Commentaries on the Law of Wills: Embracing Execution, Interpretation and Administration, Including Those Rules of Real Property and Principles of Equity which Effect Testamentary Dispositions, with Full References to American and English Statutes and Decisions, and Also an Appendix Containing Forms and Precedents, and the Leading Wills Acts, Volume 1

John Edmundson Alexander

Bender-Moss Company, 1917 - 2904 páginas

Ver uma prévia deste livro »

Páginas selecionadas

Página de título

Índice

Conteúdo

Nature of the right to make a will 2 Ancient conception of testamentary power	2

Ancient purpose of wills 4 Creation of the true idea of wills	4

Law of the Twelve Tables Rules under Justinian	5

Influence of feudalism 7 Early rules in England	7

Effect of military tenure in England	8

Right to bequeath personal property early recognized	9

31	10

Effect of the doctrine of Uses	12

Apoplectic seizures and epileptic spells	477

Suicide does not of itself establish mental incompetency	478

Do not estab lish incapacity	480

How considered	481

Distinction between opinions as to sanity	485

making of the will	486

Evidence of testators mental condition acts and habits before and after execution of his will admissible	487

Difference in effect	489

Statute of Uses its purpose	13

Statute of Uses its effect	14

Statute of Wills enacted under Henry VIII	15

Statutes of Uses and of Wills as affecting the construction of wills	17

Statute of Frauds its purpose	19

Testaments of chattels under the Statute of Frauds 19 Statute of Wills enacted under Queen Victoria 20 Military tenure never recognized in the Unite...	20

Testamentary disposition a statutory power	21

Testamentary disposition a statutory power	22

CHAPTER XL	23

Written and oral wills	32

Com on Wills1	33

The materials used in the making of wills may be of various char	39

Statutes prescribing formalities of execution must be considered	45

Notes of a will to be thereafter drawn	51

Distinction between a will and a declaration of trust	55

In determining the legal character of an instrument the court will	57

Instruments testamentary in character are invalid unless executed	61

Extrinsic evidence as affecting the question of revocation	63

clearly referred to Proof of identity is necessary	77

Mutual wills refused probate if revoked	84

The mere execution of mutual wills is not conclusive proof	96

Sec Page	99

other not effectual	110

Seo Page 111 Effect of the Statute of Wills regarding the admission of evidence	115

Definition of a conditional or contingent will	116

The making of a will signifies that the testator did not intend	123

to show intent	128

Evidence of parol declarations or conduct of the maker not admis sible to show intent	129

Courts can not qualify plain and unambiguous language	131

Wills effective at the election of a third person	132

Alternative wills	134

CHAPTER VI	135

if possible	136

One copy only admitted to probate but both should be produced	137

Revocation is presumed when a copy known to have been in the testators possession can not be found after his death	138

Revocation of one duplicate causes presumption of intent to revoke both	139

No revocation except the intent exists	141

The facts may show a lack of intention to revoke	142

Burden of proof	143

The extent to which parol declarations may be admitted to prove or disprove revocation	144

Held inadmissible	146

CHAPTER VII	149

Disposition by intervention of a third person abolished	150

Classification of testaments in Louisiana	151

Further requirements	152

Nuncupative testaments by act under private signature	153

Mystic or secret testaments	154

CHAPTER VIII	156

Relationship of wills and contracts to each other	157

Oral contracts to will property viewed with distrust	158

Agreement to devise may be based on a future consideration	159

Compensation for services what can be recovered	166

Time when it commences to	172

Possession of the property as affecting the Statute of Frauds	179

Sec Page 164 The early rule was that oral wills were allowed only when the testator was in extremis	181

Definitions by early writers of nuncupative wills	185

of soldiers and sailors not affected	186

Particular sections referred to	187

The restrictions imposed caused the practical abolition of nuncupative wills	188

The Statute of Wills A D 1837 as affecting oral testaments	189

Nuncupative wills operate only on personal property	191

Incomplete testamentary writings prior to the Statute of Wills were held effective as nuncupative wills of personalty	192

Wills of soldiers and sailors informally exe cuted may be admitted to probate	195

The terms soldiers and seamen include officers and all degrees	197

Question as to whether soldiers and seamen have an unqualified right to make nuncupative wills	198

Soldiers in actual military service are those on an expedition	200

When is a soldier on an expedition? Illustrations	201

The same subject	203

When does a military expedition begin or end?	204

Mariners and seamen at sea	206

In some jurisdictions any qualified person may under certain restrictions make a nuncupative will	207

Meaning of the term last sicknessin extremis	208

Necessity of calling others to witness the testament	210

Intention to make a will must be clearly established by dis interested witnesses	213

There must be strict compliance with the statutory requirements	214

Number of witnesses to nuncupative wills	216

Committing the spoken words to writing	217

Evidence of witnesses to oral testaments must substantially agree	218

Nuncupative wills of soldiers and sailors have been held valid although the testators had ceased their privileged callings	219

Criticism of the rule	221

CHAPTER X	222

Origin of donations mortis causa	223

Definition by Lord Cowper	224

Definition	225

Rights of creditors	226

Not a fraud against rights of wife or children	227

Married women may make gifts mortis causa	228

Donor must intend that title shall become absolute in donee only in the event of his death	229

It is necessary that there be peril or apprehension of death with fatal result	230

Peril or apprehension of death which is sufficient to sustain the donation	232

A serious operation	233

Real property can not be the subject of a donation mortis causa	234

The presumption as to the conditions imposed by law	236

Confusion of opinion as to the exact nature of donations mortis causa	237

Witnesses	239

Burden of proof	240

Effect of declarations	242

Effect of the donors declaration that the gift is to be effective if he dies	243

Declarations of intention to give without delivery of property are testamentary in character	244

The reason given for the rule	245

Criticism	246

Enforcement of a valid gift	247

Trusts or conditions attached to donations mortis causa	249

Delivery and continued absence of control are essential	250

Delivery to a third person for the benefit of the donee	251

Delivery where the property is in the possession of the donee	252

Constructive or symbolic delivery	253

A writing without delivery of the property will not sustain a donation mortis causa	254

Changes in the rule	255

Where endorsement precludes payment until after the donors death	257

Delivery of pass book	259

Promissory notes as the subject of the gift	262

Not subjects of gifts mortis causa	263

Decisions to the contrary	265

PROPERTY WHICH MAY BE DEVISED OR BEQUEATHED	267

Sec Page 227 Power of testamentary disposition is statutory	268

Rules in England prior to the Norman Conquest	269

Devises of afteracquired real property	270

Early rule in the United States	271

Intention to dispose of entire estate	273

The general rule	274

Statutory regulations	277

Common law rule	279

The statute of 1 Victoria ch 26 affects only the subject matter disposed of not the beneficiaries	281

General rule in England	282

Rule in the United States	283

Disseisin Statutory enactments	285

May be devised	286

When devisable	288

Contingent interest in real property where the party who is to take is uncertain	289

Interests in lands founded on contracts of sale and purchase	292

Interests in trust	294

Right in equity to cancel deed is devisable	297

Not devisable	299

Community property and rights of dower curtesy and homestead	300

Neither husband nor wife can be deprived of their statutory rights	301

Effect of consent or election to take under the will	302

Consent when once given can not be revoked	304

How considered	305

Choses in action and other personal property	307

Distinguishing features	309

When payable to the estate of the insured for the benefit of his wife and children	311

When payable to a specified beneficiary	312

When they may be bequeathed	314

Rights in real property are governed by the law of the situs	326

By which law governed	334

Decisions to the contrary	342

Difference between English and American rule	349

Ancillary administration	355

Sec Page 356 Evidence admitted of occurrences both prior and subsequent to	356

To the contrary	362

Real property When converted into personalty	369

Taxes as to personalty sometimes governed	375

Bonds and certificates of stock of corporations	381

What is property within the state	383

English rule	386

CHAPTER XIII	390

Distinction between disabilities imposed and mental incapacity	391

Testators under a fixed age can not make valid wills English rule	392

Rule in the United States	394

Manner of computing the time when minority ends	395

Exceptions to the rule	398

Disability removed by husbands death and other causes	400

Effect of subsequent marriage of a feme sole or death of husband on wills theretofore executed	401

Present rule in England Married Womens Property Act	402

The common law rule in the United States as to the disabilities of married women	404

Construction of statutes removing the disabilities of married women	406

Limitation upon the right of a husband or wife to dispose of prop erty in which the law gives the other an interest	407

The general principles prevailing in the United States as to the rights of married women	408

Civil death generally	410

Outlawry defined	411

Outlaws denied the right of making testamentary dispositions	412

Attainder and corruption of blood	413

Constitutional provision	415

Civil death because of conviction of a felony	416

English rule	418

American rule	421

Distinction between title to real property passing by operation of law and by act of the parties	423

As to personal property	425

Disabilities of alien enemies	426

Effect of treaties	427

State regulations	429

CHAPTER XIV	433

A testator must be of sound mind	434

Mental capacity is tested as of the date of the execution of the will	435

Testamentary capacity refers to the ability to understand	436

Variations of the rule	437

The degree of testamentary capacity required varies according to conditions	440

A weak mind is not inconsistent with testamentary capacity	442

Ability to transact business not a true test of testamentary capacity	444

Chronic or tem porary	446

Effect of an adjudication of insanity	448

Effect of the testator being under guardianship	449

Effect of an adjudication of incompetency subsequent to the mak ing of the will	452

Lucid intervals	453

Description and proof	456

The law deals with the effect of the mental derangement not its ca use	457

Effect of partial loss of memory	458

Infirmities of old age do not establish testamentary incapacity	459

The same subject	461

A question of fact	462

Insane delusions defined	463

Unless the provisions of the will are affected by the insane delu sion the instrument is not invalidated	465

Unusual religious beliefs spiritualism and the like in themselves do not establish incapacity	469

Effect of evidence of eccentricities	470

Deafness dumbness and blindness	472

Excessive use of drugs or intoxicants	475

Declarations of the testator as affecting the issue of testamentary capacity	490

Declarations of testator admitted to show state of mind not as proof of facts stated	492

How considered	493

Proof of insanity of blood kindred	495

Manner in which testator was treated by his family	496

Effect as to declarations being admitted in evidence	497

Admissions against his interest by one of several beneficiaries	498

A middle ground	499

Inadmissible in evidence	500

The same subject	501

Declarations of subscribing witnesses	502

Declarations admissible for purpose of impeachment	503

Declarations against interest by a sole beneficiary admissible in evidence	504

Subscribing witnesses should satisfy themselves that the testator is of sound mind	505

Opinions of medical experts admissible	508

Who are medical experts	509

Medical experts should state facts to give their opinions weight	510

The same subject	512

Subscribing witnesses may state opinions as to sanity or insanity of testator	513

Subscribing witnesses should state facts so that value of opinions may be judged	514

The weight given to opinions of subscribing witnesses	515

Opinions of lay witnesses depend upon knowledge of facts	516

Lay witnesses must state opportunity for observation	517

Lay witnesses may state facts and give opinion based on them	519

Opinion must be based on facts given in evi dence by witness	521

as to insanity	522

Distinction between statements of fact and of opinion is often slight	523

Trial court must determine qualifications of witness to express an opinion	524

Waived as to subscribing witnesses	526

Who may claim or waive the privilege	528

Contest between heirs and next of kin	531

Claiming privilege is not suppression of evi dence	532

The term burden of proof as it has been applied in will con tests	533

All persons are presumed of sound mind in absence of evidence to the contrary	535

Presumptions and suspicious circumstances	536

Distinction where will is prepared by testator or under supervision of principal beneficiary	538

Conflict of authority	539

Weight of authority	541

Burden of proof after proponent has established a prima facie case	543

The better rule	547

Testamentary capacity is a question of fact	548

CHAPTER XVI	550

Statutory formalities as to execution are mandatory	551

Reasons for formalities	552

Intention alone is insufficient	553

Parol or extrinsic evidence when admissible	554

Wills must be executed with testamentary intent	555

Execution under the Statute of Wills of Henry VII	556

Execution under the Statute of Frauds	557

Rule under the Statute of Frauds	558

English rule	559

No disposing clauses should follow signature	560

American rule as to signature of testator based generally on the Statute of Frauds	561

Statutory regulations as to signing	563

of Frauds	564

Necessary to sign but once although will may consist of several sheets	565

Reason for rule	566

Requirement must be complied with although no fraud be shown	568

Effect of blank spaces	569

End of the will is the logical end of the disposing portion	571

Effect of part of will following signature of testator	573

Illustrations	574

Apparent exceptions to the rule	575

Immaterial additions	576

Signing by mark	577

Signing by stamp and sealing	578

Testator must intend the mark to stand as his signature	579

Signing initials only or wrong name	580

Presumption is that testator knew contents of will although he signed by mark	581

When testator may sign by mark	582

Another may guide the hand of the testator	583

Express direction or consent	585

The same subject 58	586

Who may sign for the testator	588

Testator prevented from signing by act of God effect of	589

Proof required	590

Power of appointment executed by will	591

Formalities required	592

Effect of the Statute of Wills of 1 Victoria ch 26	593

Time of execution	594

NUMBER AND CHARACTER OF WITNESSES REQUIRED FOR THE EXECUTION OF WILLS	595

Written wills must be witnessed	596

Purpose of statutes requiring witnesses	598

Witnesses identify the will	599

Signing by testator should precede signing by witnesses	600

When all part of one transaction	602

Meaning of credible or competent as applied to witnesses	604

Statute of 25 George II ch 6	608

Beneficiary may be a witness against the will	609

Heir at law as an attesting witness	610

Conflicting decisions	613

Prevailing rule	615

Creditors as attesting witnesses	616

Modifications of the rule	617

Early rule	619

Statute of 1 Victoria ch 26	620

Rule in the United States	621

Number of witnesses required	622

When witnesses not required	624

Purpose of statutes authorizing holographic wills	626

How and where signed	627

Meaning of written by the hand of the tes tator	628

CHAPTER XVIII	631

Victoria ch 26	632

American statutes regarding acknowledgment of signature by tes tator	633

When testator does not sign in presence of witnesses acknowledg ment of signature is necessary	635

Exhibiting signature necessary	636

The same subject	639

Where will is signed for testator by a third person	641

Acknowledgment and publication distinguished	642

Time of publication	643

Publication not required under the Statute of Frauds	644

Publication where required	645

Proof of publication	647

Surrounding facts and circum stances	648

Acquiescence or approval	651

Reading full attestation clause to witnesses	654

CHAPTER XIX	656

Statute of Frauds	657

Early rule	658

Presence of witnesses with reference to signing acknowledging and publishing	659

Illustrations	660

Witnesses present at the same time	661

Statutory regulations	662

What constitutes requesting witnesses to sign	663

When witnesses are summoned by an interested party	664

Signing wrong name	665

Desirable that witnesses can write their own signatures also to insert residences	666

Witness signing by mark or initials	667

Conflict of authority	668

Strict rule	671

Liberal rule	673

Position of signatures of witnesses	674

Witnesses must sign their names animo testandi	675

Witnesses must sign in the presence of the testator	677

What constitutes in the presence of the testator	678

Witnesses signing in a different room	683

What constitutes in his presence	684

Witnesses signing in the presence of each other	685

When demanded by statute	686

Attestation clause not essential to the validity of the will	688

Attestation clause is prima facie evidence of facts recited therein	689

Will may be established against the testimony of attesting wit nesses	690

Value of attestation clause	692

Although testator signed by mark	693

Will regular on its face presumed to have been duly executed	694

Conflicting view	695

Due execution a question of fact	696

CHAPTER XX	698

Seo Page 514 Statutory regulations	700

Statutes regarding revocation are not retroactive	702

Right and meaning of revocation	703

Surreptitious preservation of fragments	705

Lines drawn across the will	707

Intention to burn insufficient	708

Authorized under the statutes of some juris dictions	710

Evidence of intention may be shown	711

Revocation by will or other writing	712

Revocation by later inconsistent will	713

Wills partially inconsistent construed together	716

Ambiguous expressions	717

Revocation of will does not necessarily revoke a codicil thereto	718

Revocation of codicil does not revoke will	719

Nature and execution of subsequent writing revoking will	720

The same subject	721

Implied revocation	722

Illustrations	724

Common law rule	726

Will of feme sole revoked by her marriage	728

Regulations in the United States	729

The same subject	732

Implied revocation from birth of issue	733

Implied revocation from void conveyance	735

Sale of property devised as affecting revocation	736

Agreements to convey property devised effect of	737

Implied revocation from alteration of estate generally	738

The same subject	739

Intent to revoke without the performance of some act is insuffi cient	740

Acts alone do not work a revocation unless the intent to revoke exists	742

Evidence of intention to revoke	743

The same subject	746

Burden of proof	747

Lost wills	749

Revocation made in contemplation of a new disposition	750

The same subject	751

General effect of revocation	753

English rule	754

Rule in the United States Conflicting deci sions	755

The same subject	756

Presumed to have been made after execution	759

As to revocation	761

Alterations disregarded Original will de ciphered if possible	762

When made by a stranger or interested party	764

Meaning of the term	766

English rule	767

Republication generally accomplished only by reexecution with all formalities	768

Republication of will by codicil	769

Codicil need not be attached to will but must refer to and identify it	771

Presence of will and formal declaration unnec essary	772

Intervening codicils	773

Unexecuted codicils	774

The same subject	775

Defective execution of will cured by codicil	776

TABLE OF CASES OF VOLUME ONE	781

INDEX FOR VOLUME ONE	845

Direitos autorais

Outras edições - Ver todos

Commentaries on the Law of Wills: Embracing Execution ..., Volume 1
John Edmundson Alexander
Visualização completa - 1917

Commentaries on the Law of Wills: Embracing Execution, Interpretation and ...
Alexander
Prévia não disponível - 2015

Commentaries on the Law of Wills: Embracing Execution, Interpretation and ...
John E Alexander
Prévia não disponível - 2015

Termos e frases comuns

admissibility of ex admitted to probate Admr Bank Barb bequest Bradf character chose in action civil law Code Napoleon codicil common law condition construed contract court deceased decedent deed delivery devise dispose domicile donation mortis causa donor equity erty evidence necessary Ex parte Henry Exrs gift inter vivos gift mortis causa Hagg heir held husband instrument intention Iowa jurisdiction lands maker Mass ment Misc mutual or reciprocal N. J. Eq N. Y. Supp nuncupative testament offered for probate oral testaments parol declarations party personal property personalty Phillim possession promisor prop prove provisions real property revocation revoked rule soldiers Statute of Frauds subsequent take effect testamentary capacity testamentary disposition testamentary document testator testator's tion trinsic evidence trust valid wife witnesses writing

Passagens mais conhecidas

Página 281 - ... shall not lapse, but shall take effect as if the death of such person had happened immediately after the death of the testator, unless a contrary intention shall appear by the Will.‎

Aparece em 452 livros de 1830-2006

Página 397 - By marriage the husband and wife are one person in law ; that is the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband...‎

Aparece em 996 livros de 1807-2008

Página 219 - That no Will or Codicil, or any Part thereof, shall be revoked otherwise than as aforesaid, or by another Will or Codicil executed in manner herein-before required, or by some Writing declaring an Intention to revoke the same, and executed in the Manner in which a Will is hereinbefore required to be executed, or by the burning, tearing, or otherwise destroying the same by the Testator, or by some Person in his Presence and by his Direction, with the Intention of revoking the same.‎

Aparece em 180 livros de 1837-2006

Página 296 - ... hereditament, it shall go to the executor or administrator of the party that had the estate thereof by virtue of the grant ; and if the same shall come to the executor or administrator either by reason of a special occupancy or by virtue of this act, it shall be assets in his hands, and shall go and be applied and distributed in the same manner as the personal estate of the testator or intestate.‎

Aparece em 150 livros de 1809-1994

Página 621 - ... will, or to prove the validity or invalidity thereof, notwithstanding such devise, legacy, estate, interest, gift, or appointment, mentioned in such will. XVI. And be it further enacted, that in case by any will any real or personal estate shall be charged with any debt or debts, and any creditor, or the wife or husband of any creditor, whose debt is so charged...‎

Aparece em 156 livros de 1826-2006

Página 403 - A married woman shall, in accordance with the provisions of this Act, be capable of acquiring, holding, and disposing by will or otherwise, of any real or personal property as her separate property, in the same manner as if she were a feme sole, without the intervention of any trustee.‎

Aparece em 222 livros de 1830-2007

Página 23 - It is emphatically the will of the person who makes it, and is defined to be ' the legal declaration of a man's intentions which he wills to be performed after his death.‎

Aparece em 123 livros de 1769-2002

Página 189 - An Act for the Amendment of the Laws with respect to Wills, it is enacted, that no Will shall be valid unless it shall be signed at the Foot or End thereof by the Testator, or by some other...‎

Aparece em 109 livros de 1830-1994

Página 763 - Will after the Execution thereof shall be valid or have any Effect, except so far as the Words or Effect of the Will before such Alteration shall not be apparent...‎

Aparece em 189 livros de 1837-2004

Página 393 - ... to dispose of the custody and tuition of such child or children for and during such time as he or they shall respectively remain under the age of twenty-one years, or any lesser time, to any person or persons in possession or remainder, other than Popish recusants...‎

Aparece em 94 livros de 1809-2005

Informações bibliográficas

Título	Commentaries on the Law of Wills: Embracing Execution, Interpretation and Administration, Including Those Rules of Real Property and Principles of Equity which Effect Testamentary Dispositions, with Full References to American and English Statutes and Decisions, and Also an Appendix ..., Volume 1 Commentaries on the Law of Wills: Embracing Execution, Interpretation and Administration, Including Those Rules of Real Property and Principles of Equity which Effect Testamentary Dispositions, with Full References to American and English Statutes and Decisions, and Also an Appendix Containing Forms and Precedents, and the Leading Wills Acts, John Edmundson Alexander
Autor	John Edmundson Alexander
Editora	Bender-Moss Company, 1917
Num. págs.	2904 páginas

Exportar citação	BiBTeX EndNote RefMan

Sobre o Google Livros - Política de Privacidade - Termos de serviço - Informações para Editoras - Informar um problema - Ajuda - Página inicial do Google