Law of Wills, Executors and Administrators, Volume 2

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Contents

Wills of Real and Personal Property
850
Wills Torn or Altered
851
Disposition of Property Necessary
852
Secret Wills Extraneous Documents Referred to
853
Instruments Which Do Not Purport to be Testamentary
855
Agreement of Parties in Interest to Conform Compromise etc
858
CHAPTER V
861
Probate of Will in Common Form English Practice
864
Probate of Will in Common Form the Subject Continued
867
American Statutes as to NonContentious Business
868
Probate of Will in Solemn Form English Practice
869
Probate of Will in Solemn Form American Practice
872
Contest Over Conflicting Testamentary Papers
875
Successive Applications for Probate
876
Revocation of Probate
878
Abatement of Proceedings
880
Proponent Goes Forward and Has Right to Open and Close the Case
883
CHAPTER VI
885
Attestation Attestation Clause
888
Presumption of Execution from Presence of Lawyer
889
Knowledge of Testator
890
Ancillary Probate 891
891
Alterations
892
Fraud in Probate
893
Revocation of Mutilated Document
894
Revocation of Duplicate Will
895
CHAPTER VII
896
Partial Probate
898
Statute Retroactive
899
CHAPTER VIII
900
Nature and Situs of Property
902
Will Probated in Another Jurisdiction
904
CHAPTER IX
905
Testimony of Attesting Witnesses as to Execution
907
Production of Subscribing Witnesses if possible
908
English Practice as to Producing the Subscribing Witnesses
909
Declarations of Deceased Witnesses
910
Will or Copy
911
Evidence Contradicting Will
912
Other Documents
913
Revocation Lost Will Declarations of Testator
914
Revival
915
CHAPTER X
916
Revocation
917
Lost Will
918
CHAPTER XI
920
Alterations
923
Probate in Facsimile Copy or by Translation
924
SECTION PAGE 821 Decree of Probate Entered Public Custody of the Will
925
Costs
927
Counsel Fees
928
CHAPTER XII
929
Effect of Probate
930
Probate Relates Back
931
but is commonly applied to any of the incidents of adminis
933
CHAPTER XIII
934
Appellate Jurisdiction
935
Parties in General Executors Widow
936
Heirs
937
Beneficiaries under Will
938
CONSTRUCTION OF WILLS 1 CHAPTER I
940
Construction Distinguished from Interpretation
942
Law of What Date Governs Construction
945
Construction by Executor or Persons Interested
946
CHAPTER II
947
Operation from Death of Testator
948
Construction from Date of Execution
949
Afteracquired Property
950
Effect of Codicil
952
CHAPTER III
955
Rules of Testamentary Construction are of Limited Scope
957
one who died before its enactment but an attempt to prove
958
Rules of Property
960
PAGE
961
CHAPTER IV
967
Particular Toen
973
N E 145 cree Prerog In re Whiteheads
983
CHAPTER V
984
Implied Dispositions in General
992
CHAPTER VI
1005
1013
1013
PRESUMPTION AGAINST INTESTACY 887 Presumption against Intestacy 888 When Presumption against Intestacy is Ineffective 889 Presumptio...
1017
SECTION PAGE 890 Presumption against Intestacy Use of General Words
1023
Presumption against Intestacy Remainders
1024
Operative Effect of All Parts of Will
1027
Giving Effect in Part if Not in Full
1029
Construction Favoring Operation
1030
CHAPTER VIII
1031
Repugnant and Conflicting Provisions
1034
Later Clause How Construed with an Earlier One
1035
General Description Whether Limited by Particulars
1039
Partial Invalidity Inseparable Provisions
1041
Construing Wills and Codicils Together
1042
Writings Annexed or Referred to in Will
1045
CHAPTER IX
1047
Parol Evidence May Explain but Not Contradict Will
1049
Extrinsic Evidence to Control Contradict etc Inadmissible 1050 908 Extrinsic Evidence to Control Contradict etc Inadmissible 909 Parol Evidence I...
1053
Effect of Language in Will Not to be Varied
1054
Charges
1055
References to Extrinsic Matters
1056
Construction Aided or Unaided by Extrinsic Evidence the Latter Here Considered
1057
General Summary Extrinsic Evidence Always Admissible to Aid in Right Interpretation
1059
Sir James Wigrams Proposition Stated
1060
Jurisdiction of Probate and Equity Courts
1061
May Show That Will Applied to Conditions at Execution
1062
CHAPTER X
1063
Latent and Patent Ambiguities in This Connection
1064
Whether Parol Evidence Admissible When is Person Answering Description
1067
Extrinsic Evidence in Aid of an Equivocal Description
1068
The Same Subject
1070
pared
1072
Conclusion as to Extrinsic Proof of Intent in Case of Doubtful Description
1075
Reference to Context in Equivocal Description
1076
Declarations of Testator Showing Intention Modern American Rule
1078
Blank in a Will Partial Description
1080
CHAPTER XI
1082
Law at Time of Execution
1086
Knowledge and Impulse of Testator Presumed
1087
Misnomer Nickname etc Corrected Subject or Object of Gift Executor etc Identified
1090
Drafting of Will
1093
Former Will
1094
Local Meaning of Words
1096
ing etc
1097
CHAPTER XII
1102
Identification of Beneficiaries in Case of Ambiguity or Equivo cation Recent Cases
1104
CHAPTER XIII
1106
Identifying Homestead etc
1107
To Show Error in Area
1108
CHAPTER XIV
1110
Certainty in Description in General
1112
SECTION PAGE 962 Certainty Gifts for Charity
1113
Uncertain Gifts for Charity etc
1114
Charitable Institutions
1116
Erroneous Description Name Incorrect or Lacking
1117
Beneficiaries as the Objects of a Gift
1118
Unmarried Person
1119
Servants or Employees
1120
Representatives i Executors and Administrators etc as Used in Bequests
1121
CHAPTER XV
1125
Children by Affinišy
1129
Children by What Marriage
1130
Stepchildren
1131
Illegitimate Children
1132
CHAPTER XVI
1136
Heirs as a Word of Limitation
1137
Heirs and Next of Kin as applied to Personal Estate
1139
Next of Kin
1142
etc 989 Heirs of the Body Bodily Heirs
1144
Legal Heirs Lawful Heirs etc
1147
Heirs Meaning Other Beneficiaries under the Will
1149
Husband or Wife
1150
When Heirs Means Children
1151
Illegitimate Children
1153
Halfblood
1154
CHAPTER XVII
1155
Family
1156
Parents
1158
Issue as Meaning Children
1160
Relatives Relations Kindred etc
1162
Collateral Relatives as Objects of a Gift
1164
Cousins
1165
CHAPTER XVIII
1167
Creation of Class Certainty in Number
1168
Creation of Class Effect of Use of Names
1170
Creation of Class Words of Equality
1171
Date of Distribution as Test
1174
Heirs Next of Kin etc
1178
Survivors etc
1183
Contingent Remainder
1184
Class Closed When First Taker is Entitled to Share
1185
Deceased Persons or Their Heirs
1187
Effect of Statutes Protecting Representatives of Deceased Beneficiaries
1188
CHAPTER XIX
1189
Statutory Rights
1190
Marshalling Assets
1191
CHAPTER XX
1192
Words of Equality
1193
Presumptions of Equality
1194
Real Estate or Personal Property
1195
Children or Other Relatives
1196
Heirs Next of Kin or Representatives
1200
Descendants or Issue
1202
Survivors or Representatives of Deceased Beneficiaries
1204
CHAPTER XXI
1205
Statutes against Lapse Effect of
1208
Death in Common Disaster
1210
DEATH WITHOUT ISSUE SECTION PAGE 1044 In General
1211
Issue Meaning Children
1222
CHAPTER XXIII
1224
Survivorship in Classes
1227
To Heirs
1228
Survivor Meaning Other etc
1229
Effect on Gift of Other Parts of Will
1230
CHAPTER XXIV
1231
Provisions in Will for Representatives of Deceased Beneficiaries
1232
Husband and Wife as Representatives
1233
CHAPTER XXV
1235
To What Relatives of Deceased Legatee Statute Applicable
1236
Legatees Dying Before Execution of Will
1237
Setoff of Debts Due Testator by Deceased Legatee
1238
CHAPTER XXVI
1239
Informal Expressions
1240
Erroneous Description
1241
A False Description Does Not Vitiate etc
1242
SECTION PAGE 1081 Title to Property as Affecting Construction
1244
Exception from General Devise or Bequest
1245
But Particulars May Qualify a General Description
1249
Repugnant or Conflicting Descriptions
1250
Whether Various Gifts to Same Person in Same Instrument are Cumulative
1251
Whether Gifts to Same Person in Will and Codicil are Cumu lative
1252
Estate Property
1254
Real and Personal Property Passing Together
1255
Share
1256
Reference to Lost Document
1257
CHAPTER XXVII
1258
What Law Governs
1259
Description of Gift Devise Legacy Bequest etc
1260
Property Estate
1261
Farm
1262
Home House Homestead etc
1263
Land Tenement Hereditament
1265
Messuage Premises
1266
1105 Real Estate with the Personalty Thereon
1267
Description by Metes and Bounds
1268
Description by Location Possession
1269
Description by Character of Land
1270
Portion of Larger Tract Power of Selection
1271
Effect of General Devise on Leaseholds
1272
Effect of General Devise on Reversionary Interests etc
1273
Effect of General Devise on Trust Estates and Mortgages
1274
Effect of General Devise on Appurtenances to Real Estate Easements etc
1275
Appurtenances and Similar Expressions
1276
Rents Profits and Income of Real Estate
1277
Devise of Rents and Profits Use and Occupation Income etc
1278
CHAPTER XXVIII
1280
Effect of Other Parts of Will
1281
Description by Location Contents of Trunk etc
1282
Effects Possessions Things
1283
Furniture Wearing Apparel and Other General Expressions 1285
1285
Mortgages Securities for Money Stocks Insurance
1287
Goods Chattels etc
1289
Movables
1290
Business
1291
Money 1292
1292
Bank Deposits
1296
CHAPTER XXIX
1297
Accumulations
1298
Gift of Income as Including Principal
1299
Gift of Principal as Including Income
1300
CHAPTER XXX
1302
Realty
1303
Residuary Bequest of Personalty
1304
Words Necessary Informal Words
1305
Certainty in Language
1306
Reference to Other Clauses in Will
1307
Equality of Division 1308
1308
Residue Failing
1309
Property Included
1310
Real and Personal Property Included
1311
Ejusdem Generis 1312
1312
Income Dividends in Distribution Stock Dividends 1154 Residuary Bequest or Devise as to Intermediate Income
1313
Income of Residue Bequeathed
1315
Proceeds of Sale of Real Estate Lapse
1317
Effect of Codicil
1319
Devises and Bequests in Execution of Powers under Modern Statutes
1320
CHAPTER XXXI
1323
Statutes
1325
Probate Courts
1326
Equity Jurisdiction
1327
To Determine Legal Titles Law Courts
1328
PART IX
1331
Presumptions
1339
Remainder or Reversion Residue
1345
CHAPTER III
1351
CHAPTER VI
1373
CHAPTER VII
1384
SECTION PAGE 1244 Power of Use
1388
Power to Appoint by Will
1391
Limitation Over after Absolute Interest is Void
1392
Limitation Over after Life Estate with Power is Valid
1393
Whether Power Given Life Tenant is to convey a Fee
1394
Rights of Life Tenant in Proceeds of Sale or Reinvestment
1395
CHAPTER VIII
1396
Distinctions Between Vested and Contingent Remainders
1397
Construction in favor of Vesting
1398
Intention of Testator Controls Rule in Favor of Vesting
1402
Presumption in favor of Early Vesting
1403
Certainty of Beneficiaries and Time of Enjoyment
1404
Postponement of Time of Payment or Distribution
1406
Vested Interest in Contingent Remainder
1407
Vesting Dependent on Several Contingencies
1410
Words Indicating Time of Vesting
1411
Conditions Precedent or Subsequent
1413
Character of Remainder Subject to Gift Over
1414
Character of Gift Over on Death of Remainderman
1415
Statutes
1416
CHAPTER IX
1417
Direction to Sell Property and Divide Proceeds
1418
Directions to Distribute to Individuals or to a Class
1419
Interposition of Trustee
1421
Power in Trustees
1422
Marriage
1423
Limitation on Death or Marriage
1424
Limitations Dependent on Living at a Certain Time
1426
To Survivors
1427
To Class
1431
To Children of Testator
1436
To Children or Issue of Life Tenant
1438
To Children of Third Party
1439
SECTION PAGE 1292 To Heirs of Deceased Person
1440
Apportionment of Income
1441
Annuities
1442
CHAPTER X
1443
Devesting Vested Estates or Interests
1444
Defeasance Not Favored
1445
Remainder Vested and Subject to be Devested
1446
Contingent Limitation Becoming Vested
1447
Destruction of Contingent Remainder Where It Becomes Impos sible
1448
CHAPTER XI
1449
Modern Rule
1450
Distinction Between Tenancy in Common and Joint Tenancy
1451
Personal Property
1452
Parents and Children
1453
CHAPTER XII
1455
After What Estates
1457
Contingent
1458
In Personal Property
1459
On Death without Issue Where First Estate Fails
1460
CHAPTER XIII
1461
Whether Condition is Precedent or Subsequent
1463
Conditions Precedent
1464
Conditions Subsequent
1466
Conditions Not Favored
1469
Restraint in Alienation Not Favored
1470
SECTION PAGE 1332 Conditions Repugnant to Absolute Gift
1471
Application and Effect of Conditions
1473
Performance of Conditions Before Death of Testator
1474
Effect of Failure of Conditional Estate on Remainder
1476
CHAPTER XIV
1477
Conditions against Bankruptcy
1478
Restraint on Alienation of an Absolute Estate
1480
Restraint on Alienation of a Life Estate Spendthrift Trusts
1483
Condition as to Residence Assuming Name Maintaining Good Character etc
1487
Condition Not to Dispute the Will
1489
Bond to Abide by Provisions of Will
1500
Limitation etc Distinguished from Condition
1501
CHAPTER XV
1502
Statutes
1503
Conditions Precedent or Subsequent
1504
Partial Restraint on Marriage
1506
Remarriage of Widow or of Another
1508
Conditioned on Separation
1509
Polygamous Marriage
1510
CHAPTER XVI
1511
Gift for Specified Purpose
1512
Gift of Use
1514
Discretion in Trustee
1515
Power of Sale
1516
Creation by Parol
1517
Conditional Trust
1518
Executors Holding in Trust etc
1519
Use of Word Trust or Trustee
1520
Precatory Trusts
1521
Controlling Principles
1523
Expressions of Kindness etc
1524
Desire Request Wishes etc
1528
The Same Subject General Conclusion
1529
Rights and Duties of Testamentary Trustees in General
1530
PAGE
1531
APPENDIX
1541
A LEADING WILLS ACTS ENGLISH AND AMERICAN I English Statute 1 Victoria c 26
1543
Absolute Interest Favored
1630
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Common terms and phrases

Popular passages

Page 1545 - ... shall not lapse, but shall take effect as if the death of such person had happened immediately after the death of the testator, unless a contrary intention shall appear by the will.
Page 1544 - ... shall be construed to include any real estate, or any real estate to which such description shall extend (as the case may be) which he may have power to appoint in any manner he may think proper, and shall operate as an execution of such power, unless a contrary intention shall appear by the will...
Page 1548 - ... signed by the testator, or by some person in his presence, and by his express direction, and attested and subscribed in the presence of the testator by two or more competent witnesses...
Page 1556 - Signed, sealed, published and Declared by the said Testator as and for his last Will and Testament in the Presence of us who in his presence and at his request and in the presence of each other have subscribed our names as Witnesses thereto.
Page 1544 - ... shall be construed to vest in such trustee the fee simple, or other the whole legal estate which the testator had power to dispose of by will in such real estate, and not an estate determinable when the purposes of the trust shall be satisfied.
Page 1554 - The above instrument, consisting of two pages, was, at the date thereof, signed sealed published and declared, by the said Oliver Murray, as and for ^ his last will and testament, in presence of us, who, at his request and in his presence, and in the presence of each other have subscribed our names as witnesses thereto Henry V.
Page 1058 - ... sensible with reference to extrinsic circumstances, it is an inflexible rule of construction that the words of the will shall be interpreted in their strict and primary sense and in no other, although they may be capable of some popular or secondary interpretation, and although the most conclusive evidence of intention to use them in such popular or secondary sense be tendered.
Page 1549 - ... no devise in writing of lands, tenements or hereditaments, or any clause thereof, shall be revocable, otherwise than by some other will or codicil in writing, or other writing declaring the same...
Page 1553 - I have strength and capacity so to do, do make and publish this my last will and testament hereby revoking, and making null and void all other last wills and testaments by me heretofore made.
Page 1558 - Signed sealed published and declared by the said Robert Flint as and for his last will and Testament in the presence of us who at his request and in his presence and in the presence of each other have subscribed our names as witnesses thereto.

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