very important. But any persons competent to do ordinary acts of business may be witnesses. Nor do the usual qualifica tions for business apply. Thus, married women and minors may be witnesses of wills. But no person should be called upon to witness a will who is a legatee, or an executor, or otherwise interested in the will. If such a person were a witness, it might not avoid the will; but a legatee would lose or be obliged to renounce his legacy; and, generally, it might lead to unintended results. What was said in relation to deeds, of witnesses remembering, etc., or proof of handwriting in case of their death of absence, is true also of wills. As to the body of the will, the testator must express his wishes as clearly and accurately as possible; and, unless he has good legal advice, he should make the disposition of his property as simple as possible. The word "bequeath" applies, properly, to personal estate only; the word "devise," to real estate only. It is safe enough to begin, "I give, bequeath, and devise my estate and property, as follows: that is to say," and then go on and tell what shall be done with this and that piece of property, or sum of money. Words of inheritance should be added to any devise of land (if not intended for the life of the devisee only), as was said in reference to deeds; although they are not required in wills so peremptorily as in deeds. The words of inheritance are,—To A B "and his heirs." If it is intended, as usually is the case, that the will should apply to all the real estate possessed by the testator at the time of his death, although purchased after the will is made, there should be a clause expressing this intention. If children are not provided for in a will, the law sometimes presumes they were forgotten; and it gives to any such child the same share as if there were no will, unless the omission is explained in the will, or by evidence, and shown to have been intentional. If the child were provided for in the lifetime of the father, the law, generally, would not presume that the child was forgotten; it is best, however, to guard against any question of the kind, by saying that the omission to give to the child any. thing is intentional. A testator should always name his executors; but the will is perfectly good without any executor being named, for the court of probate will appoint an "administrator with the will annexed." If the testator desires that his executor or trustee should not give bonds, he should say so distinctly in his will. Nuncupative wills are wills made by word of mouth. Olographic wills are wills written entirely by the testator's hand. In the provinces of the Dominion of Canada, generally the laws as to the construction, effect, and execution of a will are the same as in the United States: the principal difference being that, in the Province of Quebec, the French rule prevails, and an olograph will is valid without witnesses. SECTION II. CODICILS. A CODICIL is a little additional will. That is, it is a testamentary disposition, not revoking the former will, but varying it in some way, or making changes in it. There can be but one will, and that the last; but there may be any number of codicils, all valid. The changes made by a codicil in a will, or in former codicils, should be very distinctly stated; and some words like these should be used: "I hereby expressly confirm my former will, dated excepting so far as the disposition of my property is changed by this codicil." And the codicil should be called, at the beginning and end, a codicil, and executed and witnessed in the same manner as a will. If a codicil gives one a legacy, who has already one by the will, the codicil should state whether it gives the second legacy instead of the first, or in addition to it. And if advances are made to a child during life, there should be an indorsement on the will (but a statement in the will or codicil would be better), stating whether these advances are to be charged to him, and in what way, whether with interest, etc. SECTION III. REVOCATION OF WILLS. THE law concerning the revocation of a will is quite nice and technical. A codicil, we have seen, does not revoke, and a new will does. So might tearing off the name; but then the question might come, who tore it off? It is better to leave nei. ther this nor any other question: and therefore to destroy a I will which it is intended to revoke. If the will is out of the testator's reach and power, and so cannot be destroyed, it would be best to make a new will, revoking the old one; which any testator can always do. A will is revoked by the operation of law, if the testator afterwards marry and have a child. If the testator, after this, intends that his will shall take effect, he should expressly con. firm it; and the correct way to do this would be by making a new will. If he leaves anything to his wife, and intends that she should have it instead of dower, or of the additional rights which recent statutes in some of the States have given her, he should say so. And then she will not have both, but may choose between the provision of the law and that of the will, taking whichever she prefers, and leaving the other. For the rights of the wife or widow in the several States, 1 refer back to the abstract of the statutes of the several States, in Chapter V. Annexed to this chapter is an abstract of the laws of all the States relating to wills. It is impossible to do more than to give such forms and rules as will be applicable to all wills, and enable any person to draw a simple will with safety. No one can express accurately provisions for trust estates, remainders, executory devises, etc., without knowing the law on these subjects-and this is an extensive and difficult department of the law. All that is necessary, and may be relied upon as generally sufficient, is as follows: L (267.) Form of a Will. of place and occupation), make this my last will. I give, devise, bequeath my estate and property, real and personal, as follows, that is to say: Then follow all the provisions and disposition of property which the testator intends, stated fully, plainly, and as accurately as possible, paying due regard to the rules and principles laid down in the chapter of this book on this subject. And if these provisions are carefully presented in distinct and intelligible language, the courts will generally supply whatever of technicality is wanting. Then follows, first, the appointment of an executor, and then the execution, and finally the declaration of the witnesses, thus: I appoint (name, residence, and occupation) executor (or executors if more than one be desired) of this my will. In witness whereof, I have signed and sealed and published and declared this instrument as my will, at (place), on (date). The said (Signature.) (Seal.) at said (place), on said (day), signed and sealed this instrument, and published and declared the same as and for his last will in our presence. And we, at his request, and in his presence, and in the presence of each other, have hereunto written our names as subscribing witnesses. (Here follow the names of three witnesses.) 1, A codicil should be written thus: of (place and occupation), do make this my codicil, hereby confirming my last will made on the (date of the will), and all my former codicils (if there be any), so far as this codicil is consistent therewith; and do hereby Then follows whatever disposition the testator chooses to make, stating and describing it as he would if it were a will, and executing it, and having it attested in the same manner as if it were a will, excepting that, instead of calling it a will, wherever that word occurs, he says, "codicil" instead of "will." If he gives in his will or codicil a legacy to a woman, it is generally best to add "this legacy (or bequest) to be for her sole and separate use, independent of her husband, at all times. (268.) Copy of a fuller Form of a Will. Be it Remembered, That I, State of in the city of in the Esquire, do make this my last will and testament, in manner following. That is to say, I order and direct that all my just debts shall be paid with convenient speed. I give unto Mr. of said city, merchant, the amount of moneys due and owing from him to me, according to the tenor and effect of four promissory notes signed by him, viz: one dated October 16, 1819, for ninetysix hundred and eighty dollars; one dated August 9, 1822, for five thousand dollars; another dated August 9, 1822, for forty-five hundred and fifty-eight dollars; and another dated August 15, 1822, for fifty-six hundred dollars; and I order said four notes to be cancelled. the wife of said Το I give an annuity of six hundred dollars, to be paid her in two equal and half-yearly payments of three hundred dollars each. of It is my will, and I order and direct that a trust fund of ten thousand dollars shall be raised out of my estate and invested at interest, the income and produce of which trust fund I give unto single woman, to be paid to her half-yearly, during her natural life. And at the decease of the said the principal sum or trust fund shall be paid to and among such person and persons in such shares and portions as she, the said by any writing by her signed in the presence of two or more credible witnesses, shall give, direct, and appoint. And in default of such appointment, then said trust fund, or principal sum shall go, as the residue of my estate, to the residuary legatee hereinafter named. I also direct that another trust fund of ten thousand dollars shall be raised out of my estate and invested at interest. And I give the interest and produce of this trust fund, when and as it accrues, unto wife of the . It is my will that the income of this fund, or principal sum shall, during the natural life of said either be paid into her proper hand, or upon her order or receipt, signed by her alone, notwithstanding her coverture. And I declare that neither the principal nor income of this fund shall be subject to the control, debts or engagements of the present or any future husband of said for her sole and separate use. At the decease of said to the issue of said the same being intended I give said principal sum or trust fund and in default thereof to such other person or persons as she, by a last will, or any writing in the nature of a last will, shall give, direct, or appoint the same; and in default of such appointment, it is my will that said trust fund or principal sum shall be disposed of and pass as part of the residue of my estate. I give to two equal sums to said an annuity of three hundred dollars, to be paid by half-yearly, during her natural life. |