restraints on marr
Footnotes:
[1] Illustrated London News, October 18th, 1873. I have selected from this reliable journal many of the examples of curious wills I give in this introduction, taken from Doctors’ Commons, London.
[2] Illustrated London News, February 21st, 1874.
[3] Illustrated London News, November 8th, 1873.
[4] Black. II, 21.
[5] Thirlwall: Hist. of Greece, 187.
[6] Dwight’s Introd. to Maine’s Ancient Law.
[7] Tac. Germ. 2.
[8] Dig. lib. 28, tit. 2.
[9] Spence: Eq. Juris. I, 188.
[10] Selden: Orig. Prob. Juris., 15.
[11] Milton, p. 318.
[12] Selden, pp. 3, 4.
[13] Code: lib. I, tit. 3, leg. 42.
[14] Idem, leg. 41.
[15] Decret. lib. 3, tit. 26, C. 19.
[16] Marriot v. Marriot, 1 Strange 667.
[17] Black. III, 95.
[18] Matt. Paris, fo. 56.
[19] Idem, fo. 161.
[20] 1 Strange 667.
[21] Black. II, ch. 32.
[22] Hale, Hist. of Com. Law, 28.
[23] Greenleaf, Evid., vol. I, §26.
[24] Lord Hardwicke, in Ross v. Ewer, 3 Atk. 156, said: “There is nothing that requires so little solemnity as the making of a will of personal estate. There is scarcely any paper writing that will not be admitted as such.”
[25] Moore, 177.
[26] Cro. Eliz. 100.
[27] It should be observed that the ecclesiastical jurisdiction over wills is now abolished in England; and, since 1857, the jurisdiction is given to the Court of Probate and Divorce.
[28] Wills—A.
[29] Swinb. Pt. I, Sec. 12.
[30] 29 Car. II, Ch. 3, Sec. 23.
[31] Dig. lib. 37, tit. 12, Sec. 1.
[32] Redfield on Wills, I, p. 184.
[33] 20 Johns. 511.
[34] Cole v. Mordaunt, 4 Ves. 196.
[35] Prince v. Hazleton, 20 Johns. 513.
[36] 1 Vict. ch. 26.
[37] 2 R. S. 60.
[38] Civil Code, 1289-90.
[39] Code, lib. 6, tit. 21.
[40] Leathers v. Greenacre, 53 Maine 561.
[41] 2 Curteis 339.
[42] 4 Bradf. 154.
[43] Such a will is valid in California, Louisiana, Tennessee, and North Carolina. In the case of Clarke v. Ransome, decided in the Supreme Court, California, October, 1875, the following document was on this ground held to be testamentary in its character:
“Dear Old Nance:—I wish to give you my watch, two shawls, and also $5,000.
Your old friend,E. A. Gordon.”
It appeared in evidence that for some years Mrs. Gordon and Miss Ransome, who was the person meant by “dear old Nance,” had been on terms of intimacy. Mrs. Gordon had previously executed a will, by which she had devised to her brother the whole of the estate, with the exception of several specific legacies, one of which was to Miss Ransome for $1,000. It further appeared that after the will had been duly made and executed, Mrs. Gordon desired to make a further provision for Miss Ransome, and for that purpose drew up, wholly in her own handwriting, and delivered to Miss Ransome, the paper above propounded as a will. The court held that this paper should be admitted to probate as a testamentary instrument; but against this Chief Justice Wallace gave a dissenting opinion, on the ground that the paper was the mere expression of a wish, and was not intended by the decedent to operate as a will.
Vide Pacific Law Rep., Nov. 9, 1875.
[44] Redfield on Wills, I, p. 675.
[45] Swimb. Pt. I, Sec. 3.
[46] Redfield on Wills, I, p. 5.
[47] N. H. Rev. Stat. Ch. 156, Sec. 6.
[48] Hight v. Wilson, 1 Dall. 94; Arndt v. Arndt, 1 S. & R. 256.
[49] Campbell v. Logan, 2 Bradf. 90.
[50] Swimb., Pt. 4, Sec. 25.
[51] The statute of Pennsylvania requires every will to “be in writing,” and the curious question was recently presented to the Court of Common Pleas of Chester County, whether a writing on a slate, intended by the decedent to be her last will and testament, came within the statute. The court thought the case not within the spirit of the statute, because a slate was neither intended for nor adapted to writing of a permanent character. The rule has been carried quite far enough by the admission to probate of wills written with lead pencils, as was done in Dyer’s Estate, 3 Ecc. E. 92, and in Dickson v. Dickson, 1 Id. 222. In 21 P. F. Smith, 454, it was thought that a will should not be written or signed in pencil, on account of the facility of alteration; but the point was not decided. In Merritt v. Clason, 12 Johns. 102, a memorandum required by the Statute of Frauds, written with a lead pencil, was held sufficient, and in Clason v. Bailey, 14 Johns. 484, this point was affirmed. In Rymes v. Clarkson, 1 Phillim. 22, it was ruled that a codicil written in pencil was valid. See also Geary v. Physic, 5 Barn. and Cress. 234, and McDowell v. Chambers, 1 Strobh. Eq. 347.
[52] Jarman on Wills, 70.
[53] Civil Code, 1276.
[54] 2 Rev. Stat. 63.
[55] Doe v. Roe, 2 Barb. 200.
[56] Seguine v. Seguine, 2 Barb. 385, 395.
[57] 4 Comst. 140.
[58] McGuire v. Kerr, 2 Bradf. 244.
[59] Civil Code, 1276.
[60] Dayton on Surrog. p. 78.
[61] 1 Barb. 533. It is claimed he may subscribe in presence of one, and acknowledge it separately to the other. 4 Kent, 516; 36 N. Y. 416.
[62] 10 Barb. 608.
[63] Den v. Mitton, 7 Halst. 70.
[64] Torrey v. Bowen, 15 Barb. 304.
[65] Lewis v. Lewis, 1 Kern. 222.
[66] 1 Denio, 33.
[67] 26 Wend. 325.
[68] Not yet reported; may be in 59 N. Y.
[69] Ruddon v. McDonald, 1 Bradf. 352; Lyon v. Smith, 11 Barb. 124.
[70] Davy v. Smith, 3 Salk. 395.
[71] Doe v. Manifold, 1 M. & S. 294.
[72] Reed v. Roberts, 26 Ga. 294.
[73] Lamb v. Girtman, 26 Ga. 625.
[74] Black. II, 497.
[75] Redfield on Wills, I, 15.
[76] 2 Rev. Stat. 60.
[77] 1 Salk. 44.
[78] Black. I, 463; 2 Kent, 233.
[79] Wills, I, 20.
[80] Com. II, 497.
[81] Wills, B.
[82] Weir v. Fitzgerald, 2 Bradf. 42.
[83] Swinb. Pt. II, Secs. 1 and 6.
[84] No better illustration of this ever took place than the case of the will of Captain Ward, over whose will a remarkable contest is taking place [1875] in Detroit.
[85] Sir John Nicholl, in Dew v. Clark, 3 Add. 79.
[86] White v. Wilson, 13 Vesey, 88.
[87] The case of Lucas v. Parsons, 24 Ga. 640, was very similar to this case of Greenwood. There, the testator’s delusion was in respect to his eldest son, whom he disinherited. The will was set aside.
[88] 3 Add. 75.
[89] 33 N. Y. 619.
[90] 11 Penn. L. I. 179.
[91] Taylor, Med. Jur. p. 657.
[92] Mr. William Kensett, whose will was proved in Doctors’ Commons, London, in 1855, left his body to the Directors of the Imperial Gas Company, London, to be placed in one of their retorts, and consumed to ashes; if not, he directed it to be placed in the family grave in St. John’s Wood Cemetery, to assist in poisoning the neighborhood. Generally the curious wills are home-made, but this of Mr. Kensett was made by a solicitor.
[93] Taylor, p. 658.
[94] Redfield on Wills, I, p. 84.
In June, 1828, the London papers recorded the singular will of a testator named Garland, containing the following clause: I bequeath to my monkey, my dear and amusing Jacko, the sum of £10 sterling per annum, to be employed for his sole use and benefit; to my faithful dog Shock, and my well-beloved cat Tib, a pension of £5 sterling; and I desire that, in case of the death of either of the three, the lapsed pension shall pass to the other two, between whom it is to be equally divided. On the death of all three, the sum appropriated to this purpose shall become the property of my daughter Gertrude, to whom I give the preference among my children, because of the large family she has, and the difficulty she finds in bringing them up.—Ill. London News, March 2d, 1874.
[95] 2 Bradf. 449.
[96] I am indebted to an admirable essay by Edward Patterson, Esq., of the New York Bar, for the full facts in this case.
[97] 29 Eng. L. and Eq. 38.
[98] Kinleside v. Harrison, 2 Phillm. 419.
[99] 1 Wms. Exrs. 36; Potts v. House, 6 Ga. 324.
[100] 5 Johns. Ch. 148.
[101] 2 Bradf. 360.
[102] 2 Kent 175.
[103] Tucker v. Inman, 4 M. & G. 1049.
[104] Gen. Stat., 1855.
[105] Black. II, 497.
[106] Redfield on Wills, I, 26.
[107] 2 Lans. (N. Y.) 21.
[108] Toucht. 433.
[109] 1 Atk. 417.
[110] Richards v. Richards, 9 Price 219.
[111] Toucht. 433.
[112] Selwood v. Mildmay, 3 Ves. 306; 1 Bro. C. C. 477.
[113] Ellis v. Walker, Amb. 310; Kirby v. Potter, 4 Ves. 748; Tifft v. Porter, 8 N. Y. 516.
[114] 1 Atk. 508.
[115] 3 Bro. C. C. 416.
[116] Richards v. Richards, 9 Price, 226.
[117] Barton v. Cooke, 5 Ves. 461.
[118] Walton v. Walton, 7 Johns. 258.
[119] 2 Ves. Sen. 561.
[120] Wms. Exrs. 994.
[121] 1 Roper, 215.
[122] Sayer v. Sayer, 2 Vern. 688.
[123] 5 Ves. 150.
[124] Duncan v. Alt, 3 Penn. 383.
[125] Wms. Exrs. 759.
[126] Idem. 1035.
[127] Bacon’s Ab. Leg. (E); 2 Vent. 342; Moore v. Smith, 9 Watts, 403.
[128] 11 Wend. 259.
[129] 2 Vern. 673; Van Wyck v. Bloodgood, 1 Bradf. 154.
[130] Collins v. Metcalfe, 1 Vern. 462. To avoid the lapse of a legacy by the death of the legatee during the lifetime of the testator, the following States have provided against it, if any issue of the legatee be living at the death of the testator: Pennsylvania, South Carolina, Virginia, Maryland, Massachusetts, Connecticut, Vermont, New Jersey, Mississippi, Maine, Rhode Island. (4 Kent, 542.)
[131] 1 Roper, 216; 1 Paige, 33; Harris v. Fly, 7 Paige, 429; Sweet v. Chase, 2 N. Y. 73.
[132] May v. Wood, 3 Bro. 471.
[133] Barlow v. Grant, 1 Vern. 255.
[134] Duke of Chandos v. Talbot, 2 P. Wms. 612; Smith v. Smith, 2 Vern. 92.
[135] 1 Roper, 645.
[136] Bacon’s Ab. Leg. (F.)
[137] 37 Miss. 114.
[138] 2 Meriv. 26.
[139] Moore v. Moore, 47 Barb. 257.
[140] 2 Salk. 570.
[141] Randall v. Payne, 1 Bro. C. C. 55.
[142] A legacy was sometimes given on condition that the legatee should not marry a Roman Catholic. As late as April, 1869, the Hon. Araminta Monck Ridley, in London, left a clause in her will that “if any or either of my said children, either in my lifetime, or at any time after my decease, shall marry a Roman Catholic, or shall join or enter any Ritualistic brotherhood or sisterhood, then in any of the said cases, the several provisions, whether original, substitutive, or accruing, hereby made for the benefit of such child or children, shall cease and determine, and become absolutely void.”
[143] Perrin v. Lyon, 9 East. 170.
[144] Scott v. Tyler, 2 Bro. C. C. 488. This is a leading case, and the arguments of the leading counsel engaged contain much of the law on the subject. See Amb. 209.
[145] Godolp. Leg. 45.
[146] Godolp. 46.
[147] 2 Redfield, 295.
[148] Commonwealth v. Stauffer, 10 Penn. 350.
[149] L. R. 19 Eq. 631.
[150] 2 J. and H. 356.
[151] In the following instance, a testator is not content only to have his wife remain a widow—he must have her display the appropriate insignia of her situation. Mr. James Robbins, whose will was proved in October, 1864, in London, declares: “That, in the event of my dear wife not complying with my request, to wear a widow’s cap after my decease, and in the event of her marrying again, that then, and in both cases, the annuity which shall be payable to her out of my estate shall be £20 per annum and not £30.” As there was no stipulation as to the time the widow’s cap was to be worn, probably Mrs. Robbins found it easy to comply with the letter of the request in her husband’s will, and yet indulge her own taste in the matter. In contradistinction to this was the will of Mr. Edward Concanen, proved in 1868. He says: “And I do hereby bind my said wife that she do not, after my decease, offend artistic taste, or blazon the sacred feelings of her sweet and gentle nature, by the exhibition of a widow’s cap.”
[152] Wills, Pt. 4, Sec. 12.
[153] 1 Ch. Ca. 22.
[154] Parsons v. Winslow, 6 Mass. 169.
[155] 2 Ves. 265.
[156] Garret v. Pritty, 2 Vern. 293.
[157] The case of Bayeaux v. Bayeaux, 8 Paige, 333, is a curious example of an attempt made by a testator to regulate and control the choice of his children in marriage.
The testator died at the city of Troy, in March, 1839, leaving a widow and three infant children. By his will, made a few months before his death, and evidently without the aid or advice of counsel, he placed the following condition on a legacy to his children:
“I charge upon my children, in every possible case, and under all circumstances, never to make a matrimonial engagement, or bind themselves to any individuals by promise of marriage, without full parental approbation and consent as it regards the favored individual. And while I consider it unjust as well as unwise for a parent to coerce, or to attempt forcibly to induce a child to marry an object it cannot love, so do I also deem it without any possible excuse on the part of the child to marry without the full consent of the parents. And in the event of disobedience on the part of my child, in this respect, my wish, desire, and intention is to cut that child off from any participation of the benefits arising from any property I may leave at my decease, of every kind and description whatever.”
The provisions of the will were in many respects so vague and indefinite, that Chancellor Walworth remarked: “It is very evident that this will was drawn by the decedent himself, or by some other person equally ignorant, not only of legal language, but of legal principles.” He held that the children took the same shares as if their father died intestate.
[158] Lord Comyns’ Rep. 728.
[159] Brown v. Peck, 1 Eden. 140.
[160] 10 Ves. 13. This was the time allowed in the civil law, 2 Salk. 415.
[161] 2 Rev. Stat. 90.
[162] Benson v. Maude, 6 Madd. 15.
[163] 2 Vern. 31. Roden v. Smith, Amb. 588.
[164] Cricket v. Dolby, 3 Ves. 13.
[165] Nevil v. Nevil, 2 Vern. 431.
[166] Joe v. Hart’s Executors, 2 J. J. Marsh. 351.
[167] 1 Hawks 241.
[168] Fawkes v. Gray, 18 Ves. 131.
[169] Wms. Exrs. 1221; 2 Bradf. 77.
[170] 8 Ves. 410.
[171] Poph. 104.
[172] Marsh v. Hague, 1 Edw. Ch. 174.
[173] Ves. 10.
[174] Wms. Exrs. 1222.
[175] Williamson v. Williamson, 6 Paige, 298.
[176] 5 Binney 475.
[177] 1 Vern. 251.
[178] 1 Johns. Ch. 3.
[179] Wms. Exrs. 1206-7.
[180] 2 Rev. St. 450.
[181] Palmer v. Trevor, 1 Vern. 261; Toller 320.
[182] Wms. Exrs. 1213.
[183] 2 Rev. St. 65. So in California: Civil Code 1282.
[184] 1 Seld. 125.
[185] Morris v. Kent, 2 Edw. Ch. 182; Preston on Leg. 281.
[186] The word “children” includes only the immediate legitimate descendants, and not a step-child: Cromer v. Pinckney, 3 Barb. Ch. 466; Mowatt v. Carrow, 7 Paige, 339. Nor does it include grandchildren: Radcliff v. Buckley, 10 Ves. 195; 4 Watts, 82.
[187] Sherer v. Bishop, 4 Bro. C. C. 55; 2 Ves. 84.
[188] Doe v. Clark, 2 H. Bl. 399; Balm v. Balm, 3 Sim. 492.
[189] 1 Barb. Ch. 637; Wms. Exrs. 934.
[190] Rawlins v. Rawlins, 2 Cox’s Ca. 425; Marsellis v. Thalheimer, 2 Paige, 35.
[191] Jenkins v. Freyer, 4 Paige, 47.
[192] Collin v. Collin, 1 Barb. Ch. 630.
[193] 2 Paige, 11.
[194] Pratt v. Flamen, 5 Har. & Johns. 10.
[195] Garrett v. Niblock, 1 R. & M. 629; Lady Lincoln v. Pelham, 10 Ves. 106.
[196] Schloss v. Stiebel, 6 Sim. 1.
[197] 1 Jarman, 306.
[198] Vol. II, 96.
[199] Connolly v. Pardon, 1 Paige, 291. In Thomas v. Stevens, 4 Johns. Ch. 607, a legacy to Cornelia Thompson was held a good bequest to Caroline Thompson, it appearing that she was the person intended.
[200] Standen v. Standen, 2 Ves. Jr. 589.
[201] See Chap. VIII.
[202] 4 Ves. 680.
[203] 2 Cha. Ca. 51.
[204] 3 Bro. C. C. 311.
[205] 3 Ves. 148.
[206] Vide the case of Shakspeare, Introduction, p. 23.
[207] 2 N. Y. Rev. St. 57; Civil Code Cal. 1275. In Indiana, Massachusetts, and Pennsylvania, there is no Mortmain act.
[208] Charitable Uses (D). The doctrine of Superstitious Uses cannot be to much extent applicable here, as we have no religion recognized and established by the State.
[209] Vide Will of Lady Alice West, p. 18.
[210] Ch. Prec. 272. Eyre v. Countess of Salisbury, 2 P. Wms. 119.
[211] Lord Hardwicke, in Jones v. Williams, Amb. 651, defines a charitable use as “a gift to a general public use, which extends to the poor as well as the rich.”
[212] It may be thought a singular purpose of charity to provide for the “marriages of poor maids,” and one that would accomplish but little in a field where the objects would be so numerous; nevertheless, the benevolent designs of men have been turned in that channel, as well as in other various directions mentioned in the statute.
By the will of Mr. Henry Raine, a wealthy London brewer, a fund was established for just such a purpose. Among the notable charitable institutions of London, there is none more novel in inception or more unique in management than Raine’s Asylum, established by him in 1736, for clothing, educating, and properly training for domestic service forty young girls, taken from a lower school previously established by him. On arriving at the age of twenty-two, any girl who has been educated in the asylum, and who can produce satisfactory testimonials of her conduct while in service, may become a candidate for a marriage portion of one hundred pounds, for which six girls are allowed to draw twice in each year, on the first of May and the fifth of November. The drawing is in this manner: The treasurer, in compliance with the explicit directions of Mr. Raine, takes a half sheet of white paper and writes thereon the words, “one hundred pounds.” Next, he takes as many blank sheets as, with the one written on, will correspond with the number of candidates present. Each of these half sheets is wrapped tightly round a little roller of wood, tied with a narrow green ribbon, the knot of which is firmly sealed. The rolls are then formally deposited in a large canister placed upon a small table in the middle of the room. This being done, the candidates, one at a time, advance towards the canister, each drawing therefrom one of the small rolls. When all have drawn, they proceed to the chairwoman, who cuts the ribbon which secures each roll, and bids the candidates unfold the various papers. There is no need to ask which of them has gained the prize—the sparkling eyes of the fortunate “hundred-pound girl” reveal the secret more quickly than it could be spoken by the lips. The scene seems to be one in which Mr. Raine took deep interest, for in his will, after appointing his nephews to purchase £4,000 stock in order to make a permanent provision for these marriage portions, he says: “I doubt not but my nephews would cheerfully purchase the said stock if they had seen, as I have, six poor innocent maidens come trembling to draw the prize, and the fortunate maid that got it, burst out in tears with excess of joy.” The portion drawn in May is given after a wedding on the fifth of November; the November portion being given in like manner on May day. The author witnessed one of these marriage ceremonies in the church of St. George’s-in-the-East.
The number of marriage portions given since the opening of the asylum is said to exceed three hundred.
[213] This statute has been adopted in Massachusetts, North Carolina, Kentucky, Indiana, Pennsylvania, and several other States. 2 Kent 285. In Pennsylvania, the will, to make a valid devise to charitable uses, must be made a month before the testator’s decease. Price v. Maxwell, 28 Penn. 23.
[214] 8 N. Y. 525.
[215] 33 N. Y. 97, reversing 40 Barb. 585.
[216] The case of the Smithsonian Institute was adduced as an argument to show that the United States could take by devise. In that case Mr. Smithson, an Englishman by birth, and a citizen of that country, bequeathed to the United States all, or nearly all, of his property, to be applied to the establishment of an institution for the increase and diffusion of useful knowledge. But Wright, J., said that this furnished no evidence of capacity, simply as a political organization, to take and hold property for charitable purposes. That was an English charity, and the case was determined by the law of the domicile. It was a charity under the statute of Elizabeth, and administered as such, and took effect only on a law of Congress organizing the institution in the District of Columbia.
[217] In New York, as in many if not all the States, the law relating to trusts as it formerly existed in England in its intricate details, has been abolished, and only express, active trusts are permitted, where the trustee has some active duty to perform in the management of the estate. These express trusts are of four kinds: 1. To sell land for the benefit of creditors; 2. To sell, mortgage, or lease lands, to pay legacies or other charges; 3. Where the trustee is authorized to receive the rents and profits, and apply them to the use of some person during his life, or for a shorter period; 4. To receive rents and income to accumulate for the benefit of minors, to cease at majority. The same trusts only are allowed in California: Civil Code 857. It is therefore held that all trusts, for any purpose whatever, not coming under one of these four classes, are void, as it was apparent in the enumeration of these the legislature intended to exclude all others. Hence, in the drawing of wills, attention is most particularly needed to see that no trusts are created other than those above.
[218] 34 N. Y. 584. It is not uncommon for persons to devise property to the United States Government. The last case in New York was somewhat singular. It is in the case of United States v. Fox, in 52 N. Y. 530. The testator there devised “to the Government of the United States at Washington, District of Columbia, for the purpose of assisting to discharge the debt contracted by the war for the subjugation of the rebellious Confederate States.” It was held that the government had no capacity to take. This case is now appealed to the Federal Courts, but with little prospect of reversal.
[219] Burbank v. Whitney, 24 Pick. 146; Beall v. Fox, 4 Ga. 404; Griffin v. Graham, 1 Hawks, 96; 7 Vt. 249; Vidal v. Gerard, 2 How. 127. The doctrine was elaborately argued and examined in the Gerard Will Case, 28 Penn. 54, and it was maintained that it was founded on the common law.
[220] There are many institutions permitted by statute in New York to take property by devise or bequest. By Laws 1848, ch. 319, benevolent, charitable, literary, scientific, missionary, or Sabbath-school societies can take a devise or bequest, the clear annual income of which shall not exceed $10,000; but, to be valid, the will must be executed two months before testator’s death. By Laws 1841, ch. 261, colleges and literary incorporated institutions are allowed to take for certain purposes. And, by Laws 1864, the State can take a devise for benefit and support of common schools. For these reasons, it is held the law of charitable uses is not so much required in New York; and, by special enactment, the legislature will incorporate societies to take a devise for pious, benevolent, or charitable purposes.
[221] 4 Ves. 227.
[222] In case the trust exceeds this term, it is void in toto, and not merely pro tanto; Griffiths v. Vere, 1 Ves. 136, 10 Penn. St. 326.
[223] A direction to accumulate all the testator’s estate for fifteen years by investment and reinvestment in bonds is valid in Illinois. Rhoads v. Rhoads, 43 Ill. 239.
But in New York an accumulation for three years, and also ten years, was held invalid: 4 Sandf. 442; 7 Barb. 590.
[224] In New York it is two lives; in California, any lives in being: Civil Code, 715.
[225] Schettler v. Smith, 41 N. Y. 328.
[226] The maximum period during which alienation may be suspended may, in one instance, under the New York statutes, and those of a great many other States, be suspended for two lives in being, and twenty-one years and a fraction afterwards, in certain cases of minority. For example, an estate to A for life, remainder to B for life, remainder to his children in fee, but in case such children shall die under the age of twenty-one years, then to D in fee. Here, it will be observed, the ownership may be legally suspended for the lives of A and B, and the actual infancy of B’s children; but in no event can such suspension exceed that length of time before the remainder becomes vested. If one of the children reach twenty-one, D’s remainder is cut off. In the example just given, suppose the children of B die before attaining twenty-one, and that B, at his death, leaves his wife enceinte, there would then be a suspension of alienation for a few months more than twenty-one years.
The extent to which variation from the ordinary term of gestation may take place in women, whether the birth be premature or protracted, is one of the difficult problems involved in medical jurisprudence. On this subject the highest medical authorities are at issue; some adhering closely to the regular period of forty weeks as the extreme term; while others extend their indulgence even to the utmost verge of eleven calendar months. See Long v. Blackall, 7 Term R. 104; Cadell v. Palmer, 1 Cl. & Finn. 372.
[227] Moore v. Moore, 47 Barb. 257.
[228] Burrill v. Boardman, 43 N. Y. 254.
[229] Rose v. Rose, 4 Abb. Ct. App., Dec., 108.
[230] The argument of Prof. Dwight, one of the counsel, in two volumes, presents a marvelous and most scholarly amount of research upon the law of charitable uses, from the earliest times.
[231] See page 31.
[232] Swinburne, Part 7, Sec. 14, says: “Concerning the making of a latter testament, so large and ample is the liberty of making testaments that a man may, as oft as he will, make a new testament, even until his last breath; neither is there any cautel under the sun to prevent this liberty; but no man can die with two testaments, and therefore the last and newest is of force; so that, if there were a thousand testaments, the last of all is the best of all, and makes void the former.”
[233] 4 Co. Rep. 60.
[234] Doe v. Barford, 4 Man. & S. 16.
[235] Johnston v. Johnston, 1 Phillim. 447.
[236] Wellington v. Wellington, 4 Burr. 2165.
[237] 4 Johns. Ch. 506. Of course, this rule was only good where the issue of the marriage were otherwise unprovided for, or had no means of maintenance.
[238] The law respecting implied revocations was a fruitful source of difficult and expensive litigation, and often defeated the intention of testators, instead of carrying it into effect. Lord Mansfield has said that some of the decisions on this head had brought “a scandal on the law”; and, on another occasion, he remarked “that all revocations not agreeable to the intention of the testator are founded on artificial and absurd reasoning.” 3 Burr. 491.
[239] Ash v. Ash, 9 Ohio, 383; Stat. Ohio, (1831) p. 243; Stat. Ind. 1821; Stat. Ill. 1829; G. Laws, Conn. p. 370, last edition.
[240] 4 Kent, 525; Cal. Civ. Code, 1306.
[241] 4 Kent, 526.
[242] Sec. 1307.
[243] Gage v. Gage, 9 Foster, 533.
[244] 2 Rev. Stat. 64.
[245] Redfield, I, 298.
[246] Rev. Stat. 1849, Ch. 122.
[247] Civil Code, 1290. So in Rhode Island, Rev. Stat. Ch. 154.
[248] Tomlinson v. Tomlinson, 1 Ashm. 224.
[249] Tyler v. Tyler, 19 Ill. 151.
[250] 2 N. Y. Rev. Stat. 64; Civil Code, 1299.
[251] Cotter v. Layer, 2 P. Wms. 623.
[252] In re Fisher, 4 Wis. 254; Simmons v. Simmons, 26 Barb. 68; Smith v. McChesney, 15 N. J. Ch. 359.
[253] Campbell v. Logan, 2 Bradf. 90.
[254] Cutto v. Gilbert, 9 Moore, P. C. C. 131.
[255] Mod. 203.
[256] 1 Cowp. 87.
[257] Nelson v. McGiffert, 3 Barb. Ch. 162. In some States this is settled by statute. Thus, in California, an antecedent will is not revived by the revocation of a subsequent will unless an intention appear: Civil Code, 1297. The same in New York: 2 Rev. Stat. 66.
[258] Wms. Exrs. 136 and cases cited. The general effect of a subsequent will in revoking one of an earlier date, by reason of its inconsistent provisions, is very extensively discussed in the late and important case of Colvin v. Warford, 20 Md. 357.
[259] Brown v. Brown, 8 El. & Bl. 876.
[260] Howard v. Davis, 2 Binney, 406; Jackson v. Betts, 6 Cow. 483; Steele v. Price, 5 B. Mon. 58; 8 Met. 486.
[261] 7 B. Mon. 408.
[262] 8 Watts & Serg. 275.
[263] Wharram v. Wharram, 10 Jur. N. S. 499. A will and codicil were torn to pieces by a testator’s eldest son, after the death of his father; the pieces were saved, by which, and by oral evidence, the court arrived at the substance of those instruments, and in effect pronounced for them. Foster v. Foster, 1 Addams, 462.
[264] Patch v. Graves, 3 Denio, 348; 28 Vt. 274.
[265] 4 Ves. 610.
[266] 3 Sw. & Tr. 478.
[267] 14 Mass. 208; Hine v. Hine, 31 Penn. 246.
[268] Lewis v. Lewis, 2 W. & S. 455.
[269] Price v. Maxwell, 28 Penn. 23.
[270] Howard v. Halliday, 7 Johns. R. 394. If two wills, in duplicate, were in possession of the testator, and he destroyed one, did this, in effect, work a revocation? This was in some doubt. The California Code has set at rest this question for that State, in Sec. 1295, where it is provided that a destruction of one of the copies shall amount to a revocation. See Onions v. Tyrer, 2 Vern. 742.
[271] Hobbs v. Knight, 1 Curteis, 289. And the cutting out of the principal part, as the signature of the testator, or of the witnesses, will be a revocation of the whole will: 1 Jarman, 161.
[272] Where the word “destroying” is used in the statute, as one mode of revocation, it is generally held to include all modes of defacing not specifically enumerated in the statute, and does not require an absolute and entire destruction. Johnson v. Brailsford, 2 Nott & McCord, 272.
[273] 2 Rev. Stat. 66. It is the same in California: Civil Code, 1292.
[274] Burtenshaw v. Gilbert, 1 Cowp. 49.
[275] Dan v. Brown, 4 Cow. 490.
[276] Etheringham. v. Etheringham, Aleyn, 2.
[277] 3 B. & Ald. 489.
[278] Bibb v. Thomas, 2 W. Bl. 1043.
[279] Pryor v. Coggin, 17 Ga. 444.
[280] White v. Carter, 1 Jones (N. C.) Law, 197.
[281] Smiley v. Gambill, 2 Head, 164.
[282] Blanchard v. Blanchard, 32 Vt. 62.
[283] 7 Jur. N. S. 52.
[284] 1 Jarman, 133.
[285] Bap. Church v. Roberts, 2 Penn. 110.
[286] 1 Johns. Ch. 530.
[287] Bethell v. Moore, 2 Dev. & Batt. 311.
[288] 1 Jarman, 125.
[289] McPherson v. Clark, 3 Bradf. 92.
[290] 1 B. Mon. 57.
[291] 2 Doug. (Mich.) 515.
[292] 8 Jur. N. S. 897.
[293] Legatees are entitled to be paid in the money of the country in which the testator is domiciled and the will is made. 2 Atk. 465; 2 Bro. C. C. 39.
[294] Harrison v. Nixon, 9 Peters, 483.
[295] To determine a person’s domicile is sometimes a matter of some difficulty. It is determined on two principles: the fact of one’s residence, and the intent of remaining there as at one’s home; or it depends upon habitation and the animo manendi. Residence and domicile are not convertible terms, because they are not the same things. The Roman definition has been admired for its expressiveness and force. It is there defined: “It is not doubted that individuals have a home in that place where each one has established his hearth, and the sum of his possessions and fortunes; whence he will not depart if nothing calls him away; whence if he has departed he seems to be a wanderer, and if he returns he ceases to wander.” (Code, lib. 10, tit. 39.) It must be assumed as a fact that every person has a domicile, or home, and the domicile of origin remains until another is obtained, not by merely moving or changing, but by leaving it with no intention of returning, without animo revertendi. But an intention to change is not sufficient to alter a domicile until it is actually changed. Therefore, death en route does not alter domicile. (State v. Hallet, 8 Ala. 159.) One who goes abroad, animo revertendi, does not change his domicile, because only the fact of residence is changed, and not the intent. But if he remains very long abroad, and in one place, the intent may be inferred from the fact. The Supreme Court of the United States have intimated that an exercise of the right of suffrage would be the highest evidence, and almost conclusive against the party. (Shelton v. Tiffin, 6 How. 185.)
[296] The doctrine was well settled in a very early case in Pennsylvania, decided by Judge Tilgham, in 1808: the case of Desasbats v. Berquier, 1 Binn. 336; and this case has ever since been quoted and approved as a good statement of the law on this point. There, a will was executed in St. Domingo by a person domiciled there, and sought to be enforced in Pennsylvania, where the effects of the deceased were. It appeared not to have been executed according to the laws of St. Domingo, though it was conceded that it would have been a good will if executed by a citizen of Pennsylvania. The alleged will was held to be invalid.
[297] 23 N. Y. 394.
[298] Confl. Laws, Sec. 481; Adams v. Wilbur, 2 Sumner, 266.
[299] Wills, I, 404.
[300] Nat v. Coons, 10 Mo. 543.
[301] 14 How. 400.
[302] Coppin v. Coppin, 2 P. Wms. 291. This was accepted as an indisputable proposition, in Lynes v. Townsend, 33 N. Y. 558.
[303] Wood v. Wood, 5 Paige, 596; 9 Wheat. 565.
[304] Vol. I, 1.
[305] Conf. Laws, Sec. 479.
[306] Evid. 671.
[307] Gold v. Judson, 21 Conn. 616.
[308] 8 Cranch, 66; G. Stat. (Mass.) C. 92; 7 Met. 141; 6 N. H. 47.
[309] Cushing v. Aylwin, 12 Met. 169.
[310] Washburne, Real Prop. I, 166.
[311] Re Maraver, 1 Hagg. 498.
[312] Hoxie v. Hoxie, 7 Paige, 187.
[313] Hone v. Van Schaick, 3 Barb. Ch. 488.
[314] 2 W. Bl. 976.
[315] 1 Salk. 234.
[316] 2 Mau. and Sel. 454.
[317] Roe v. Pattison, 16 East. 221; Wheeler’s Heirs v. Dunlap, 13 B. Mon. 293.
[318] Youngs v. Youngs, 45 N. Y. 254.
[319] 5 Co. 68 b.
[320] 1 Johns. Ch. 231.
[321] 2 Vern. 624.
[322] Brownfield v. Brownfield, 20 Penn. 55; Johnson v. Johnson, 32 Ala. 637. Where there is no ambiguity on the face of a will, evidence is inadmissible to explain it: Hill v. Alford, 46 Ga. 247.
[323] Jackson v. Sill, 11 Johns. 201.
[324] Walston v. White, 5 Md. 297.
[325] Worman v. Teagarden, 2 Ohio N. S. 380.
[326] Asay v. Hoover, 5 Penn. 21.
[327] 2 Sneed, 618.
[328] Allen v. Allen, 18 How. (U. S.) 385.
[329] Betts v. Jackson, 6 Wend. 187.
[330] Lawyer v. Smith, 8 Mich. 411.
[331] Civil Code, 1340; Estate of Garraud, 35 Cal. 336.
[332] 4 Vesey, 329; 1 Salk. 238.
[333] Hodgson v. Ambrose, 1 Doug. 341.
[334] Theall v. Theall, 6 La. 220.
[335] 18 Jur. 915.
[336] Dowson v. Gaskoin, 2 Kee. 14. The word “money” used in making a devise in a will, will be construed to include both personal and real property, if it appears from the context, and on the face of the instrument, that such was the intention of the testator. Estate of Miller, 48 Cal. 165.
[337] Co. Litt. 207.
[338] 1 Johns. Ch. 231.
[339] James v. Smith, 14 Sim. 214.
[340] 5 Vesey, 159.
[341] 2 Eden, 194.
[342] Thus, in a case in California, Norris v. Henley, 27 Cal. 439, a testator devised his real estate upon a particular street, one-third to each of three persons by name, “to have and to hold their lifetime, and then to go to their heirs and assigns, but never to sell.” It was held to create a fee, and these words, “never to sell,” had no effect.
[343] Cro. Eliz. 9.
[344] Sims v. Doughty, 5 Ves. 243: Parks v. Parks, 9 Paige, 107.
[345] Frazer v. Boone, 1 W. R. Hill, 367.
[346] 3 P. Wms. 259; Cal. Civ. Code, 1317.
[347] Parks v. Parks, 9 Paige, 107; Williams v. Williams, 4 Seld. 525; Hawley v. James, 16 Wend. 61.
[348] Chrystie v. Phyfe, 19 N. Y. 344.
[349] 8 Jur. N. S. 825.
[350] Matter of Hallet, 8 Paige, 375.
[351] 33 Maine, 464.
[352] Hughes v. Hughes, 12 B. Mon. 121.
[353] Metham v. Duke of Devon, 1 P. Wms. 529.
[354] Cartwright v. Vawdry, 5 Vesey, 530; Gardner v. Heyer, 2 Paige, 12.
[355] 2 Meriv. 419.
[356] 1 Vent. 231; Moore v. Moore, 12 B. Mon. 655.
[357] Sibley v. Perry, 7 Ves. 522; Pope v. Pope, 14 Beav. 591.
[358] Hopkins v. Jones, 2 Barr, 69; Moore v. Moore, 12 B. Mon. 653.
[359] N. Y. Rev. Stat. Vol. III, p. 12.
[360] 9 Vesey, 319.
[361] 8 Sim. 134.
[362] Legacies, Ch. II, Sec. 10.
[363] Jones v. Sefton, 4 Vesey, 166.
[364] 3 P. Wms. 112.
[365] Timewell v. Perkins, 2 Atk. 103. The word “estate” in a will carries everything, unless restrained by particular expressions: Turbett v. Turbett, 3 Yeates, 187.
[366] Delamater’s Estate, 1 Wharton, 362.
[367] 29 Beav. 207.
[368] 5 Allen, 556.
[369] Holder v. Ramsbottom, 9 Jur. N. S. 350; Nichols v. Osborn, 2 P. Wms. 419.
[370] Pond v. Bergh, 10 Paige, 140; 12 Mass. 537; Estate of Wood, 36 Cal. 75.
[371] Wootton v. Redd, 12 Gratt. 196.
[372] 3 Burr, 1634.
[373] 4 Vesey, 406.
