CHAPTER II.

A will, from its nature, is the declaration of a man’s mind as to the proper disposition of his property after death. This declaration, as any other fact, is established by evidence, oral or written. It is not the essence of a will that it shall be in writing; the essence is the declared purpose or intention, and this is established, as any other fact in law, by witnesses, or by the written declaration of the testator. In Bacon’s Abridgement, a will, therefore, is defined to be, “A declaration of the mind, either by word or writing, in disposing of an estate; and to take place after the death of the testator.”[28] A distinction was formerly made between a will and a testament; when lands or tenements were devised in writing, it was by will, and when goods and chattels were disposed of, it was by testament; but this distinction is now lost sight of, and the words are used indiscriminately, and we speak of the posthumous disposition of an estate, of whatever kind, as by last will and testament.

Since peculiar perils and obstacles beset a man in his last hours; as much uncertainty and contention have arisen as to his precise purpose and declaration; and as there is a strong and very unusual temptation and opportunity given to designing and evil persons who may surround him, to falsify his intention to their advantage, it has seemed politic and wise to legislatures to prescribe a mode by which wills shall be evidenced and proved, to guard against fraud, imposition, and uncertainty. Hence, in the statutory enactments of every State, there are precise and strict rules laid down on the subject; and as writing is the most reliable and permanent mode of conveying the proof of a person’s intention; and as it is now an acquirement possessed by almost every one, it is now the mode insisted on for embodying the declaration of a man’s last will and testament, with rare exceptions as to verbal wills. We may, therefore, speak of wills in two great classes, viz., Verbal and Written.

Section 1.—Nuncupative Wills.

A nuncupative will is a verbal declaration of a person’s intention as to the manner of disposition of his property after death. Formerly, at an early period, this must have been the usual kind of will in general use, when writing was a rare acquirement. Before the Statute of Frauds, it was of as great force and efficacy (except for lands, tenements, and hereditaments) as a written testament.[29] But as wills of this kind were found liable to great impositions and frauds, and occasioned many perjuries, that statute placed them under several restrictions, except when made by “any soldier in actual military service, or any mariner or seaman being at sea.”[30]

The imminent dangers, the diseases and sudden death which constantly beset soldiers and sailors; the utter inability oftentimes to find the time or the means to make a deliberate or written testamentary disposition of their effects, seem at all times to have made them a proper exception to the operation of a rule which the wisdom of later times has found it expedient, if not absolutely obligatory, to apply to all others. Hence, almost all governments grant this immunity to this class of persons. It was a peculiar privilege of the Roman soldiers, who were exempt when on a military expedition from complying with the strict testamentary law; the privilege, however, was only well established under the Empire, and after a time it was extended to the naval service, and officers, rowers, and sailors were, in this respect, esteemed as soldiers.[31]

Another class of persons formerly permitted to make this kind of will were those who were at the point of death, or as it was termed, in extremis. And in many States this privilege is still granted this class.

For a long period, as far back as a little before the time of Henry VIII, this kind of will was confined to this class of persons.[32] A writer of the time of Henry VIII says: “This kind of testament is made commonly when the testator is now very sick, weak, and past all hope of recovery.” Chancellor Kent says: “This has been the uniform language of the English law-writers from that time to this day, so that it has become the acknowledged doctrine, that a nuncupative will is only to be tolerated when made in extremis.”[33]

The danger of collusion and conspiracy among those who surround a feeble dying person has taught legislatures to be very strict in placing adequate safeguards around such a one. It was a gross abuse of such an opportunity, in a remarkable case in the twenty-eighth year of Charles II, that led, it is supposed, to the enactment of the Statute of Frauds in the next year.

The case was this:[34] Mr. Cole, at a very advanced age, married a young woman, who during her lifetime did not conduct herself so as to make the old man’s life a placid or a happy one. After his death she set up a nuncupative will, said to have been made in extremis, by which the whole estate was given to her, in opposition to a will made three years before the testator’s death, giving £3,000 to charitable uses. The nuncupative will was proved by nine witnesses; and after examination in the course of a trial, it appeared most of the witnesses were perjured, and Mrs. Cole was found guilty of subornation. It was then that Lord Nottingham said: “I hope to see one day a law that no written will should be revoked but by writing.” He was gratified in seeing such a law the succeeding year. Upon this, Chancellor Kent observed: “I should hope to see one day a law that no nuncupative will should be valid in any case.”[35]

The case in which these words were used was a very curious one, and will be worth while to be stated somewhat fully. We can give no better statement of it than the admirable summary given by that eminent jurist in his opinion, where the subject of nuncupative wills received a thorough discussion. The will was made by a William Jones on the 11th April, 1820, and was as follows: “I now say, as I have repeatedly said before, that I leave all the property I am possessed of to Mary Hazleton; I do this in consequence of the good treatment and kind attention I have received from her during my sickness. She is worthy of it. No other person shall inherit my property. I wish you all in the room to take notice of this.” The will was witnessed by four witnesses. It was finally declared invalid, because it did not appear the testator made it in his last extremity, and as there were so many evidences of undue influence. The facts were as given by Kent: “William Jones was an Irishman by birth and a religious Catholic by profession. He was born in the county of Dublin, in Ireland, and received a school education about thirty years before his death, and which carries us back to the year 1790. He had then living parents, brothers, and sisters, and he was the youngest of the family. He was apprenticed to a house carpenter in the city of Dublin, and served a regular apprenticeship of seven years. When this service expired, he worked as a journeyman for nine or twelve months, and then emigrated to the United States. This brings us in the history of his life to the year 1798, and perhaps that fact may enable us to give some probable solution of the only circumstance that seems (if we except the will) to cast any shade over the memory of this man. I allude to the change of his paternal name, O’Connor, for that of Jones. It does not appear precisely when he changed his name, but I refer it back to that period as the probable time, and presume that he and his family were more or less implicated in the rebellion in Ireland in 1798, in consequence of an ill-fated attempt to effect a revolution in that kingdom. It is probable that he may have emigrated for safety; and, for greater safety, laid down the name of O’Connor, which was then memorable in the Irish annals, on the side of the unfortunate. But be this conjecture as it may, we find him first at New York, then for two years at Savannah, then living for twelve or fourteen years in Cuba, and learning the Spanish language, and where he probably made his fortune. He is next traced on his return to the United States to the cities of Baltimore, Philadelphia, and New York; and in all of them he seems to have had business, pecuniary concerns, and friends. These are the few and imperfect sketches of his biography to be selected from the case, before we find him rich in the fruits of his enterprise, but sick with a disease of the liver, at the boarding-house of Mrs. Fox, in Cherry street, in New York, the latter end of March, 1820.

“Jones, while at the house of Mrs. Fox, claimed to be worth altogether $65,000 in property existing in New York, Philadelphia, Baltimore, and the Island of Cuba; and to show that this claim had pretty fair pretensions to truth, there were actually found at his lodgings, at his death, bank-books showing deposits to his credit in one or more banks of New York to between thirteen and fourteen thousand dollars.

“He had been sick at Mrs. Fox’s about five weeks when he is said to have made the will now under consideration. During that time he had one Ellen Taylor, a colored woman, for his hired nurse; and there was a Mrs. Hazleton, who had rooms and boarded in the same house, who also acted as his nurse. Whether Jones ever saw or heard of Mrs. H. before he came to board there, does not appear, nor have we in the case any distinct lineaments of the character which Mrs. H. sustains, or the business or purpose of her life. She was able, all at once, and without any remarkable display of goodness or any adequate cause, to gain a wonderful ascendancy over the affections of this sick man. If her story be true, and the will genuine, she obliterated from Jones’ breast the sense of friendship, the charities of religion, the deep-rooted traces of national affection, every tender recollection of the ties of blood, of his natal soil, of the school-fellows of his youth, of father and mother, brother and sister, relative and friend. He was persuaded at one nod to pour the accumulated treasures of his varied life into the lap of this mysterious woman—the acquaintance of a day!”

From the manifest evils arising from this kind of wills, legislatures are not disposed to favor them; they seem only adapted to a ruder condition of society than the one we now live in. So, in the Statute of Wills in England, passed in 1838,[36] such wills are declared invalid, except as to soldiers and sailors; and the same is the case in nearly all our American States. But a few States still permit such wills made by persons in extremis, and bequeathing a limited amount of property. They are not permitted in New York, except, as in the English statute, to soldiers and sailors on actual service.[37] They are in California of property to one thousand dollars, and then must be proved by two witnesses, one of whom is requested by the decedent to be a witness; and the will must be reduced to writing within thirty days after death, and proved within six months after the same was uttered.[38]

Even as to soldiers and sailors great strictness is required. In the first place, soldiers must be on actual military service. The military testament was first conceded by Julius Cæsar to all soldiers, but it was subsequently limited by Justinian to those engaged on an expedition;[39] and our courts in modern times have invariably adhered to the principle that there must be actual warfare.

In this country, the cases upon the subject of nuncupative wills are considerably numerous since the last civil war. In a late case, where the deceased, a soldier, had been duly mustered into the United States service during the late civil war, and while in camp wrote a letter to a friend, directing the disposition of the amount due upon certain securities left in his hands among the brothers and sisters of the deceased, as the holder should think proper, and that all his other property should go to his wife, naming her, she paying his debts, and soon after started on an expedition or raid against Richmond, in which he was made prisoner, and soon after died in prison, the will was held good as a nuncupative one, and entitled to probate.[40]

Sailors must be actually serving on shipboard. Thus, in the case of Lord Hugh Seymour, the commander-in-chief of the naval force at Jamaica, but who had his official residence on shore, it was held that he did not properly come within the exception, for that he was not “at sea” within the meaning of that expression, and that a nuncupative will made by him was not valid.[41] It was held in New York that a person employed as cook on board of a steamship should be classed as a mariner at sea, and therefore entitled to make a nuncupative will.[42]

Section 2.—Written Wills.

The statute law of almost every civilized state at the present time requires a will of real and personal property to be in writing, with the exceptions noticed in the first section of this chapter. A will, wholly written by the testator, signed and dated by him, is called a holographic will, and is, in some States, valid, without the usual formalities required to prove wills.[43]

The law has not made requisite to the validity of a will that it should assume any particular form, or be couched in language technically appropriate to its testamentary character. It is sufficient that the instrument, however irregular in form, or inartificial in expression, discloses the intention of the maker respecting the posthumous destination of his property; and if this appears to be the nature of its contents, the instrument is regarded as a will, if otherwise witnessed according to the mode pointed out in the statute. Professional practice, and long-continued custom, however, have established some technical forms of expression. As if to appropriately mark the solemnity of the act, and to declare a consciousness of it, it was the usual way to commence a will, and it is still observed, with—“In the name of God, Amen”; but this expression is now considered too formal and quaint, and of late the practice is to introduce a will in a less formal manner, thus: “I, John Doe, of ——, in the State of ——, do hereby make and publish this my last will and testament, hereby revoking all former wills by me at any time made.”

It was also customary to refer to the bodily and mental condition of the testator, as, “I, A B, being of infirm health, but of sound mind and disposing memory, and aware of the uncertainty of life, do now make, etc.”; but this, to a great extent, is abrogated.

Usually, the first direction given is as to the payment of debts and funeral expenses; but this is merely formal and unnecessary, as the law would have this done in any event; but it may be of use to show that the subject of the testator’s debts was brought distinctly to his mind, and may thus aid in the construction of the will.[44] A very general clause in a will, without many exceptions, is one appointing one or more executors. Formerly, it was considered indispensable to the validity of a will that an executor should be named in it;[45] but that opinion no longer obtains either here or in England;[46] and now where the appointment of an executor is omitted in a will, administration is granted to a person with the will annexed.

Many may have an idea that a formal will requires a seal, no doubt from the ordinary phraseology at the close of a will, “Signed, sealed, and published,” but there is no State we know of where a seal is now necessary except in New Hampshire.[47] The use of a seal, however, will be required when a testator exercises a power of appointment in a will derived from any prior will or settlement;[48] but if the seal be omitted it will not render the will void; it will only render the execution void as far as the power is concerned. For instance: if, by an instrument under seal, a power is given to a married woman in the nature of an appointment to devise certain real estate, in such a case she will be required to execute the will with a seal, if the appointment is to be a valid one.

The ecclesiastical courts in England and the courts here do not confine the testamentary disposition to a single instrument, but they will consider papers of different nature and forms, if not inconsistent, as constituting altogether the will of the deceased.[49] It is immaterial in what language a will is written, whether in English, or in Latin, French, or any other tongue.[50]

While a will is to be in writing,[51] the law insists upon certain solemnities in its execution to properly evidence the testator’s act and intention, without which the will is absolutely void; and courts very strictly construe these requirements, because they are remedial, in order to guard against very grave perils and mischief. The Statute of Frauds required that all devises and bequests of any lands or tenements should be in writing, signed by the testator, or by some other person in his presence, and by his express direction, and subscribed in his presence by three or four credible witnesses. This statute has been the model on which all our statutes, relating to the proof of wills in the different States, were framed. Some have copied it literally, others have adopted it with certain necessary modifications. Questions had arisen under this statute as to what the legislature meant by the word “signed”; namely, whether it should be construed in its strict sense, and by analogy to other instruments, or whether it should be liberally expounded and left open as a question of construction upon intention to be inferred from the facts and circumstances attending each particular case. The construction had been, as well in the courts of England as here, that the writing of the name of the testator in the body of the will, if written by himself, with the intent of giving validity to the will, was a sufficient signing within the statute.[52] Thus the old law stood, and the mischief of it was, that it was not necessary for the testator to have adopted the instrument after it was finished, by actually signing the same at the close of the will, and it did not denote clearly that he had perfected and completed it. To remedy this evil, and to prevent future controversy as to whether a will signed by the testator in any other part of the instrument than at the end, denoted a complete and perfect instrument, statutes have been passed in some States requiring the will to be subscribed by the testator at the end thereof. The statute passed in England in the first year of Victoria, requires that the will “shall be signed at the foot or end thereof by the testator, or by some other person, in his presence and by his direction.” Notwithstanding the language of the Statute of Frauds as to signing, without indicating how or where, is still retained in the statutes of the majority of our States, except in Arkansas, California, Connecticut, Kentucky, and New York, where it is to be subscribed at the end, and in Ohio, Pennsylvania, and West Virginia, where it is to be signed at the end of the will.

The requirements of the New York statute are as strict, if not the strictest, of any of our States; and those of California are substantially the same by the recent civil code of that State.[53]

The statute is in its terms perfectly explicit. Four distinct ingredients must enter into and together constitute one entire complete act, essential to the complete execution of the instrument as a will. 1. There must be a signing by the testator at the end of the will; 2. The signing must take place in the presence of each of the witnesses, or be acknowledged to have been made in their presence; 3. The testator at the time of signing and acknowledging the writing shall declare it to be his last will; and 4. There must be two witnesses who shall sign at the end, at the request of the testator.[54]

There must be a concurrence of all these four requisites to give validity to the act, and the omission of either is fatal. Neither of the four, which united make a valid execution of a will, may be done at a different time from the rest. If the instrument has in fact been signed at a previous time, then the signature must be acknowledged to the subscribing witnesses, which is deemed to be equivalent to a new signing of the instrument.[55] They cannot all be done at the same instant of time, for that is impracticable; but at the same interview, one act immediately following the other, without any interval, and without any interruption to the continuous chain of the transaction.[56]

We shall now refer to cases bearing on each of these requisites; and it will be seen that while the courts have with commendable firmness insisted upon a rigid compliance with the formula prescribed by the statute, they have never held that a literal compliance was necessary. No particular form of words is required to comply with the statute. The only sure guide is to look at the substance, sense, and object of the law, and with the aid of these lights endeavor to ascertain whether there has been a substantial compliance.

It is sometimes still a matter of controversy as to what may be considered a subscription or signing of the will at the end or foot thereof. In Tonnele v. Hall,[57] the writing of the instrument propounded for probate commenced on the first of several sheets of paper stitched together immediately below a margin, in this form: “In the name of God, Amen. I, John Tonnele, of the City of New York being of sound mind and memory, and considering the uncertainty of life, do make, publish, and declare this to be my last will and testament, in manner and form following, that is to say,”—and was continued on that and the four succeeding sheets. At the end of one of the sheets was the signature, and following was the usual attestation clause, signed by three witnesses. The next sheet was entirely blank, and was succeeded by a sheet on which was written, “Map of the property of John Tonnele in the Ninth and Sixteenth Wards, etc.” And also written on the same, “Reduced map on file in the Register’s office in the City of New York.” The map indicated the position, by numbers, etc., of various lots of land in the City of New York which the will purposed to dispose of, but it was not signed by the testator nor by the witnesses. In several clauses of the will devising the real estate, reference was made to the aforesaid map; but not to the copy of the map annexed. The point taken in opposition to the will was, that the execution of the instrument was not in conformity to the first and fourth requisites of the statute; because, as was insisted, it was neither subscribed by John Tonnele, nor signed by the witnesses at the end of it. It was contended, that as the map annexed should be regarded as a component part of the instrument, at the time of its execution, and as it was written on the last sheet of the papers composing the instrument, it was necessarily the end of the instrument, where the subscription by the testator and the signing of the witnesses should have been made. It was held by the Court of Appeals that the will was subscribed by the testator at the end of the will, within the meaning and intent of the statute, and that the execution thereof was valid.

In the case of the will of Catharine Kerr before the Surrogate of New York,[58] the closing portion of the will and the signature were as follows:

“To the children of Mary Dow, residing in Ireland in County Kilkenny, Give and bequeath two hundred dollars to be equally divided between them. If there be a balance, my executors will divide it among my relations that are not herein mentioned.

Cathe^rin Keer.

“I hereby appoint Mich’^{l Phelan} of 2nd st., and John Kelly of 9th. st., as my executors to this my last will and testament.

Witnesses,

R. Kein,
Matthew M. Smith.”

“I hereby order my executors to pay all my lawful and debts & funeral expenses—should it please the Almighty now to call me. This they will do before paying any legacy above mentioned.

Cath^e Keer.”

There was a question as to the genuineness of the subscription, the two witnesses calling her Keer, and the two subscriptions being of that name, her Christian name, Catherine, being abbreviated, whilst her real name was Kerr; and several previous papers were produced, in which her name, proved to have been signed by herself, was invariably written Catherine Kerr, in full. The Surrogate held that the form of the will was fatally defective, because the will was not subscribed by the testatrix and signed by the attesting witnesses at the end, in conformity with the requirements of the statute.

The next requisite is that the testator shall sign the will in the presence of the witnesses, or acknowledge his signature to them, if it has been signed previously. The New York statute does not require the witnesses to sign in the presence of the testator, as the California statute does.[59] Hence, a difference of opinion has arisen as to whether the New York statute is satisfied if a testator signs a will at one time, and afterwards acknowledges it to the witnesses separately at different times. There is an opinion that the witnesses must be present at the same time, and when the testator subscribes or acknowledges the instrument;[60] but it has been laid down, in the case of Butler v. Benson,[61] that a separate acknowledgment is sufficient. However that may be, no careful practitioner will ever have a will executed except when both the witnesses are present; and the attestation clause generally expresses that the witnesses signed in the presence of each other.

In Whitbeck v. Patterson,[62] William Patterson, the testator, signed the will in the presence of one Hughes, who had prepared it for him, but who did not sign it as a witness. The two then went to a store, where they found the three persons who signed as witnesses. These witnesses agreed in the facts that Patterson and Hughes came into the store together, and, as they came in, Hughes spoke to them, saying that he had a paper that he wished them to sign; that it was Patterson’s last will and testament; that Hughes thereupon read the attestation clause in the hearing of Patterson, as well as the witnesses, and then asked Patterson if that was his last will and testament, to which he replied that it was. One of the witnesses further swore that he thought the question was then asked him (the testator) about his signing the will, and the reply of Hughes was, that “he signed it up to my house”; to which Patterson said “Yes.” This, however, was not recollected by the other witnesses, and Hughes declared, with a good deal of confidence, that nothing was said in the store about his having signed it.

The Surrogate refused to admit the will to probate, on the ground that the testator had not subscribed the will, or acknowledged the subscription thereto in the presence of the attesting witnesses; but, on appeal, the decree of the Surrogate was reversed, and the court held the acknowledgment was sufficient, because the testator was present and assented when Hughes said he signed it.

The third subdivision of the statute provides that the testator, at the time of making the subscription, or at the time of acknowledging the same, shall declare the instrument so subscribed to be his last will and testament. This safeguard was considered necessary, in view of the fact that persons had been imposed upon, believing they were executing a different paper, when they had been induced to sign a will. Only a few States, however, insist on this formality; besides, New York, California, New Jersey,[63] and North Carolina require a publication.

There cannot be any uniform, precise mode to make this declaration; it is sufficient if the testator fully and intelligently communicate his knowledge of the instrument being his will to the witnesses; so that he cannot be mistaken as to its nature, and that it shall be so understood by the witnesses.[64] The minds of the parties must meet; each must understand the particular business he is engaged in. And this mutual knowledge must arise from something said, done, or signified contemporaneously with the execution of the instrument.[65] It will not suffice that the witnesses have elsewhere, and from other sources, learned that the document which they are called to attest is a will; it must be a clear and unequivocal communication of the fact from the testator himself in some manner to them at the time.[66]

The leading case on this provision of the statute is that of Remsen v. Brinckerhoff,[67] determined in the court of last resort in 1841. This case arose in the Surrogate’s Court in New York, on a proceeding to prove the will of Dorothea Brinckerhoff. The will was signed by the testatrix in the presence of two witnesses. The attestation was the usual one signed by the witnesses, showing that the full requirements of the statute were observed. One of the witnesses, on the trial, testified that the testatrix executed the will in his presence by writing her name, and acknowledging it to be her hand and seal for the purpose therein mentioned; that he subscribed in the presence of the testatrix; that the will was not read to the testatrix, nor did he read it; he read the last line of the attestation. Nothing passed between her and him as to its being a will. The other testified that he saw the testatrix sign the instrument. She did not say it was her will; but acknowledged her signature for the purposes therein mentioned. She requested him to sign his name as a witness, and directed him to write his place of residence. He testified further that he never saw the testatrix before that time, and remained in the room only no more than ten or fifteen minutes. On this evidence the Surrogate admitted the will to probate. Some of the heirs and next of kin appealed to the Circuit Judge, who confirmed the decree of the Surrogate. They then appealed to the Chancellor, who reversed the decree of the Surrogate. Finally, the case was taken to the Court of Errors, and the decision of the Chancellor was affirmed, that the instrument was invalid, for want of a declaration, at the time of subscribing or acknowledging the subscription, that the instrument was a will.

A late case, decided in the New York Court of Appeals in 1875, will henceforth be an authority on this point. It was the case of Thompson v. Seastedt.[68] The case arose on an appeal from the Supreme Court, reversing a decree of the Surrogate of New York City, refusing to admit to probate the will of Eliza Seastedt, on the ground that it was not formally declared by her. It appeared that the will was drawn by direction of the testatrix as her will, and read over to her as such; that she appeared to read it over herself, remarked it would do, and signed her name to it, and procured two of the witnesses to subscribe their names to it. The witness who drew the will testified that he was asked to go to the house to draw it, and was a witness to it, although not directly asked to sign it. The second witness said that he heard the decedent ask the first witness to sign it as a witness; and her husband swore that she asked both of the other witnesses to sign it. The second witness also said that she asked him to witness the signing of her name, and the making of her will, and her husband said she took it after all had signed it, and put it in an envelope. It also appeared that the testatrix signed the will in the presence of the witnesses, and that they signed it in her presence, and in the presence of each other; also, that the wording of the instrument declared it to be her last will and testament, and that she declared it to be such at the time of her subscribing.

The Supreme Court held that the proof as to the execution, witnessing, and publication was sufficient to entitle the will to probate; that, although the testatrix did not, in words, declare the instrument to be her will, she treated it as such, and designed the witnesses to understand it to be such, and that this was equivalent to such a declaration, and was sufficient to satisfy the requirements of the statute. On appeal, the Court of Appeals affirmed this judgment, in an opinion by Folger, J.

This must be deemed a satisfactory and equitable decision, and will have a tendency to check the vexatious and expensive litigation so ruinous to heirs and to an estate, whenever contestants think there was a disregard of the slightest technical requisites in the execution of a will.

The fourth and last requirement of the statute in New York is, that there must be two witnesses who shall sign at the end at the request of the testator. In the majority of our States, only two witnesses are required to properly attest a will. There are, as far as we can make out, about ten States that require three witnesses. The New England States require three witnesses, and so do Florida, Georgia, Maryland, South Carolina, and Mississippi, but in the last only one witness is required for a will of personal property.

It is observed that the New York statute does not in terms require the witnesses to sign in the presence of the testator or in the presence of each other, as the most of our States do: as, for instance, California, Connecticut, Georgia, Massachusetts, and many others. The former statute in the State required a signing in the presence of the testator, but these words having been omitted from the Revised Statutes, it has been decided in two adjudicated cases that it is not necessary that the attesting witnesses should sign their names in the presence of the testator in the strict sense of the requirement of the former law.[69] In Ruddon v. McDonald, the testatrix subscribed the will in a small bedroom, and the witnesses signed in an adjoining room. The door between the two rooms was open, but the place where the witnesses signed was in a part of the room where the testatrix could not see the witnesses signing without putting her head down to the foot of the bed, if she could then; and they did not look to be able to say whether they could see her face at the time or not. In such States as require a signing in the presence of the testator these wills would not be entitled to probate. Even in these States, a strict literal compliance is not required; the courts adopt what is termed a doctrine of a constructive presence; which in plain language is just this—if a testator could see, and won’t see, he should see, and must be supposed to have seen. There never were finer distinctions made on any matter in law than just on this point; indeed, they are more nice than wise, and hair-splitting was never carried to a finer point. Thus, where a testator lay in a bed in one room, and the witnesses went through a small passage into another room, and there set their names at a table in the middle of the room, and opposite to the door, and both that and the door of the room where the testator lay were open, so that he might see them subscribe their names if he would, and though there was no positive proof that he did see them subscribe, yet that was sufficient under the statute, because he might have seen them; it shall therefore be considered in his presence.[70] But where the attesting witnesses retired from the room where the testator had signed, and subscribed their names in an adjoining room, and the jury found that from one part of the testator’s room a person, by inclining himself forward, with his head out at the door, might have seen the witnesses, but that the testator was not in that part of the room, it was held that the will was not duly attested.[71] It would almost seem, from these and other decisions, that the validity of the act depended upon the range of the organs of sight of the devisor, or upon the agility of his movements; whether he were able to turn his body to the foot of the bed, or stretch his neck out of the door.

In Georgia, the testator must have been in such a position as to be able to see the witnesses sign, to constitute presence.[72] And where the witnesses did not sign in the same room where the testator was, it raises a presumption that it was not in his presence; but if the jury find that he might have seen it, and knew it was going on, and approved it, it is good.[73]

The whole requirements of the statute are generally embodied in an attestation clause which is signed at the end by witnesses. This is no part of the will, and might be omitted without endangering the will, provided the witnesses, whose names are subscribed, can testify as to the observance of the various requirements; but it is unsafe to trust to the memory of witnesses, and almost always the attestation clause is appended. In those States where no subscribing is required, the following is a good form:

“Signed, sealed, published, and declared, by the said A B, the said testator, as and for his last will and testament, in the presence of us, who, in his sight and presence, and at his request, and in the sight and presence of each other, have subscribed our names as witnesses thereto.”

The following is suited to the requirements of the Revised Statutes of New York:

“Subscribed and acknowledged by the testator, A B, in the presence of each of us, who have subscribed our names as attesting witnesses thereto at the request of the said testator. And the said testator, A B, at the time of making such subscription and acknowledgment, did declare this instrument so subscribed to be his last will and testament.”

A more general form is the following:

“Signed, sealed, published, and declared by the testator, to be his last will and testament, in the presence of us, who, at his request, and in his presence, and in the presence of each other, have subscribed our names as witnesses.”

CHAPTER III.

The age at which a person is permitted to exercise this right varies with the nature of the property, whether it be real or personal property. Under the old common law, a male was qualified to make a will of personal property at fourteen, and a female at twelve;[74] and this was the rule in England until 1838.[75] This was the rule of the Roman law; but now it is changed by statute both in England and in this country. In New York, males require to be of the age of eighteen, and females of the age of sixteen, before they can make a will of personal property.[76]

In many of our States, the same age is required for making a will of personal as for real property; and as a general rule, the age required is twenty-one; but in three of our States, California, Connecticut, and Nevada, a person of the age of eighteen is qualified to make a will of personal and real estate. In some, a female attains her majority for this purpose earlier than a male person, as in Illinois, Maryland, and Vermont, where a female is qualified at eighteen.

With regard to the reckoning of the period of a person’s majority, there is a novel and exceptional mode in law. Thus, if a person be born on the first of February, at eleven o’clock at night, and the last day of January, in the one-and-twentieth year, at one o’clock in the morning, he makes his will and dies, it is a good will, for he, at the time, was of age. This rule, first laid down by Lord Holt,[77] is well established by sound authority.[78] With regard to which, Redfield remarks: “We feel compelled to declare that the rule thus established in computing the age of capacity, seems to us to form a very singular departure, both from all other legal modes of computing time, and equally from the commonly-received notions on the subject.”[79]

Section 2.—Physical or Mental Incapacity.

The physical incapacity of the deaf and dumb formerly disqualified them from making a will. Blackstone lays down the rule:[80] “Such persons as are born deaf, blind, and dumb, as they have always wanted the common inlets of understanding, are incapable of having animum testandi, and their testaments are therefore void.” And in Bacon’s Abridgment,[81] it is said: “A man who is both deaf and dumb, and is so by nature, cannot make a will; but a man who is so by accident may, by writing or signs, make a will.” But since this class of persons have, of late, been brought to a considerable intelligence by the humane efforts of worthy men to communicate knowledge to them, there is no longer any reason or sense in excluding them from the testamentary privilege. However, in their cases, greater circumspection is needed in communicating with them as to their intention, and a stricter regard is paid to the observance of the requirements of execution. The question was carefully examined by the Surrogate of New York,[82] with the following results:

The law does not prohibit deaf, dumb, or blind persons from making a will. Defects of the senses do not incapacitate, if the testator possesses sufficient mind to perform a valid testamentary act. The statute does not require a will to be read to the testator in the presence of the witnesses; but it is proper to do so when the testator is blind and cannot read. In such cases, the evidence must be strong and complete that the mind accompanied the will, and that the testator was in some mode made cognizant of its provisions. This may be established by the subscribing witnesses, or by other proof.

So, also, it seems a drunken man, who is so excessively drunk that he is deprived of the use of his reason and understanding, cannot make a will during that time; for it is requisite, when the testator makes his will, that he be of sound and perfect memory; that is, that he have a competent memory and understanding to dispose of his estate with reason.[83]

We come now to treat of that incapacity which gives rise to most frequent and difficult litigation, and upon which judicial discrimination is most generally exercised—the incapacity of those who are of unsound mind, or persons non compos mentis.

There is no investigation in the whole domain of law that is attended with so many lamentable phases, where the foibles, indeed, the ludicrous side, of human nature, are more exposed; for it happens that those who will most carefully and tenderly screen a man’s weaknesses, vagaries, and eccentricities whilst he is living, will, if a contest takes place in which they are interested, after his death, most readily reveal, in all their nakedness and boldness of outline, the infirmities and superstitions of the deceased.[84]

As a principle of law of universal application, a person of unsound mind is incompetent to make a valid disposition of his property, either before or after his decease, except during a lucid interval. The only difficulty is, to determine exactly and unerringly the particular persons who may be thus classed, and to agree upon some mode or standard by which we can class such unfortunate people. Here is the difficulty; for all men do not view a person’s acts in the same manner, and are not similarly impressed by them. What, to some, would infallibly be the exhibitions of a diseased mind, may, to others, be the harmless frolics of a person of odd and eccentric manners. And, just for this reason, the decisions of courts have fluctuated, and, on this subject, have been the least satisfactory. When we lay down a definition of insanity, and agree upon it, we are next met with the further difficulty, to bring the facts of a person’s life or actions within it, and so to classify them.

What is the definition of a person non compos mentis? The law has to depend on medical writers for this information. Taylor, in his Medical Jurisprudence, gives us a definition as follows: “The main character of insanity, in a legal view, is said to be the existence of delusion; i. e., that a person should believe something to exist which does not exist, and that he should act upon this belief.” Another definition is this: “Where there is delusion of mind, there is insanity; that is, when persons believe things to exist which exist only, or, at least, in that degree exist only, in their own imagination, and of the non-existence of which neither argument nor proof can convince them: these are of unsound mind.”[85]

The rule of the common law, until within the last hundred years, was, that it required that a person should be absolutely a lunatic, that there should be entire alienation of mind, in order to incapacitate him from making a will; and there was no such theory then as partial insanity, or monomania, which the law takes notice of in modern times. The rise and acceptance of this theory mark an epoch in legal adjudications; it is certainly an advance in the science of law in the last century.

The germ of this theory was first broached in the celebrated case of Greenwood.[86] In that case, Mr. Greenwood, a barrister, whilst insane, took up an idea that his brother had administered poison to him, and this became the prominent feature of his insanity. In a few months he recovered his senses, and was able to attend to his business, but could never divest his mind of the morbid delusion that his brother had attempted to poison him, under the influence of which (so said) he disinherited him.

On a trial in the Court of King’s Bench upon an issue devisavit vel non, a jury found against the will; but a contrary verdict was had in another court, and the case ended in a compromise. On the theory of the common law, as it then stood, this will being made in a lucid interval should have been valid.[87]

The case in which the law first sanctioned the view of partial insanity, which is also one of the landmark cases therefore, was the case of Dew v. Clark,[88] which excited great interest, and received a very thorough examination by one of the ablest judges of modern times, Sir John Nicholl. It was proved that the testator regarded his daughter as invested with singular depravity, a peculiar victim of vice and evil, the special property of Satan from her birth, and in consequence disinherited her. The syllabus of the case presents in so clear and concise manner the pith of the decision, that it will be useful to quote it:

“Partial insanity is good in defeasance of a will founded immediately (so to be presumed) in or upon such partial insanity. If A, then, makes a will, plainly inofficious in respect to B, and is proved, at the time of making it, to have been under morbid delusion as to the character and conduct of B, the Court will relieve by pronouncing this will to be invalid, and holding A to have died intestate.”

It is from this case, as a starting point, has arisen the theory of monomania, as applied to testamentary capacity. Henceforth a valuable and practicable rule was established, subsequently recognized and enforced in the best considered cases both in England and America—a rule not so much depending on precedent as it does on sound reason and argument. There must be two elements, co-existing, to afford sufficient ground for pronouncing a will invalid at the instigation of relatives and others, who deem themselves cut off from the bounty of a testator by his monomaniacal delusions.

First. There must be a plainly inofficious will; or a will wanting in natural affection and duty.

Second. There must be morbid delusion actually existing at the time of making, in respect to the persons cut off, or prompting the provisions of the inofficious instrument.

This theory is now consistently followed in the courts of this country, and an examination of a few remarkable and historical cases will illustrate the application.

It is thus adopted as a principle of decision in Seaman’s Friend Society v. Hopper,[89] by Judge Denio: “If a person persistently believes supposed facts, which have no real existence except in his perverted imagination, and against all evidence and probability, and conducts himself, however logically, upon the assumption of their existence, he is, so far as they are concerned, under a morbid delusion, and delusion in that sense is insanity. If the deceased, in the present case, was unconsciously laboring under a delusion, as thus defined, in respect to his wife and family connections, who would have naturally been the objects of his testamentary bounty when he executed his will, or when he dictated it, and the court can see that its dispository provisions were or might have been caused or affected by the delusions, the instrument is not his will, and cannot be supported as such in a court of justice.” The same was the ruling in Leach v. Leach.[90]

Still, there needs to be a careful limitation of this theory. If we were to undertake to class all those who exhibit aberrations of conduct in various directions of life, who labor under hallucinations, and a wild imagination in regard to certain matters, whose credulity or whims provoke our mirth as much as our astonishment, as possessing a diseased mind, we should class among such some of the most singularly gifted and acute minds of the world. We all know of numerous cases in which

“Some one peculiar quality
Doth so possess a man, that it doth draw
All his effects, his spirits and his powers
In their confluxions all to run one way.”

Hence we must distinguish between mere eccentricity and monomania. In monomania, a man is not conscious of entertaining opinions different from the mass of men, and refuses to be convinced of laboring, in any degree, under mental unsoundness; the eccentric man is aware of his peculiarity, and persists in his course from choice, and in defiance of the popular sentiment. A remarkable case of eccentricity, as the court determined, bordering very close on monomania, was in the case of Morgan v. Boys,[91] where the will was upheld, on the ground that there was no satisfactory proof of actual unsoundness of mind. The testator devised his property to a stranger, thus wholly disinheriting the heir, or next of kin, and directed that his executors should “cause some parts of his bowels to be converted into fiddle strings—that others should be sublimed into smelling salts, and the remainder of his body should be vitrified into lenses for optical purposes.” In a letter attached to the will, the testator said: “The world may think this to be done in a spirit of singularity, or whim, but I have a mortal aversion to funeral pomp, and I wish my body to be converted into purposes useful to mankind.” The testator was shown to have conducted his affairs with such prudence and ability, that, so far from being imbecile, he had always been regarded by his associates, through life, as a person of indisputable capacity.[92]

Some wills have been refused probate upon the ground of a disgusting fondness for animals, evinced by the testators during their lives or in the testamentary act. In one case, the testatrix, being a female, unmarried, kept fourteen dogs of both sexes, which were provided with kennels in her drawing-room.[93]

In another case, a female, who lived by herself, kept a multitude of cats, which were provided with regular meals, and furnished with plates and napkins. This strange fondness for animals, in solitary females, is not altogether unusual, and is not to be regarded as any certain indication of insanity.[94]

We will now refer to three cases with some particularity, originating in the Surrogate’s Court in New York, each of which is very curious and instructive, and in which we can perceive the application of the rule regarding monomania.

The first is the case of Thompson v. Quimby.[95] There were several reasons assigned by the contestants for their attack upon Mr. Thompson’s will. Among them was the allegation “that the decedent was laboring under delusions amounting to insanity, and had not a disposing mind during the preparation, or at the time of the execution of the will.” The instrument was drawn and executed during his last illness, and but a short time before his death. It was a voluminous document, and in it some provision was made for many of his descendants and kinsfolk, but the bulk of his large estate (about $400,000) was left for charitable or religious purposes.

The testimony established that the testator was a believer in many superstitions of a vulgar character, and had held them with great pertinacity for many years. Among other delusions, it was claimed he believed in the black art; that he read and experimented upon the teachings of magic; was familiar with disembodied spirits; that he could work spells by formula or incantation; that he could cure diseases by amulets, or by papers bearing certain cabalistic inscriptions, which were to be worn about the person of the sufferer. He professed to know where Captain Kidd’s treasures were secreted at Montauk Point, and actually, in company with another, undertook, by the aid of a divining rod, to locate the exact spot where the riches were buried. The experiment was a failure, because, as he declared, the charm under which he worked was broken by the inopportune remarks of his attendant. On one of these occasions he beheld the apparition of the devil (it seems, he had a belief in that personage) in the shape of a large bull, and spoke of this taurine manifestation of the father of evil with great seriousness. It was also alleged that he claimed to see ghosts; that he believed in the supernatural character and significance of dreams, in the philosopher’s stone, in clairvoyance, spiritualism, mesmerism, magic glasses, and that he owned a whistle with which he could get everything he wanted. This, and much more to the same effect, was adduced as testimony to prove the insanity of the testator.

On the other side, it was shown that the testator was a shrewd and intelligent man of business, clear and firm in his judgments. He was largely engaged in affairs; was connected with moneyed institutions; had succeeded in accumulating wealth by his own efforts; was associated in large and responsible enterprises of commerce, and was a regular attendant at Dr. Spring’s Presbyterian church.

While the Surrogate did accredit all that was deposed to, to sustain his insanity, he did arrive at this conclusion: “After making every possible reasonable allowance, I have no doubt that Mr. Thompson’s mind was impressed with a sincere belief in many absurd notions. There seems sufficient evidence to show that he believed in mesmerism, clairvoyance, divining and mineral rods, dreams, and spiritual influences. He searched for the supposed deposits of Kidd, and ascribed his failure in two instances to the utterance of certain words by the operator. That he said he saw the devil in the shape of a bull seems to be well established. He believed likewise in the efficacy of cures for rheumatism, and fever and ague.” Now, there was nothing whatever to connect any of these aberrations or infatuations of the testator with the provisions of his will, or with any one of them; they did not affect his testamentary disposition of his property; and there could not, therefore, have been a successful impeachment of his will on the ground of monomania, or partial insanity. The Surrogate decreed in favor of the will, and the Supreme Court sustained his decree.

The next case we allude to, to further furnish an illustration of the rule, is the recent case of the Bonard Will. This case is of the very greatest importance, because it was argued with unusual skill and ability, and the testimony of the medical experts was sifted with a thoroughness and minuteness which elicited much instruction upon the more obscure phenomena of mental disease, and the facts revealed being such as to present very distinctly the question of the testamentary capacity of one who entertained singular tenets of a so-called faith. It will be advisable to state the facts somewhat fully. Louis Bonard, a native of France, died at the city of New York, in the Roman Catholic hospital of St. Vincent, on the 20th day of February, 1871. His life had evidently been an eventful one; for, while the testimony leaves in doubt much, and fails altogether to account for more of his antecedent history, it was known that he had been a traveler and a trader in South and Central America, and that he had been a dealer in sham jewelry; that he came to this country some time prior to the year 1855, and had brought with him money; that he had had losses, but at length became successful, and made investments in real estate, which enabled him to accumulate a fortune amounting, at the time of his death, to about one hundred and fifty thousand dollars. During the period of his residence in New York, he lived as a miser. He preferred the society and companionship of artisans and mechanics. He had no relatives in America nor in Europe, so far as was ascertained at the time of the trial, although it has since transpired that he has kindred in France. He was a man of erratic habits and singular beliefs, the latter of which seemed to intensify as his age advanced. He was a misanthrope; but was possessed of an unbounded affection for the brute creation. The evidence shows that he was a believer in metempsychosis; that he expressed the opinion that there might be an emperor in any animal he beheld; that he remonstrated with a person who suggested it would be humane to kill an injured kitten, because, he averred, there was a human soul in the animal’s body. But he was a man dextrous and cunning in mechanical arts. He constructed machines for various purposes; he had mental resources likewise, and was a reader of books. The testimony, fairly viewed, showed that he railed at religion and priests; yet he died in the peace of the Roman Catholic Church, and in full communion.[96]