agreement of the parties, by a termination of the landlord's estate, by an acquisition of the tenant's estate by the landlord, by eviction, by forfeiture, or by surrender. A lease is not ordinarily terminated by the death of either lessor or lessee. A voluntary sale of the premises does not terminate the lease, but merely terminates the relation of landlord and tenant. But a sale of the premises on the foreclosure of a mortgage antedating the lease, or the sale of the premises under an execution, where the judgment was issued before the lease was made, terminates the lease. 495. Eviction.-An eviction may be actual or constructive. An actual eviction by the wrongful act of the landlord or of somebody who has a paramount title terminates the relation. An eviction from part of the leased premises does not terminate the lease, but the landlord can claim no rent during the continuance of the eviction. Tenants are constructively evicted and relieved from further payment of rent when they voluntarily move on account of some dangerous condition of the premises for which the landlord is responsible. A constructive eviction is not complete till the tenant abandons possession. By statute in most states, the destruction of the demised premises by fire or by the elements terminates the lease. 496. Forfeiture and surrender. By forfeiture is meant the right of the lessor to terminate the lease because of a breach of covenant or some other wrongful act of the lessee. The subject of forfeitures is regulated in most states by statutes which usually provide that before the lease can be forfeited there must be a demand upon the lessee to perform his covenants and a notice that if the covenant is not performed, the lessor intends to take steps to forfeit the lease. The term surrender is applied to the act by which a lessee gives up his estate to his landlord. A surrender may be expressed or implied. A surrender is implied when the lessee has abandoned the premises and the lessor has accepted the surrender by some unequivocal act which shows an intention to terminate the lease. It has been held that where a clause in a lease provides that a surrender shall not be valid unless accepted in writing by the landlord, the provision as to the acceptance in writing may be waived orally. EXAMPLE 400a. T enters into a lease with L by the terms of which T is to have L's premises for a term of three years. T had all the negotiations with A, the agent of L. At the end of one year T goes to A and says he would like to give up the premises. A agrees and accepts the keys. L later sues T for rent. T sets up the defense of surrender. L points out that the lease provides that "no surrender shall be valid unless in writing signed by the landlord." T will win because L's authorized agent has waived this requirement of the lease. CHAPTER XXX TRANSFER OF PROPERTY BY WILL OR AD- 497. Definitions and classifications.-A will is a solemn and legal declaration made by a person to designate the person or persons who shall possess and enjoy his property, or certain parts of it after his death. A written will is one that is expressed in some form of decipherable symbols. An olographic or holographic will is one written wholly in the handwriting of the testator. In many states an olographic will may be proved more easily than other forms of wills. A nuncupative will is a verbal will permitted under certain circumstances in all the states of the Union except Connecticut and Louisiana. Often a nuncupative will is valid when made during the testator's last illness and in anticipation of death, and reduced to writing within a specified period after the words were spoken by the testator.1 A codicil is an amendment to a will which changes some of its provisions or adds to it, but does not entirely revoke it. Codicils should be executed with the same formality required in the case of wills. 498. Who may make wills.-The general rule is that every person of full age and of sound mind, who is not under some legal disability, may make a will. Recent statutes in most states permit married women to make 1 "No nuncupative or unwritten will bequeathing personal estate shall be valid, unless made by a soldier while in actual military service, or by a mariner while at sea." Decedent Estate Law, Chapter XIII of Consolidated Laws, N. Y., Sec. 16. wills as freely as unmarried women. In a very few states infants of eighteen years and over may dispose of their property by will, and in New York a female of sixteen and a male of eighteen may make testamentary disposition of their personalty. 499. Execution of wills.-Most states require five or more elements in a provable will: 1. A will must generally be in writing; it may be typewritten, printed, or written in pencil or ink. 2. It must be subscribed by the testator or by some person in his presence and by his direction. An illiterate testator or one physically unable to write may sign by making his mark. Care should be taken to place the signature at the end of the will, and if note-paper is used, to begin the will on the first page and proceed from page to page as in an ordinary book, and not to skip from the first to the third to the second to the fourth page as is sometimes customary in letter writing. Many careful lawyers insist upon having each page of a will signed by the testator. 3. A will should be published when signed; that is, the testator should declare that he intends the instrument to operate as his last will and testament. While this requirement exists in a few states only, it will be wise to observe it in all states. 4. A will should be acknowledged by the testator; this is done by signing it in the presence of witnesses or by telling them afterwards that it is a will and that it has been signed. 5. A few states require a seal. One or more witnesses are required in all the states except Pennsylvania. A wiser precaution is to have three competent and disinterested persons sign as witnesses in the presence of the testator and in the presence of each other, immediately after the testator has subscribed his name. Many states require an attestation clause, a model of which will be found in the will of Russell Sage.1 The usual rule is 1 WILL OF RUSSELL SAGE. I, Russell Sage, of the City and State of New York, do hereby make, publish and declare this my last will and testament in manner and form following: First. I direct that all my just debts and funeral expenses be paid as soon after my decease as conveniently can be done. Second. I give and bequeath to my sister, Fanny Chapin, wife of Samuel Chapin, of Oneida, N. Y., should she survive me, the sum of ten thousand ($10,000) dollars. Third. I give and bequeath to each and every of my nephews and nieces of my own blood me surviving the sum of twenty-five thousand ($25,000) dollars, and in the event that any of such nephews or nieces shall have died before me, leaving lawful issue him or her surviving, then I give and bequeath a like sum of twenty-five thousand ($25,000) dollars to the surviving lawful issue of each nephew or niece so dying before me, the same to be distributed among such issue share and share alike per stirpes and not per capita. Fourth. All the rest, residue and remainder of my estate, real, personal and mixed, wheresoever situate, of which I may die seized or possessed, or to which I may be entitled at the time of my decease, I give, devise and bequeath to my wife, Margaret Olivia Sage, to have and to hold the same to her absolutely and forever. Fifth. This provision for my wife is to be in lieu of all right of dower in my estate. Sixth. I authorize and empower my executors, hereinafter named, and the survivors or survivor of them to sell and dispose of all or any of the real estate of which I shall die seized or possessed at public or private auction, at such times and on such terms and conditions as they, the survivors or survivor of them, shall deem best or proper, and to execute, acknowledge and deliver all proper writings, deeds of conveyance and transfers therefor. Seventh. Should any of the gifts and bequests made by me in the second and third paragraphs of this, my will, lapse or fail for any reason I direct that the bequests so lapsing or failing shall go to and form part of my residuary estate and be disposed of under and in accordance with the provisions of the fourth paragraph of this, my will. Eighth. I nominate, constitute and appoint my wife, Margaret Olivia Sage, Dr. John P. Munn, of the City of New York; Almon Goodwin, of said city, and Charles W. Osborne, long my confidential and trusted assistant, the survivors and survivor of them, executrix and executors of this, my last will and testament. In the event of the death, refusal or inability to act of said Charles W. Osborne, I hereby nominate and appoint Edward C. Osborn, also for |