# Popular Science Monthly/Volume 24/February 1884/Last Wills and Testaments

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* LAST WILLS AND TESTAMENTS.
By JOSEPH W. SUTPHEN.
CAN a will of real or personal property be so prepared and executed as, barring questions of incapacity and undue influence, to be incontestable? Protracted and expensive litigation, frequently involving a period of years, often eating up large portions of estates, and finally resulting in the defeat of a testator's wishes, suggests this oft-repeated question. Considering the matter of execution first, nothing would appear simpler. Our statutory requirements are few and explicit, and, if properly observed, the inquiry, so far as execution is concerned, is easily answered. The provisions of the New York Revised Statutes are—
1. That the will shall be in writing, and subscribed by the testator at the end.
2. That such subscription shall be made by the testator in the presence of each of the attesting witnesses, or shall be acknowledged by him to have been so made to each of the attesting witnesses.
3. The testator at the time of making such subscription, or at the time of acknowledging the same, shall declare the instrument so subscribed to be his last will and testament.
4. There shall be at least two attesting witnesses, each of whom shall sign his name as a witness, at the end of the will, at the request of the testator.
These provisions are practically the same in most of the United States, with the exception, perhaps, of Louisiana, unless it be that some of the States require three or more in the place of two witnesses. An intelligent compliance with the above directions would seem in no wise difficult, yet many an intended will has proved an abortion, solely from lack of their observance, ignorance, and carelessness, and in some instances, no doubt, forgetfulness on the part of witnesses as to what actually transpired at the execution, explaining the circumstance. A witness's stupidity or forgetfulness can not easily be guarded against, except by the selection of intelligent witnesses. This sometimes, as in the case where the testator is in extremis, is impossible; but a stupid or forgetful witness to a will is a great ​misfortune, for he may utterly destroy its value. Unless proof aliunde is obtainable, showing that the requirements of the statute were duly observed, there is great probability that the will will be rejected by the surrogate, and his decree sustained by appellate tribunals.
In November, 1850, an instrument, dated February 2, 1849, was offered for probate to the Surrogate of Kings County, New York, as the last will and testament of Thomas Lewis. It devised all his real and personal estate to his wife; but its probate was opposed by the heirs of the deceased. This document was signed in the proper handwriting of Mr. Lewis; it had two subscribing witnesses, while attached to the will and above the signatures of the witnesses was an attestation clause in the following words:
"The above-written instrument was subscribed by the said Thomas Lewis in our presence, and acknowledged by him to each of us, and he at the same time declared the above instrument so subscribed to be his last will and testament, and we, at his request, have signed our names as witnesses hereto."
On the contest, Ferris Tripp, one of the witnesses, swore that he was a clerk in the store of the deceased at the date of the will, and that Wing, the other witness, was also a clerk; that he (the witness) signed his name at the end of the attestation clause, at the request of the testator; that, on the occasion when he did so, Wing and he were called by the deceased into his private office, where he had a paper, of which he turned up so much as would allow them to write their names thereon, requesting them to sign the same and add their residences; that he also then said, "I declare the within to be my free will and deed"; that this was all that was said, according to his recollection, and that he and Wing then signed their names to the instrument where they appeared; that he did not then know to a certainty what the instrument was, but thought it a will from the fact that the deceased had that morning sent out and procured a blank will. On cross-examination this witness testified that at the time he signed his name to the instrument it was so folded or placed upon the desk that he saw no part of the contents, and that neither the same nor any part of it was read to him; that he did not see the testator sign it, nor did he see his signature to it when he signed as a witness.
The other witness testified in substance that he signed his name to the alleged will in the office of the deceased; that he was unable to say what occurred on that occasion, but that, according to his recollection, he signed at the request of the deceased; that he had no recollection that the deceased said anything else to him at the time he signed, unless it was "to see him sign the document"; that he did not recollect that the deceased signed the instrument in his presence; that he had no recollection that Tripp, the other witness, was present when he signed, and could not state anything further which occurred or was said or done by the deceased on the occasion. On his cross-examination he ​further testified that he did not read nor was any part of the instrument read to him when he signed it, and that he had no recollection that he then knew what the paper was.
Here was an instrument which on its face met all the requirements of the law. It was in writing; it was subscribed by the testator at the end; it had two subscribing witnesses, and a full attestation clause. The testimony of Tripp and Wing completely nullified it; their want of recollection, although less than two years had elapsed since its execution, effectually prevented its probate. The probabilities are, that all legal technicalities had been observed, but the particular facts had escaped the memories of the witnesses. The surrogate adjudged it no will; the widow appealed to the General Term, which affirmed the decree of the surrogate, and then to the Court of Appeals, which affirmed the General Term (Lewis vs. Lewis, UN. Y., 220).
Ignorance and carelessness are even more reprehensible than stupidity or forgetfulness, and each has proved a prolific source of evil to testators' intentions, of expense to suitors, and of disappointment to apparent legatees. Assumption of the sufficiency of one's own knowledge regarding matters concerning which he has little or no information has caused the wishes of more than one testator to utterly fail, or ruined his estate in costly litigation. Books entitled "Every Man his own Lawyer," "Legal Directory," "Legal Remembrancer," are not, as a rule, the best fountains from which to quench legal thirst. Their accuracy is often subject to impeachment, and their pages have more than once proved to the layman a stumbling-block. Nor should relations complain of the courts if carelessness has led him into the execution of an instrument which proves either to be no will at all, or only such after much of his estate has been squandered to ascertain the fact. It is always wise to prepare and execute such a document in the leisure moments of life, for to do so in articulo mortis is a serious matter in more senses than one, concerning which a man should think twice, for, if he leave it until then, he will have little time to think at all. Mr. Gordon undoubtedly thought he knew how to draw a will well enough when he executed the following:
"Dear old Nance, I wish to give you my watch, two shawls, and also $5,000. Your old friend, E. A. Gordon."
After much litigation this was established as a will, but it is likely that "old Nance" was obliged to content herself with the watch and two shawls (Clarke vs. Ransom, 50 Cal., 595).
So, too, with Ehrenberg's will, who was the author of the following laconic testament—a model of brevity:
"Mrs. Sophie Loper is my heiress."(Signature.)
Following which appeared:
"The legatee's name is correctly spelled Loeper."
​To this there were no witnesses, the law of Louisiana requiring none. After ten years' litigation or controversy this was also sustained as a will (Succession of Ehrenberg, 21 La. Ann., 280). The sufficiency of the legal attainments of each testator in these instances, it is true, was enough, but to establish that fact old Nance and Mrs. Loper undoubtedly paid handsomely. In the following case the success of the would-be testator was not so signal:
In 1876 an instrument purporting to be the last will and testament of John Kelly was offered for probate to the Surrogate of the County of New York. It was partly written and partly printed, and was apparently a short form of will such as may be purchased at a stationer's. After disposing of his property, this document ran as follows:
"Likewise I make, constitute, and appoint Edward McCarthy to be executor, J. Kelly, of this my last will and testament, hereby revoking all former wills by me made. In witness whereof I have hereunto subscribed my name and affixed my seal the 24th day of July, 1874, in the year of our Lord one thousand eight hundred and sixty.
Witnesses: Edward McCarthy, Daniel Van Clief.
Subscribed by John Kelly, the testator named, etc."
When the deceased requested the witnesses to sign the instrument, the name J. Kelly had already been written by him where it first appears. The witnesses then signed it, and afterward the deceased wrote his name where it appears in the attestation clause. The point in dispute touched the first requirement of the statute: Was the subscription J. Kelly in the body of the instrument a "subscribing at the end of the will"? The subscription John Kelly in the attestation clause was, of course, bad, being made after the witnesses had signed. It appeared from the evidence that the testator presented the instrument to the witnesses, saying: "I drawed up a will for fear anything might happen me before coming back; in case there was any dispute about the trifle of money I have, I want you to witness this will." The name J. Kelly had been written in before this was said. The surrogate rejected the instrument, as not executed and attested in the manner prescribed by law. The General Term reversed his decree, directed that the will be admitted to probate, and that letters testamentary issue thereon (7 Huec, 290). The Court of Appeals then finally settled the law in the case by reversing the Supreme Court and setting aside the instrument as absolutely void (67 N. Y., 409). A curious circumstance in connection with the proof of this instrument is the fact that the Supreme Court were unanimously of the opinion that this document was a will, while the Court of Appeals were unanimously of the opinion that it was not! Even when, by a mistake in turning over the paper, the signature is put on the back of a blank ​page occurring in the middle of the will, it can not be sustained (Heady's Will, 15 Abb. Pr., N. S., 211).
Instances might be multiplied to illustrate the serious consequences resulting from ignorance, carelessness, stupidity, or forgetfulness in the execution and proof of wills, but these are sufficient to emphasize the necessity of intelligence, accuracy, and forethought in the matter. Returning to the discussion of execution:
1. The will must be in writing, and subscribed by the testator at the end.
Apparently this is plain and concise enough, and adapted to the comprehension of a child, yet a long list of expensive appeals attest to the difficulty experienced in solving the meaning of this phraseology. What is writing? What is a signature? Where is the end of a will? are questions which appellate courts have been called upon to determine. If a will be printed; if it be done by a type-writer; if it be executed wholly in lead-pencil, instead of ink; if the signature be by a mark, or if it be made by another at the request of and for the testator; if the signature, as in the case of the will of J. Kelly (supra), be not immediately at the foot of the instrument—these and similar inquiries call for an answer to the quœre, "Have the requirements of the statute been complied with?" It has already appeared that J. Kelly's will was not a will. The Court of Appeals, it is true, decided this case on other grounds than the single fact that the signature occurred before reaching the end of the document. Perhaps, if nothing of importance had followed the signature (McGuire vs. Kerr, 2 Brad., 244), the court would have sustained the decision of the General Term, and held the will to have been properly executed; but the fate of this instrument conclusively shows that it is not safe to tamper with a statute, and that the end of a will is at the end; in other words, the testator should have signed immediately above the witnesses, at the conclusion of the document.
H. J. Montague."
On the back of this scrap, also in pencil, occurs:
"Witnessed byT. R. Edwards, Louis M. Simon."
In cases of contracts, lead-pencil agreements have repeatedly been held sufficient (Merrit vs. Clason, 12 Johns., 102; Clason vs. Bailey, 14 id., 484; Brown vs. Butchers' and Drovers' Bank, 6 Hill, 443), and the same reasoning applicable to such applies also to testaments. It is certainly to be hoped that the tendency of the decisions in this respect will change. The door for the admission of fraud is here opened too wide. To erase and rewrite in the body of the will is much too easily and cleverly accomplished, and this temptation should be removed by statutory enactment or judicial interpretation.
A mark or cross has been held a good subscription. Some years ago Moses W. Jackson left a will signed—
his Moses W.XJackson. mark.
The surrogate adjudged this sufficiently subscribed; the Supreme Court upheld the surrogate, and the Court of Appeals sustained the Supreme Court, holding that it was not even necessary that the words "Moses W. Jackson, his mark" should have been written before he made the X. The law would undoubtedly admit the cross if the words were entirely wanting, under proper evidence (Jackson vs. Jackson, 39 IT. S., 153). If the testator requests a third person to subscribe the will for him, and it be done in the presence of the witnesses, it comes within the statute (Campbell vs. Logan, 2 Brad., 90; Van Hanswyck vs. Wiesl, 44 Barb., 494). But such third person must himself also sign as a witness.
2. Such subscription shall be made by the testator in the presence of each of the attesting witnesses, or shall be acknowledged by him to have been so made to each of the attesting witnesses.
On December 1, 1865, William Baskin made a last will, and five weeks afterward died at the age of eighty-nine years. Thirteen years before he had made a previous will, which still continued in existence. At his death the will of 1865 was offered for probate to the Surrogate of Yates County, New York, but its admission was contested. The evidence showed that the last will was drawn by one Henry Smith on the morning of December 1, 1865, at the bedside of the deceased; that the whole was read over to him, clause by clause, and that Mr. Baskin at the completion of the reading sat up on the side of the bed and wrote his name at the foot of the will without assistance and ​without spectacles. Mr. Smith then affixed his own signature at the request of the deceased, as an attesting witness. Mr. Wilsey, the other witness, was then called in from the adjoining room, when the testator said, "I want you to sign this will," Mr. Smith at the same time handing it to him. While still in Smith's hand, the latter asked the testator if he acknowledged it to be his last will and testament. He said "Yes." Wilsey then signed, when Mr. Baskin said, "That kills the other will." No conflict of evidence existed. Both witnesses agreed that the signature of the testator was affixed before Wilsey came into the room, and that Mr. Baskin did not expressly state in his presence that he had signed the will. The surrogate said this was no will, for it had not been signed in the presence of each attesting witness, but the Supreme Court reversed his decree, and the Court of Appeals affirmed the Supreme Court, holding: "Where the testator produces a paper bearing his personal signature, requests the witnesses to attest it, and declares it to be his last will and testament, he thereby acknowledges the subscription within the meaning of the statute" (Baskin vs. Baskin, 36 N.Y., 416). In fact, it is not even necessary that the subscribing witnesses should be shown the signature of the testator to the will at the time of acknowledging its execution.
In 1866 the will of Samuel Mott came before the Surrogate of Queens County, Long Island, for probate. It was contested upon the ground, among others, that it had not been signed in the presence of each witness, they signing after the testator but on different days, and that at least one of them had not so much as seen Mr. Mott's signature, the document being so folded when executed as to hide the name. The surrogate admitted it, however, the Supreme Court and Court of Appeals affirming his decision (Willis vs. Mott, 36 N. Y., 486; Hoystradt vs. Kingman, 22 N. Y., 372). So in the case of Ellis vs. Smith, decided in 1754 (1 Vesey, Jr., 11) by Lord Chancellor Hardwicke, assisted by Sir John Strange and the Chief-Justice of the Common Pleas and Chief Baron of the Exchequer, it was held that a testator's declaration was equivalent to an actual signing in the presence of the witnesses, a rule unchanged by the statute under consideration.
These cases show that considerable latitude is tolerated under this section, but that one of two facts must transpire in order to comply with its terms—either an actual subscribing by the testator in the presence of each of the witnesses before they sign; or a clear, indisputable acknowledgment to each of them that the instrument has been already so subscribed by him (Chaffee vs. Baptist Missionary Convention, 10 Paige, R. 85). Of course, in the latter case, if the subscription subsequently appears wanting, such acknowledgment amounts to nothing; there is no will.
3. The testator, at the time of making such subscription, or at the time of acknowledging the same, shall declare the instrument, so subscribed, to be his last will and testament.
​Here, again, nice questions have arisen. What is a declaration that "this is my last will and testament "? Is it sufficient that the question be asked me and that I assent thereto by "yes" or a nod? If I say "This is my free will and deed," have I fulfilled the requirement, or must I use the precise words "This is my last will and testament"? These and kindred inquiries have perplexed the courts, and weary litigants have been forced to possess their souls in patience, awaiting the interpretation of blunders which could easily have been avoided in this particular of execution. The courts say it is not imperative that the word "declare" should be employed—I "acknowledge" this paper to be my last will and testament is enough (Seguine vs. Seguine, 2 Barb., 385). But a mere nod of assent to the inquiry, "Is this your last will and testament?" observed only by one of the persons present, is not enough (Burritt vs. Silliman, 16 Barb., 198), while an answer "yes" to the inquiry has been held sufficient (Coffin vs. Coffin, 23 N. Y., 9). To say "This is my free will and deed" is not good, for, as above appeared, the Court of Appeals has held that Thomas Lewis failed to acknowledge his will, although he used these particular words, and rejected his final testamentary disposition as a nullity. What apparently could be easier than to say "This is my last will and testament" at the proper time and under the proper circumstances? yet that many fail to either use these simple words, or to know the proprieties of time or circumstance, is shown by the foregoing cases.
4. There shall be at least two attesting witnesses, each of whom shall sign his name as a witness at the end of the will, at the request of the testator.
A will with but one witness is bad on its face—it is no will; it is a plain failure to observe an all-important formality, but questions "What is a signing by a witness?" "Where is the end of a will?" and "What constitutes a testator's request?" have been before the courts for determination. To answer the first two inquiries briefly, it is enough to state that the same rules which apply to the testator's signature and to the place of his subscription apply with equal force to witnesses. A witness's mark is good (Meehan vs. Rourke, 2 Brad., 385; Morris vs. Kniffen, 37 Barb., 336), and he should sign after the testator, immediately at the conclusion of the instrument. Concerning the third "inquiry" as to the request, some contrariety of opinion has existed as to what shall be deemed sufficient. The following cases are in point:
A request may be implied; it need not be in express terms, as, if the testatrix be told in the presence of the witnesses that they have come to witness her will, and she then bow assent and they sign it, it is a request (Brown vs. De Selding, 4 Sand., 10; Peck vs. Carey, 27 N. Y., 9). Handing a will to the witnesses, at the same time evincing a desire to have them sign it, is enough (Gamble vs. Gamble, 39 Barb., 373). But a mere request to sign, without in some way disclosing the ​nature of the paper, is bad (Harris's Estate, 1 Tuck., 293). Such questions as, "Will you witness my will?" or "I want you to witness my will," if addressed to both witnesses, are good (Van Hooser vs. Van Hooser, 5 N. Y. Surr., 365), but bad if addressed to only one of them (Rutherford vs. Rutherford, 1 Denio, 33).
Touching the question of the formalities of execution, a word on foreign wills is in place. All wills of residents of this State executed in foreign countries in accordance with the laws of the country where executed, but not in accordance with the law of New York, and all wills of foreigners executed in accordance with the law of their foreign domicile, if not also in accordance with the law of this State, who die leaving no property situated or which afterward comes here, are not admissible to probate, not because they are necessarily illegal, but because the statute-book declares this to be the law. The importance of this provision must particularly commend itself to the mind of every citizen intending to make a will, and contemplating a visit beyond the jurisdiction of his own domicile. Sometimes an action in the Supreme Court to establish such succeeds; but who can be found willing to unnecessarily involve his estate in litigation to ascertain the validity of a will when it can easily be avoided? The surrogate has certainly no power to admit such wills.
In concluding this discussion on the execution of a will, it may properly be said that the instrument must be fully completed before death that is, it must have been subscribed by the testator at its foot, in the presence of the witnesses, or the subscription so acknowledged; it must have been declared to them to be his last will and testament, and the witnesses must actually have signed it, at his request, for, if he die ere this is accomplished, there is no will (Vernon vs. Spencer, 3 Brad., 16). Simple as these statutory requirements are, the instances cited prove that even the question of execution is not free from serious snares. Yet a literal compliance with the formalities of the statute is not required, a substantial observance of them being sufficient (Coffin vs. Coffin, supra).
It is entirely possible to execute a will so as to be technically incontestable.
Touching the graver question as to preparing or drawing the will—in other words, considering its contents, whether its provisions offend the law or not—the scope of the inquiry broadens and becomes very comprehensive. It presupposes on the part of the draftsman a knowledge of the law as determined in unnumbered decisions adjudicated both in England and the United States. The common law, principles of international comity, and statute-books, all must be resorted to in answering the question. It assumes in the writer of the will an accurate and extended fund of information upon the subject of trusts, powers, and uses, and generally an intimate acquaintance with all the nice details relating to that great branch of jurisprudence—real estate. ​It suggests a familiarity with laws past and laws present, and it means, if it means anything, that competent intelligence must guide the hand which guides the pen.
In view of these facts, there is small reason to complain at the litigation so frequently entailed in connection with estates. To prepare or draw a will is not the simple matter some imagine it to be, even when short and free from intricate questions of law. The slightest ambiguity in language, giving opportunity for dispute as to the testator's real intentions; ignorance of the legal effect of certain dispositions made in the instrument; wishes imperfectly expressed; illegible writing; erasures; interlineations, and circumstances similar in character, are all fruitful of evil consequences. The books are full of instances where instruments have been propounded as wills, but which have proved to be still-born, or, if initiated into existence as living, genuine wills, only so after the ordeal of many years' litigation to determine their genuineness, sufficiency, or construction, has been endured. Like surgery, law is a science. The unscientific man may with equal propriety endeavor to amputate his own limb as draw his own will. In each case he has ventured upon a field in which he has neither knowledge, experience, nor skill. He may succeed, but every probability points to a fatal result.
The antiquity of testaments is such that many imagine that to prepare and execute one is a matter of general information—one concerning which all are competent to speak. It is true that this mode of transferring title or ownership dates far back into remote ages. Writers assert that abundant evidence exists that wills were in use among the Hebrews in the earliest times. Plutarch speaks of their introduction by Solon into Athens, some six hundred years before the Christian era. The Twelve Tables gave to the Romans the right of bequeathing their property, a power which in England is coeval with the invasion of the Saxon, for no record or memorial exists of a period when this right did not obtain. But this antiquity proves nothing. Other sciences are equally old.
To prepare or draw a will can only safely be undertaken by him whose intelligence and experience have earned him the right to assume the task.
The subject of incapacity and undue influence is not embraced in this inquiry, but a word in reference to it may not be out of place. No will was ever yet drawn, nor can one be, which was or will be proof against attack from this quarter. That many have been disgracefully contested by shameless relatives is true; for, to forget such in his will, even if related to the deceased but in the remotest degree, is conclusive evidence to the minds of some that the sanest or most self-willed man while living has proved, in spite of all, weak and insane at death. Because contests frequently arise, however, from this cause, it does not follow that this is not at times a very proper ground ​to take in resisting the probate of a will. To do so would be to fly directly in the face of the decision of Delafield vs. Parrish (22 N. Y., 9), where the question of incapacity was so ably and exhaustively presented to the Court of Appeals by Mr. Evarts, Mr. O'Conor, and other illustrious counsel. No one can fairly doubt, after reading the able opinion of the Court in that celebrated case, that Henry Parrish was incompetent to execute the last two codicils to his will. It is true he had been a keenly intelligent man; he had amassed a large fortune; he had never acted in life from impulse, for wisdom, discretion, and reflection prevailed in his counsels. Yet, after his paralytic stroke, he became a changed man. The quiet, urbane gentleman became a fretful invalid, forgetful of even the proprieties of life. Idiotic dementia took possession of his once-active brain. It was in this condition, and after the stroke of paralysis, that the last two codicils were executed. It should occasion no surprise that the courts utterly refused to receive them. Still, that much abuse of this objection to the probate of a will is prevalent, is undeniable. Nor does there seem to be any cure for the disease, unless the theory "omne testamentum morte consummation est; et voluntas testatoris est ambulatoria usque ad mortem" be changed, and every man allowed to probate his own will before he dies, if he desire. Let him summon all who have the right to contest his ability, etc., to execute a will, and, if they do not appear, or if they do not succeed in showing his inability so to do, they shall be forever estopped from attacking the will thereafter. Of course, there are serious objections to this course, for all beneficiaries would then know the contents of the document, and few men care to let the world into the secret of their final intentions or ulterior purposes; still this law has been tried in some of the States successfully and satisfactorily. Whatever is contained in this paper on last wills and testaments applies with equal force to codicils.