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§ 148. Occupying claimant.-It sometimes happens that one has a claim of title, and thinking it good enters upon land of another and makes valuable improvements on it. In such a case the occupant may, under the occupying claimant's statutes, which have been enacted in most of the states, file his complaint and have his improvements and the land appraised separately, and the owner is then given the option to take possession upon his paying the claimant the appraised value of the improvements and the taxes paid, with interest, deducting the value of the rents and profits and the damages assessed against the occupant for waste or other causes. If the owner fails to make his election, the occupant may remain in possession upon paying the value of the land aside from the improvements. This is not a common law right, but is purely statutory.
$ 149. Title by marriage.—Title by marriage or by dower and curtesy we have already considered.
$ 150. Title by descent.-Where a man dies intestate being the owner of lands, the law disposes of the property by transferring the title to those who by virtue of the law of the place where the land lies are his heirs. The title the heirs take is a title by descent, and the person from whom the estate descends is called in law the ancestor. The statutes of descent vary in the different states according to the wishes of the citizens as expressed in legislation, as in some states, where those of the whole blood of the ancestor are preferred to those of the half blood, etc. Those who take land by descent take it charged with its burdens; these may be in the form of mortgage or other lien created by the ancestor, or in the form of a general indebtedness, which, so far as it is in excess of the personal estate of the ancestor, is a charge upon the real estate. Personal property left by an ancestor also descends to his heirs, but with this difference, the line of descent as to personal : property is fixed by the laws of the place where the ancestor resided at the time of his death, not where he happened to be, but the place of his fixed residence; while the line of descent as to his land is governed by the law of the place where it lies. Where heirs are of one class, as sons or daughters, they take equally, share and share alike, but if there are children and grandchildren, the children take a full share each, and each set of grandchildren take what their parent would have taken if living. But in some states, as in Indiana, if there are grandchildren only left as heirs, the estate is divided equally amongst them all. Illegitimate children may inherit from their mothers alone, unless by adoption, according to rules prescribed for such proceedings, they are legitimized by the father.
§ 151. This is not the place to give the rules of descent as they prevail in all the states. It is believed, however, that the following are of general application. Where heirs take by descent, they take as tenants in common. Posthumous children may inherit. Bastards may inherit froin and transmit inheritance to the mother. Children born before marriage and acknowledged after, and children born during a marriage void in law, are legitimate and may inherit. Males are not preferred to females.
§ 152. Title by devise.—Title by devise is where
the ownership of land is transferred by will. Such a transfer of land is called a devise. The person who takes it is a devisee. The person who dies and leaves a will is a testator, and the person named in the will and charged with the duty of carrying out its pro* visions is an executor.
§ 153. Wills.-Wills are of great antiquity, and it is said by some writers that it is impossible to find evidence of any time in human history when they did not exist in some form, though Sir Henry Maine maintains that they probably did not exist among the barbarians before their invasion of the Roman Empire. He further says that to the Romans belongs pre-eminently the credit of inventing the modern will, the institution of which, next to the contract, has exercised the greatest influence in transforming human society.
$ 154. There is no general law of the United States on the subject of wills, each state having its own laws as they find expression in the decisions of the state courts, or in statutory enactments. Who may make a will is the first question. Generally all persons of full age and sound mind are capable, though in some states married women are deprived of the right. The capacity to make a will must exist when it is made, and subsequent incapacity will not invalidate it. Whether the testator possessed the requisite capacity is a question of fact for the jury—the interpretation of the will, the power to declare its meaning, is for the court. Ordinarily, a will must be reduced to writing and must be subscribed by the testator in the presence of attesting witnesses, who shall also subscribe the same in the testator's presence and at his request. Nuncupative or verbal wills may be made by which personal property of a limited value can be disposed of, and the manner of making and proving such wills is regulated by statute. After a will is made, it is common for the testator to add to the original will certain modifications of it. These must be reduced to writing, and be attested in like manner as the original will. Such modifications are called codicils.
$ 155. A will may be revoked in several ways. The making of a new will revokes all prior wills. The testator may revoke his will by mutilating or destroying it with the intent to revoke it, or such mutilation or destruction may be done by any one at the request of the testator. The subsequent sale of land devised by a will revokes the will as to that land. The testator may revoke the will by a writing, subscribed and attested like a will, in which his intention to revoke it is clearly expressed. A will is sometimes revoked by operation of law, as when a child, unprovided for in the will, is subsequently born.
§ 156. Wills relating to land must be executed and attested according to the forms required by the law of the place where the land lies. Wills disposing of personal property must be executed according to the laws of the place where the testator resided at the time of his death. The provisions of wills executed and proved in a foreign country or another state may be enforced wherever property is found belonging to the testator, and disposed of by the will, upon producing and placing of record a copy of the will and a duly certified copy of the proceedings by which the will was admitted to probate. The methods of proving and enforcing the provisions of such wills are regulated by statute.
$ 157. A will may be set aside in a suit brought for that purpose by any party in interest, when it is proved that the will was unduly executed, that its execution was procured by fraud or duress, or that the testator did not possess the legal capacity to make a will.
$ 158. Title by purchase.—The cumbersome methods of transferring title to real estate which were customary under the common law of England have never prevailed in this country, though in some localities there are useless intricacies and mysteries in the forms of conveyance which were invented and are perpetuated by scriveners and lawyers for their own profit and at great expense to their clients. Since real estate has become a commodity, and has lost in public estimation much of that fictitious dignity with which it was clothed by the common law, the forms of buying and selling and conveying it have been much simplified. Title bonds, quitclaim and warranty deeds are about the only instruments necessary to carry out the intention of the parties. A title bond is an agreement signed by the seller agreeing to convey to the buyer, for a stipulated price to be paid, certain land described in the instrument. A quitclaim deed is a form of conveyance in which the grantor conveys to the grantee, his heirs and assigns, all the grantor's present interest in land. A warranty deed is a form of conveyance by which the grantor conveys land to the grantee, his heirs and assigns, with an agreement expressed in the deed