The Law of Wills, 1. del

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vokable
24
Such consent will not apply to subsequently acquired property
25
Where the husband is civiliter mortuus the wife may make her will as a feme sole
26
In New York it is expressly denied constructions which obtain there
27
Married woman may execute valid will in performance of a power
28
Married woman may dispose of real estate in Connecticut with consent of her husband
29
Opinion of Chief Justice Tindal upon the question 35
30
the act
39
The presumption of sanity must have its proper weight in the case
40
and n 21 The strict meaning of onus probandi as defined by Baron Parke 4144
41
There seems to be no reason why the executor should first give proof of sanity
42
In other states where this is not required the onus probandi is shifted during the trial
43
The subject of the general onus probandi discussed by Mr Justice Thomas
44
But in a later case it is held the burden of proving insanity rests upon the party alleging that fact
45
The courts here hold that prima facie evidence of due execution throws
50
Blindness alone no proof of mental incapacity but imposes duty of watch
54
Rule as declared by the surrogate of New York 56
56
SECTION VIII
64
upon the subject 81
81
Delusion in the deed to avoid the instrument must appear to have formed
85
Delirium produced by stimulas may incapacitate one during the paroxysm 91
91
Extreme old age does not incapacitate where the act is rational and free 98
93
Old age should excite our watchfulness but is not presumptive of want
97
SECTION XIII
107
There is å marked difference between lucid intervals in delirium
113
SECTION XIV
118
Review of the case of Stewart v Lispenard hy Mr Justice Davies
120
Statement of cases affecting testamentary capacity 126
126
One under interdiction presumed incompetent to execute a will 133
133
The question is placed on the true ground in Maryland that appear
135
Declarations of party interested may sometimes be received 157 158
136
The same rule applies in large measure to the subject of insanity
139
The rule as defined by Lord Brougham 150
150
35 and n 52 Where the party interested under a will is active in procuring it the court should be watchful
158
CHAPTER V
160
pacity 161
161
There is no presumption of the continuance of this disability
163
CHAPTER VI
164
operate as testamentary 170
170
But if made in the form of a will it must be done animo testandi
171
The ecclesiastical courts often admit numerous papers to probate 172 173
172
The form of language in a will not important if amounting to a direction
174
Lord Cranworths rule that it must be intended to control the party ad dressed
175
And a similar disposition manifested in regard to wills
176
part of the will
181
Where there are discrepancies between the draft and the engrossed copy former control
182
Matual wills irrevocable in equity
183
and mariners
184
Not required in the earliest periods to be made in extremis
185
The law so defined by Chancellor Kent and other writers
186
Blackstone and Chitty affirm that the legal requisites must be strictly fulfilled
188
In the American states this kind of will is now greatly restricted
189
Not applicable to sickness of chronic character except at the very last
190
In case of soldiers and seamen they need not call the witnesses in form
191
The term seaman or mariner applies to all kinds of navigation to all engaged
192
Upon principle soldiers and mariners wills may be proved by one wit
194
Will not extend to lands Strict construction applied to all such instru
201
A will is not made conditional by assigning an uncertainty as a reason for its execution 176 177
207
The later cases require no formal publication unless by express statute 214
214
The form of the will is not material Capacity purpose and condition is all 193
219
17 and n 38 Review of cases showing that acknowledgment of the paper
220
The use of a seal dispensed with in most of the states except in the
226
The American courts do not adopt this refinement It seems
229
Consideration of the import of the term subscribe in the statute 235
235
But any omission in this clause may be supplied by proof aliunde
241
Must not appear that testator was in part of the room where he could
244
SECTION VI
252
This does not exclude all external evidence
262
The reference to the unattested paper and parol evidence must leave
268
The distinction is between giving a legacy before charged on land
271
relatively affecting real estate
276
giving the avails of the land
278
An attestation clause still desirable in practice
286
Erroneous recital of the will in the codicil has no effect upon its con
287
revocation
296
SECTION II
302
Revocations by means of fraudulent imposition upon testator 328 329
304
Presumptive revocation from destruction of duplicate if the other part
309
But these cases carry that rule too far It only estops the parties to
319
The rule of the American courts the same as the English in this respect 325
325
Presumption 331
331
The conveyance of so large a portion as to break up the scheme of a will a revocation
341
SECTION V
344
Bat where devise is given in same form as residue the rule is otherwise
345
How far revocation of one office will affect others in same person
354
Clear bequest not revoked by subsequent uncertain direction
357
Statement of other cases of express or implied revocation
363
The legal effect of republication is to make the whole will of that date 370
370
The act of republication depends upon the intent of testator Facts
375
The same rule of construction obtains in regard to the objects of testa
378
SECTION II
393
It is competent to prove insanity in any of the blood relations of
404
SECTION III
412
SECTION IV
419
SECTION V
437
SECTION VI
443
doubt
449
Irreconcilable repugnancy cured by rejecting the earlier portions 450
450
Further illustrations of incurable repugnancy 451
451
From the man anner wills are made courts should preserve more important parts
452
No portion of the will is rejected for repugnancy except from necossity
453
But this is not done where there is ground for doubt in regard to the words
454
Words omitted may be supplied by reference to the correlative part of the will 455
455
The name of devisee may be supplied by clear intendment
456
Conflicting decisions stated in reference to similar cases
458
Lord Mansfield in Right v Sidebotham 460
460
Terms of one devise cannot be drawn into the construction of another wholly distinct 461
461
The correspondence must amount to identity 462
462
Where the defining of the estate is reserved to the end of the clause
463
The clear intent of the testator gathered from the whole will must prevail
464
Recapitulation of the rules deducible from the cases
465
SECTION VIII
467
and vice versa 469
469
Reference to American cases illustrative of the rule
470
SECTION IX
471
gift
484
In bequests to persons or their children or construed and
485
Devises to one or his heirs forever or in tail proper construction
486
Devise to one his heirs or assigns creates a feesimple
487
And construed or to prevent the divesting of a legacy
488
Unmarried designatio personæ Still unmarried is never having
490
CHAPTER X
496
Parol evidence admissible to remove latent ambiguities and to rebut
502
ADMISSIBLE TO SHOW FRAUD OR UNDUE INFLUENCE 1 General statement of the rule 509
507
The nonperformance of such promise is a virtual fraud Its perform ance decreed in equity
508
American rule that proof of condition of subject matter receivable in
509
ance to be overcome
518
A will produced by fraud in favor of innocent parties is void
519
Some degree of influence which may qualify or even produce the will may not be undue
520
An undutiful testament set aside upon slight evidence of extraneous in fluence
521
Mere general influence will not be sufficient
522
SECTION III
537
If the words or circumstances indicate how the terms were used
565
Mere mistakes in a will where no fraud imputable not corrected
571
But if it had been given to a person deceased it would not be void under
573
Lord Cheneys case
583
But a defective description of legatee may be aided by parol
587
The name if applicable to a living person will control description
593
Sir William Grants commentary upon the construction of wills 637 638
595
Exposition of the question by the judges in Anstee v Nelms 653
596
Express provision that legacy shall be paid to heirs c 616
616
The case of Blundell v Gladstone discussed 622
622
The admissibility of extrinsic evidence to explain nicknames
630
113 114
645
to relative terms 658660
658
65 and note The commentary of Mr Wigram upon this point 660
660
Some American cases referred to upon the question
661
Case illustrating the subject decided by Sir John Leach
662
The intent must be gathered from words of will but may be construed in connection with writing referred to in the will
663
The introductory words of will cannot enlarge devise except they are connected with it 664
664
CHAPTER XI
666
But this uncertainty is commonly removed by referring to the purpose
672
Enumeration of indefinite expressions in will not sufficient to create
678
Where all of a fund is given in unascertained proportions these may
684
No general course of decisions in American courts in regard to uncertainty
695
But where others besides the donee are interested courts will interfere
696
CHAPTER XII
721
APPENDIX
731
259 260
764
433
767
Die without issue construed without issue living 465
792
D
793

Pogosti izrazi in povedi

Priljubljeni odlomki

Stran 279 - That no will shall be valid unless it shall be in writing and executed in manner hereinafter mentioned ; (that is to say), it shall be signed at the foot or end thereof by the testator, or by some other person in his presence and by his direction ; and such signature shall be made or acknowledged by the testator in the presence of two or more witnesses present at the same time, and such witnesses shall attest and shall subscribe the will in the presence of the testator, but no form of attestation...
Stran 13 - It is agreed that British subjects who now hold lands in the territories of the United States, and American citizens who now hold lands in the dominions of his Majesty, shall continue to hold them according to the nature and tenure of their respective estates and titles therein ; and may grant, sell, or devise the same to whom they please, in like manner as if they were natives ; and that neither they nor their heirs or assigns shall, so far as may respect the said lands and the legal remedies incident...
Stran 75 - It is very difficult to define the invisible line that divides perfect and partial insanity ; but it must rest upon circumstances, duly to be weighed and considered both by judge and jury ; lest, on the one side, there be a kind of inhumanity towards the defects of human nature ; or, on the other side, too great an indulgence given to great crimes...
Stran 130 - In the language of the cases, have sufficient active memory to collect in his mind, without prompting, the particulars or elements of the business to be transacted, and to hold them in his mind a sufficient length of time to perceive at least their obvious relations to each other, and to be able to form some rational judgment in relation to them.
Stran 274 - A. be dead at the date of the will or at the death of the testator, the issue of that child cannot take anything.
Stran 503 - Where there is nothing in the context of a will from which it is apparent that a testator has used the words in which he has expressed himself in any other than their strict and primary sense, but his words so interpreted are insensible with reference to extrinsic circumstances, a court of law may look into the extrinsic circumstances of the case, to see whether the meaning of the words be sensible in any popular or secondary sense of which, with reference to these circumstances, they are capable.
Stran 196 - That any soldier being in actual military service, or any mariner or seaman being at sea, may dispose of his personal estate as he might have done before the making of this act.
Stran 280 - ... on a side or page, or other portion of the paper, or papers, containing the will, whereon no clause, or paragraph, or disposing part of the will shall...
Stran 7 - Commentaries on the Law of Promissory Notes, and Guaranties of Notes and Checks on Banks and. Bankers, with Occasional Illustrations from the Commercial Law of the Nations of Continental Europe.
Stran 8 - Reports of Cases Argued and Determined in the Circuit Court of the United States for the First Circuit.

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