Every will shall

the instrument becomes operative, there is growing up a tendency to draw a marked distinction between the nature of a conveyance and a will. It is now said that a will is never a conveyance; a conveyance transfers property during life, while a will can effect a tranfer only after death. Death transfers the property, the will says only where it shall go, Comstock v. Adams, 23 Kans. 524; a will simply designates where the title shall go. Martindale v. Smith, 31 Kans. 273; Green v. Green, 34 Id. 740; City of Leavenworth t. Stille, 13 Id. 548.

(b) See the Interpretation clause, sect. 1, Preface. See also 3 Curt. 478, 479.

3. In the United States statutes similar to the Wills act generally prevail. 4

(e) A statutory construction has been put upon these words by stat. 15 Vict. c. 24. See post, p. 67.

4. Signature at the end of the will is required by statute in Arkansas, Idaho, Kansas, Montana, Nebraska, New York, North Dakota, Ohio, Pennsylvania, South Dakota and Tennessee. Other statutes require the will to be "subscribed" by or for the testator: California, Connecticut and Kentucky. As to what constitutes a signing "at the foot or end thereof," see In re Conway, 124 N. Y. 455; Hitchcock v. Thompson, 6 Hun 279; Sisters of Charity v. Kelly, 7 Id. 290; S. C., 67 N. Y. 409; Brady r. McCrosson, 5 Redf. 431; Will of Cohen, Tuck. 286; Matter of O'Neil, 27 Hun 130; Tonnele v. Hall, 4 Comst.

be in writing and testator in the pres

signed by the tes

ence of two witnesses at one time:

Kent 501; 1 Redf. on Wills 4, 168. In Alabama and other territory under the northwestern ordinance of 1787, the first provision for wills required them to be in writing. The act of 1306 required this only as to devises of real property, and contained for bequests of personalty exceeding $100 in value, the provisions of 19 of the Statute of Frauds, as to calling on witnesses and proof by them, and for all nuncupative wills of personalty the provisions of 19 as to time and place. Subsequently by the code all wills were required to be in writing, except bequests of personal property not exceeding $500 in value, and the provisions of 19 were applied to all nuncupative wills. The provisions of 20

140; Gilman v. Gilman, 1 Redf. 354; Lewis v. Lewis, 13 Barb. 17; Butler v. Benson, 1 Id. 526; Wineland's Appeal, 118 Pa. St. 37; Ginder v. Farnum, 10 Id. 98; Baker's Appeal, 107 Id. 381; Stricker v. Groves, 5 Whart. 386; Hallowell v. Hallowell, 88 Ind. 251; Allen v. Everett, 12 B. Mon. 379; Flood v. Pragoff, 79 Ky. 607; Glancy v. Glancy, 17 Ohio St. 134; Owens v. Bennett, 5 Harr. (Del.) 367; Warwick v. Warwick, 86 Va. 596; Waller v. Waller, 1 Gratt. 454; Roy v. Roy, 16 Id. 418; Adams v. Field, 21 Vt. 256; Miles' Will, 4 Dana 1; Boone v. Lewis, 103 N. C. 40.

As to the signing of the will by another person for the testator in the various American states, see post, p. 105, n. 8.

were also enacted, and 21. In Arkansas by the territorial law of 1815 the provisions of 19 and 20 are made applicable to nuncupative wills; likewise ? 21. But it is only required that persons present be called on by testator to witness where the value of the property bequeathed exceeds $200, and in such case the fact must be proved by two witnesses. The provisions of 19 with the above -changes are extended to all nuncupative wills by the Revised Statutes of 1838, and all nuncupative wills are prohibited which bequeath property in excess of $500. It is also provided that there shall be no probate of a nuncupative will after the lapse of six months, unless reduced to writing within fifteen days after making and signed by the witnesses; nor shall such will be proved within twenty days after testator's death, nor without citation as in 21 of the statute of frauds. All other wills must be in writing. In California all wills must be in writing except nuncupative wills.

The pro

visions of 19 of the statute of frauds are contained in the act of 1850, to be proved by two witnesses present, but the provision as to place was afterwards struck out by amendment of 1874. Moreover, no nuncupative will could be made for property exceeding $500 in value. This was changed to $1,000 by the code of 1872, by which it was further provided that "the decedent must at the time have been in actual military service in the field or doing duty on shipboard at sea, and in either case in actual contemplation, fear or peril of death; or the decedent must have been at the time in expectation of immediate death from an injury received the same day." Section 20 of the statute of frauds remains, the time for reducing to writing being enlarged to thirty days; likewise 20,

reduction to writing being made, however, a condition to probate. In Colorado all wills must be in writing except nuncupative wills. A nuncupative will of personal property is valid if reduced to writing within a reasonable time" (formerly thirty days), and proved by two credible witnesses. The witnesses must also prove that they were present at the pronouncing of the will, and believe that the testator was of sound mind and memory, and that the testator called upon some person present to bear witness, and that the will was made during his last sickness and reduced to writing within ten days. No letters testamentary on such will can issue for sixty days after testator's death, and there could be no probate without citation of widow or next of kin. In the District of Columbia devises of real property were required to be in writing by the code of 1816, and now no nuncupative will is allowed, except wills of soldiers and sailors not exceeding $200 in amount. In Connecticut real property can only be devised by written will, and this requirement was extended in 1848 to wills of personal property. In Delaware all devises of land must be in writing. Nuncupative wills of personal property were at first valid, if reduced to writing and subscribed by two witnesses within two days after testator's death, and proved within six months, by acts of 1700 and 1706. By act of 1753 nuncupative wills of personal property exceeding £50 in value were invalid, unless proved by two witnesses who were present at the publication, and unless made during testator's last sickness, and at his home or place where he had resided at least ten days, except in case of surprise or sudden death before returning home And such will must be proved within six months, and must have

been reduced to writing within six days after being pronounced, and no probate or letters could be granted on such will within fourteen days after testator's death. These provisions were changed in 1829 to the present law, which makes nuncupative wills valid only to the amount of $200, and requires that they be published in the presence of two witnesses, and reduced to writing within three days, and postpones their probate for thirty days after testator's death. In Florida devises of real property are required to be in writing, and nuncupative wills were only valid, if pronounced during testator's last sickness in the presence of two or more witnesses (since 1828, three) called upon by testator to bear witness. Originally such will must have been reduced to writing within six days, and proved within six months; now changed to a prohibition of probate after six months, unless reduced to writing and sworn to by the witnesses within six days after being pronounced. No probate can be granted on such will until sixty days after testator's death, and upon citation of widow and next of kin. Such will

5. In New York the signatures of subscribing witnesses are effectual only when such witnesses sign after the testator. Rugg v. Rugg, 21 Hun 383; Sisters of Charity v. Kelly, 67 N. Y. 409; Knapp . Reilly, 3 Dem. 427, 432. But in Pennsylvania the witnesses may sign first. Miller v. McNeill, 35 Pa. St. 217. And in New Jersey the validity of the will is not affected by the fact that one of the witnesses signed before the testator. Mundy v. Mundy, 2 McCart. 290, 294. So too in Connecticut it is held that it makes no difference in what order the testator and witnesses sign, provided

may be revoked by parol, if the revocation be reduced to writing, read to and approved by the testator, and the facts proved by three witnesses. In Georgia the English statute of 29 Charles II., c. 3, is printed in full in Schley's edition of English statutes in force in that state. By act of 1852 all wills must be in writing, except nuncupative wills. All property

may pass by nuncupative will. Nuneupative wills must be proved by three witnesses present at the publication of the will, and called on by the testator to bear witness to it, and can only be executed during testator's last sickness, and at his house or his residence for at least ten days before his death, unless he was surprised by sudden sickness and death away from home, and such will must be reduced to writing within thirty days after being pronounced, and proved within six months after testator's death. In Idaho it is provided that all wills, except nuncupative wills, must be in writing. Nuncupative wills may be made, but they must be reduced to writing within thirty days after the words were spoken; and must be admitted to probate within six months after

7

it be all part of one transaction. O'Brien v. Gallagher, 25 Conn. 229.

As to statutory provisions of the various states as to the witnesses requisite for the due execution of wills, see post, p. 117, n. 16.

Holograph wills in general require no attestation. Such wills, when written throughout and signed by the testator, are recognized as valid by statute of Arkansas, California, District of Columbia, Florida (formerly), Kentucky, Louisiana, Michigan (formerly), Mississippi, Missouri (formerly), Montana, North Carolina, Pennsylvania, Tennessee, Texas, Virginia and West Virginia.