Ancient, Curious, and Famous Wills

by Virgil M. Harris

“In fact, the will, as we know it, is a Roman invention. Free liberty of disposition by will is by no means universal at this time. Complete freedom in this respect is the exception rather than the rule. Homesteads generally, estates of dower and curtesy frequently, as well as other portions of an estate, are not the subject of devise or bequest.

“There never was a fitter application of Pope’s line, ‘A little learning is a dangerous thing,’ than in the preparation of wills; and it is a most astounding fact that men who have lived prudently, who have been conservative and successful in business, who have accumulated large wealth, who have been buffeted by every wave of misfortune, will attempt, by their own hands or through incompetent agents, to write their wills. It is always a hazardous undertaking, unless the instrument is of the simplest character. If one’s child is sick, a doctor is called; if a man’s roof is defective, a carpenter is sent for; if a horse throws a shoe, the animal goes to the blacksmith; yet, when it comes to the making of a will, perhaps the most solemn and consequential act of a man’s life, the testator takes his pen, and frequently without aid or counsel does that which experience and our court records fully demonstrate he is incompetent to do.

“Mr. Daniel S. Remsen, of New York, an author of high repute on the preparation of wills, says that fully fifty per cent of wills contain some obscurity or omission. With this statement I find myself in complete accord. I believe that nearly half the wills written are open to attack and a large portion of them fatally defective. I have never seen more than a dozen perfectly drawn wills, gauged by the standards of perfect clearness, precision and legality.

“As stated by Mr. Remsen, ‘A will is an ex-parte document and is written from one point of view; it is the expression of the wishes of the testator regarding the work of a lifetime; upon its legality depends the future happiness and welfare of the persons and objects most dear to the testator; and whether viewed from a property or a family standpoint, it is often the most important document a man of large or small means is ever called upon to prepare.’

“How many are there, in this audience of a thousand bankers, who can tell me the manner in which, under the laws of descent and distribution, is to be divided an estate consisting of five thousand dollars in cash, and real estate of the value of five thousand dollars, the testator leaving a wife and two children?

“Unfortunately the idea prevails that a will is a very simple instrument to prepare. Nothing in business life can be further from the truth; on the contrary, a will may be, and usually is, the most intricate of all legal documents. This is always true where there are gifts or devises depending upon contingencies, or where trusts are created. A deed or a contract may be changed; not so with a will, after the death of the maker. Therefore, foresight in its preparation is imperative.

“There is a well-marked legal distinction between the words, heirs, devisees, legatees, distributees, and legal representatives. Each of these terms has a clear and well-defined signification. One who has the preparation of wills must deal with the law against perpetuities. An estate cannot be tied up for a longer period than ‘a life or lives in being and twenty-one years thereafter.’ This is the general law of our country. The law of dower and curtesy is by no means simple. The law of vested and contingent remainders is a most intricate subject and requires years of legal study to comprehend, and cannot be simplified. The creation of life estates and trusts demands the most careful inquiry. There are spendthrift provisions which are easier to break than to prepare. The statute of uses cuts an important figure in testaments. The provisions with reference to the powers of executors and trustees are very comprehensive and must be framed with great care and precision. The subject of joint tenants, and tenants by the entirety, frequently requires the most profound consideration in the interpretation of wills.

“I recently saw a decision of one of our highest courts, where a testator gave a large sum of money by will to his wife ‘to hold, possess and enjoy during her natural life’; at her death, the fund was to go to a certain college. The widow promptly set about to ‘enjoy’ the fund by spending it; the court held, and properly, that she had a right to do so, and that the college got nothing. The will was improperly drawn. Had it been stated that she might ‘enjoy the income,’ a different result would have followed.

“A few months ago I saw a will in which an estate of one million dollars was disposed of: the testator under the will divided the estate into ten parts, but overlooked the disposition of one of these parts; the omitted part passed under the general laws of inheritance, doubtless contrary to the wishes of the testator.

“There came under my observation not long ago a will drawn in Michigan: the testator owned property in Michigan and also in Missouri and South Carolina. The will had but two witnesses; it was effective in Michigan and Missouri, but in South Carolina, where three witnesses are required, it was inoperative.