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property, and name of owner and contractor, if known; but original contractors cannot file lien until sixty days after completion of contract. Persons other than original contractors must, ten days before filing lien, give written notice of the claim and amount thereof. Proceedings to fore. close lien must be begun within six months.
OF THE DISPOSAL OF PROPERTY BY WILL
OF WILLS. Few persons are aware how very difficult it is to make an unobjectionable will. There is nothing one can do, in reference to which it is more certain that he needs legal advice, and that of a trustworthy kind Eminent lawyers, not practised in this peculiar branch of the law, have often failed in making their own wills, both in England and in this country. And there are .eldom blank forms for wills printed and sold, as there are for (leeds and leases. Nevertheless, it may happen that one is called upon to make his own will, or a will for his neighbor, under circumstances which do not admit of delay; or he may have some interest in the will of a deceased person, and questions may have arisen, which some knowledge of legal principles will answer. We shall try to state here what may be of use in such cases; and shall append a form for a will.
Any person of sound mind and proper age may make a will. A married woman cannot, unless in relation to trust property, whereof the trust or marriage settlement reserves to her this power; or the statute law of her State gives it, as is the case now in many States.
One must be of full age in order to devise real estate. But in most of our States minors may bequeath personal property; and a frequent limitation of the age for such bequest is eighteen years for males, and sixteen years for females.
The testator should say distinctly, in the beginning of the instrument, that it is his last will. If he has made other wills, it is usual and well to say, “hereby revoking all former wills ;” but the law gives effect to a last will always.
It should close with the words of attestation : “In witness whereof, I have hereunto signed and sealed this instrument, and published and declared the same as and for my last will, at
In a very
Then should follow the signature and seal; for this latter, although not always required by law, is usually and properly affixed.
The witnessing part is very material. The requirements in the different States are not precisely alike; but they are all intended to secure such attestation as will leave the fact of the execution of the will, and its publication as such, beyond doubt.
few States, it is enough if the signature be proved by credible witnesses, although there be no witnesses who subscribed their names to the will. In many, two subscribing witnesses are enough. It is so in the provinces of the Dominion of Canada, generally. But in some States it is necessary, and in all I recommend, that the testator should ask three disinterested persons to witness this will ; and should then, in their presence, sign and seal it, and declare it to be his will; and they should then, each in the presence of the testator and of the other witnesses, sign their names as witnesses. See the Abstracts at the close of this chapter.
Each should see the execution which he says he witnesses; and the signing by the witnesses should all be seen by the testator; but the law is satisfied if the thing is done near the testator, and where he can see if he chooses to look. If the testator is too feeble to write his name, let him make his mark; and for this purpose any mark is enough, although a cross is commonly made. So, if a witness cannot write his name, he may make his mark; but this should be avoided if possible.
Over the witnesses' names should be written their attestation; and any alteration in the will should be noticed. If the attestation be in the following words, it will be safe in any part of this country : “At on this
signed and sealed this instrument, and published and declared the same as and for his last will; and we, in his presence, and at his request, and in the presence of each other, have hereunto subscribed our names as witnesses."
Witnesses should be selected with care, where that is possible ; for if any question arises about the testator's sanity, or anything of the kind, their evidence is first to be taken, and is
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 remem. bering, etc., or proof of handwriting in case of their death og 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 AB"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 wili 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 blograph will is valid without witnesses.
A CODICIL is a little additional will. That is, it is a testa. mentary 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
l like these should be used : “I hereby expressly confirm my former will, dated
excepting so far as the disposi. tion of my property is changed by this codicil.” And the cod. icil 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.