John Proffatt

“ Jurists do not quite agree as to the full extent of a man’s interest in, and control of, the property he acquires. There are different theories as to the real title to property; most all, however, agree that occupation, united with labor, is the best ground of a title to exclusive ownership of property. But how long will this ownership or control continue? During lifetime, or for a longer period? ”

“ From the lord of the forest to the monster of the deep—from the subtlety of the serpent to the innocence of the dove—from the celastic embrace of the mountain Kalmia to the descending fructification of the lily of the plain, all nature bows submissively to this primeval law. ”

“ For a large amount of property is owned in societies advanced in civilization before the right of testamentary disposition is exercised, which would show that this right is not coeval with the foundation of society or the acquisition of property, and therefore nations are not impelled to it by a natural instinct and impulse. It is claimed that the jus disponendi is a necessary incident of property—an inseparable quality; but if, by this term, we understand a right of disposal while a man lives, we can admit that it belongs to ownership ”

“ With regard to real estate, a different rule prevails. It would not comport with the dignity or independence of one country to allow real property, which by its nature is fixed and immovable, to be controlled and affected by foreign laws. Hence it is the law of the place where the real estate is situated that governs in its distribution, and as to the proper execution of a will devising it. ”

“ The rule of the common law, until within the last hundred years, was, that it required that a person should be absolutely a lunatic, that there should be entire alienation of mind, in order to incapacitate him from making a will; and there was no such theory then as partial insanity, or monomania, which the law takes notice of in modern times. ”

“ Surrogate Bradford, in an able opinion, examined the evidence carefully and at length, and came to the conclusion to admit the will to probate. About her levity, he remarks: “It is worthy of remark, that persons attaining great age often possess a large degree of that cheerful and lively manner which characterizes youth, and which probably in them contributes greatly to a green old age, when others, not so old, and possessing less of this sprightliness and vivacity, appear more decrepid and stricken in years.” ”

“ Lord Ellenborough said, that if he were asked his private opinion as to what the testator really meant when he used these words, he would reply, that he must be supposed to have meant that which his duty prescribed to him, to convey all his property for the maintenance of his family; but as a judge, he was not at liberty to collect his meaning from matters dehors, but only from expressions used on the face of the will, and that the expression “effects” had always a meaning, in the absence of anything in the context, which necessarily excluded real estate. ”

“ It is one of the well-understood qualities of a will, at the present time, that it is revocable during the testator’s lifetime. It was shown, in a former part of this work, that this quality did not in early times attach to a will; that a will, at first, was in the nature of an executed contract; a conveyance, in fact, and irrevocable. [231] However, as a will has no effect until death, it necessarily follows that a person has full control of the subject-matter, and can change his mind as he pleases regarding its disposition so long as he lives. ”

“ A distinction was formerly made between a will and a testament; when lands or tenements were devised in writing, it was by will, and when goods and chattels were disposed of, it was by testament; but this distinction is now lost sight of, and the words are used indiscriminately, and we speak of the posthumous disposition of an estate, of whatever kind, as by last will and testament.
Since peculiar perils and obstacles beset a man in his last hours; as much uncertainty and contention have arisen as to his precise purpose and declaration ”

“ The control which the law still gives to a man over the disposal of his property is one of the most efficient means which he has, in protracted life, to command the attention due to his infirmities. The will of such an aged man ought to be regarded with great tenderness, when it appears not to have been procured by fraudulent acts, but contains those very dispositions which the circumstances of his situation and the course of the natural affections dictated. ”

“ But if a man in his old age becomes a very child again in his understanding, and becomes so forgetful that he knows not his own name, he is then no more fit to make his testament than a natural fool, a child, or a lunatic. ”

“ Courts are not disposed to accept every statement regarding the eccentric or weak movements of an old person as incapacitating such a one from making a will; on the contrary, there is every disposition to permit such a one, if not unmistakably enfeebled in intellect, or unduly influenced, to exercise a right that throws around one, at such a period, a dignity and power entitling them to the respectful regards of those who otherwise might not bestow upon them the attention due to the helplessness of old age. ”

“ It may be admitted that the slightest act of cancelation, with intent to revoke absolutely, although such intent continue but for an instant, is a total and perpetual revocation, and the paper can only be set up as a new will. But that is founded upon the intent. Without such intention, no such effect can follow; for the purpose of the mind gives the character to the act. When, therefore, there appears a cancelation, it becomes necessary to look at the extent of it, at all the conduct of the testator, at what he proposed doing at the time, at what he did afterwards.... ”

“ A lawyer who had only in his mind the old common-law theory and rules, and had neglected to make himself familiar with modern legislation on this subject, would find himself strangely bewildered to define a married woman’s rights and powers at the present time. ”

“ It is evident that an executor cannot safely pay a legacy until he ascertains that the personal estate of the deceased is sufficient to pay the debts, and for this reason the law generally allows the space of a year to satisfy himself as to the condition of the personal estate. [160] And should an executor, acting under the impression that the condition of the assets was such as to entitle him to pay a legacy before the end of the year, pay it before, and if, afterwards, a deficiency arises, he is responsible for the payment of any claim or demand against the estate. ”

“ For the public welfare, it has seemed judicious to impose certain restrictions on the right exercised by a person in distributing his property after his decease. It is well known that if an uncontrolled, absolute power were given, that individuals would sometimes disregard the claims of those who have a natural right to their bounty, and gratify their pride, their whims, or their vagaries in disposing of their property by will. ”

“ By the early common law of England, if a man had a wife and children, he had only a testamentary disposition of one-third of his property; the remainder, the shares of the widow and children, were called rationabiles partes, which must be intact. The personal attendance of the clergy on the dying would ordinarily lead to the disposition of the third which a person was privileged to bequeath by testament; and, from ancient wills, it is very evident this power was liberally and generally exercised in favor of religious uses, such as were deemed for the soul’s health of the testator. ”

“ The incapacity arising from coverture is to a great extent removed, and is gradually disappearing by remedial legislation, and for this reason it will not be necessary to treat of it at much length.
There has been a tendency, for many years past, to remove the various property disabilities attaching to a married woman, and which were only to be justified, if then at all, by quite a different state of social organization from the present. Perhaps in no branch of the law have there been so many radical changes as in that part pertaining to the status of a married woman. ”

“ We have no uniform rule throughout the United States, either by statute or construction, as to the extent to which parol testamentary evidence is admissible. In some States, the English rules will be followed in the main, which is to admit no extrinsic evidence except to explain a latent ambiguity. But in many of the States, undoubtedly, extrinsic evidence of the testator’s circumstances, as distinguished from his intention, will be admitted in aid of the construction of any expression left ambiguous by the context. ”

“ 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 ”

“ The inquiry to whom legacies are to be paid is one of great importance to the executor, who must be careful to pay legacies into the hands of those who have authority to receive them. It is a general rule that, where the legatee is an infant, and would be entitled to receive a legacy if he were of age, the executor is not justified in paying it either to the infant, or to the father, or any other relation of the infant, on his account, without the sanction of a court of equity. ”

“ Some maintain that, by the law of nature, it only lasts during the life of the owner, and after his decease the property again becomes merged with the general stock of the public—it becomes publici juris; and that to permit one to order and control its disposition after he has ceased to live, is a privilege or a concession of society, and not any inherent natural right. ”

“ That a bequest to a person payable, or to be paid, at or when he shall attain twenty-one years of age, or at the end of any other certain determinate time, confers on him a vested interest immediately on the testator’s death, as debitum in præsenti solvendum in futuro, and transmissible to his executors or administrators; for the words payable, or to be paid, are supposed to disannex the time from the gift of the legacy, so as to leave the gift immediate, in the same manner, in respect to its vesting, as if the bequest stood singly, and contained no mention of time. ”

“ A will, from its nature, is the declaration of a man’s mind as to the proper disposition of his property after death. This declaration, as any other fact, is established by evidence, oral or written. It is not the essence of a will that it shall be in writing; the essence is the declared purpose or intention, and this is established, as any other fact in law, by witnesses, or by the written declaration of the testator. In Bacon’s Abridgement, a will, therefore, is defined to be, “A declaration of the mind, either by word or writing, in disposing of an estate ”

“ The general principle as to the lapse of legacies by the death of the legatee may be stated to be, that if the legatee die before the testator’s decease, or before any other condition precedent to the vesting of the legacy is performed, the legacy lapses, and is not payable to the executors or the administrators of the legatee. [126] But this general rule may be controlled by the manifest intention of the testator appearing upon the face of the will, that the legacy shall not lapse, and by his distinctly providing a substitute for the legatee dying in his lifetime. ”

“ In some States, where the estates by dower and curtesy are abolished, this restriction, of course, cannot exist, as, for instance, in California.
In New York, the power to dispose of her separate real estate by will seems to be unrestricted, for there is no limitation mentioned. But opinions differ on this question: some hold that the husband’s right of curtesy is not cut off by the statute, while others hold that the whole unrestricted disposition of her property is given, and that she can defeat her husband’s curtesy, even if issue be born and the estate become vested. ”

“ There is no question that the weight of judicial opinion is greatly in favor of the doctrine that the law is not a creation of the statute, but is founded on the common law jurisdiction in the Court of Chancery, and as such can be administered by the courts in the absence of any special statute. ”

“ The English courts are more strict in requiring a substantial compliance with the statute than our courts are. In the American cases, the intention is looked upon as the most material and controlling element: as where a testator asked for his will on his sick bed, and was handed an old letter, which he destroyed, supposing it to be his will, it was held to be a good revocation. ”

“ 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 ”

“ We come now to treat of that incapacity which gives rise to most frequent and difficult litigation, and upon which judicial discrimination is most generally exercised—the incapacity of those who are of unsound mind, or persons non compos mentis.
There is no investigation in the whole domain of law that is attended with so many lamentable phases, where the foibles, indeed, the ludicrous side, of human nature, are more exposed ”

“ Thus, if an annuity be bequeathed by a man to his wife for so many years, if she shall remain so long a widow, it is a good conditional bequest, because of the particular interest every husband has in his wife remaining a widow, for thereby she will the better take care of the concerns of his family. [145] But if a stranger gives a legacy upon such condition, it is not a good condition, for there is no more [Pg 108] reason restraining a widow from marrying than a maid. ”

“ The possession of a large amount of property during a man’s lifetime gives him such a consciousness of power and authority, that it is difficult to disabuse his mind of the idea that he cannot perpetuate his name, his influence and control, after his death, by distributing and disposing of his property according to his pleasure. ”

“ The memory of the jars and ills of domestic life has so embittered a man’s mind, that if the strife was unequal during his lifetime, he hopes to turn the scale in his favor when dying, and in his will have a last word, and in this way cut off his spouse from her inalienable prescriptive right of having the last word. ”