But any persons competent to do ordinary acts of business may be witnesses. Nor do the usual disqualifications for business apply. Thus, married women and minors may be witnesses of wills. But no person should be called upon to witness a will who is a legatee, or an executor, or otherwise interested in the will. If such a person were a witness, it might not avoid the will; but a legatee would lose or be obliged to renounce his legacy; and, generally, it might lead to unintended results. What was said in relation to deeds, of witnesses remembering, &c., or proof of handwriting in case of their death or absence, is true also of wills.

As to the body of the will, the testator must express his wishes as clearly and accurately as possible; and, unless he has good legal advice, he should make the disposition of his property as simple as possible.

The word "bequeath" applies, properly, to personal estate only; the word "devise," to real estate only. It is safe enough to begin, "I give, bequeath, and devise my estate and property, as follows: that is to say," -and then go on and tell what shall be done with this and that piece of property, or sum of money.

Words of inheritance should be added to any devise of land (if not intended for the life of the devisee only), as was said in reference to deeds; although they are not required in wills so peremptorily as in deeds. The words of inheritance are,-To A B" and his heirs."

If it is intended, as usually is the case, that the will should apply to all the real estate possessed by the testator at the time of his death, although purchased after the will is made, there should be a clause expressing this intention.

If children are not provided for in a will, the law presumes they were forgotten; and it gives to any such child the same share as if there were no will, unless the omission is explained and accounted for in the will, in such wise as to show that it was intentional. The same rule, applies, quite generally, to the issue of a deceased child. If the child were provided for in the lifetime of the father, the law, generally, might not presume that he was forgotten; it is best, however, to guard against any question of the kind, by naming the children, and giving them a small sum, or saying that the omission to give them any thing is intentional.

A testator should always name his executors; but the will is perfectly good without any executor being named, for the court of probate will appoint an "administrator with the will annexed."

SECTION II.

CODICILS.

A CODICIL is a little additional will. That is, it is a testamentary disposition, not revoking the former will, but varying it in some way, or making changes in it. There can be but one will, and that the last; but there may be any number of codicils, all valid. The changes made by a codicil in a will, or in former codicils, should be very distinctly stated; and some words like these should be used: "I hereby expressly confirm my former will, dated

excepting so far as the disposition of my property is changed by this codicil." And the codicil should be called, at the beginning and end, a codicil, and executed and witnessed in the same manner as a will.

If a codicil gives one a legacy, who has already one by the will, the codicil should state whether it gives the second legacy instead of the first, or in addition to it. And if advances are made to a child during life, there should be an indorsement on the will (but a statement in the will or codicil would be better), stating whether these advances are to be charged to him, and in what way, whether with interest, &c.

SECTION III.

REVOCATION OF WILLS.

THE law concerning the revocation of a will is quite nice and technical. A codicil, we have seen, does not revoke, and a new will does. So might tearing off the name; but then the question might come, who tore it off. It is best to leave neither this nor any other question; and therefore to destroy a will which it is intended to revoke. If

the will is out of the testator's reach and power, and so cannot be destroyed, it would be best to make a new will, revoking the old one; which any testator can always do.

A will is revoked by the operation of law, if the testator afterwards marry and have a child. If the testator, after this, intends that his will shall take effect, he should expressly confirm it; and the correct way to do this would be by making a new will. If he leaves any thing to his wife, and intends that she should have it instead of dower, or of the additional rights which recent statutes in some of the States have given her, he should say so. And then she will not have both, but may choose between the provision of the law and that of the will, taking whichever she prefers, and leaving the

other.

For the rights of the wife or widow in the several States, I refer back to the abstract of the statutes of the several States, in Chapter V. from page 17 to 36.

It is impossible to do more than to give such forms and rules as will be applicable to all wills, and enable any person to draw a simple will with safety. No one can express accurately provisions for trust estates, remainders, executory devices, &c., without knowing the law on these subjects, and this is an extensive and difficult department of the law. All that is necessary, and may be relied upon as generally sufficient, is as follows:

(222.)

Form of a Will.

I of (place and occupation), make this my last will. I give, devise, and bequeath my estate and property, real and personal, as follows, that is to say::

Then follow all the provisions and disposition of property which the testator intends, stated fully, plainly, and as accurately as possible, paying due regard to the rules and principles laid down in the chapter of this book on this subject. And if these provisions are carefully presented in distinct and intelligible language, the courts will generally supply whatever of technicality is wanting. Then

follows, first, the appointment of an executor, and then the execution, and finally the declaration of the witnesses, thus:

I appoint (name, residence, and occupation) executor (or executors if more than one be desired) of this my will.

In witness whereof, I have signed and sealed and published and declared this instrument as my will, at (place), on (date).

The said

(Signature.) (Seal.)

at said (place), on said (day), signed and sealed this instrument, and published and declared the same as and for his last will. And we, at his request, and in his presence, and in the presence of each other, have hereunto written our names as subscribing witnesses.

(Here follow the names of three witnesses.)

A codicil should be written thus:

I, of (place and occupation), do make this my codicil, hereby confirming my last will made on the (date of the will), and all my former codicils (if there be any), so far as this codicil is consistent therewith; and do hereby

Then follows whatever disposition the testator chooses to make, stating and describing it as he would if it were a will, and executing it and having it attested in the same manner as if it were a will, excepting that, instead of calling it a will, wherever that word occurs, he says, "codicil" instead of "will."

CHAPTER XXXIX.

EXECUTORS AND ADMINISTRATORS.

AN executor is a person named in the will of a deceased person, to settle his or her estate.

There may be one or more; and they may be male or female. An administrator is one appointed by the court to settle the estate of a deceased person. If the deceased left a will, but did not appoint an executor, or the appointed executor refuses to act, or resigns or dies, or for any reason fails to act, an administrator is appointed by the court "with the will annexed." The husband of a deceased wife, or the wife of a deceased husband,

has generally the right to be appointed administrator; after them the next of kin in the order of relationship. But the courts have some discretion in the matter.

They act as the personal representatives of the deceased, having in their hands his means, for the purpose of discharging his liabilities, or executing his contracts, and of carrying into effect his will, if he have left one; and, in general, they are liable only so far as these means (called assets), in their hands, are applicable to such a purpose. But they may become personally liable; and a clause in the statute of frauds refers to this subject, making them not liable to pay any debt out of their own means, unless they give a promise to that effect, in writing, signed by them.

In this country, the judicial officer, or judge who has the charge of the settlement of estates, of the proof of wills, and of proceedings under them, is generally called the Judge of Probate. But in some States he is called Surrogate, Register or Registrar of Wills or of Probate, Judge of the Orphan's Court, &c. His powers and duties are very similar all over the country. From his decrees or decisions an appeal may generally be taken, by a party who thinks himself aggrieved, to the Supreme Judicial Court. The Judge of Probate is usually a county officer, and his jurisdiction is limited to his county.

If an executor or administrator receives, as such, a promissory note or bill of the deceased, and indorses the same with his name, without adding "executor" or "administrator," he is liable upon it personally. If he makes a note or bill, signing it, "as executor," he is personally liable, unless he expressly limits his promise to pay, by the words, "out of the assets of my testator," or, "if the assets be sufficient," or in some equivalent way; but a note or bill so qualified would not be negotiable, because on condition. If an executor or administrator submits a disputed question to arbitration, in general terms, and without an express limitation of his liability, and the arbitrators award that he shall pay a certain sum, he is liable to pay it whether he has assets or not. But if the award be merely that a certain sum is due from the estate of the deceased, without saying that the executor or administrator is to pay it, he is not precluded from denying that he has assets.