estates.—when a person who owns property dies, the first question which arises is as to what becomes of his estate; who pays the bills, who takes charge of his business affairs, and what are the rules as to the division of his property. the first question a lawyer always asks is, "did the deceased die testate or intestate?" that is, did he leave a will or not. if he left a will, probably he has named one or more executors in his will to settle his estate, in which case such person or persons will take charge. if he has not appointed an executor in his will, an oversight which rarely occurs, the probate court will appoint an administrator. if, on the other hand, the man died intestate, it will be absolutely necessary for the court to appoint an administrator. the executor will settle up the estate according to the directions contained in the will, but if no will was made, the administrator will settle up the estate according to the rules of the probate court, under which he is acting, and the property will be divided in accordance with the statutes of the state or states having jurisdiction over the estate.
character of property.—it is very essential to distinguish carefully between the two kinds of property, real and personal, which the deceased leaves. real property, as we have explained, consists of land with the buildings permanently attached[pg 322] to it, and all other property is personal property, although it may relate to real property. thus, a mortgage on land is personal property, also the shares of stock in a corporation, although the corporation may be organized to engage exclusively in the ownership of real property, is personal property. where a person dies leaving a will, his real property goes directly to the persons to whom he leaves it in the will. in the case where he dies intestate, his real property passes directly to his heirs at law, who are designated by statute. in neither case is any formality necessary, beyond the probate of the will, to vest the devisee of the testator or the heirs at law of the intestate with the title to the real property. the situation in regard to personal property is quite different. where the deceased died leaving a will, his executor immediately has title to all the personal property. if he dies intestate, the administrator will take title as soon as appointed. the personal property is used by the executor or administrator to pay debts, and the real property, whether a man dies testate or intestate, is never used to pay debts unless the personal property is insufficient.
wills defined.—the definition of jarman is commonly used in defining a will: "a will is the instrument by which a person makes a disposition of his property to take effect after his decease, and which is, in its own nature, ambulatory, and revocable during his life." this definition is open to one criticism. it does not include oral wills which, as we shall see, are sometimes legal. we shall also use other terms in[pg 323] this chapter which must be defined. a testator is the man who makes the will, while the testatrix is a woman making a will. a codicil is a supplement to a will, made and executed with the same formality as the original will, and it becomes a part of the original will, adding to it, or altering it, as the case may be. a devisee is a person who takes real property under a will, while a legatee takes personal property under a will, and the real property passing under the will is called a devise, and the personal property a bequest. a legacy refers to money passing under a will. this is why the ordinary will uses this phrase: "i give, devise, and bequeath." it is not fatal, however, to make a mistake of having the will read, "i hereby devise," referring to personal property. it is more a mistake in the use of english, than a mistake in law to make a wrong choice of these terms which we have just defined. a holographic or olographic will is a will which is wholly written in the testator's or testatrix's own hand. the statutes of a few states recognize these wills as valid without the formal execution or attestation if they are wholly written, signed, and sealed by the testator's own hand. a nuncupative will is an oral will. while most wills must be in writing, in many jurisdictions the oral wills made by sailors at sea, and soldiers in actual service are recognized as valid without being reduced to writing and without any specified number of witnesses. it is perfectly apparent why these exceptions are made, because of the difficulty of securing the materials with which to make a written will by these two classes of people.[pg 324] nuncupative wills are good only to dispose of personal property, unless a special statute has been enacted which provides otherwise, but this is not commonly done.
a will and a gift causa mortis distinguished.—we have already referred to gifts causa mortis which are gifts of personal property made by the donor under apprehension of immediate death, coupled with the delivery of the property. the gift is defeated by the recovery of the donor. a gift causa mortis may be made orally, while, with the exception of nuncupative wills, all wills must be in writing. a gift causa mortis must be made under fear of pending death, whereas a will is ordinarily made with a view of the fact of death but not of its immediate happening. again, delivery is necessary to make a gift causa mortis, whereas under a will delivery never takes effect until after the person dies, and then the legatee's title comes through the executor or administrator, and not directly from the testator. real property is not the subject of a gift causa mortis, whereas a will may dispose of both real and personal property.
who may make a will.—as a general rule, any person of sound mind and of the age of twenty-one years may make a will. in some states, a person eighteen years of age may make a will of personal property. formerly a married woman could not make a valid will excepting in a few instances, but today, by statute, this common law disability has been either wholly or largely removed. the statutes of the[pg 325] particular state in which the married woman resides, or in which her property is situated should always be consulted.
testamentary capacity.—another qualification is that the testator must have sufficient intellectual powers to enable him to be said to have "a sound and disposing mind, memory, and understanding." the case of whitney v. twombly, 136 mass. 145, gives us as good a general statement as there is concerning the nature of testamentary capacity: "a testator has a sound mind for testamentary purposes, only when he can understand and carry in mind, in a general way, the nature and situation of his property, and his relations to the persons around him, to those who naturally have some claim to his remembrance, and to those in whom, and the things in which, he has been chiefly interested. he must understand the act which he is doing, the disposition which he wishes to make of his property, and the relation in which he stands to the objects of his bounty and to those who ought to be in his mind on the occasion of making his will." the ability to make a will is not necessarily gone because the testator is old, weak or ill, even practically at the point of death. the physical condition is simply significant in determining the mental condition, but of course a very weak physical condition does not necessarily mean a weak intellectual condition. insane persons are not capable of making wills, but a person who is insane may still have a "lucid interval" during which time he is sufficiently restored to his normal condition to enable him[pg 326] to act with such reason as to make a valid will, although he may, very soon, relapse into his former insane condition. ordinarily most peculiarities and eccentricities on the part of the testator do not affect his ability to make a will; neither do peculiar religious beliefs have any effect unless, in any of these cases, the person's mind is so completely controlled as to prevent the exercise of rational judgment in disposing of his property. his eccentricities must amount almost, in such cases, to a form of insanity to have this effect.
how a will must be executed.—there are four requirements for the execution of a valid will:
(1) it must be in writing.
(2) it must be signed by the testator.
(3) the testator's signature must be made by the testator or the marking acknowledged by him in the presence of the necessary number of witnesses.
(4) it must be declared by the testator to be his last will in the presence of the necessary number of witnesses, who are present at the same time and who subscribe their names as witnesses in the presence of the testator.
other formalities.—no particular form of writing is necessary. probably typing is the most common form in use to-day. as a precaution, lawyers sometimes have the testator sign at the bottom of each typewritten page, where the will is of several pages, or the document is fastened together with silk, the two ends of which are carried to the last page and imbedded[pg 327] in a wax seal. the testator should sign the will himself unless he is unable to, from lack of education or feebleness, in which case, the statute generally makes provision for another form of signing. it is better practice for the testator to sign the will in the presence of his witnesses, acknowledge the signature, and then the testator should declare, in the presence of his witnesses, that this is his last will and testament. in many states, two witnesses are all that are necessary; a few states require three. careful practice generally calls for three.
illustration.—a testator lives in new york. he has two witnesses to his will. his will is valid as far as his real property in that state is concerned, but should it happen that he also owns real property in a state where three witnesses are required, his will would not pass title to the real property in that state and, as far as that state is concerned, he would die intestate, and that real property would descend to his heirs in accordance with the laws of that state, which would quite likely not be what the testator intended to happen. by having three witnesses, his will is just as good in new york, where only two are necessary and the presence of the third witness makes the will good, and passes the real property situated in the state where three are required. it is always best to have the witnesses add their addresses to their signatures. this is not required by statute in many states, but after a person's decease, it may help in locating the witnesses by having addresses to which to refer. it is, of course, wise to use some care in the selection of[pg 328] witnesses, although almost any person is competent. adults, of course, are preferable as witnesses, but an infant is a perfectly good witness, but he should possess sufficient intelligence to be able to appreciate the importance of the act he is witnessing. in view of the formalities to be observed in the execution of a will, and the technical niceties in the use of the proper word or phrase, often required to insure the expression of the testator's exact intention, the drafting of a will should never be left to a layman, but should always be entrusted to a lawyer.
the form of a will.—in our discussion it is well to keep in mind the form of a will. a simple will reads as follows:
in the name of god, amen:
i, john jones, of the borough of manhattan, city and state of new york, being of sound and disposing mind and understanding, do make, publish, and declare this my last will and testament, as follows:
first. i direct that all of my just debts and my funeral expenses be paid as soon after my death as conveniently may be.
second. i give, devise and bequeath all the rest, residue and remainder of my estate, whether real, personal, or mixed, of whatsoever kind, character or description, and wheresoever situated, unto my wife, emma jones, for and during the period of her natural life.
third. upon the death of my said wife emma, i give, devise and bequeath the said residue and remainder of my estate to my children, alice jones,[pg 329] sarah jones, and george jones, to them, their heirs, executors, administrators and assigns forever, share and share alike, per stirpes and not per capita.
fourth. this will shall remain in full force and effect notwithstanding children may hereafter be born to me.
fifth. i nominate, constitute, and appoint my said wife emma, and the institute trust company, executors of this my last will, giving to them full power and authority to sell and convey any and all real estate, whereof i may die seized, at such times and for such prices as they may consider for the best interests of my estate.
sixth. i hereby revoke any and all wills at any time by me heretofore made.
in witness whereof, i have hereunto set my hand and seal this first day of july, 1921.
(signed) john jones (l. s.).
signed, sealed, published and declared by john jones, the above-named testator, as and for his last will and testament, in the presence of us, and each of us, and at the same time declared by him to us, and each of us, to be his last will and testament, and thereupon we, at his request, and in his presence and in the presence of each other, have hereunto subscribed our names as witnesses, this first day of july, 1921.
ralph roe, 3921 broadway, new york, n. y.
john doe, 65 fifth avenue, new york, n. y.
james smith, 130 post avenue, new york, n. y.[pg 330]
revocation.—a will may be revoked at any time at the pleasure of the testator. the ordinary ways of accomplishing a revocation of a will are: (1) the testator executes a later will, and in express terms says, "i hereby revoke all former wills by me made." even if such an expression is not put in the second will, if its terms are wholly inconsistent with the former will, this in itself, will act as a revocation. again, a will may be revoked by mutilation, as by being burned, torn, or otherwise mutilated by the testator himself, or in his presence and by his direction. the mutilation of the will, however, if not accompanied by an intent thereby to revoke it, is of no effect. i think i am tearing up an old insurance policy, but because of poor eye-sight, discover later that i have torn my will. this would not amount to a revocation of the will. as has been said by a writer on the subject of wills, "no amount of cancellation or destruction without the intent to revoke, and no amount of intent without the actual destruction, will suffice to revoke a will. both the intent and the actual destruction or cancellation must coexist."
sometimes changes in the circumstances and conditions of the testator's life will work a revocation. for example, at common law, the marriage of a woman worked an absolute revocation of her will. this has now been changed in most states by statute. in a great many states, however, today, if a testator, having no children, should make his will, and after the execution of the will, a child is born, the will is revoked in toto, when no provision for such child is[pg 331] made in the will. however, as above stated, this rule is not uniform in all states, and local statutes should therefore be consulted on this point. where a testator already has children, the birth of additional children will not affect his will except, that such after-born children will inherit the same as though he had left no will. these rules in regard to after-born children apply only where the will does not make any mention of possible issue, and for this reason it is well to insert the clause, in many jurisdictions, providing that the will shall remain in full force and effect notwithstanding the fact that children may thereafter be born to the testator.
probate of wills.—every state has a probate court for the settlement of decedents' estates. such a court is variously named as the probate court, the surrogate's court, and the like, according to the nomenclature adopted in a particular state. before an executor named in a will has any authority to act, he must produce the will, and after the proper proceeding has been had, the will is admitted to probate, and he may then qualify under it by giving the necessary bond. if the deceased died intestate, the proper person will apply to the probate court for the appointment of an administrator, and after a hearing, the court will appoint the person entitled to receive letters of administration. the administrator will then qualify, give the necessary bond, and then proceed with the settling of the estate.
a testator may name anyone in his will as an executor. in the large cities, in recent years, it is becoming[pg 332] quite common to name a trust company as executor, because its facilities for handling estates render it more efficient than the average individual. if, on the other hand, the testator is unwilling to place the sole care of his estate in the hands of a trust company, he may name two executors, a trust company and his wife, if he is a married man, or a very close friend in whose judgment he has great confidence, and, together, the two act as executors. the fees which the executors receive are generally fixed by statute. if the deceased dies intestate, the letters of administration are granted by the court in accordance with a definite statute. while the law in the various states is not uniform, generally, the priority of the right to administration is arranged by statute something like this:
(1) on the estate of a husband:
(a) to the widow, if there is any.
(b) if there is no widow, or if the widow renounces, then to the children.
(c) if there are no children, then to the issue of deceased children.
(d) if no issue of deceased children, then to the nearest of kin.
(2) on the estate of a wife:
(a) to the husband, who has an absolute right. if the husband for any reason does not desire to act as such administrator, he may select any fit person to administer the estate.
(b) if there is no husband, then to the children.[pg 333]
(c) if no children, then to the issue of deceased children.
(d) if no issue of deceased children, then to the nearest of kin.
(3) on the estate of an unmarried child:
(a) to the father, who has an absolute right. if for any reason the father does not wish to act, the court may select any fit person to administer the estate.
(b) if there is no father, then to the mother and brothers and sisters, whether of whole or half blood.
(c) if no mother or brothers or sisters, then to the nearest of kin in equal degree.
per stirpes and per capita.—where the subject of a testamentary disposition is directed to be "equally divided" or to be divided "share and share alike," or where similar words are used which indicate an equal division among a class of persons, the persons among whom the division is to be made take per capita, unless a contrary intention is discoverable from the will. where the individuals of a class are specifically named, or are designated by their relation to some ancestor living at the date of the will, whether the testator or another, they take per capita, unless the context of the will shows an intention that they should take per stirpes. but where the gift is to an individual, or several named individuals, and to others as a class, the latter take per stirpes; unless the testator uses language indicating an intention that the members of the class shall share equally with the[pg 334] named individuals. a gift to a class of persons or on their death to their heirs or children will be distributed among such heirs or children per stirpes; but a gift to one person and the children of other deceased persons will be divided per capita, unless it appears from the context or circumstances shown by extraneous evidence that the testator intended a distribution per stirpes.
illustration.—a gift to children of testator, a. b. and c., or on their death to their heirs or children will be distributed, in the event of the death of c. before the testator, among heirs or children of c. per stirpes. (in other words, they will divide the share of their father between them.) but a gift to a. and to x. y. and z., the children of b. deceased, will be divided per capita.
the construction of wills.—it sometimes happens that wills are not carefully drawn, and even if they are, their meaning is not always perfectly clear. ordinarily, any person who is interested in the meaning of a clause of a will may bring a suit in the proper court asking for a construction of the will. of course, each case is governed more or less, by its own facts, but there are certain general rules which the courts follow in trying to arrive at the testator's intent. for example, a will is ordinarily presumed to speak as of the time of the testator's death. thus, reference in a will, to the arrival of the testator's youngest child at the age of twenty-five years, will apply to the youngest child at the time of the testator's death, although such child is born[pg 335] after the execution of the will. ordinarily, a testator is presumed to have intended to dispose of all of his property, and if a will can be so construed, this will be done, rather than to adopt a construction which will make him testate as to part of his property and intestate as to another part. if there are two irreconcilable parts, the latter part is the one which prevails. words are to be understood in their ordinary meaning, unless there is something to clearly show contrary intent. if, between two possible constructions, one of which would disclose a legal purpose, and the other an illegal purpose, the court will adopt the former.
dower.—under the rules of the common law, a wife was entitled, on the death of her husband, to an estate for life in one-third of the lands of which her husband was seized of an estate of inheritance at any time during the marriage. this dower right still exists in most states, although it may differ in some particulars. for example, in connecticut, a dower right exists only in the real property which the husband owns at the time of his death, and not, as at common law, in all the real property of which he was seized during the whole marriage. therefore, reference to the statutes must be made in each state, to know the exact rule in a particular jurisdiction. where the state adheres closely to the common law, this right, on the part of the wife, is a right of which her husband cannot deprive her; if the husband disposes of all his real property in his will to his friend, john jones, such disposition is not valid and the wife[pg 336] would still be allowed her dower right by the probate court. it must also be borne in mind that dower refers only to real property. generally, a husband may dispose of his personal property without any reference to his wife. ordinarily, two things are necessary to establish the right of dower: (1) a legal marriage, and (2) seizin by the husband of an estate of inheritance in lands, or, in a layman's terms, the absolute ownership of a piece of real estate.
curtesy.—curtesy is the common law right which a husband has in the real property of his wife, and by it he is entitled to an estate for his life in all lands of which his wife was seized during marriage. needless to say, women did not take part in law making when this law arose. to establish this right, three things are necessary: the two already mentioned in dower, and third, the birth alive of issue of the marriage. the right of curtesy does not exist in this common law form in as many states as does the right of dower. where these two rights do exist, in their more or less modified form, you have the explanation of the fact that when a married man sells real property, his wife joins in the deed, or when a married woman sells real property, her husband joins in the deed. the act of either in joining, releases the dower or curtesy right and allows the purchaser to get a clear title.
conflict of laws.—we have already referred to this topic. it frequently happens that a person dies owning real property located in a number of states. it is almost certain that the laws covering[pg 337] real property will vary in these different states. if he was a resident of philadelphia, his will will probably have been executed in accordance with the laws of pennsylvania. the question arises whether such a will is valid to convey real property which he owns in new york, california, and massachusetts. insofar as the will affects real property, the mode of execution and its validity will be controlled by the law of the jurisdiction in which the real property is situated. if, then, the will had two witnesses only, as required by the pennsylvania law, but three witnesses are required in one of the other states named, he would die intestate as far as the real property in the other state is concerned. difficult questions sometimes arise in regard to gifts to charities. some states limit the amount which a charitable corporation may receive as a gift under a will, and other states require that the gifts must be executed within a certain time before the decedent's death. where there is a question of this character involved only a careful examination of the decisions and statutes in the states concerned can furnish the basis for any satisfactory answer. if there is personal property, the requisites of validity and construction of a will are controlled by the law of the testator's domicile. the question as to his domicile is sometimes quite difficult to determine and may require a court action. we have had a number of illustrations of that in connection with the inheritance tax laws, where the officers of one state have sought to establish the domicile of a particularly wealthy person, who has just[pg 338] died, within that state in order that they may secure the inheritance tax for the state, which would of course, be much larger if the person were adjudged a resident of that state than it would be if he were held to be a non-resident.
contracts to make a will.—it sometimes happens that one person may make a contract whereby he agrees to make a will in favor of another person. a, 75 years old, and of the proper mental capacity to make a will, makes a contract with mary jones, that, if she will live in his house and act as housekeeper as long as he lives, he will make a will and in it give her his house and $5000. he fails to make his will and dies suddenly at the end of the year after the making of this contract. it is generally recognized that contracts of this nature are valid. the general rules applicable to contracts apply here. there must be consideration, the contract must be certain in its terms, and as such contracts are not favored by the courts, because they are open to many forms of fraud, they must be proved by clear and convincing evidence, and the contract would have to be in writing under the provisions of the statute of frauds. in the illustration suggested, the further question arises, what is the remedy on the part of the housekeeper for a breach of contract. ordinarily there are two proceedings open in such a case. the personal representative of the deceased might be sued at law to recover damages for a breach of contract, or one might proceed in equity to compel the parties who take the legal title to the house, in consequence[pg 339] of the failure of the decedent to make his will as he contracted to do, to convey the property which would have been conveyed by the will, had the will been made in compliance with the contract.
trusts defined.—in bouvier's law dictionary, trusts are defined as obligations imposed, either expressly or by implication of law, whereby the obligor is bound to deal with property, over which he has control, for the benefit of certain persons of whom he may himself be one, and any one of whom may enforce the obligation. a trust arises when property has been conveyed to one person and accepted by him for the benefit of another. the person who holds the property and the legal title is called the trustee, and the person for whom it is held is termed the beneficiary or "cestui que trust." trusts are created for a great variety of purposes. it is very common to create them by a will, the testator appointing a trustee to manage a trust fund which he sets aside for the maintenance and support of a certain person or a certain institution. a new device for creating a trust for the carrying on of a business, seems to be growing in popularity. the practice apparently began in massachusetts with the creation of a trust for the operation of an office building and similar undertakings. under this arrangement, a trust estate may have transferable shares, exemption of shareholder's liability, and frequently enjoys peculiar advantages in taxation matters. these organizations are sometimes spoken of as common law corporations. they are so comparatively new that the[pg 340] closest care should be exercised in operating a business under this form of organization. we shall now consider the powers and duties of trustees and include with them executors and administrators.
trustees, executors, and administrators.—trustees, executors and administrators may be classed together because they are alike in that they hold legal title to property which is held by them for the benefit of other persons. they hold the legal title. a trustee is the owner of the property, and any one who seeks a transfer of the legal title of the property must get it from the trustee. executors have exactly the same powers as administrators, aside from powers that may be expressly given in the will. the difference in name is simply because an executor is appointed by the will of the testator, whereas an administrator is appointed by the court to take charge of an estate for which no executor has been named in a testator's will, or where the executor may have died or refused to act, or, the most frequent case, where the deceased died intestate.
their appointment.—were it not for statutes, a trustee or an executor would become such simply because somebody had made him a trustee or an executor without any appointment or assistance from the court. but in the appointment of executors or trustees, under wills, the court is by statute generally required to make an appointment to give validity to a nomination or appointment in the testator's will. administrators, of course, from their very nature, have to be appointed by the court. a[pg 341] trust, however, may be created between living persons without any appointment by the court, and frequently is. a real estate trust may be created by simply conveying property to trustees on the trust that they manage it and pay the income to the beneficiaries, and a great variety of trusts are constantly created without an appointment from the court. wherever any question on a trust arises, or wherever the appointment of a new trustee is necessary, however, the court has jurisdiction, and any person interested in the trust can bring the matter before the court. when a testator dies the person named as executor in the will petitions for appointment, and unless there is some reason why he should not be appointed he doubtless will be appointed. if there is no executor, then the persons, or beneficiaries, interested in the estate, usually agree on someone to administer the estate, and a petition is filed for his appointment. the person who is next of kin, and competent to act, is generally appointed in the absence of agreement. these officers remain in office and retain their powers until their work is completed, unless they are sooner removed, which they may be at any time for cause.
their powers.—what powers do these persons have? do they have power to sell? we must first always look at the terms of the trust. if we are dealing with a trustee under a will we look at the will to see what powers the testator gave him. if we are looking at a question of a trust under a deed, we look at the deed, and the right of an executor to[pg 342] sell real estate similarly depends on whether any such power has been given him in the will. aside from express power given in the instrument, a trustee has no power to sell either real or personal property unless the power is expressly given or unless the nature of the trust is such as necessarily implies the power, and courts are very slow in construing the existence of such power by implication. an executor, on the other hand, since his duty is to reduce the personal property of an estate to cash, and distribute it, has, in most states, implied power to sell personal property. he has, however, no power to sell real estate unless the will expressly gives such power. the court may authorize him to sell real estate, and will authorize him, if it is necessary to pay debts or legacies, but only in such cases unless a power is expressly given. trustees, executors and administrators have no power to pledge property unless expressly given in the instrument under which they act. they have power to make such contracts as are necessary to carry out their trust, but only these, and even when they make such contracts they are personally liable upon them, having, however, a right of reimbursement from the estate which they represent. if they entered into an unauthorized contract they would be liable upon it personally and have no right of reimbursement.
their duties.—their first duty is the care and custody of the property in their charge. a trustee, whose duty is to hold property, is bound to keep it invested so as to bring in an income, whereas[pg 343] an executor has no right to invest funds of the estate, except under the direction of the court; if he does so he will take the chance of loss, and the beneficiary can not only hold him liable for loss but can also take the profit should the investment prove profitable. the executor's duty is to reduce the property to cash and distribute it to the proper parties. all these officers owe the same duty of fidelity to their beneficiary that an agent owes to his principal. there is the same duty to execute the trust personally and not delegate authority, except in regard to ministerial or mechanical acts. there is the same duty to account, and furthermore, the accounts of these officers, if they are appointed by the court, must be filed in court. the trustee to carry out his trust will ordinarily distribute the income to the persons entitled, but, of course, trusts are of great variety, and not infrequently the object of a trust is to accumulate the income. whatever the terms of the trust are they must be carried out. the duties of the executor and administrator are to distribute the estate by paying creditors first and the surplus to legatees or the next of kin legally entitled. they are allowed a fixed period, in many states two years, to settle an estate.
one of the most essential duties of any fiduciary is to keep the property he holds as a fiduciary separate and distinct from his own. this means that a trustee or executor receiving current income must keep a separate bank account as trustee or executor, and of course he should not draw checks on that fund for personal debts.
