Fuller v. *Hooper (r), where a person by will gave legacies to all her nephews and nieces, except those thereinafter named, and desired her executors to look upon all memoranda in her handwriting as parts of, or a codicil to, her will; and then bequeathed the residue to the children of her sisters; and by a codicil she gave legacies to some other nephews and nieces; Lord Hardwicke held, that the nephews and nieces mentioned in the subsequent part of the will, and not those mentioned in the codicil, were excluded from the first mentioned legacies; because the testatrix meant to refer, not to her will or testament, which takes in all the parts, but to the particular instrument (s). *A will is in its nature a different thing from a deed, and although A will is differ- the testator happen to execute it with the formalities of from a deed: a deed; e. g., though he should seal it, which is no part ent in its nature their legacies under the codicil. Where a testator devised property to the children of B. in like manner as they were entitled under the will of B., it was held that the testator referred to the will and codicils of B., as the whole together must be taken to be his will: Pigott v. Wilder, 26 Beav. 90. If a man by codicil ratifies and confirms his last will he ratifies and confirms it with every codicil that has been added to it, and this even though the will be described by its date: Green v. Tribe, 9 C. D. 231; Crosbie v. Macdoual, 4 Ves. 619; In the Goods of De la Saussaye, L. R. 3 P. & D. 42; but not necessarily if the earlier codicil through want of attestation or otherwise has no proper vigor of its own, but derives its force (if at all) from the later codicil: Burton v. Newbery, 1 C. D. 234, disapproving Gordon v. Reay, 5 Sim. 274. In the one case the question is whether the later codicil revokes an earlier operative one: in the other whether the later codicil sets up an earlier inoperative one. The intention to revoke a bequest once operative must be clear: Follett v. Pettman, 23 C. D. 337, 343. (r) 2 Ves. Sen. 242, and supplement by Belt, 333. (8) So, in Early v. Benbow, 2 Coll. 354, the testator, by his will, directed that the legacies "hereinbefore by me bequeathed" should be paid free of legacy duty: By a codicil which he directed might be taken as part of his will, he gave other legacies and Knight Bruce, V. C., held that the legacies given by the codicil were not given free of legacy duty, his Honor being of opinion that the word "herein" was meant to refer to no more than the particular instrument in which it was contained. However, several cases may be found, where an additional legacy, given by a codicil, though not so expressed, has been held subject to the same incidents as the original legacy given by the will: See Day v. Croft, 4 Beav. 561; Warwick v. Hawkins, 5 DeG. & Sm. 481. See also the other decisions with respect to the legacy duty, collected infra, Pt. III. Bk. V. Ch. III. Where a testator executed a codicil to his last will, and by such codicil absolutely revoked and made void all bequests and dispositions in the will and nominated executors, but did not in direct terms revoke the appointment of executors and guardians in the will, it was held by Lord Penzance that the will was not revoked: In the Goods of Howard, L. R. 1 P. & D. 636. or ingredient of a will;6 yet it cannot in such case be considered as a deed (t). It is also a peculiar property in a will, as it will hereafter more fully appear, that by its nature it is in all cases a revocable in all cases reinstrument, even should it in terms be made irrevoc- vocable; able (u); 7 for it is truly said, that the first grant and the last will is of the greatest force (v). Another essential difference between a will and a deed may be mentioned, that there cannot be a conjoint or mutual will: there cannot be an instrument of such a nature is unknown to the testamentary law of this country (x). But there are several authorities 6. In New Hampshire a will must be executed under seal. So, too, in Nevada. But a seal is not necessary to give validity to a will unless it be required by statute. New Hampshire, Nevada and Delaware alone require a will to be sealed, but formerly it was necessary to seal a will in Massachusetts, Ohio and Vermont. (t) Lord Darlington v. Pulteny, 1 Cowp. 260; Attorney-General v. Jones, 3 Price 368. See post, Pt. I. Bk. II. Ch. II. ? III., as to what instruments are testamentary. (u) Vynior's Case, 8 Co. 82 a. See post, Pt. I. Bk. II. Ch. III. 7. The intention of the maker of the instrument determines whether it shall be taken to be a will. Lyles v. Lyles, 2 Nott & McC. 531; Means v. Means, 5 Strobh. 167; Brown v. Shand, 1 McCord 409; Estate of Wood, 36 Cal. 75; Wright v. Brotherton, 2 Rawle 133; Atwood v. Geiger, 69 Ga. 498. This intention is to be ascertained in three ways: 1. When it is expressed on the face of the instrument. 2. When the instrument, not being a will in form, but being a deed, letter, memorandum or other writing containing an actual disposition of the estate, to take effect after death, is in effect and operation a will. 3. By parol proof, when the instrument is doubtful, and the intention cannot be collected from the face of the paper. But the general rule is that this intention must be gathered a joint will. from the contents of the whole instru- which appear to show that this doctrine does not go further than to deny that a conjoint or mutual will can be made with the characteristic quality of being irrevocable, unless with the concurrence of the joint or mutual testators. Such a will is certainly revocable (y). But if either of the testators die without revoking it, the will is valid and entitled to probate as far as respects his property (z). Where, however, two testators made a joint will containing devises and legacies to take effect after the decease of both of them, it was held that probate could not be granted of the will during the lifetime of either (a).8 (y) But see post, Pt. I. Bk. II. Ch. III., as to the irrevocability of such a will in equity. (2) In the Goods of Stracey, Dea. & Sw. 6. In the Goods of Lovegrove, 2 Sw. & Tr. 453. (a) In the goods of Raine, 1 Sw. & Tr. 144, coram Sir C. Cresswell. But quære, whether the delay of the effect of the will interfered with its title to immediate probate as the will of the deceased testator. 8. In Ohio a joint will is unknown to the law. Walker v. Walker, 14 Ohio St. 157. But in other states of the United States such wills are recognized. Schumacher v. Schmidt, 44 Ala. 454; Ex parte Day, 1 Bradf. 476; Breathitt v. Whitaker, 8 B. Mɔn. 530; In re Diez, 50 N. Y. 88. And it would seem that while such an instrument is revocable as a will, it is irrevocable as a compact. Gould v. Mansfield, 103 Mass. 408; Evans v. Smith, 28 Ga. 98; Clayton v. Liverman, 2 Dev. & Bat. L. 558. So, too, as to an agreement to make mutual wills. Izard v. Middleton, 1 Desaus. 116. A will made jointly by husband and wife was, on the death of the husband, sustained as his will. Rogers, Applt., 11 Me. 303; and also in Connecticut the joint will of two sisters was sustained as the will of the one who died first. Lewis v. Scofield, 26 Conn. 452. But where two persons agree to make mutual wills, bad faith in one, either in failing to make the will or in destroying it, will not prevent the probate of the will of the other party. Bynum v. Bynum, 11 Ired. L. 632. See Flood on Wills 431; Walkem on Wills 170; 1 Redf. on Wills 182; Dixon on Probate 45. 11 *BOOK THE SECOND. OF THE MAKING, REVOCATION AND REPUBLICATION OF WILLS OF PERSONAL ESTATE. CHAPTER THE FIRST. WHO IS CAPABLE OF MAKING A WILL OF PERSONALTY. It may be laid down generally, that all persons are capable of disposing of their personal estate by testament, who have sufficient discretion, their own free will, and who have not been guilty of certain offences (a). Wherefore there are three grounds of incapacity; 1, the want of sufficient legal discretion; 2, the want of liberty or free will; 3, the criminal conduct of the party.1 (a) Swinb. Pt. 2, s. 1. 1. As a general proposition, apart from the disabilities to be considered in the following pages, every person has the right to make a will and to dispose of his property in any manner and to any persons that he may elect, however unjust, inequitable or absurd the disposition made may seem to others. He may do as he chooses with what he has. Wood v. Bishop, 1 Dem. 512; Seguine v. Seguine, 3 Keyes 663, 671; Potter v. McAlpine, 3 Dem. 108, 115; Reynolds v. Root, 62 Barb. 250; Clapp v. Fullerton, 34 N. Y. 190; Clark v. Ellis, 9 Oreg. 128; Nicholas . Kershner, 20 W. Va. 251; Pierce v. Pierce, 38 Mich. 412; Billing's Appeal, 49 Conn. 456; Fraser v. Jennison, 42 Mich. 206; Coffman v. Hedrick, 32 W. Va. 119. And this power to do as he will in the distribution of his property constitutes one of the most valuable parts of the testamentary right. Kitchell v. Beach, 8 Stew. (N. J.) 446 He may give all his property to strangers and disinherit his relatives. He may divide his estate un equally among his children, or he may devise it to others. Potter v. McAlpine, ubi supra; Horn v. Pullman, 72 N. Y. 269; Hollis v. Drew Theological Seminary, 95 Id. 166; Sheiley v. Sheiley, 81 Ky. 240; Spratt v. Spratt, 76 Mich. 384; Wisener v. Maupin, 2 Baxt. 342; Schneider v. Manning, 121 III. 376 And this power of disposition is coterminus with his life. Potter v. McAlpine, ubi supra. And this power is spoken of as a sovereign right, recognized by the law. Coffman v. Hedrick, ubi supra. It is his privilege, in this regard, to be guided by his prejudices, or his caprices, or even to indulge his passions, and it is not within the province of any court, either of law or equity, to give judgment against the exercise of this privilege, because to such court the provisions of his will may seem to be unjust or unreasonable, or to be prompted by unworthy motives, or to be the result of prejudice or passion. Marvin v. Marvin, 3 Abb. Ct. App. Dec. 192; Clark v. Ellis, ubi supra; Rice v. Rice, 50 Mich. 448; Salisbury v. Aldrich, 118 Ill. 199; Cha This may be the proper place to mention two cases which do not come, in strictness, under any one of these heads. Formerly alien friends, or such whose countries were at peace with ours, might make wills to dispose of their personal estate (although being incapable of holding real property, they were of course equally so of devising it);2 but alien enemies, unless they had the king's license, express or implied, to reside in this country, were in Aliens. ney v. Bryan, 16 Lea 63; Carter v. Dixon, 69 Ga. 82. In the absence of other evidence, the mere fact that the testator discarded all of his relatives and devised all his property to mere friends, is of no weight in support of a claim that the testator lacked capacity. Smith v. James, 72 Iowa 515. And in cases where the division is unequal, it is wholly immaterial whether the testator had any reasons therefor or not. Freeman v. Easly, 117 Ill. 317; Stover's Will, 28 Minn. 9; Carpenter v. Calvert, 83 Ill. 62. However, it is absolutely requisite that the person making a will should know and appreciate its contents, otherwise it is not his will. Taylor v. Cresswell, 45 Md. 422. It is as much the duty of courts to uphold the right of the owner of property to dispose of it by will, according to his pleasure, as it is to see that he is not imposed upon in the exercise of that right. Dumont v. Dumont, 1 Dick. 223. 2. Alien friends, or those whose countries are at peace with ours, may make wills to dispose of their personal estate (but where they are incapable of holding real estate, they are equally so of devising it); but alien enemies, unless they have the privilege, express or implied, to reside in this country, are incapable of making any testamentary disposition of their property. 1 Redf. on Wills 8, et seq.; 2 Kent 53, 54; 2 Sugden on Vendors (8th Am. ed.) 401, 402; Theobald on Wills 19. By statutes in many of the American states, the rights and privileges of aliens have been greatly enlarged, and in some of them the ancient distinctions against aliens have been wholly removed. 2 Kent 69, et seq. But these provisions are strictly local, and will not extend beyond the boundaries of the enacting state. Therefore, an alien, who may have been admitted to privileges in one state, subsequently moving into another, can claim no greater privileges therein than those granted by the statute law of that state. Nor would the United States admit any foreigner, before he had been duly naturalized according to the act of congress, to any privileges other than those to which he is entitled by treaty, or the law of nations, or the statute law of the state in which he lives. In New York, aliens are made capable, by statute, of taking real estate by descent. Sutliff v. Forgey, 1 Cowen 89; Howard v. Moot, 64 N. Y. 262, 270. And a grant, by the legislature, of lands to an alien and his heirs, enables the heirs, although aliens, to inherit. Jackson v. Etz, 5 Cowen 314. This is also so in Massachusetts. Commonwealth v. Andre, 3 Pick. 224. But where the lands of an alien escheat, the state has no right to enter and take possession until office found. Jackson v. Adams, 7 Wend. 367. It is said by Chase, C. J.: "The court are of opinion, on the first point, that the title of Thomas McCreery, an alien friend, is good against everybody but the state, and that his right and possession could not be divested but by office found, or some act done by the state to acquire possession." McCreery v. Allender, 4 H. & McH. 409, 412. But see |