The herald., 1895-11-17


II his remark is even approximately true.
or his faith tolerablv justified, there is
cause for the exercise of care and skill In
the preparation of testamentary docu-
menss.
An examination of our code provisions
does not reveal any serious difficulty in
the preparation Of such instruments, SO
far as formdlity is concerned. Section
1876 Of the civil code is as follows: "Ev.
cry will other than nuncupative will,
must be in writing: and every will other
than an Geographic will ana nuncupa.
tive will must be executed and attested as
follows: l. 1t must be subscribed at the
end thereof by this testator himself, or
some person in his presence and by Els
direction must subscribe his name there
to; 2. The subsoi iption must be made in
the presence OF the attestlng witnesses, or
be acknowledged by the testator to them
to have been made by him or BY his au-
thority; 8. The testa:or must. at the time
of subscribing or acknowledging the
same. declare to the attesting witnesses
that the instrument Is his will and 4.
There must be two attesting witnesses,
each OF whom must sign his name as a
witness at the end of the Will at the tes-
tator's request and in his presencs.
Section 1878 further prescribes that "a
witness to written will must write with
his name his place Of residence; and a
person VINO subscribes the testator's
name by his direction, must write his own
name as witness to the will; but vio-
lation Of this section does not affect the
validity Of the will"
Evotv poyoon Ovap oua ~ ~ vuapa
Of sound mind, may by last will dispose
of all bis estate. real or PERSONAL and ev.
cry estate andintersst in real or pers NAL
property, to which heirs. husband, widow
or next of kin might succeed may BIZ so
disposed of. blu. there are restrictions
upon such disposition of certain inter-
ests of husband and wife in their COM
munity property.
The foregoing provisions are simple
and easily understood, So that If ordin
airy care is observed and intelligent and
honest witnesses are employed, Wills may
be drawn which must be admitted to
probate; and it is apparent that the diff
Guilty Of sustaining wills. in the great ma
jority OF cases, must arise from causes
other than the formalities with which
they are executed, although the casas are
ness, forgetfulness in the matter of these
formal,ties have defeated both the pro bate
and the carrying into effect Of wills.
Tho blanks usually employed for wills
have the following attesttion clause.
1.-The foregoing instrument consisting OF
hereof. by the said =, signed. sealed and
published as and declared to be -
last will and testament, in the presence
OF us, Who at - request and in -
presence, and in the presence Of each
other. have subscribed our names as wit
nesses thereto" The spaces are to be
filled with the number of pages, the
name of the testator or testatrix and tho
words "his" or her"
y The strict observance of this form can
do no harm, but 10 such Observance neC-
assary? The distinction between sealed
and unsealed instruments has been abol-
ished IN this state, and the code pro-
visions, already quoted, do not indicate
that the name Of the testator should bs
accompanied by seal or marx in lieu
of seal. Mother do those provisions re-
. qlire the witnesses to sign in the pras-
ance OF each other. nor that they shout d
SIM ultaneously witness the signing of
the testator's name or simultaneously
hear his declaration that it is his will or
his request that they witness it. As early
as 1754. Lord Chancellor Harwicke and
other English judges held that the dec
larution" Of the testator was equivalent
to seeing him sign his name, and the
same has been frequently seid in New
D
unnecessary that each witness should sign
in the presence of the oths-. Our code
says only thar each witness shall sign in
the presence Of the testator. Persons dis
posed to investigate may consult ,skin
Mott, Id 1856; Hoystradt vs.. Kingman.
% N. Y. 372. Our codo provisions are
put declaratory of the law as understood
by Lord Hardwicks a.d the New York
court OF appeals in those cases. 1t must
ness must see the testator sign, or the
testator must intelligsntly inform them
that the instrument is his will. and ne
must request each of them to witness it
as such. The cases of Lewis vs.. Lewis,
II N. Y. 220, and case in 10 Paige So,
therein referred to, ssare severe examples
OF the importance attached TO these for
malities. In the former OF thees cases
the testator upon asking tho witness to
sign, said: II declare the within to be
my free will and Decd" at the same
time the paper was so folded that the
nature and never sa him sign. In the
latter case the testatrix hao subscribed by
making ner mark, not in the presence OF
the witnesses, and upon requesting the
witnesses to sign, she PLACED her finger
upon her name saying; l acknowledge
TINS to be my last will and testsment.'
Both Of these wills were rejected for
want OF proper execution.
"A signature appearing befors the lend"
of the will. or written after the witnesses
have signed, Is not in mpliance with
law. An interesting illustration Of this
Is found in Sisters of Charity vs.. Kelly 81
N. Y. 400.
A very general impression prevails that
brevity 10 an important factor In securing
a valid will. Brevity il certainly calcu.
lated to lessen the liability to com nit or.
rors, and numerous cases might be cited
in support Of the general i'm pressioo.
For example: "Mayteld Grange Tues
day, June 70. l874:-Dsar Old Nunce-I
wish to give you my watch. two shawls
and also $4,000. Your old friend,
"E. A. GORDON"
After the death of this testatrix her
general will, executed prior to the fore
going paper, was produced and both pa
pers were offered for probate. Against
the "Old Nance document it was urged
that 81 wish to give," etc.. did not sutfi-
GENTLY express a tsstamentary intent. and
also that there was no clear intvnt to
modify or alter the former existing will.
Clarke W. Ransom, so CAL, 595.
Our civil code. section IA, declares that
the word "will'' includes "codisil," and
section 1887, chat the execution of a codi-
Gil referring to q previous WILL has the
effect ii republishing the will as mod
Ned by the codicil. Again. it is d ,clared
by section 1885 that prior will is not re
voksd BY suhsec usnt will unless the