CHAPTER X
Estates and Trusts
ESTATES.—When a person who owns property dies, the first question which arises is as to what becomes of his estate; who pays the bills, who takes charge of his business affairs, and what are the rules as to the division of his property. The first question a lawyer always asks is, "Did the deceased die testate or intestate?" that is, did he leave a will or not. If he left a will, probably he has named one or more executors in his will to settle his estate, in which case such person or persons will take charge. If he has not appointed an executor in his will, an oversight which rarely occurs, the probate court will appoint an administrator. If, on the other hand, the man died intestate, it will be absolutely necessary for the court to appoint an administrator. The executor will settle up the estate according to the directions contained in the will, but if no will was made, the administrator will settle up the estate according to the rules of the probate court, under which he is acting, and the property will be divided in accordance with the statutes of the State or States having jurisdiction over the estate.
CHARACTER OF PROPERTY.—It is very essential to distinguish carefully between the two kinds of property, real and personal, which the deceased leaves. Real property, as we have explained, consists of land with the buildings permanently attached to it, and all other property is personal property, although it may relate to real property. Thus, a mortgage on land is personal property, also the shares of stock in a corporation, although the corporation may be organized to engage exclusively in the ownership of real property, is personal property. Where a person dies leaving a will, his real property goes directly to the persons to whom he leaves it in the will. In the case where he dies intestate, his real property passes directly to his heirs at law, who are designated by statute. In neither case is any formality necessary, beyond the probate of the will, to vest the devisee of the testator or the heirs at law of the intestate with the title to the real property. The situation in regard to personal property is quite different. Where the deceased died leaving a will, his executor immediately has title to all the personal property. If he dies intestate, the administrator will take title as soon as appointed. The personal property is used by the executor or administrator to pay debts, and the real property, whether a man dies testate or intestate, is never used to pay debts unless the personal property is insufficient.
WILLS DEFINED.—The definition of Jarman is commonly used in defining a will: "A will is the instrument by which a person makes a disposition of his property to take effect after his decease, and which is, in its own nature, ambulatory, and revocable during his life." This definition is open to one criticism. It does not include oral wills which, as we shall see, are sometimes legal. We shall also use other terms in this chapter which must be defined. A testator is the man who makes the will, while the testatrix is a woman making a will. A codicil is a supplement to a will, made and executed with the same formality as the original will, and it becomes a part of the original will, adding to it, or altering it, as the case may be. A devisee is a person who takes real property under a will, while a legatee takes personal property under a will, and the real property passing under the will is called a devise, and the personal property a bequest. A legacy refers to money passing under a will. This is why the ordinary will uses this phrase: "I give, devise, and bequeath." It is not fatal, however, to make a mistake of having the will read, "I hereby devise," referring to personal property. It is more a mistake in the use of English, than a mistake in law to make a wrong choice of these terms which we have just defined. A holographic or olographic will is a will which is wholly written in the testator's or testatrix's own hand. The statutes of a few States recognize these wills as valid without the formal execution or attestation if they are wholly written, signed, and sealed by the testator's own hand. A nuncupative will is an oral will. While most wills must be in writing, in many jurisdictions the oral wills made by sailors at sea, and soldiers in actual service are recognized as valid without being reduced to writing and without any specified number of witnesses. It is perfectly apparent why these exceptions are made, because of the difficulty of securing the materials with which to make a written will by these two classes of people. Nuncupative wills are good only to dispose of personal property, unless a special statute has been enacted which provides otherwise, but this is not commonly done.
A WILL AND A GIFT CAUSA MORTIS DISTINGUISHED.—We have already referred to gifts causa mortis which are gifts of personal property made by the donor under apprehension of immediate death, coupled with the delivery of the property. The gift is defeated by the recovery of the donor. A gift causa mortis may be made orally, while, with the exception of nuncupative wills, all wills must be in writing. A gift causa mortis must be made under fear of pending death, whereas a will is ordinarily made with a view of the fact of death but not of its immediate happening. Again, delivery is necessary to make a gift causa mortis, whereas under a will delivery never takes effect until after the person dies, and then the legatee's title comes through the executor or administrator, and not directly from the testator. Real property is not the subject of a gift causa mortis, whereas a will may dispose of both real and personal property.
WHO MAY MAKE A WILL.—As a general rule, any person of sound mind and of the age of twenty-one years may make a will. In some States, a person eighteen years of age may make a will of personal property. Formerly a married woman could not make a valid will excepting in a few instances, but today, by statute, this common law disability has been either wholly or largely removed. The statutes of the particular State in which the married woman resides, or in which her property is situated should always be consulted.
TESTAMENTARY CAPACITY.—Another qualification is that the testator must have sufficient intellectual powers to enable him to be said to have "a sound and disposing mind, memory, and understanding." The case of Whitney v. Twombly, 136 Mass. 145, gives us as good a general statement as there is concerning the nature of testamentary capacity: "A testator has a sound mind for testamentary purposes, only when he can understand and carry in mind, in a general way, the nature and situation of his property, and his relations to the persons around him, to those who naturally have some claim to his remembrance, and to those in whom, and the things in which, he has been chiefly interested. He must understand the act which he is doing, the disposition which he wishes to make of his property, and the relation in which he stands to the objects of his bounty and to those who ought to be in his mind on the occasion of making his will." The ability to make a will is not necessarily gone because the testator is old, weak or ill, even practically at the point of death. The physical condition is simply significant in determining the mental condition, but of course a very weak physical condition does not necessarily mean a weak intellectual condition. Insane persons are not capable of making wills, but a person who is insane may still have a "lucid interval" during which time he is sufficiently restored to his normal condition to enable him to act with such reason as to make a valid will, although he may, very soon, relapse into his former insane condition. Ordinarily most peculiarities and eccentricities on the part of the testator do not affect his ability to make a will; neither do peculiar religious beliefs have any effect unless, in any of these cases, the person's mind is so completely controlled as to prevent the exercise of rational judgment in disposing of his property. His eccentricities must amount almost, in such cases, to a form of insanity to have this effect.
HOW A WILL MUST BE EXECUTED.—There are four requirements for the execution of a valid will:
(1) It must be in writing.