In Pennsylvania, where husband and wife had executed wills in favor of each other, and by mistake each signed the other's will, the husband dying first, it was held that the legislature could not pass a law reforming his will, because the rights of his heirs became vested on his death as an intestate." CONTRACT TO MAKE A WILL 41. A person may, for a sufficient consideration, bind himself to make a will in favor of another, to the extent of either the whole or a part of his estate; and, if he neglect to do so, the contract will be specifically enforced after his death. But if it concern realty, the contract must be in writing, or there must be a sufficient part performance to take it out of the statute of frauds." LOST WILLS 42. When a will, once known to exist, and to have been in the custody of the testator, cannot be found after his decease, the legal presumption is that it was destroyed by him with the intention of revoking it." But this presumption may be rebutted; and, if it can be proved to the satisfaction of the court that the will once existed, and was duly executed, but was destroyed or suppressed by fraud, accident, or mistake, or by the act of the testator when insane or otherwise of unsound mind, or by act of God, or inevitable accident, such as flood, fire, or tempest, its contents may be proved, as in case of any other lost instrument, and the will thus established may be admitted to probate." Some courts require proof of the whole will; others admit to probate whatever can be proved, though it be not all, and if the actual contents cannot be proved, proof of its substance is sufficient." The burden of proving a lost will rests on the party who seeks to establish it, or claims under it." 72 67 Pa. 341 (1871). 73 90 Va. 728 (1894). 75 62 Ind. 61 (1878); 40 Conn. 587 (1873). 5 B. Mon. (Ky.) 58 (1844). THE LAW OF CONTRACTS (PART 1) INTRODUCTION DEFINITION 1. A contract is "an agreement, upon sufficient consideration, to do or not to do a particular thing."" This popular definition by Blackstone, while adopted by many authorities as good enough for practical purposes, has been criticized by others as not sufficiently comprehensive. Text-writers on this subject invariably explain and amplify the definition by careful and precise statements of the essential elements of a contract, thus supplying any meagerness in the epigrammatic definition of the great commentator. A contract, specifically, is an agreement enforceable at law between competent parties, which creates an obligation between them, whereby each reciprocally acquires a right to whatever is promised by the other.' In the formation of a complete contract it is essential that there be: (1) competent parties; (2) a lawful subjectmatter, which includes a sufficient consideration (quid pro quo); and (3) mutual assent. 2. A contract that is exact "is a promise, or set of promises, which the law will enforce"; thus, the binding engagement is signified. An obligation is practically equivalent to legal liability, or legal duty. "To create an obligation is the one object which the parties have in view 12 Black. Comm. 442. 3 Poll. Cont. (6th Ed.), p. 1. 24 Wheat. (U. S.) 656 (1819), quoting Pow. Cont., p. 6. For notice of copyright, see page immediately following the title page when they enter into that form of agreement which is called a contract.' By obligation is meant "the relation that exists between two persons of whom one has a private or peculiar right to control the other's actions by calling on him to do or forbear some particular thing." 3. The agreement must be an act in the law"; it must be concerned with duties and rights which can be dealt with by a court of justice. Agreement, then, is "the expression by two or more persons of an intention to affect the legal relations of those persons." There is an agreement when two or more minds are united in a thing done or to be done, or when mutual assent is given to do or not to do a particular thing, called in law aggregatio mentium (meeting of minds). The result of the concurrence of agreement and obligation is a contract, concerning which it is well to remember all the essentials stated, and which are embraced in three propositions from six constructed by an oft-quoted authority, who adds, "that a voluntary promise, without any other consideration than mere good will, or natural affection, to give to another a sum of money . . . and that he will be a debtor for such sum, is no contract, but a mere nudum pactum," as it is called in law, meaning a naked promise- an undertaking or engagement without consideration. 4. HISTORY Contracts are as old as civilization, and, in fact, one of the truest indications thereof. In the earliest periods of the world's history, engagement by contract was known and the student of classic pages finds illustrations at every turn. Ancient law, however, sanctioned the ceremony of ratification, rather than the engagement. No promise was binding if a trifling form were omitted; form and rites observed, no equitable defense could avail. Ans. Cont. (8th Ed.), p. 9. 5 Poll. Cont., p. 4. 6 Poll. Cont., p. 3. 7 Ans. Cont. (8th Ed.), p. 3. 8 42 N. Y. 497 (1870), quoting Com. Cont., p. 2. 5. At the Roman law, the most important and latest surviving form of verbal contract was the stipulation, consisting in its ceremonial part of question and answer. The words were, "Such and such things do you promise?" and the reply was, "I do promise," and it was of this interrogation and assent that proof was required by law; informal agreements gave no right of action. In the written contract, the formal act was the transfer of the sum due from the day book to the debit side of the ledger, a book account regarded by the Romans with peculiar respect. Upon the break up of the empire, Roman law was blended with barbarian custom in feudalism, but even in the earliest feudal communities the relation of lord and vassal was settled by express agreement at the time of investiture. In AngloNorman times, the equivalent of the stipulation was the deed, the most formal feature of which was the seal. 6. The origin of the English doctrine of consideration, and of the employment of that word as a technical term of law, is enveloped in obscurity, but as early as the sixteenth century the phrase nudum pactum (naked promise) had lost its Roman meaning of an informal engagement not actionable, and had come to be used in the sense it has since retained in English law, merely a promise void of reciprocal advantage to the promisor; where, as it was frequently expressed, there was no quid pro quo. The conception has continued to develop, until now the presence of a sufficient consideration is regarded as essential to the formation of a legal contract.1° So deeply rooted has this thought become, that the meaning of the sealing of a deed-the ceremony that anciently fixed its status as a formal contract-is obscured by the maxim that "a seal imports a consideration." History, therefore, shows a continuous modification and relaxation of the ceremonial rules of contract until the fundamental idea is reached of the "meeting minds." The ancient rule that a Maine Anc. L., p. 313. 10 Dialog. Doct. & Stud. II, c. 24. |