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in his presence and by his direction, and attested and subscribed in his presence by three or four credible witnesses. By a recent statute in England, a will devising lands there, must be signed at the bottom of the will by the testator, or some one by his direction and in his presence, and be attested by at least two witnesses, who must subscribe it in the testator's presence.1

4. The same disposition which favored devises of lands in England, was introduced into this country at its settlement, and the system has always been in operation here. The formalities required in executing such wills, vary according to the statute provisions of the several States, though these will be found to be substantially the same in every State.

But before examining these provisions in detail, there are a few general principles which may be noticed, as applicable in all the States, as well as the English law. And, in the first place, a will is always ambulatory, as it is called, always inchoate, and may, at any time, be altered or destroyed by the testator during his life. It is only operative and effectual at and after his death.2

5. The witnesses to a will are, in the theory of the law, placed around the testator when executing it, as judges of his capacity to make it, and when called upon to testify in respect to this capacity, they are, unlike all other witnesses who do not come within the class of "experts," at liberty to express an opinion upon the subject, which is to be taken as competent, though not conclusive evidence, [*682] by the court or jury. It is *not necessary for the witness

to see the testator sign, if he requests the witness to attest it, and he does so in the testator's presence.*

6. The witnesses must subscribe their names, attesting the will in the presence of the testator. What shall be a "presence," depends, somewhat, on circumstances. But it seems to be necessary, first, that the witnesses, when subscribing, should be in such a situation that the testator could see the act done, and know whether the paper which they attested was his will. And second, the attestation must be made while the testator is in a conscious state. If subscribed in

1 Wms. Real Prop. 168; Stat. 7 Wm. IV., and 1 Vict. ch. 26.

2 Vynior's case, 8 Rep. 82 a; 2 Bl. Com. 502; 4 Kent, Com. 520.

31 Greenl. Ev. § 440.

Tilden v. Tilden, 13 Graf, 103, 110; Nickerson v. Buck, 12 Cush. 332, 341.

his bodily presence, while he is insensible, it is a void attestation.1 But a mark made by the testator in place of his name, if intended as a signature, will be a good execution of a will.2

7. In the next place, the witnesses must be competent to testify, at the time of attestation. In some States they are required to be credible, in others, competent. But the meaning of the terms is the same.3

8. The law of the place where the land is situate, governs in the matter of the forms and solemnities requisite to give effect to a will designed to operate upon the same, though, in a majority of the States, as is the case in Massachusetts, a will made according to the forms of the other State where the testator dwells, may be admitted to probate in the State where the land is situaté.4

9. The number of attesting witnesses required to give validity to a will of lands, is, in fourteen of the States, at least three. In seventeen of the States, two witnesses are sufficient. *The [*683] laws of Louisiana on the subject are peculiar. In Arkansas, Kentucky, Mississippi, Texas, and Virginia, an exception is made in respect to requiring attesting witnesses where the will is what is called an olograph, wholly written and signed by the testator himself. The States requiring three witnesses, as stated by Mr. Thornton, and as will be found by reference to the statutes of the States, are Connecticut, Florida, Georgia, Maine, Maryland, Massachusetts, Michigan, Mississippi, New Hampshire, New Jersey, North Carolina, Rhode Island, South Carolina, Vermont, and Wisconsin. Those requiring two, are Alabama, Arkansas, California, Delaware, Illinois, Indiana, Iowa, Kentucky, Minnesota, Missouri, New York, Ohio, Tennessee, Texas and Virginia. In Vermont and New Hampshire, a seal is required to give validity to a will. But though very frequently adopted by testators in other States, it is not, it would seem, necessary, in any other State, to the validity of a will. In Pennsylvania,

1 2 Greenl. Ev. § 678.

2 Nickerson v. Buck, 12 Cush. 332, 341.

32 Greenl. Ev. § 691; Hawes v. Humphrey, 9 Pick. 350; Haven v. Hilliard, 23 Pick. 10. See also, the cases Windham v. Chetwynd, 1 Burr. 414, and Hindson v. Kersey, 4 Burns, Eccl. Law, Phill. ed. 116, for the celebrated conflict of opinion between Lord Mansfield and Lord Camden, upon the point of time in respect to which this competency relates, whether the making or the probate of the will.

Story, Confl. Laws, § 474; Mass. Gen. Stat. ch. 92, § 8; United States v. Crosby, 7 Cranch, 115; Thornt. Conv.

it seems, while it is necessary to prove a will by at least two witnesses, it is not requisite that they should have attested and subscribed the same in the testator's presence. Besides these general requirements, there are more or less stringent rules adopted in most of the States, in respect to the presence of the witnesses at the execution of the will, as to how far they must see the testator sign, in order to attest its execution, and how far the testator, when executing it, must make an express declaration or publication that it is his will, &c., which it is not deemed important to detail in a work which does not profess to treat of the practical forms of conveyancing. To obviate the incompetency of a legatee or devisee to be a witness to a will, it is declared, in most of the States, that such legacy or devise shall be void.1

10. In respect to the effect of admitting a will to proof, a different rule prevails in most, if not all, the States, from that in England. In the latter, wills of the personalty are filed and admitted to proof in the proper ecclesiastical court, and when so proved be[*684] come valid to all intents, and are received as such in the trial of all collateral questions depending upon their validity. But there being no provision for the probate of wills of real estate, it is necessary to establish their execution by proof whenever any question arises in courts involving the inquiry. Whereas, in this country, provision is made in the several States for establishing a will by a general probate thereof, when it becomes, like a judgment of court, conclusive evidence of its own due execution in the trial of any matter involving such an inquiry in any other court.2

11. Though wills speak, as it is called, at the death of the testator, and have no operation until then, it often becomes necessary to in. quire when they were made, in order to determine questions involving their validity and effect, as, for instance, whether at that time the testator was of competent age, of sane mind, and the like, and also, whether the will operated upon property of which the testator may be in possession at his death. Thus, while at common law a will operated upon whatever personal property the testator might have at the time of his death, such was not the case with his real property, of which only so much passed by the will as the testator was seised of at the time of making his will, and continued to be

14 Kent, Com. 508. North Carolina and Tennessee, are exceptions. Gass, 3 Humph. 278; N. H. Rev. Stat. ch. 156, § 6.

21 Greenl. Ev. § 518.

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seised of at the time of his death. After-acquired real property did not pass by such will, even if acquired by an exchange for what he did then own. And if the testator should have sold a parcel of the land which he held at the time of making his will, and afterwards repurchased the same, it would come within his after-acquired property.1 So, if he had changed his interest as mortgagee into an absolute ownership by foreclosure.2

12. But now, by the present English law upon the subject, a will speaks as if made at the testator's death, and whatever he may then have which is within the terms of the will and is intended to be devised, passes thereby. And such is substantially the law in several of the United States by statute, namely, *New York, [*685] Vermont, Massachusetts, Pennsylvania, Virginia, Maine, Connecticut, New Hampshire, North Carolina, and Illinois.3

13. The general qualifications of a testator or testatrix for making a good will, are age, mental capacity, and freedom from legal disability. The statute of wills excludes persons from making wills who are infants, femes covert, idiots, and persons of nonsane memory. The law, in requiring a testator, if a male, to be of the age of twentyone years, in order to be competent to make a valid will of real estate, is believed to be uniform in nearly all the States. But in several, females of the age of eighteen years are made competent to devise lands. Such is the case in Maryland, Mississippi, Illinois, and California, and by statute of the latter State, the same rule, as to age, applies to males.1

14. The capacity of femes covert to make wills, is derived from statute. Among the States where the common law, in this respect, is altered, are Ohio, Massachusetts, Arkansas, California,8 Mis

1 Wms. Real Prop. 172; 1 Jarm. Wills, 1st Am. ed. 43; 4 Kent, Com. 510. 2 Brigham v. Winchester, 1 Met. 390; Ballard v. Carter, 5 Pick. 112.

8 Wms. Real Prop. 173; 4 Kent, Com. 512; Mass. Gen. Stat. ch. 92, § 4; Me. Rev. Stat. 1857, ch. 74, § 5; Conn. Rev. Stat. p. 345, § 4; N. H. Rev. Stat. ch. 156, § 2; Vt. Rev. Stat. p. 254; No. Car. Rev. Stat. 607, § 5; Willis v. Watson, 4 Scam. 64; 1 Jarm. Perk. ed. 85, 86, note.

4 Maryland, Code, Vol. I. p. 685; Mississippi, How. & H. Comp. Stat. 385; Illinois, Stat. ed. 1858, p. 479; Cal. Stat. 1850-1853, p. 140, § 1.

5 May devise lands held in her own right. Allen v. Little, 5 Ohio, 65; Swan, Stat. 1024, § 1.

Gen. Stat. ch. 108, § 9, may make a will of her real estate like a feme sole.

7 Dig. Stat. p. 1073, § 3, limited to such power as is secured by marriage settlement on, or authority in writing from her husband before marriage.

8 Stat. 1850-1853, p. 140, § 2, may make a will, if her husband consent in writing.

8

9

souri, Kentucky,2 Connecticut, Wisconsin, Rhode Island,5 [*686] Alabama,6 Illinois, Indiana, Maine, Michigan,10 *New Hampshire," Pennsylvania,12 Tennessee,18 Vermont,1 Maryland, and Kansas. 15

15. In respect to the other qualification of a testator, namely, what is called "a sound and disposing mind and memory," it is impossible to draw a precise line between such as are and such as are not thus qualified. The difficulty is in fixing and applying any thing like a uniform test or standard. In a case in Vermont, the court, Redfield, J., uses this language: "He must undoubtedly retain sufficient active memory to collect in his mind, without prompting, particulars or elements of the business to be transacted, and to hold them in his mind a sufficient length of time to perceive at least their more obvious relations to each other, and be able to form some rational judgment in relation to these." Among these elements he mentions the number of the testator's children, their deserts with reference to conduct and capacity, what he had done for them relatively to each other, and the amount and condition of his property, &c.16 In another case, in Connecticut, the court held that it was not essential to the legal capacity of a testator to make a will, that he should be capable of managing business generally. It is sufficient if, in making his will, he

1 Rev. Stat. 1855, p. 1567, § 3, the same power as in Arkansas.

2 Rev. Stat. p. 694, may dispose, by will, of property secured to her separate use.

8 Comp. Stat. 1854, p. 484, § 1, in the same manner as any person.

Rev. Stat. p. 577, same power as in California.

5 Rev. Stat. 1857, ch. 136, § 12, may make a will like any person.

6 Code, 1852, § 1969, has a general power of devising by will.

7 Stat. 1855, ch. 110, § 1, has full power of disposal by will.

8 Rev. Stat. 1852, ch. 113, § 16, may be clothed with power to devise her lands without the concurrence of her husband.

Rev. Stat. 1857, ch. 61, § 1, may devise by will as if sole.

10 Rev. Stat. 1846, ch. 68, § 1, same as California.

11 Comp. Stat. 1853, ch. 158, § 11, may devise, saving husband's rights by marriage

contract.

12 Dunlop, Laws, pp. 996, 997, and Act, 1855, No. 456, may devise her estate, subject to certain rights of husband, as to curtesy, &c.

18 Stat. 1852, ch. 180, § 4, may devise any estate secured to her separate use. 14 Gen. Stat. 1863, ch. 71, § 17, has general power of devise of her own lands. 15 Code, Maryland, 1860, p. 686, with consent of husband subscribed to will; Gen. Laws, Kansas, 1860, ch. 141, § 4, but shall not bequeath away from her husband more than one-half of her property, both real and personal, without his consent in writing.

16 Converse v. Converse, 21 Vt. 170.

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