Abolition of feudal tenures 14

1^17. Testaments in pre-Norman times 15

§18 Doctrine of reasonable parts 15

§19. Power of testator to dispose of his entire personal property. . 16

§20. History of the law of wills and testaments in the United States. 16



CHAPTER in.

NATURE AND EXTENT OF TESTAMENTARY POWER.

§21. General extent of legislative control before testator's death 18

§22. General extent of legislative control after testator's death 20

§23. Power of testator to exclude his wife and children from a share

in his estate. — General rule 21



viii CONTENTS.

PAGE.

§24. Exclusion of wife and children in favor of mistress or illegitimate

children 22

§25. Exclusion of wife and children in favor of charities 22

§26. Perpetuities 25



CHAPTER lY.

THE LAW BY WHICH A WILL IS GOVERNED.

§27. General principles controlling conflict 26

§28. General rule as to realty 26

§29. Law controlling in construction of will 28

§30. Statutory rule as to law controlling 29

§31. General rule as to personalty 29

§32. Effect of change of domicile 31

§33. Distinction between realty and personalty 31

§34. Law controlling in, conversion 31

§35. Law controlling in trusts 32

§36. Law controlling as to capacity of beneficiary to take 33

§37. Law controlling as to lapse 34

§38. Law controlling as to election 35

§39. Law controlling as to powers 35

§40. Law controlling contracts to make a will 35

§41. Rule in absence of evidence as to what law of domicile is 35



CnAPTER Y.

THE INHERENT ELEMENTS OF A WILL.

§42. Classification of elements into inherent and extrinsic 36

§43. Origin and classes of inherent elements 37

§44. Animus testandi not dependent on use of word "will." 38

§45. Animus testandi. — What wishes are testamentary 39

§46. Animus testandi. — What disposition is not testamentary 40

§47. Animus testandi. — Realty of intention 41

§48. Animus testandi. — Expression of intention in definite terms 44

§49. Animus testandi. — Intention that instrument shall take eflfect only

at death of testator 45

§50. Revocability 48

§51. Instruments lacking some inliorent elements 49

§52. Confusion between deeds and wills. — Instruments held deeds.... 49
853. Confusion between deeds and wil's. — Instruments held wills.... 51
§54. Confusion between wills and contracts. — Instruments held con-
tracts 55

§55. Confusion between wills and contracts. — Instruments held wills. 56

§56. Confusion between wills and orders 57



CONTENTS. ^^

PAGE.

59
§57. Will in form of power of attorney 59

§58. Informal wills g2

§59. Precatory words .■■■",", 64

§60. Contingent wills.-What wills are mcruded ■.■.■.■.".■ 64

§61. Validity of contingent wills 66

Examples of contingent wills ^^

Examples or wills held not contingent ^^

Contingency applying to only part of will



§62.
§63.
§64.



CHAPTER VI.

JOINT AND MUTUAL WILLS.

69

865 Wills not included under this chapter. ••••■•;

§66. Wills included under this chapter.-Classification • • • ^^

§67. Validity of joint and mutual wills ,....14:

§68 When admissible to probate ^^

§69. Revocability of joint and mutual wills

CHAPTER YII.

THE CONTRACT TO MAKE A WILL.

§70. Validity of contracts to bequeath or devise and revocability of ^^

wills made thereunder

§71. Necessity of all the elements of a valid contract. . . . . . • • • • • • • • • ^^

§72. Consideration g3

§73. Certainty ... 85

§74. The Statute of Frauds g^

§75. Part performance gg

§76. What is a breach of such contract ^^

^77 Construction and performance ^^

§78. Remedies for breach of contract at law j^^

§79. Remedy for breach of contract m equity '.'.]'.'.'.'.'.'. 95

§80. Election of remedies 95

§81. Evidence •" 97

§82. Parties , . x <)7

§83. Time at which statute of limitations begins to run



CHAPTER VHI.

CAPACITY TO MAKE A WILL.

§84. History of the law of testamentary capacity 98

§85. Time at which capacity must exist ^ '.'!'.'.. 99

§86. Outlawry and attainder



X CONTENTS.

PAGE.

§87. Alienage 100

§88. Nonage 100

§89. Coverture at common law. — Testaments 101

§90. Coverture at common law. — Wills 103

§91. Capacity of married woman under powers 104

§92. Capacity of married woman in equity 105

§93. Capacity of married woman under modern statutes 106

§94. Lack of mental capacity. — Is perfect sanity a requisite of testa-
mentary capacity ? 108

'§95. Is criminal responsibility a test of testamentary cajmcity?. . . .110

§96. Is contractual capacity a test of testamentary capacity? Ill

§97. Test of testamentary capacity now adopted 114

§98. Degree of memory requisite. — Effect of size of estate 117

§99. Classes of those mentally incapacited. — General discussion. .. .118

§100. Idiocy 119

§101. Imbecility 120

§102. Senile dementia.— Old age 121

§103. Insanity 122

§104. Insane delusion. — Definition 123

§105. Analysis of insane delusion. — Mistake of fact 125

§106. Analysis of insane delusion. — Mistake not based upon evidence.. 127
§107. Analysis of insane delusion. — Mistake not removable by evidence.128

§108. Effect of insane delusion on testamentary capacity 128

§109. Lucid interval 130

§110. Eccentricity 132

§111. Spiritualism 133

§112. Drunkenness and the efi'ect of drugs 134

§113. Delirium 135

§114. Delirium tremens 136

§115. Persons under guardianship 136

§116. Disease, great weakness, and approaching death 137

§117. The deaf, dumb and blind 138



CHAPTER IX.

MISTAKE, FRAUD, UNDUE INFLUENCE AND DURESS.

§118. Classes of mistake 140

§119. Mistake in execution 140

§120. Mistake in inducement 141

§121. Mistake.— Statutory rule 142,

§122. Fraud. — General discussion and classification 143

§123. Fraud in execution 143

§124. Fraud in inducement 144

§125. Undue influence. — Definition 145

§126. Theory of undue influence 145

§127. Elements of undue influence 147

§128. Classes and forms of undue influence 149



CONTENTS. xi

PAGE.

§129. Who may exert undue influence 151

§130. Time at which undue influence may exist 151

§131. Efi"ect of undue influence 152

§132. Injustice of will not undue influence 152

§133. Duress 15*



CHAPTER X.

WHAT CAN BE DISPOSED OF BY WILL.

§134. Property in general 156

§135. Ownership of property disposed of by will 156

§136. Insurance policies 15'

§137. Dower, curtesy, and distributive share of personalty 158

§138. Homestead rights 1^9

§139. Community property 161

§140. Non-surviving interests 161

§141. After-acquired personalty 162

§ 142. After-acquired realty 163

§143. Classes of property devisable. — ^Realty in general 164

§144. Effect of disseisin 164

§145. Estates in futuro 165

§146. Possibilities 1^^

§147. Rights of entry devisable 166

§148. Equitable interests 168

§149. Rights of creditors 169



CHAPTER XI.

WHO CAN TAKE UNDER A WILL AND TESTAMENT.
§150. Aliens. — Common law rule 170



§151.



Aliens. — Modern statutory rule 171

§152. Private corporations. — General rule 172

§153. Private corporations. — Special statutory and constitutional

■ • 1 7*?

provisions '^"^

§154. Public corporations 17*

§155. Convicts • 17*

§156. Illegitimate children 175



CHAPTER XH.

EXTRINSIC ELEMENTS OF A WRITTEN WILL OF THE
ORDINARY TYPE.

PAKT I — INTRODUCTION.

!l57. History of the Law of the Extrinsic Elements of Wills 178

?158. General scope of modern statutes 180



xii CONTENTS.

PART II WRITING.

PAGE.

§159. Writing materials which can be used 181

§160. Language in which the will may be written 182

§1G1. Writing on several pieces of paper 182

§162. Incorporation of documents 183

§163. Incorporation of documents. — Reference to document 185

§164. Incorporation by the use of asterisks ■ 185

§165. Actual existence of document at time of execution of will.... 187

§166. Identification of document to be incorporated 187

§167. Effect of incorporation of document in will 189

§168. Reference to verbal instructions 190

§169. Document used to identify beneficiary 190

PART III SIGNATURE OF TESTATOR.

§170. Necessity of seal 190

§171. Methods of signing 191

§r<2. Signature by name 191

§173. Signature by mark 191

§174. Signature by other person 194

§175. Presence of testator . 195

§176. Express direction of testator 195

§177. Who can sign for testator 196

§178. Form of signing for testator - 196

§179. Name of testator added by other to his mark 197

§180. Guiding the hand of testator as signature by testator 198

§181. Place of signature upon will. — Early statutes 199

§182. Place of signature upon will. — Modern statutes 201

§183. Signature with reference to attestation clause 201

§184. Effect of blanks in body of the will 202

§185. Effect of blank immediately before signature 202

§186. Additions after signatMre 203

§187. Signature opposite the end or foot of the will 207

PART IV. ATTESTATION AND SUBSCRIPTION.

§188. Attestation and subscription entirely statutory 207

§189. Distinction between attestation and subscription 208

§190. Number of subscribing witnesses 209

§191. What determines competency of subscribing witnesses 210

§192. Time at which competency must exist 212

§193. Who are competent attesting witnesses 213

§194. Who are beneficiaries. — Nature of interest 213

§19,5. Effect of release 215

§196. Effect of modern statutes 215

§197. Husband or wife of beneficiary. — Common law rule 216

§198. Effect of modem statutes 217

§199. Competency of heir of beneficiary. — Probate judge, executor, etc. .219

§200. Husband of testatrix 221



CONTENTS. xiu

PAGE.

§201. What subscribing witnesses are required to attest 222

§202. The signature of testator to be attested by witnesses 222

§203, Acknowledgment of signature by testator to be attested 222

§204. Acknowledgment of signature by otlier 223

§205. Form of acknowledgment 224

§206. Acknowledgment of will instead of signature 220

§207. Effect of failure to sign or acknowledge before witnesses 228

§208. Capacity of testator to be attested by witnesses 228

§209. Presence. — Mental cognition 228

§210. Presence. — Physical proximity 230

§211. What is a reasonable effort 231

§212. What testator or witness must be able to see 233

§213. Minority view of meaning of presence 233

§214. What is presence of one who is blind 234

§215. Effect of acknowledgment by witness of his signature not made

in presence of testator 235

§216 Presence of each other 235

§217. Aniiiius attestandi 236

§218, Request of testator 237

§219. Signature by witness 238-

§220. Signature of witness by another 239

§221 Place of signature of witness 240

§222, Order of signing 241

§223. Necessity and value of attestation clause. 244

§224. Residence of witnesses 245

PART V PUBLICATION.

§225, Publication.— Definition 245

§226. Form of publication 245

§227, Necessity of publication 247

§228. Publication not a substitute for acknowledgment of signature. .249



CHAPTER XIII.

EXTRINSIC ELEMENTS OF HOLOGRAPHIC, MYSTIC AND
NUNCUPATIVE WILLS.

PART I— HOLOGRAPHIC WILLS.

§229. General nature of Holographic wills 250

§230. Formalities of Holographic wills 251

§231, Place of deposit of Holographic will 253

PART II — NUNCUPATIVE WILLS AT COMMON LAW.

§232. Definition and history of law of nuncupative will 254

§233. Nuncupative wills made by testators of favored classes 257

§234. W^hen nuncupative wills can be made by testators of unfavored

classes 258



xiv CONTENTS.

PAGE.

§235. Place where nuncupative wills can be made by member of un-
favored class 261

§236. The inherent elements of the nuncupative will 261

§237. The extrinsic formalities of the nuncupative will. — The rogatio

testium 263

§238. Number and competency of witnesses to nuncupative wills.... 265

§239. Reduction to writing 266

§240. What can pass by nuncupative will 267

PART III — NUNCUPATIVE TESTAMENTS AT LOUISIANA LAW.

§241. Nuncupative testaments by public act 268

§242. Nuncupative testaments by private act 270

PART IV MYSTIC TESTAMENTS.

§243. Mystic testaments 270



CHAPTER XIV.

REVOCATION.

§244. Nature of revocation and history of doctrine of revocation 272

§245. Classes of revocation 274

§246. Revocation by means of acts manifest on face of the will 275

§247. Act manifest on instrument. — Burning 275

§248. Tearing • 276

§249. Cancelling 277

§250. Mutilation 280

§251. Obliterating 281

§252. Destruction 281

§253. Destruction of duplicate wi^l 282

§254. Partial revocation by act manifest on the will 283

§255. Revocation prevented bj' fraud 285

§256. Animus revocandi. — In general 288



§257. Animus revocandi
§258. Animus revocandi



. — Who is capable of revoking a will 289

—Mistake of fact 290



§259. Animus revocandi. — Mistake of law 290

§260. Animus revocandi. — Attempt to alter will 291

§261. Animus revocandi. — Destruction without testato'-'s authority . .292

§262. Revocation by later instrument. — In general 292

§263. Revocation by informal instrument 293

§264. Revocation by formal instrument 293

§265. Revocation by later instrument not a will 295

§266. What shows testator's intention to revoke will 296

§267. Revocation by later will. — Express revocation clause 296

§268. Revocation by later will. — Xo clause of express revocation. .. .298

$269. Revocation by later instrument. — Distinction between will and

codicil. .' 299



CONTENTS. XV

PAGE,

§270. Effect of loss of later instrument 301

§271. Effect of revocation of later instrument at common law 302

§272. Effect of revocation of later instrument under modern statutes in

England 303

§273. Effect of revocation of later instrument. — American rule 304

§274. Effect of revocation of later instrument. — American statutes. .306

§275. Conditional revocation. — In general 307

§276. Conditional revocation by act manifest on instrument 308

§277. Conditional revocation by later instrument 309

§278. Revocation by alteration of estate. — At common law and equity.. 313

§279. Revocation by alteration of estate. — ^Modern statutes 316

§280. Revocation by change of circumstances. — In general 318

§281. Effect of marriage on will of husband. — Common law and statute. 319

§282. Effect of birth of child on will of father. — Common law 322

§283. Effect of marriage and birth of child on man's will 322

§284. Effect of marriage on will of wife. — Common law and statute. . .324

§285. Effect of change not specified by law 327

§286. Effect of alteration of circumstances after revocation is com-
plete 328

§287. Effect of birth of child upon will of childless parent 328

§288. Effect of birth of child upon will of parent who has other children

living 329

§289. Construction of these statutes. — "Having no child." 330

§290. Construction of these statutes. — "Subsequent" birth, or having

child "afterward" 331

§291. Omission of children from a will 332

§292. What shows intentional omission of a child 333

§293. What is a provision for a child 336

§294. Evidence. — How intention to omit must be shown 339

§295. Necessity of contest bv omitted children 339

§296. Effect of omission upon other provisions of will 340



CHAPTER XY.

ALTERATION AND PARTIAL SPOLIATION.

§297. General principles ^ 342

§298, Definition of alteration 342

§299. Effect of alteration 342

§300. Definition of spoliation 343

§301. Effect of spoliation by a stranger to the will 344

§302. Effect of spoliation by a beneficiary 344



xvi CONTENTS.

CHAPTER XYI.

REPUBLICATION.

PAGE.

§303. Definition 345

§304. History of law of republication 345

§305. Modern statutes 346

§306. Methods of republication. — Re-execution .' 346

§307. Methods of re-execution. — Codicil 347

§308. General effect of republication 348

§309. Application of the doctrine of republication. — After-acquired

realty. . 349

§310. Revivor of prior revoked will 349

§311. Re-execution cures a defectively executed will 350



CHAPTER XYII.

PROBATE AND CONTEST.

§312. History and general nature 352

§313. Necessity of probate 356

§314. What must be probated 358

§315. The court of probate powers 360

§316. Effect of delay in probate 362

§317. Who may propound a will for probate 363

§318. Procedure at probate — Petition 364

§319. Notice 365

§320. Examination of witnesses ex parte 368

§321. Contest. — Limitations 371

§322. Inconsistent wills 374

§323. Nature of contest 375

§324. Necessity of parties. — Notice 377

§325. Who may contest 378

§326. Estoppel 382

§327. Who may defend 383

§328. Pleadings .' 384

§329. Issue in probate and contest 385

§330. Procedure at trial. — Open and close 388

§331. Right to a jury in contest 390

§332. General powers of the court 392

§333. Charge of court 393

§3,34. Evidence sufficient to support a verdict 397

§335. Form of verdict and judgment 399

§336. Effect and operation of order of probate 401

§337. Direct attack 401

§338. Appeal and error 403

§339. Collateral attadk. — On whom is probate binding 403



CONTENTS. ^vu

PAGE.

§340. Collateral attack not allowed

§341 What questions are determined by probate -J

§342 Effect of saving right of contest to certain parties 41.

§343. Effect of judgment refusing to admit will to probate.-rxe-pro-^^^^

pounding '...... 41*4

§344. Costs ^jg

§345. Attorney fees • ■•;

§346. Validity of agreements with reference to contest '*'■*



CHAPTER XYIII.

PROBATE AND CONTEST OF LOST AND SPOLIATED WILLS
AND FOREIGN WILLS.

r LOST AND SPOLIATED WILLS.

420

§347. Definition ^„

§348. Effect on probate of loss or total spoliation of will 4ZU

§349. The court ^22

§350. Parties ^^2

§351. Notice ^22

§352. Petition ^22

§353. Jury ^23

§354. Contest

II FOREIGN WILLS.

, ^ . .,, 423

§355. Definition of foreign will ^^^

§356. Nature of probate of foreign will ^^^

§357. Parties and procedure ^^^

§358. Registry of foreign will



CHAPTER XIX.

EVIDENCE IN PROBATE AND CONTEST.

I-COMPETENCY OF WITNESSES AND GENERAL PRINCIPLES CONTROLLING
ADMISSIBILITY OF EVIDENCE.

, ,. . 428

§359. Scope of discussion ^^^

§360. Common law rule as to competency V" l' ' ' V \^'- '

§361. Modern statutory rules.-Communications with decedent held in-^^^

admissible ^ 1 A'ii

§362. Communications with decedent admissible in will contest. .. .4^1
§363. Competency of subscribing witnesses



xviii CONTENTS.

PAGE.

§364. Confidential communications to one not a subscribing witness. .432

§3C5. Confidential communications to a subscribing witness 433

§366. Evidence of subscribing witnesses 434

§367. Record of evidence given at probate 435

§368. Admissibility of will 436

§369. Definition of burden of proof 437



II EVIDENCE OF EXECUTION.

(

' §370. Burden of proof 439

§371. Presumption where signatures of testator and subscribing wit-
nesses are duly proved - 440

§372. Presumption where subscribing- witness forgets facts of exe-
cution 441

§373. Presumption where subscribing witness is beyond jurisdiction

of court 442

§374. Presumption where subscribing witness denies facts of execu-
tion 443

§375. Presumption from character of scrivener who supervised execu-
tion 443

§376. Declarations of testator. — Res gestae 444

§377. Declarations of testator. — Not res gestae 445

§378. Expert evidence 445

§379. Evidence negativing execution 446

§380. Evidence of animus testandi 447

§381. Questions of law and fact 448

III EVIDENCE OF INCAPACITY.

§382. Burden of proof 448

§383. Presumption of sanity 451

§384. Presumption of continuance of mental condition 452

§385. Nature of will as evidence of capacity 454

§386. Evidence of financial standing of parties 457

§387. Evidence of relations between testator, beneficiaries, and natural

objects of bounty 458

§388. Opinion evidence. — Subscribing witnesses 459

§389. Opinion evidence. — Witnesses other than subscribing witnesses.

—Experts 461

§300. Opinion evidence. — Non-experts 464

§391. Form of questions not calling for opinion 466

§392. Form of questions calling for opinion 467

§393. Time at which opinion must exist 469

§394. Time to which evidence must relate 469

§395. Evidence of insanity of testator's relatives 4/1

§396. Evidence of res gestae of execution 471



Online LibraryWilliam Herbert PageA concise treatise on the law of wills → online text (page 1 of 109)