The Law of Wills ...

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By statute of frauds nuncupative will cannot supersede written one
20
SECTION III
21
Coverture is fast becoming no disability in regard to making wills
22
She may dispose of choses in action by will without consent of the husband
23
So also where her personalty is secured to her separate use
24
Such consent will not apply to subsequently acquired property
25
Where the husband is civiliter mortuus the wife may make her will as a feme sole
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In New York it is expressly denied constructions which obtain there
27
Married woman may execute valid will in performance of a power
28
Married woman may dispose of real estate in Connecticut with consent of her busband
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Opinion of Chief Justice Tindal upon the question 35
30
Declarations of party interested may sometimes be received
34
the act
39
The presumption of sanity must have its proper weight in the case
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and n 21 The strict meaning of onus probandi as defined by Baron Parke 4144
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There seems to be no reason why the executor should first give proof of sanity
42
In other states where this is not required the onus probandi is shifted during the trial
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The subject of the general onus probandi discussed by Mr Justice Thomas
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But in a later case it is held the burden of proving insanity rests upon the party alleging that fact
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The courts here hold that prima facie evidence of due execution throws
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Rule as declared by the surrogate of New York 56
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SECTION VII
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SECTION IX
67
Lord Lyndhursts commentary upon partial insanity
70
Comments upon the propriety of the decision
83
The opinion of Turley J in regard to peculiarity of religious belief
89
Extreme old age does not incapacitate where the act is rational and free 98
93
Loss of memory one of the earliest symptoms of mortal decay very
95
Chancellor Kent says the will of an aged man ought to be regarded with
100
Great watchfulness against imposition in such cases proper 106
106
The suggestions of Dr Combe in regard to lucid intervals
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SECTION XIV
118
capacity
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The point of decision in some of the American cases given
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One under interdiction presumed incompetent to execute a will 133
133
The same rule applies in large measure to the subject of insanity
139
This presents such an array of authority that any court would be justi
144
The rule as defined by Lord Brougham 150
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EFFECT OF DRUNKENNESS UPON TESTAMENTARY CAPACITY
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The point of inquiry in contingent testaments whether the condition is of the essence of the instrument or only the occasion of its execution 177 of th...
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part of the will
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Where there are discrepancies between the draft and the engrossed copy former control
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Mutual wills irrevocable in equity
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and mariners
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Not required in the earliest periods to be made in extremis
185
The law so defined by Chancellor Kent and other writers
186
Blackstone and Chitty affirm that the legal requisites must be strictly fulfilled
188
In the American states this kind of will is now greatly restricted
189
Not applicable to sickness of chronic character except at the very last
190
In case of soldiers and seamen they need not call the witnesses in form
191
The term seaman or mariner applies to all kinds of navigation to all engaged
192
In New York that is required by statute and the proof either internal
202
The signature may be in any part of the paper if affixed as the final act
210
The form of the will is not material Capacity purpose and condition is all 193
219
The use of a seal dispensed with in most of the states except in the
226
The American courts do not adopt this refinement It seems
229
The presumption of the due execution of a will is greatly favored
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SECTION V
244
sumptions
250
There is more propriety therefore in requiring them to be competent
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SECTION VII
271
And where a sum of money is made a charge upon both real and per
277
giving the avails of the land
278
An attestation clause still desirable in practice
286
Erroneous recital of the will in the codicil has no effect upon its con
287
Cases and opinions in different states bearing on the question 299
293
revocation
296
in Massachusetts 416 417
298
SECTION II
302
Revocations by means of fraudulent imposition upon testator 328 329
304
Presumptive revocation from destruction of duplicate if the other part
309
But these cases carry that rule too far It only estops the parties to
319
Presumption 331
331
The same rule applies as to the date of mutilations as of alterations
332
English statute 333
333
The substance of the present English statute adopted in most of the American states
334
To estate contracted for but not conveyed
335
Where the transfer is made ander compulsory powers
336
The proper limits of the rule discussed 338
338
Conveyance of the estate devised or a portion of it in America a re Focation pro tanto
339
Sale of the estate and taking mortgage for price revocation pro tanto
340
The conveyance of so large a portion as to break up the scheme of a will a revocation
341
BY VOID CONVEYANCE OR AN ATTEMPT TO CONVEY ESTATE
342
Bat where devise is given in same form as residue the rule is otherwise
345
Clear bequest not revoked by subsequent uncertain direction
357
Statement of other cases of express or implied revocation
363
Proof of foreign will in chancery Foreign will may pass real estate 400
400
The law seems to have been in dispute for long period but now settled 401
401
The American courts adhere to the same general rules as the English but it was long doubted as to the effect of change of domicil after making will 4...
403
It is competent to prove insanity in any of the blood relations of
404
The words of a will of personalty are to be construed by law of domicil
405
The law in force at the decease of the testator governs as to wills 406
406
The legislature may require all wills thereafter coming in force to con form to a new statate 407
407
The law of the place of domicil governs as to testamentary capacity
408
Incidents attaching to property by the foreign law of its situs merely local
409
The opinion of Mr Justice Wayne in the matter of the will of Kosciusko
410
What constitutes a will and technical language determined by law of domicil
411
SECTION III
412
personal
417
Clearly cannot affect vested rights
418
SECTION IV
419
the contrary is clear
434
Words not to be rejected for repugnancy except from necessity Gen
443
Almost any latitude of construction allowed to meet clear intent 465
454
SECTION VIII
467
and vice versa 469
469
Reference to American cases illustrative of the rule
470
SECTION IX
471
reviewed 476481
476
Illustrations of the use of particles in different relations
481
Statement of the rule as there declared
483
Mr Jarmans rule is that the construction depends upon the preceding gift
484
In bequests to persons or their children or construed and
485
Devises to one or his heirs forever or in tail proper construction
486
Devise to one his heirs or assigns creates a feesimple
487
And construed or to prevent the divesting of a legacy
488
Unmarried designatio personę Still unmarried is never having
490
CHAPTER X
496
Parol evidence admissible to remove latent ambiguities and to rebut
502
ADMISSIBLE TO SHOW FRAUD OR UNDUE INFLUENCE 1 General statement of the rule 509
507
The nonperformance of such promise is a virtual fraud Its perform ance decreed in equity
508
Statement of cases where former will and declarations of testator
509
ance to be overcome
518
A will produced by fraud in favor of innocent parties is void
519
Some degree of influence which may qualify or even produce the will may not be undue
520
An undutiful testament set aside upon slight evidence of extraneous in fluence
521
Mere general influence will not be sufficient
522
Testator capable of making a will may be affected by importunity
525
But where the influence proceeds from an unlawful relation it is unlaw
531
SECTION III
537
Further exposition of the reason of the rule in cases of latent ambiguity
562
So also to rebut charge of surprise or incapacity by proving former
568
Bequest to society in London cannot be carried by parol to one
573
Where the extrinsic evidence fails to remove the ambiguity the devise
582
SECTION VI
594
The terms appurtenances belonging to and the like how con
595
Paper ambiguous must depend upon legal construction 665
596
Bequest to one his heirs executors c will lapse if such person
614
the words 621 1
621
The same subject continued
632
strued 636
636
Sir William Grants commentary upon the construction of wills 637
637
Sir James Wigrams fifth proposition
639
Distinction between explaining an act wholly in parol and where it is partly in writing
641
So also to show whether legacies are double or single c 642646
642
May be received both to rebut and to confirm the legal presumption 646
646
But not to create a presumption not raised by law 0
647
Mr Jarmans definition of the rule excluding extrinsic evidence of in tention 648
648
Sir James Wigrams proposition upon the same subject
649
Discussion of some cases under the head Doe d Brown v Brown 650
650
Doe d Oxenden y Chichester commented upon 651
651
Mr Jarmans and Sir James Wigrams views on this question The principle further discussed 652
652
Exposition of the question by the judges in Anstee v Nelms
653
The two classes of cases seem identical in principle 654
654
A bequest to clfildren cannot be shown to have been intended for natural offspring
655
The rule further discussed and illustrated 656
656
The rule applies to a general devise of real estate but not of personalty
657
Where there are persons answering the words their primary signification cannot be extended by parol
658
65 and note The commentary of Mr Wigram upon this point 660
660
Some American cases referred to upon the question
661
Case illustrating the subject decided by Sir John Leach
662
The intent must be gathered from words of will but may be construed in connection with writing referred to in the will
663
The introductory words of will cannot enlarge devise except they are connected with it 664
664
CHAPTER XI
666
Bequest of the income of a fund with power to apply the capital is valid
667
And some indefiniteness of terms may be disregarded as an approxi
672
Where all of a fund is given in unascertained proportions these may
684
But where the description is supported by circumstances it controls
694
But where others besides the donee are interested courts will interfere
696
CHAPTER XII
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VOL I
731
estate
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Halaman 279 - That no will shall be valid unless it shall be in writing and executed in manner hereinafter mentioned ; (that is to say), it shall be signed at the foot or end thereof by the testator, or by some other person in his presence and by his direction ; and such signature shall be made or acknowledged by the testator in the presence of two or more witnesses present at the same time, and such witnesses shall attest and shall subscribe the will in the presence of the testator, but no form of attestation...
Halaman 13 - It is agreed that British subjects who now hold lands in the territories of the United States, and American citizens who now hold lands in the dominions of his Majesty, shall continue to hold them according to the nature and tenure of their respective estates and titles therein ; and may grant, sell, or devise the same to whom they please, in like manner as if they were natives ; and that neither they nor their heirs or assigns shall, so far as may respect the said lands and the legal remedies incident...
Halaman 75 - It is very difficult to define the invisible line that divides perfect and partial insanity ; but it must rest upon circumstances, duly to be weighed and considered both by judge and jury ; lest, on the one side, there be a kind of inhumanity towards the defects of human nature ; or, on the other side, too great an indulgence given to great crimes...
Halaman 130 - In the language of the cases, have sufficient active memory to collect in his mind, without prompting, the 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 obvious relations to each other, and to be able to form some rational judgment in relation to them.
Halaman 274 - A. be dead at the date of the will or at the death of the testator, the issue of that child cannot take anything.
Halaman 503 - Where there is nothing in the context of a will from which it is apparent that a testator has used the words in which he has expressed himself in any other than their strict and primary sense, but his words so interpreted are insensible with reference to extrinsic circumstances, a court of law may look into the extrinsic circumstances of the case, to see whether the meaning of the words be sensible in any popular or secondary sense of which, with reference to these circumstances, they are capable.
Halaman 196 - That any soldier being in actual military service, or any mariner or seaman being at sea, may dispose of his personal estate as he might have done before the making of this act.
Halaman 280 - ... on a side or page, or other portion of the paper, or papers, containing the will, whereon no clause, or paragraph, or disposing part of the will shall...
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