The following provisions of the statute, are applicable to the execution of wills, and contain all the necessary directions concerning the manner of their execution.

"Every last will and testament of real or personal property, or both, shall be executed and attested in the following man

ner:

"1. It shall be subscribed by the testator at the end of the will.

"2. Such subscription shall be made by the testator in the presence of each of the attesting witnesses, or shall be acknowledged by him to have been so made, to each of the attesting witnesses.

"3. The testator, at the time of making such subscription, or at the time of acknowledging the same, shall declare the instrument so subscribed to be his last will and testament.

4. There shall be at least two attesting witnesses, each of whom shall sign his name as a witness at the end of the will, at the request of the testator." [2 R. S., 7., Sec. 40.]

"The witnesses to any will, shall write opposite to their names their respective places of residence; and every person who shall sign the testator's name to any will by his direction, shall write his own name as a witness to the will. Whoever shall neglect to comply with either of these provisions, shall forfeit fifty dollars, to be recovered by any person interested in the property devised or bequeathed, who will sue for the same. Such omission shall not affect the validity of any will; nor shall any person liable to the penalty aforesaid, be excused or incapacitated on that account from testifying respecting the execution of such will." [Id., Sec. 41.]

"No will in writing, except in the cases hereinafter mentioned, nor any part thereof, shall be revoked or altered, otherwise than by some other will in writing, or some other writing of the testator, declaring such revocation or alteration, and executed with the same formalities with which the will

itself was required by law to be executed; or unless such will be burnt, torn, canceled, obliterated, or destroyed, with the intent and for the purpose of revoking the same by the testator himself, or by another person in his presence, by his direction and consent; and when so done by another person, the direction and consent of the testator, and the fact of such injury or destruction, shall be proved by at least two witnesses. [Id., Sec. 42.]

By this provision it will be seen that the same formality is required in the execution of a revocation of a will, as in the execution of the will itself. It must be signed, witnessed and published. And in case it is the purpose of a testator to burn or destroy a will, and he directs another person to do it, the latter should see to it that two witnesses may be present, to the end that they may testify to the consent and direction of the testator as well as to the fact of the destruction of the will.

There is no established form for a will of real estate. If the will be so drawn that its provisions are not inconsistent with each other, or in violation of the laws regulating estates, and the same is intelligible as to the intent and design of the testator, it is valid. But if a will be so drawn that its exeention is rendered impossible, [8 Paige, 333] or creates trusts, in violation of the law, or suspends the absolute power of alienation of real estate for a longer period than the continuance of two lives, in being at the creation of the estate, [1 R. S., 718, Sec. 15; 9 Paige, 527.] the property will descend according to law of inheritance and descents.

In construing wills, full effect is given to the particular, as well as the general intent of the testator, so far as the same can be ascertained, and is consistent with the rules of law. And where a will contains inconsistent clauses, which cannot be reconciled to each other, effect will be given to the last clause, as the final determination of the testator, unless the contrary conclusion is apparent. In the latter case, both

are nullified, not being susceptible of effectuation by executors. [9 Paige, Ch. R., 107.] But the courts seek an interpretation that will give effect to the dying manifesto of the testator in respect to his property, if the same can be determined from the instrument to be in conformity with the general laws of the land. In most cases, provisions apparently conflicting may be reconciled with each other, or so determined that the latter may be taken as the last and the controling expression of the decedent's will and pleasure.

Every estate and interest in lands which is descendible to heirs may be devised. [2.R. S., 2, Sec. 2.] This provision was taken from that of England, which provided that all and singular persons having any manors, lands, tenements, or hereditaments of the estate of inheritance, should have full power to will the same. [Stat. 32, Hen. VIII., Chap. 1.] According to Blackstone, the words lands, tenements and hereditaments, include "whatever may be inherited," be it corporeal, incorporeal, real, personal, or mixed. [2 Bl. Com., 17.] As the right of entry would descend to the heir, it follows as a concomitant of a devise by will, that the heir under the will is invested with that right.

But the testator cannot divest his widow of her dower in his real estate by will, except she elect to take such pecuniary provision or jointure as he shall see fit to provide for her. The statute invests her with an estate in dower, in and to one-third part of all the lands whereof her husband was seized at any time during the marriage, [1 R. S., 732,] and being vested, her husband has not the power to devise her estate, unless by adultery she shall have forfeited the right, and the marriage for that reason has been dissolved. To protect the wife in the enjoyment of her rights, is the leading purpose of the statutes regulating descents; nor do those concerning wills in any respect weaken her claim. Yet, if her husband die, leaving a will which makes pecuniary provision for her, or devises particular lands to her, in lieu of

her dower in all, she is obliged to make her election, whether she will take the lands so devised, or the provision so made, or whether she will be endowed of the lands of her husband. [1 R. S., 734, Sec. 13.] This election, however, she is compelled to make within one year, if she desires to retain her dower in the lands; for unless she make such election, she shall be deemed in law to have chosen to receive in lieu thereof the devises or bequests contained in the will. [Id., Sec. 14.]

Not only is a widow entitled to dower in the lands of her husband at his decease, but she is entitled to dwell in the chief house of her husband forty days after his death, without being liable to pay any rent therefor, and to have meanwhile her reasonable sustenance out of his estate. [Id., Sec. 17.]

It is usual for the testator to designate and appoint the executors of his will. This, however, may be omitted, and in such case a suitable person or persons will be appointed by the surrogate to execute its provisions, and who will be required to give security for the performance of the trust. And though the testator do appoint executors, if at the time of his decease they be dead, or have departed the country, or are under the age of twenty-one years, or incapable in law of making a contract, (except married women,) or an alien, not being an inhabitant of this State, or shall have been convicted of an infamous crime, or shall be adjudged incompetent, administrators are required to be appointed by the Surrogate. So also, in case all the executors named renounce their appointment.

The testator may appoint guardians or a guardian for his infant children in and by his will. The statute provides that "every father, whether of full age or a minor, of a child likely to be born, or of any living child under the age of twenty-one years, and unmarried, may by his deed, or LAST WILL, duly executed, dispose of the custody and tuition of

such child during its minority, or for any less time, to any person or persons, in possession, or remainder." [2 R. S., 152, Sec. 11.] A testamentary guardian may be appointed, notwithstanding a previous appointment, by deed of another person, for the appointment by will, when it takes effect, works a revocation of that inade by a deed. [3 Kent. A testamentary guardian is authorized to take the custody and management of the profits of the real estate of the infant, until the latter arrives at the age of twenty-one years.

In executing a will, any mark which the testator uses as his signature, will be accredited as a valid subscription. If another write the testator's name, at his request, the signature will be valid, provided such person also sign his own name as a witness, the maxim being "Qui facit per alium, facit per se." But care should be taken that the beneficiaries are not called by the testator as witnesses. For it is provided that "if any person shall be a subscribing witness to the execution of any will, wherein any beneficial devise, legacy, or interest, or appointment of any real or personal estate, shall be made to such witness, and such will cannot be proved without the testimony of such witness, the said devise, legacy, interest, or appointment shall be void, so far only as concerns such witness, or any person claiming under him; and such person shall be a competent witness, and compellable to testify respecting the execution of the said will, in like manner as if no such devise or bequest had been made." [2 R. S., 9, Sec. 50.]

No particular form of words is necessary to be used by the testator in declaring the instrument signed by him to be his last will and testament. It is sufficient, if he actually communicate to the attesting witnesses the information that he knows and understands the nature of the instrument he is executing, and intends distinctly to recognize it as his will. He must in some language indicate to the witnesses, that it is his will, so that they may understand him. It has been