Putnam's Handy Law Book for the Layman

by Albert Sidney Bolles

A person to whom real estate is given is called a devisee; the receiver of personal property a legatee. When the testator gives real estate he must have regard to the laws of the state where it is situated; in giving personal property he is governed by the law of the state where he resides, his domicil. Many a devise has been declared invalid, because the testator in devising it did not comply with the law of the state where the land was located.

The principal ground on which wills are attacked is feebleness of mind, lack of mental capacity. The question assumes this form: did the testator at the time he executed his will have sufficient mental capacity to do it. An eminent jurist, Chief Justice Redfield, has said that he must have undoubtedly sufficient active memory to perceive the more obvious relations of things to each other. Even if unable to manage his business, he can nevertheless make a will if he knows what he is doing.

Again an insane person may make a will provided this is done during a lucid interval. Many a person is insane only at times or on particular subjects and therefore may be competent to make a rational disposition of his property. Some persons have curious religious beliefs, prejudices against persons, governments and institutions, and yet these vagaries may not impair their capacity to dispose of their property in a legal and rational manner.

Another requirement of a testator is that he must declare in the presence of the witnesses that it is his last will and testament. This is called a publication of the will. Of course, his will must be completed when this is done. Suppose a person makes several wills, which one of them is effective? The last one. A will should be dated, suppose this has been forgotten, what then? The last will must be established, if possible, by other evidence. Suppose it is believed that the last will has been destroyed, and a prior will is found, can this be set up as establishing the testator's disposition of his property? It is not his last will, for he has made another.

Any person may be a devisee or legatee including married women, minors and corporations. If a bequest is made to a corporation not in existence, is it valid? By some courts this can be done, by others this power is denied to a testator. Many a well-meant bequest to a noble charity has been smitten down because there was no legal donee then existing to receive the gift. A testator may bequeath property to a trustee who shall select the objects of the testator's bounty.

The thing bequeathed must be described with sufficient clearness to identify it, nothing more is required. In some cases proper evidence may be used to identify things where the description in the will is ambiguous.

A devise of lands may consist of the entire estate or interest of the testator, or he may give the devisee a lesser interest in them. It is a common thing for a testator to devise the use of land to a person during his lifetime, and after his death the entire interest or fee to another. He usually adds a final or residuary clause to his will to the effect, that all he may have which has not been bequeathed to any one specifically shall be given to one or more persons or objects named in his will. Or, if a legacy shall lapse, that is, the person to whom it has been given shall die, or for any other reason cannot, or will not take it, it falls into the residuary portion and goes to the residuary legatee.

If a will does not contain such a clause, and there is no statute in the way, then a lapsed legacy or other property, not covered by the will, goes to such persons as the law has prescribed whenever persons die leaving no will, or, in legal language, die intestate.

A will takes effect from the testator's death and so does the validity of all the bequests. Thus, should a person mentioned as legatee die before the testator, the legacy would be invalid. But many or all of the states have provided by statute for the continuation of these in many cases. Thus, should a son, to whom his father has devised some land, die leaving children, they take it in place of their father. These statutes vary much, some limiting the substitution to the lineal heirs of the deceased, son, grandson, etc., others extending the substitutes to the collateral heirs of any devisee or legatee.

Again, by statute and common law a wife is entitled on the death of her husband to a specific portion of his property. Should he not give her as much by his will, unless he had made an agreement with her before marriage with respect to what she was to receive, she may renounce her rights under her husband's will and claim what the law would give her as if he had made no will.