Signed, by the said testator [name], as and for his last will and testament, in the presence of us, who, at his request, in his sight and presence, and in the presence of each other, have subscribed our names as attesting witnesses.1

1 Messrs. Hayes & Jarman, in their book of Forms of Wills, suggest, with great propriety, that, in the selection of witnesses, those of intelligence and respectability should be preferred, and when practicable, professional men; inasmuch as their attestation of the will, by a formal clause of attestation, tends very strongly to show that all the formalities therein enumerated were duly complied with. It is of some importance, too, especially in large towns, and in a country, where the population is proverbially migratory, to select such, as might readily be found, to prove the execution of the will at the time of probate.

It should be borne in mind, too, that in most of the states, those taking any benefit under the will, are either excluded from being witnesses of its execution, or else any provision in their favor is rendered void. And the same rule of exclusion extends to the wife or husband of such beneficiaries. Ante, p. 257, 258. An executor is a competent witness, unless disqualified by commissions, or liability for costs. Ante, p. 258, 259. But it is advisable on many accounts, that executors, and trustees under the will, should not be witnesses to its execution.

The use of a seal is not required by the statute of frauds, or by the statutes of most of the American states. But its use has become very general, on account of powers of appointment generally requiring to be executed under seal. The use of a seal is, therefore, indispensable in their execution by will, although not requisite to the validity of the will in other respects. If, therefore, the testator has any power of appointing property, under any prior will or settlement, it may be well to use a seal, unless the power is present, and it appears no such formality is required in its execution. West v. Ray, Kay, 385.

As under the present English statute, wills of personalty are required to be executed with the same formalities as other wills, it has become a frequent practice there, to have instructions for preparing wills, and all correspondence between testators and the intended beneficiaries under their wills; and which, from the peril of sickness, or other casualty, may fail of being carried into effect, by reason of not being reduced to the requisite statutory form; to have all such provisional testamentary acts executed before the requisite number of witnesses, and with all due formalities, so as to be operative, as testamentary dispositions, in the event of any accident occurring to prevent the due execution of the more formal instrument, in contemplation. Hayes & Jarman, 105; ante, pp. 180, 181, 182.

No. II.

COMMON FORM OF WILL.

1. I give, devise, and bequeath unto my beloved wife (A. B.), all my remaining estate, both real and personal, in whatever it may consist, or wherever situated, at the time of my decease, to be by her used and disposed of, during her natural life, precisely the same as I myself might do, were I living; and giving my said wife full power to sell, exchange, invest and reinvest the same, in the same manner I might do if living; and to distribute1 the same by gift, or otherwise, among my children at any time during her life, as to her shall seem meet and proper; and to appoint the same among my said children, by will, after her decease, according to her own judgment and discretion.

2. But if any of my said estate shall remain undisposed of by my said wife, at the time of her decease, I give, devise, and bequeath all such residue and remainder of my said estate, to be equally divided among my children, who shall be living at that time, and the issue of any child, who

1 Such a gift, although conferring the entire power of disposition upon the wife, during her life, and of appointment by will, does not absolutely destroy all remainder, so that the devise over will, in the event provided for, take effect in favor of the children and their legal heirs and representatives.

But the wife should, in such case, be made one of the executors and trustees under the will, so as to carry the intermediate estate up to the time of the remainder vesting in possession. And in order to preserve the trusts in behalf of the daughters, there should be other executors and trustees associated with the wife, to preserve the legal title in remainder of the share of the daughters.

For if the share of any child, or other person, entitled in possession, a remainder to the absolute control of the estate, shall once absolutely vest in them, in possession, the limitations upon their enjoyment of the same might be held void, on the ground of repugnancy; and upon the share vesting in such daughter, independent of all trust restrictions upon the right of their husbands, such restrictions and the provisions for the distribution of such share among the heirs of such daughters, might, by some courts, be held inoperative, as an illegal restraint upon the enjoyment of an absolute bequest. At least, as some of the state courts have so held, in cases very similar, it is prudent to guard against any such possible contingency, keeping the legal title in the hands of trustees, for the purpose of supporting the equities declared in the will.

may have then deceased; such issue taking the share to which such deceased child would be entitled, if living.

3. But I hereby DIRECT, that the share of any of my daughters, who shall be then living, shall not absolutely vest in any such daughter, but her share shall be retained by my executors and trustees, for the time being, whether appointed by me, or by the proper tribunals of the state, and put at interest, or upon rent, and only the income thereof paid to my said daughters, or any of them, during their natural lives, and after their decease, the whole shares of such daughters, or either of them, to be equally distributed among their and each of their lawful heirs, according to the laws of this state. And I hereby expressly direct, that no part of the share of any of my said daughters, or of the income thereof, shall be in any manner subject to the control of any husband of any of my said daughters, or liable under any mortgage, pledge, or other contract of such husbands, or in any manner liable for any debt of such husband. But my trustees shall retain the entire property of the share of any of my said daughters, whether it be of real or personal estate, during the life of said daughters, and pay over the use and income thereof, quarterly, or oftener, as may be convenient for them, into the hands of my said daughters, or any of them, upon their own sole receipt therefor. In witness whereof, &c.

No. III.

DEED OR WILL IN TRUST.

I, A. B., of, &c., do hereby give, grant, alien, convey, and confirm, &c., or devise and bequeath unto A. B. and C. D., of, &c., and their heirs, the following described real and personal estate:

or the residue and remainder of all my estate, real and personal, of which I shall die seized and possessed, after the payment of my debts and the expenses of administration, together with such legacies and bequests as are herein before made; or as I have made in my will, bearing even date herewith, together with any codicil which I may hereafter add to the or as I shall hereafter make by any will or codicil remaining unrevoked at the time of my decease.

same;

IN TRUST: For the following purposes.

1. To pay my dear wife, A. B., for, and during the term of her natural life, one thousand dollars annually, in equal quarterly payments, reckoning from the first day of January in each year, the first payment to be made within one month after my decease, for the current quarter.

2. To pay the expense of supporting, maintaining, and educating each and all my said children, in such manner as my wife, with the advice of my trustees, shall deem suitable and proper, until the sons shall arrive at the age of twenty-one years, and the daughters shall arrive at that age, or shall marry.

3. To pay to each of my sons at the age of twenty-one years, and during his natural life thereafter, each and every year, in equal quarterly payments, reckoning from the first day of January, one thousand dollars, the first payment, for the current quarter, to be made within one month after my sons shall severally arrive at majority; and to pay the same sum to my daughters, respectively, in the same manner, upon their marriage or arriving at the age of twenty-one years, whichever shall first happen.

4. Upon the decease of any of my said children, leaving issue, to pay the said sum of one thousand dollars annually to such issue or to the legal guardian of such issue, in the same manner any of my said deceased children would have been entitled to receive the same, if still living.

5. Upon the decease of the last surviving one of my children, my trustees shall convey all the remaining part of my estate herein before conveyed to them, together with any income of the same remaining in their hands, to the heirs and legal representatives of my deceased children, in equal shares, according to the number of my deceased children so represented, such heirs and legal representatives taking by way of representation, and not according to their number. In witness whereof, &c.

In this manner the trusts may be made more or less numerous and extended.

No. IV.

WILL GIVING TO ONE ABSOLUTELY ALL THE TESTATOR'S REAL AND

PERSONAL ESTATE.

This is the last will and testament of me [testator's name and residence]. I devise and bequeath all the real and personal estate to which I shall be

entitled at the time of my decease, unto [devisee's name and residence], absolutely; but, as to estates vested in me upon trust or by way of mortgage, subject to the trusts and equities affecting the same respectively. And I appoint the said [name] sole executor of this my will, hereby revoking all other testamentary writings. In witness whereof, &c.

No. V.

WILL DISPOSING OF REAL AND PERSONAL ESTATE IN FAVOR OF TWO SONS, OF WHOM ONE IS AN ADULT AND THE OTHER A MINOR; GIVING TO THE DEVISEES A POWER OF APPOINTMENT OVER THE REAL ESTATE. DIRECTION TO PURCHASE A LIFE ANNUITY.

This is the last will and testament of me [testator's name and residence]. I devise the dwelling-house at in which I now reside, with the garden, orchard, and the appurtenances thereto belonging, and also the pieces of land called respectively [names], now in my occupation, situate in the said parish of with the easements and appurtenances therewith usually occupied or enjoyed,1 unto my eldest son [name], his heirs and

1 There is often great uncertainty in regard to the scope of the subject-matter of the bequest. 1. Whether the words include both real and personal estate. The words "estate," "property," and "effects," unless associated with some restrictive term, are broad enough to include every species of property. Where wills are drawn by professional men, there is often some inference in regard to the nature of the gift, to be gathered from the words of gift, as "I devise" is applied more commonly to realty, and "bequeath," or "give," to personalty. Ante, p. 5, et seq.; Stokes v. Salomons, 9 Hare. 75; Phillips v. Beal, 25 Beav. 27. But see Coard v. Holderness, 20 Beav. 27. The words "estate," and "property," may be restrained by the context. Timewell v. Perkins, 2 Atk. 102; Doe v. Rout, 7 Taunt. 79; Doe v. Hurrell, 5 B. & Ald. 18. The words "I constitute A. and B. my residuary legatees," will not give them the tes tator's real estate. Windus v. Windus, 21 Beav. 373. But as words may be restrained, so they may be enlarged, by the context. And even the words "personal estate," by the context, has been held to pass realty. Doe v. Tofield, 11 East, 246. So the word "lands" has been held to embrace houses. But to avoid all questions, it is desirable to use more specific terms, such as "tenements" and "hereditaments," or "real estate," where any attempt is made at specific description. Hayes & Jarman, 109, note.

The word "premises," although more commonly used to signify real estate, especially in popular language, in the American states, as "the premises upon which