CHAPTER IV.

FORMAL REQUISITES OF A WILL.

§41. External Elements.

$42. What Law Governs.

$43. Property Disposition in General.

$44. Nature and Validity of a Bequest.

$45. Time of Wills Becoming Effectual.

$46. Revocability.

847. Form in General. Statute.

$48. Evidence.

$49. Writing.

$50. Language.

$51. Will Written on Several Pieces of Paer.

$52. Reference to Documents to be Incorporated.

$53. Erasures and Interlineations.

$54. Certainty of Description.

$55. The Law Applicable to Wills.

$56. Mode and Requisites in Execution.

$57. The Signing by the Testator.

$58. Modes of Signing.

$59. Signature by Name.

$60. Signature by Mark.

§61. Time of Affixing Signature.

$62. Signing by Some Other Person for Testator. §63. What Persons May Sign for Testator.

$64.

Presence of Testator.

$65. Sufficient Direction.

$66. Form of Signing.

§67. Manner of Signing.

$68. Signing by Mark.

$69. Guiding Testator's Hand.

$70. Place of Signature on Will.

§71. Attestation and Subscription.

$72. Distinction Between Attestation and Subscription.

$73. Competency of Subscribing Witnesses.

$74. Time of Competency.

$75. What Persons Are Competent to be Attesting Witnesses.

$76. Number of Attesting Witnesses.

$77. Value of Testimony of Subscribing Witnesses.

$78. Will Established by Evidence Other Than That of Attesting

Witnesses.

$79. Evidence of Completion.

$80. Presence.

§81. Presence in Case of Blindness.

§82. Witnesses to Sign in Presence of Each Other. §83. Attestation Clause.

$84. Will Defectively Executed.

§85. Acknowledgment.

$86. Publication.

§87. Execution of Mystic or Sealed Testaments. §88. Delegating Power to Appoint Executor.

§41. External Elements.

The statutes relating to wills declare what property may be devised and bequeathed by including a provision for a devise of real property1 and by confirming the previously existing common law right of making disposition of personal property, and further they declare the formalities required to make a valid will. These may be classified as follows: Writing, signature by testator, competency of witnesses, attestation and signatures by witnesses. treating these essential internal elements of wills, they may be divided into three topics.

(1) Nature of testamentary disposition;

(2) Form and contents of document; (3) Execution.

In

In order that the form and validity of a will be unques

1. C. L. '97, §9262. Every person of full age and sound mind being seized in his own right of any lands or of any right thereto, or entitled to any interest therein descendable to his heirs, may devise and dispose of the same by his last will and testament in writing and all such estate not disposed of by will, shall descend as the estate of an intestate, being chargeable in both cases with the payments of all his debts.

2. C. L. '97, §9265. Every person of full age and sound mind, may by last will and testament, in writing, bequeath and dispose of all his personal estate remaining at his decease, and all his rights thereto, and interest therein, and all such estate, not disposed of by the will, shall be administered as intestate estate.

3. C. L. '97, §9266. No will 'made within this state, except such nuncupative wills as are

tioned the essential internal elements as embodied in the statute must be substantially complied with.

(1) Nature of Testamentary Disposition.

§42. What Law Governs.

In determining this question it becomes necessary to inquire what is meant by domicile. Domicile may be defined to be the place where a person has his true, fixed permanent home, and principal establishment and to which, whenever he is absent, he has the intention to return, but "in many cases, actual residence is not indispensable to retain a domicile, after it has been once required; but it is retained animo solo, by the mere intention not to change it. If, therefore, a person leaves his home for temporary purposes, but with an intention to return to it, this change of place is not in law a change of domicile. Thus, if a person goes on a voyage to sea, or to a foreign country, for health, or pleasure, or business of a temporary nature, with an intention to return, such transitory residence does not constitute a new domicile, or amount to an abandonment of the old one." The general rule of the common law is in vogue as to the execution of wills where a party is domiciled in Michigan, but makes his will abroad.

mentioned in the following section, shall be effectual to pass any estate, whether real or personal nor to change or in any way affect the same, unless it be in writing, and signed by the testator, or by some person in his presence, and by his express direction, and attested and subscribed in the presence of the testator by two or more competent witnesses, and if the witnesses

are competent at the time of attesting the execution of the will, their subsequent incompetency from whatever cause it may arise, shall not prevent the probate and allowance of the will, if it be otherwise satisfactorily proved.

4. Rue High's Appeal, 2 Doug.

515.

5. Rue High's Appeal, 2 Doug. 515. See $55. See also In re Kennedy's Estate, 159 Mich. 548.

§43. Property Dispositions in General.

In general it may be said that courts have no right to substitute their judgment for the judgment of the testator in regard to his dispositions, or to determine upon the wisdom or justice of his reasons for making the dispositions, and it makes no difference whether they are wise or unwise, just or unjust, they are for him and for no one else to determine. It is natural that where all children of a testator are deserving that natural justice would call for an equal distribution of the estate of the testator, share and share alike, but courts must not be insensible to the absolute right which a parent has to dispose of his property in such a manner as he sees fit; that he is most capable of determining which of his children are most deserving in his estimation". Courts should not seek out technicalities, to arrive at forced or far-fetched conclusions, in order to destroy a will, because of any idea that the testator has done his next of kin injustice, or conveyed his property away from his relatives, and given it to those who have no claim upon his bounty.

§44. Nature and Validity of a Bequest.

The validity and sufficiency of a bequest where a transfer of personalty in the nature of a bequest has been made, cannot be set aside merely because it shows an unnatural disposition on the part of the devisor and is wrong in morals, so long as there is no evidence that it was brought about by fraud or undue influence and that the

6. Latham v. Udell, 38 Mich. 238.

7. Campbell v. Campbell, 75

Mich. 53, 42 N. W. 670.

8. Stebbins V. Stebbins, 86 Mich. 474, 49 N. W. 294.

grantor was of a sufficiently sound mind to dispose of his property9.

§45. Time of Wills Becoming Effectual.

A testamentary instrument is fixed whenever the paper propounded as a will has been subjected to every kind and degree of proof on probate which would be necessary according to its provisions, and upon which the court passed judgment1o. The probate of a will for all purposes relates to the existence and transfer of title, and it affirms the title of the beneficiary under the will from the time of the death of the testator, and it relates back to that time so as to make valid whatever had been previously done which under the will after probate the beneficiary could lawfully have done11. It is well settled that a residuary legatee of lands holds title subject to the antecedent legacies, and unless the land is taken by the executors for the purpose of administration, may have and defend possession from the time the will is probated12. A statute18 which provides that no will shall be effectual to pass either real or personal estate, unless it shall have been duly proved and allowed in the probate court, does not prevent the probate of a will to relate back to the death of the testator14.

9. Twist v. Babcock, 48 Mich. 513, 12 N. W. 680.

10. Allison v. Smith, 16 Mich. 429.

11. Sutphen v. Ellis, 35 Mich. 446; Richards v. Pierce, 44 Mich. 444, 7 N. W. 54; Gray v. Franks, 86 Mich. 385, 49 N. W. 130.

12. Chapman V. Craig, 37 Mich. 370.

13. C. L. '97, §9281. No will

shall be effectual to pass either real or personal estate, unless it shall have been duly proved and allowed in the probate court as provided in this chapter, or on appeal, in the circuit or supreme court, and the probate of a will of real or personal estate, as above mentioned, shall be conclusive as to its due execution.

14. Richards V. Pierce, 44 Mich. 444, 7 N. W. 54.