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ance, to denote the weighing out of the estate to the heir, who was considered as a purchaser; the seventh (antestatus) is considered by Hugo as the foreman of the witnesses. In their presence the testator made known his will, either merely orally (testamentum nuncupativum), or by showing them a writing in his own hand, or at least signed by himself, declaring it to be his testament, which was then also to be signed and sealed by all the witnesses (testamentum scriptum). If the testator was a blind person, an eighth witness was necessary, and also if he could not write, but only in case he made a written instrument. The want of these external formalities made a will void (injustum), so that it lost its whole effect. The internal formalities included, in general, the institution of heirs, particularly if the testator had children or grandchildren, or, in failure of them, relations in the ascending line, in which case it was necessary for him to make them his heirs, or to disinherit them explicitly. The entire omission to name such relations in the will, made it void (testamentum nullum), and the subsequent birth of a legal heir was equivalent to a revocation of the will (testamentum raptum). A testament passing over heirs entitled by law to a share (and such heirs included, besides children and parents, also sisters and brothers) was called inofficious (inofficiosum), and their legal portion might be claimed by such heirs. When the testator lost the right of bequeathing, the testament became invalid (irritum), as well as when the appointed heir ceased to be such, for some reason, and no one was substituted in his place (testamentum destitutum). Even in earlier times, the external formalities were dispensed with in particular kinds of wills (testamenta privilegiata), particularly, 1. the testaments of soldiers, which were almost entirely relieved from them, as well as from the internal formalities; 2. testaments made in the country, which required but five witnesses; 3. testaments made in times of contagious and epidemic diseases, or during a dangerous sickness, in which case the interruption of the ceremony did not make the will invalid; 4. testaments of travellers: also when parents left their property to their children only, no other formality was necessary than that they should write the will themselves, and mention the names of the children, and the date of the instrument: these were private testaments. In the times of the emperors, in whom the whole authority of the state was concentrated,

a testament required no external formality but that of being delivered in person to the monarch; in fact, it was sufficient to deliver it to the officers of justice, and have it entered in the public records. Modern legislation has changed much in these forms, though, generally speaking, they are yet required in most countries of Germany. In the middle ages, the ecclesiastical courts, almost every where, claimed the oversight of testaments, as, even now, testaments in England fall within the jurisdiction of these courts, because it was maintained that the future state of the soul of the testator was connected with the character of the testament, which therefore fell within the province of the church, and that every one was bound to make some bequest for pious purposes, for the salvation of his soul. The formalities connected with the making of testaments were lessened, and it was declared to be sufficient that they should be put in writing in presence of the parish priest and two witnesses; and legacies for the benefit of the church were relieved from all formalities. This rule of making a testament in the presence of the clergyman, is no longer the common law of Germany; but it has been retained as the local law of many places. The Roman regulations respecting judicial testaments have also been modified

in Germany. In Saxony, a testament is judicial if it is drawn up in court by the judge and the clerk, or out of court by the judge, the clerk and an assessor (Schöppe), or is handed to them. The presence of the judge may be supplied by that of a second assessor. In other parts of Germany, a testament may be drawn up by a member of the town council and its clerk. But private testaments made according to the Roman form are also valid. In Prussia, judicial testaments are the only ones allowed. The testator either appears in court, and there deposits his will in writing, and, if he so pleases, sealed; or he declares his will orally, and it is taken down in writing; or he invites a deputation of the court to his house. In Austria, both judicial and extra-judicial testaments are valid. At the making of the former, at least two persons belonging to the court, and acting under oath, must be present; and, if the testator gives in his testament in writing, it must be signed by himself. A last will is also valid, a. if it is written entirely by the testator's own hand, and signed with his name; b. if it is written by another person, but signed by the testator, and acknowledged before

three witnesses; or, c. if it is read before three witnesses; or, d. only orally declared. These last forms will probably be changed at some future period, as affording too much facility for forgery. In France, there are but two forms of testaments, the written testament, when the testator writes the will entirely himself, signs it, and affixes the date to it (testament holographe), and the public testament, when the testator declares his will orally, and signs the protocol before two notaries and two witnesses, or one notary and four witnesses. If the testator cannot write, this circumstance must be mentioned. The testator may also deposit with the notary a sealed instrument (testanent mystique). In this case, six witnesses must be present at the declaration that the paper contains the will of the depositor. So great a variety of forms existing in various countries, it may become of great importance to know by what laws the validity of a will is to be judged. In general, the laws of the testator's native country must be followed; so that a Prussian or a Frenchman can make a testament in foreign countries only in the way prescribed by the laws of his own country. But, in respect to the form of public acknowledgment, the laws of the country must decide; for example, a Frenchman in foreign countries may resort to the courts instead of notaries; and, if a Prussian should make a will in France, he must apply to the notaries to give validity to the instrument. The testament, according to the Roman law, is always revocable; and no person can legally divest himself of this privilege of change. The Romans did not admit of a man's binding himself to leave his property to a particular person. In Germany, however, an irrevocable right of inheritance can be obtained by contract, and the obligation is often made mutual, as in matrimonial contracts. Except in such cases, the testator can always change his testament, by taking back the instrument deposited in court, cancelling a private testament, or making another. But on this point, also, laws differ. According to the common law of Germany, the taking back of the deposited will is not a revocation of it, unless the intention of the testator is clearly manifested; for example, by tearing off the seals. The same is the case in Saxony. But, in Prussia, the taking back of a testament, deposited in court, makes it void. A later testament has preference over an earlier one; but, if there are several testaments, and it can

not be ascertained which is the latest, both are valid; and, if the later testament was invalid from the beginning, the earlier one remains in force. No regularlymade testament can be annulled by a mere oral declaration; but the Roman law provides that, if a testament is ten years old (in which case it became void by the earlier law), it may be revoked by a declaration before three witnesses. Modern laws require for such oral annulment, unaccompanied by the act of erasure, tearing off seals, &c., the same formalities which were required to give validity to the instrument. In France, a will may be revoked by a written expression of the testator's purpose, and also by an oral declaration before one notary and two witnesses. Different from the testament in which the institution of an heir is required is the codicil, which may contain only legacies; hence it is customary to add to testaments the clause, that if, from any circumstance, they cannot take effect as testaments, they shall, nevertheless, be considered as codicils (clausula codicillaria). It is a much contested point, in the continental courts, what formalities a codicil must have; hence it is considered safest to accompany the making of a codicil with the same formalities which are required in the case of a will.-We shall now consider the laws of England and the U. States on the subject of wills. In respect to personal property, a will is also called a testament; and the disposition of the testator's real or personal estate, or both, is called a last will and testament. A devise is the disposition of real property in a will, and a legacy is the personal property disposed of to one or more persons by a testamentary provision. A bequest is a provision of a will disposing of real or personal estate. Among the Anglo-Saxons, the practice of devising lands prevailed to some extent (Spelman On Feuds, c. v; Wright's Tenures, p. 171); but, after the conquest, lands held by feudal tenure were not devisable, with the exception of burgage tenures. Lands held in gavelkind, however, as were, for the most part, those of the county of Kent, were devisable. After some changes in the laws, in this respect, in England, a statute was passed, in the beginning of the reign of Charles II, which gave a general power of devising whatever interest or estate the testator had in lands. In the U. States, from the first settlement of the country, lands and personal property have been generally subject to be disposed of by the will of the proprietor, with the exception

of Louisiana, in which state a testator having one descendant can dispose of but two thirds of his estate by will, and of but one half if he leaves two, and of but one third if he leaves three or more. The laws of the other states contain some provisions in favor of the widow of the testator, particularly her right to dower, and also in favor of posthumous children. The power of the living proprietor to direct how his property shall be disposed of after his decease, especially his lands, is not among those absolute rights derived from the laws of nature, with which the laws of society cannot interfere without doing injustice, but is founded in expediency. Chancellor Kent justly remarks (Com. v. iv, lect. 68) that "the interests of society, in its career of wealth and civilization, seem to require that every man should have the free enjoyment and disposition of his property; for it furnishes one of the strongest motives to industry and economy." And he thinks the bonds of affection and family pride are a sufficient guaranty in favor of the claims of the relatives of the testator.Persons capable of making a Will. The capacity to make a will, as to make a contract, or do any other act that may affect the person or rights of a party, is subject to legal regulation. To make a valid will, the testator must be of sound mind; and to make a devise of lands, he must be of the age of twenty-one years; but, by the English law, a boy of fourteen, and a girl of twelve, may bequeath chattels, By the revised statutes of New York (vol. ii, p. 60), the respective ages of capacity for this purpose are eighteen and sixteen. In the other U. States, the regulations in this respect vary. So, in England, and generally in the U. States, a married woman cannot dispose of either real or personal estates by will. But, in Louisiana, which adopts the French, and, therefore, in the main, the civil law in this respect, she can bequeath her own separate property. And, in the other states, property, whether real or personal, may be so placed in trust by marriage settlement, or otherwise, that it shall be subject to a testamentary disposition or appointment by a married woman. Devises to corporations, except for charitable uses, are not authorized by the English law. By the revised statutes of New York, a devise to a corporation not authorized by its charter to take by devise, is void. But chancellor Kent (Com., v. iv, p. 508) is of opinion that a devise in trust for a charitable corporation would be good, notwithstanding 16

VOL. XIII.

this statute.-Things devisable. Though in England, and also in the U. States, with the exception of Louisiana, a person may dispose by will of his property, both real and personal, yet, in respect to real estate, the general doctrine has been, that a devise will operate only on the property of which the testator was possessed at the time of making the will, and of which he continued in possession till his death. This construction often defeats the intention of the testator, who, by devising all his real estate, generally intends to devise what he may own at the time of his decease. And the provision is often, professedly, a disposition of all the lands of which he may be in possession at the time of his decease. The revised statutes of New York have altered the law in this respect, and put a construction upon devises more conformable to the intention of testators, by providing that devises of all the testator's real estate, or terms in a will denoting an intention to dispose of all his real estate, shall operate upon all the lands of which he may be possessed at the time of his decease. A mere right of entry on lands is not generally devisable; but, in New York, Pennsylvania and Virginia, such a right is devisable, the rule, in those states, being that every interest or right in lands descendible to heirs may be devised.-Execution of a Will. It is a general rule that wills, to operate on lands, must be executed according to the laws of the place where the lands lie; but personal property passes by a will executed according to the laws of the place of residence of the testator, though the property be situated elsewhere. This distinction arises from the general rule, that the title to lands is to be governed by the laws of the country where it is situated, but that personal property is subject to the contracts and disposition made by the owner, in conformity to the laws of the place where they are made. It is a general rule, with some few exceptions, that a will must be in writing. The laws of New York require that it should be signed by the testator, at the conclusion of it. In England and in the U. States generally, it is only requisite that it should be signed. The construction put upon this rule in England has been that the testator's writing his name in the beginning of the will is a signing. This construction gave rise to the above provision of the New York statutes. These statutes have therefore defined, in one particular, what shall be a signing; but the law generally leaves this to construction, which

seems to be more advisable, since there is apparently no reason for defining what shall be a signing of a will, any more than what shall be a signing of any other instrument, In Vermont, a will is required to be sealed; but the law in the other states, and in England, requires merely that it should be in writing, and signed. Three witnesses are required in England, and in Vermont, New Hampshire, Maine, Massachusetts, Rhode Island, Connecticut, New Jersey, Maryland, South Carolina, Georgia, Alabama and Mississippi. In New York, Delaware, Virginia, Ohio, Illinois, Indiana, Missouri, Tennessee, North Carolina and Kentucky, only two; in Louisiana, from three to seven, according to the circumstances and kind of will. But some exceptions as to the witnessing are made in Pennsylvania, and in North Carolina and Tennessee. The regulations of two witnesses subscribing in the presence of the testator, and of each other, are not the same under all these jurisdictions. In the revised statutes of New York, the testator is required to sign the will, or acknowledge it to be his will in presence of each witness; but the requirement of the English law, that the witnesses must sign in each other's presence, is omitted. It has been held that the provision, that the testator must sign in presence of the witnesses, is satisfied if he is where he may be seen by them; but his being corporally present, though insensible, does not satisfy the requirement that they must attest in his presence.-Nuncupative Wills. At the common law, an oral will was valid in respect to chattels; but such wills are rendered void, or made subject to particular regulations, by the various statutes on the subject. By the statute of 29 Charles II, c. 3, a nuncupative will was not valid in respect to property exceeding thirty pounds, unless proved by three witnesses present at the time of making it, and especially requested to bear witness to it, or unless it was made in the testator's last sickness, and was reduced to writing within six months after his decease. This provision, or one very similar, is introduced into the statutes of many of the United States. But the restrictions on nuncupative wills confine them, in some of the United States, within still narrower limits. In New York, by the revised statutes, a nuncupative will is not valid unless made by a soldier in actual military service or a mariner at sea. In Massachusetts, such a will is not valid where the property exceeds fifty pounds, unless it is proved by at least three witnesses,

nor unless it is made in the last sickness of the testator, and at his usual residence, or where he had been resident at least for the preceding ten days; excepting in the case of a person being unexpectedly taken sick when absent from home, and dying before his return to his home.-Revocation. A will may be revoked by an instrument of equal formality, or by cancelling. A subsequent will, accordingly, is a revocation of a prior one, if its provisions imply a substitution of the latter will for the former. But the more general rule is, that if a subsequent will is invalid, it will not be a revocation of a preceding one; and the general rule again is, that by a revocation or cancelling of a subsequent will, a preceding one is revived. But the New York revised statutes make a provision on this subject, which is more likely to meet the intention of the testator, namely, that the cancelling or revocation of a subsequent will does not revive a former one, unless the testator makes a declaration to that effect. So a will may be revoked by legal operation or inference; as in England, by subsequent marriage, and birth of a child, unless the wife and child or children be provided for by a marriage settlement. So the will of an unmarried woman is revoked by her marriage.— Omission of Children or Heirs. The law of Louisiana, as has been already noticed, prohibits the parent from disinheriting his children, excepting in certain specified cases; but in the other United States and in England, the parent may disinherit his children. The statutes of Maine, New Hampshire, Massachusetts and Rhode Island, provide that if a child be not named in the will of its parent, it inherits the same proportion of the estate as if the parent had died intestate; and so, in the same states, and in Vermont, Connecticut, New York, Pennsylvania, Delaware, Ohio, and Alabama, posthumous children, and in most of those states, also, children born after the making of the will, inherit as if no will had been made, provided, in either case, that no provision is made by the will for the subsequently born or posthumous children.A codicil is a supplementary will, and requires to be made with similar formality.-Construction. It is a general rule, that wills are to be construed liberally, and, as far as is practicable, so as to fulňĺ the intention of the testator. In this respect, a greater liberality is adopted than in regard to deeds and most other written instruments. Thus the law does not re

quire that a devise should be to the devisee and his heirs, in order to carry a fee; any other words, or any provisions of the will, showing an intention to give all the testator's title, being sufficient for that purpose. But it has been held that, in general, the devise of a piece of land gives the devisee only a life estate, unless it could be gathered from the will that a greater estate was intended to be devised. But the law, in this respect, is very much improved in the revised code of New York, which construes a devise of land to be a devise of all the testator's interest in it, unless a contrary intention appears in the will. This construction will, undoubtedly, more frequently correspond to the intention of the testator. In Massachusetts, it had previously been held that a devise of wild lands, which the testator possessed in fee, carried the fee; the presumption being entirely in favor of this construction, since the devise would, upon any other interpretation, be of no advantage to the devisee. The rule that the presumption shall be in favor of a life estate, if no other be expressed, has, undoubtedly, defeated the intention of testators in thousands of instances, indeed, in almost all cases of wills not drawn up by lawyers.

WILLAMOV, John Theophilus, a German dithyrambic poet, was born in 1736, at Mohrungen, in Prussia, and, in 1767, became a school-master in St. Petersburg. He died in 1777. His poems relate to the separation of Sicily from Italy, the history of Arminius, and other elevated subjects. He also wrote fables in dialogue. The most complete edition of his poems was published at Vienna (1793).

WILLDENOW, Charles Louis, a celebrated botanist, born at Berlin, in 1765, was the son of an apothecary, and, after studying pharmacy under his father, was sent to the university of Halle, and then to Langensalza, where Wiegleb had a laboratory of pharmaceutical chemistry. Willdenow then returned to Berlin, where, in 1798, he received the chair of natural history at the royal college of medicine and surgery. In 1801, he was appointed professor of botany to the academy of Berlin, and, at length, director of the botanic garden at Berlin, which received great additions and improvements under his management. He formed a zoological cabinet, which he presented to the museum of Berlin. In 1804, he travelled through Austria and Upper Italy, and, seven years after, was invited to Paris by Humboldt, to classify and describe the

multitude of new plants brought by that traveller from America. Willdenow died not long after his return to Berlin, July 10, 1812. He was an associate of twentyfour learned societies; and the king bestowed on him the order of the black eagle. Among his principal works are, Prodromus Flora Berolinensis (1787); Historia Amaranthorum (Zürich, 1790, folio); Elémens de Botanique (1792), which has been translated into several languages; Arboriculture Berlinoise spontanée (1796); Species Plantarum exhibentes Plantas ritè cognitas ad Genera relatas cum Differentiis specificis, Nominibus trivialibus, synonymis, selectis Locis natalibus, secundum Systema sexuale digestas (Berlin, 1797-1810, 5 vols., in nine parts); Guide pour étudier soi-même la Botanique (1804); and Hortus Berolinensis, of which only the first volume has been published. Willdenow's great work, the Species Plantarum, was left incomplete, as he did not live to finish the history of the cryptogamic plants. A continuation has been promised by professor Link, of Berlin.

WILLE, John George, a distinguished engraver, was born in 1715, near Giessen, in Hesse-Darmstadt. He learned the trade of a gunsmith, and afterwards became a watch-maker. He subsequently went to Paris, and there became an engraver. His portrait of marshal Belleisle became the foundation of his fortune. In the revolution, he lost his property, amounting to 800,000 francs, and would have lost his life had not his son happened to be general of the national guard of Paris. Napoleon made him a member of the legion of honor, and the institute elected him into their body. His portraits of the minister Florentin and of Bossuet are particularly valued. He subsequently engraved historical and similar pictures; also many sketches of his son Peter Alexander Wille, born in Paris, in 1748. He died in 1808.

WILLIAM I, surnamed the Conqueror ; king of England and duke of Normandy. He was born in 1024, and was the natural son of Robert, duke of Normandy, by Arlotta, the daughter of a tanner of Falaise. His father, having no legitimate son, on his departure on a pilgrimage to Jerusalem, caused the states of the duchy to swear allegiance to him as his heir. Robert died in 1035, on his return from Palestine; and the guardian of the young duke could not prevent the king of France from reducing the duchy to a very low condition. When William assumed the reins himself, his vigor and ability soon repelled these ag

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