50 was denied them; those similarly afflicted by accident were treated more liberally and were presumed capable, unless the contrary were proved. Blindness alone does not, of itself, incapacitate, if it do not appear that deception was practiced on the unfortunate;" nor is a deaf mute disqualified merely by reason of his infirmity, because such a person may possess sufficient intelligence to form the proper intention and exercise just discrimination. So, one who is deaf, dumb, and blind is not disqualified by law, if there exist in him sufficient intelligence to perform a valid testamentary act, though this must be proved clearly by competent witnesses. 31. One under the influence of liquor may be mentally deranged to an extent which destroys capacity while it lasts, and no testamentary disposition made while the derangement exists will be valid; but where a person has rallied from delirium produced by intoxicants, and his mind has cleared sufficiently to permit of his acting rationally, so that he comprehends what he is doing, his will is a good one." The proper test is the state of the mind at the time the will is executed. 32. Cases of delirium from fever or other sickness are governed by a similar rule. It would be absurd to hold valid the will of a person made at a time when he was quite out of his mind from delirium, but many wills have been permitted by the courts to stand which have been made by persons very ill, who have just passed a period of delirium."" 33. A form of insanity called dementia, very like idiocy, and in some cases resembling imbecility, which medical experts have failed to describe by any positive characteristics and which embraces a wide range of infirmity, is frequently mentioned as a cause which produces incapacity to make a will." Whether it be senile dementia, existing in the aged, or dementia analogous to idiocy, the application of 50 41 N. J. Eq. 409 (1886). 516 S. & R. (Pa.) 489 (1821); 43 Pa. 73 (1862). 52 35 N. J. Eq. 461 (1882); 38 N. J. Eq. 211 (1884). 531 Phila. 246, 247 (1851). 54 46 Mo. 147 (1870). the rules already stated as to unsoundness of mind, delirium, and mania generally will be applicable to ascertain capacity." 34. Undue Influence. The will of a weak-minded person, or one whose faculties are impaired by age or disease, may be attacked on the ground of undue influence;" that is, influence which overpowers the will of the testator, and makes his testamentary disposition in effect that of another. The most frequent class of these cases is where the influence is used to secure a benefit for the one who exercises the influence; but this is not an essential feature. Instances are where a spiritualistic medium, or a religious or legal adviser, secures a bequest to himself, to the injury of the testator's natural heirs, which the testator would not have given him, if left to himself. The question of insanity does not arise in these cases. WHAT PROPERTY MAY BE DISPOSED OF BY WILL 35. In the absence of statutory restriction, and of mental unsoundness and undue influence, a testator may dispose of his entire property by will in any manner he pleases, although he entirely disinherit his children or the other members of his family. The harshness and inhumanity of a will is no proof of insanity or ground of interference. But in all English-speaking countries, certain limits are set to the testator's power. Thus, he cannot prevent his property from being sold or distributed for more than a life, or lives, in being (that is, in existence at his death), and twenty-one years thereafter, and, in some states, the period is less; he cannot direct the income to be accumulated beyond a certain period; bequests to charity or religion, to be valid, must be made a certain length of time before his death; and, in some states, he cannot give away to others than his children more than a specified portion of his property. The wife or husband, also, may generally claim a certain part of the property, though omitted from the will. 55 77 Ill. 408 (1875). 56 65 Pa. 379 (1870); 140 Pa. 182 (1891). REVOCATION 36. As a will is of no effect until after the death of the testator, and is subject at all times during his life to his desires, it may be changed or revoked at his pleasure, by his direct act, or without his desire, by the rules of law. This is called revocation. In most states, the mode of revocation is regulated by statute. Oral revocation is of no avail; and the power to revoke cannot be delegated to be performed by another after the testator's death. 37. The most effective method of revocation is by destroying the will; for example, by burning or tearing it, or by cancelation; but the destruction or cancelation must be by the hand of the testator himself, or in his presence and by his direction. The actual destruction of the instrument need not be effected; it was held sufficient to throw a will upon the fire, with the intention of burning it, though it was snatched away and preserved by a third party without the testator's knowledge." But there must be some act done towards the destruction; a mere intent to destroy, not evidenced by any act, will not be sufficient; and, if the testator be stopped before he regards the revocation as complete, for example, before the will is torn completely across, it will be no revocation."* A will may be partially revoked; but a partial revocation in anticipation of making a new will, and intended to be contingent upon that, will be ineffective. A revocation induced by fraud, undue influence, or mistake, is not effectual; and the mere act of defacing a will without intending to revoke it, or under the misapprehension that a later will is good, will not operate as a revocation." 60 The same capacity is requisite to revoke a will as to make one. A testator, while insane, cannot revoke an existing will; and the tearing of a will, while suffering from delirium tremens, has been held not to be a revocation."* A will may be expressly revoked by a subsequent will or $76 Ad. & Ell. (Eng.) 209 (1837). 583 B. & Ald. (Eng.) 489 (1820). 59 68 Md. 203 (1887). 607 Dana (Ky.) 94 (1838). 619 Gill (Md.) 169 (1850); 65 Cal. 19 (1884). 62 (1893) P. (Eng.) 282; 3 L. R. P. &. D. 37 (1873). codicil; and without any express language to that effect a later will will revoke a former one, since the last will prevails to the exclusion of all earlier ones, and a codicil will revoke a former will in so far as its provisions are inconsistent therewith. In a case where two contradictory wills were executed on the same day, both were held to be void; but it was said that if the two wills had presented any way by which the court could interpret a disposition, they would have been allowed to stand as one will. Where duplicate wills, executed on the same day are alike in their dispositions, the last does not revoke the first, but both operate as one will." A will may also be impliedly revoked in part by the alteration of the estate of the testator, or by the sale of a specific piece of land or personal property given to a devisee or legatee in kind. A will will be revoked in part by operation of law, on the marriage of the testator, or on the birth of a child, not provided for in it. These causes of revocation are usually regulated by statute; and the various provisions on the subject are so numerous and conflicting that a detailed account of them would be idle. REPUBLICATION 38. A will which has been revoked, but not destroyed, may be republished, that is, declared a second time to be in effect; but this republication must be an act of as high a nature as that which effected the revocation." Thus, while a will which has been canceled, but not destroyed, may probably be republished by a simple declaration; a will revoked by a written declaration may be republished only by another written declaration to that effect, and not by mere word of mouth," except in Pennsylvania." A codicil expressly ratifying and confirming a will, either in whole or in part, will in so far amount to a republication, although the revocation were by marriage or birth of a child; but a codicil which does not expressly ratify and confirm will only 637 Bro. P. C. (Eng.) 443 (1851). 649 Johns. (N. Y.) 312 (1812). 652 Conn. 67 (1816). republish the will so far as it is revoked by the act of the testator, and not so far as it is revoked by law. The revocation of a subsequent will is presumed to indicate an intention to republish a prior uncanceled one," unless the latter were expressly revoked by the former, in which case an express republication is necessary. Vice versa, the republication of a prior will revokes all subsequent wills and codicils. JOINT WILLS 39. Two or more testators may, if they choose, unite in making a testamentary disposition of their property by a single instrument, known as a joint will, which is in effect the will of both or all, and, if properly executed, and intended to take effect upon the death of each, is entitled to probate on the death of either as his separate will. Joint wills are rarely made, except by tenants in common, for the purpose of disposing of the common property;"" but they may also include property not owned in common. Such wills are revocable by either testator as to his own property, and a revocation by one will not affect the disposition made by the other, or others."* 40. Mutual Wills. - Mutual, or reciprocal, wills, as they are sometimes called, are joint wills, providing that on the death of either, his property shall go to the other. They are most common between husband and wife, and brothers and sisters. They are revocable by either party, as to his property, unless, perhaps, the benefit to the survivor be inseparable from the other provisions, in which case they are irrevocable, if the survivor accept the benefit. But if they be in effect double wills, and the provisions are not inseparable, acceptance of the benefit will not prevent the survivor from revoking the disposition of his property." Mutual wills may consist of two separate and disconnected instruments; and, even when consisting of but a single instrument, may be made to operate upon the death of the testator who may die first." = 672 Dall. (Pa.) 266 (1796); 72 Tex. 281 (1888) 68 39 Ohio St. 639 (1884). 69 92 (Ky.) 76 (1891). 70 136 Pa. 628 (1890). 71 26 Conn. 452 (1857); 50 N. Y. 88 (1872). |