Signed A.
This was held to be a valid holographic will. A holographic will is frequently in the form of a letter addressed to the beneficiary.
359. Nuncupative Wills. Many of the states of this country recognize the validity of oral wills made under certain circumstances for the purpose of disposing of personal property. Such wills are called nuncupative wills. Soldiers and sailors while in actual service may dispose of their personal property by this form of will.
Persons other than soldiers and sailors may make nuncupative wills when in their last sickness or in danger of impending death. The will is made by calling upon disinterested persons to bear witness to the will which the testator describes orally. These words, in substance at least, must be reduced to writing, usually within ten days from the death of the testator, by one of the witnesses, and signed by the witnesses. Nuncupative wills are not favored in law. They are not sufficient to dispose of real property. Some states do not recognize the validity of these wills unless they are made at the testator's dwelling. An exception to this rule is where the testator, surprised by sickness when upon a journey, dies while away from home. Nuncupative wills must be proven within six months after they are reduced to writing. A was suddenly taken seriously ill at his home. He called upon B and C, disinterested witnesses, to bear witness to his will, and directed that his personal property be given to his wife D. A died, B reduced the words of A to writing within ten days after A's death, and C and B signed as witnesses. The will was proven within six months. It was held to be a valid nuncupative will.
360. Revocation and Alteration of Wills. A will may be revoked at any time before the testator's death. The testator may himself revoke his will, or he may cause someone to perform some act under his direction and in his presence, which will revoke the will. The statutes of most states provide that a person may revoke a will by tearing, cancelling, obliterating, or destroying the will with the intention of revoking it. Any of these acts performed by a stranger, not in the presence nor under the direction of the testator, are void acts, and do not destroy the validity of the will. If the testator himself, tears, cancels, destroys, or obliterates the will with the intention of revoking the will, the instrument no longer has any validity or force as a will. A will is cancelled by drawing lines with a pen or pencil across the written portion of the will. A will may be revoked by a later will which expressly revokes the former, or which disposes of all the property of the testator. A later will which does not expressly revoke a former will, and which does not dispose of all the testator's property does not revoke the former will, but both are construed together. A codicil is an instrument altering, revoking, changing, or adding to certain portions of a will. It must, itself, be signed, witnessed and acknowledged the same as a will, and is construed as part of the will.
361. Lost Wills. A will which is lost or destroyed with no intention to revoke may be proven as a will after the testator's death. If a will is partially or totally destroyed by accident, or by someone who is to profit by the total or partial destruction, the will is said to be spoliated, and its contents, as it existed before spoliation, may be proven after the testator's death. It must be remembered that a will may be revoked by a testator at any time. If a testator makes a will, and has it in his possession, and after his death the will cannot be found, the presumption is that he revoked the will. This presumption may be rebutted, however. If the testator tells of having a will shortly before his death, or if the will is seen, or any evidence is produced that the will was not revoked by the testator, it may be proven as a lost will. If a will is made and left for safe-keeping with a third person, inability to find it after the testator's death raises no presumption that is was revoked by the testator. To prove a lost will as a will, witnesses must be produced who know in substance the contents of the will, that it was made and that it was not revoked by the testator. If a will is partially destroyed by someone who is to benefit thereby, or by accident, the contents of the portion so destroyed may be proven as a lost will.
362. Abatement, Advancement, and Ademption. If a person does not have sufficient property at his death to pay the bequests and devises made in his will after payment of his debts, his devises and bequests are paid pro rata out of the estate remaining after the payment of debts and expenses, unless the testator expressed a wish or intention that certain bequests or devises were to be satisfied in preference to others. In this event, the wishes of the testator must be observed. The rule requiring all devisees and legatees to receive but a portion of the property mentioned in the will, in case there is not sufficient property to satisfy all, is called abatement.
If a person makes a will bequeathing a certain article of personal property, or a certain amount of money to another, and if, before the will becomes operative by the death of the devisor, the latter delivers the article or pays the money to the legatee, or sells or disposes of the particular article mentioned in the bequest, the will is said to be adeemed, and the act by which it is adeemed is called ademption. In case of ademption of a particular article, the bequest is satisfied. In case a certain sum of money is bequeathed to a person by will, and the amount of money is given the legatee by the devisor, whether it satisfies the bequest, or whether it is a gift in addition to the bequest mentioned in the will, is a matter of intention on the part of the devisor. If the devisor expressly says it is a gift in addition to the bequest mentioned in the will, it will not satisfy the bequest mentioned in the will. If nothing is said which expressly shows the wish or intent of the devisor, the presumption is, that it is to apply on the bequest, or if sufficient in amount, that it satisfies the bequest. The intent of the testator may be determined by the circumstances connected with the payment. If a sum of money is paid by a testator during his lifetime to a legatee mentioned in his will, to apply on the bequest, the payment is sometimes called an advancement.
363. Form of Will.
I, John Brown, of the City of Chicago, County of Cook, and State of Illinois, being about 61 years of age, and of sound and disposing mind and memory, do make and publish this my last will and testament.