Commercial Law

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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 appoi

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 t

visee 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 th

ade 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 mort

e 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 bee

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

here are four requirements for

ust be i

be signed by

testator or the marking acknowledged by him in

e of the necessary number of witnesses, who are present at the same time a

ends of which are carried to the last page and imbedded in a wax seal. The testator should sign the will himself unless he is unable to, from lack of education or feebleness, in which case, the statute generally makes provision for another form of signing. It is better practice for the testator to sign the

having three witnesses, his will is just as good in New York, where only two are necessary and the presence of the third witness makes the will good, and passes the real property situated in the State where three are required. It is always best to have the witnesses add their addresses to their signatures. This is not required by statute in many States, but after a person's decease, it may help in locating the witnesses by having addresses to which to refer. It is, of course, wise to use some care in the selection of witnesses, although almo

it is well to keep in mind the form of

AME OF G

York, being of sound and disposing mind and understanding, do make

s and my funeral expenses be paid as soo

ether real, personal, or mixed, of whatsoever kind, character or description, and wheres

der of my estate to my children, Alice Jones, Sarah Jones, and George Jones, to them, their heirs,

ll force and effect notwithstanding

his my last will, giving to them full power and authority to sell and convey any and all real estate, whereof

y and all wills at any ti

ereunto set my hand and seal

JOHN JONE

s, and each of us, and at the same time declared by him to us, and each of us, to be his Last Will and Testament, and thereupon we, at his r

21 Broadway,

ifth Avenue, N

0 Post Avenue,

itself, will act as a revocation. Again, a will may be revoked by mutilation, as by being burned, torn, or otherwise mutilated by the testator himself, or in his presence and by his direction. The mutilation of the will, however, if not accompanied by an intent thereby to revoke it, is of no effect. I think I am tearing up an old insurance policy, but because of poor eye-sight

will, a child is born, the will is revoked in toto, when no provision for such child is made in the will. However, as above stated, this rule is not uniform in all States, and local statutes should therefore be consulted on this point. Where a testator already has children, the birth of additional children will not affect his will except, that such after-born children will i

in a will has any authority to act, he must produce the will, and after the proper proceeding has been had, the will is admitted to probate, and he may then qualify under it by giving the necessary bond. If the deceased died intestate, the proper person will apply to t

ng to place the sole care of his estate in the hands of a trust company, he may name two executors, a trust company and his wife, if he is a married man, or a very close friend in whose judgment he has great confidence, and, together, the two act as executors. The fees which the executors receive are

estate of

widow, if t

, or if the widow renoun

ldren, then to the issu

ceased children, then

e estate

nd for any reason does not desire to act as such administra

no husband, then

then to the issue

ceased children, then

tate of an un

any reason the father does not wish to act, the cou

the mother and brothers and siste

or sisters, then to the nea

or are designated by their relation to some ancestor living at the date of the will, whether the testator or another, they take per capita, unless the context of the will shows an intention that they should take per stirpes. But where the gift is to an individual, or several named individuals, and to others as a class, the latter take per stirpes; unless the testator uses language indicating an intention that the members o

he event of the death of C. before the testator, among heirs or children of C. per stirpes. (In other words, they will divide the

t. For example, a will is ordinarily presumed to speak as of the time of the testator's death. Thus, reference in a will, to the arrival of the testator's youngest child at the age of twenty-five years, will apply to the youngest child at the time of the testator's death, although such child is born after the execution of the will. Ordinarily, a testator is presumed to have intended to dispose of all of his property, and if a will can be so construed, this will be done

mon law, in all the real property of which he was seized during the whole marriage. Therefore, reference to the statutes must be made in each State, to know the exact rule in a particular jurisdiction. Where the State adheres closely to the common law, this right, on the part of the wife, is a right of which her husband cannot deprive her; if the husband disposes of all his real property in his will to his friend, John Jones, such disposition is not valid and th

right, three things are necessary: The two already mentioned in dower, and third, the birth alive of issue of the marriage. The right of curtesy does not exist in this common law form in as many States as does the right of dower. Where these two rights do exist, in their more or less modified form,

the will had two witnesses only, as required by the Pennsylvania law, but three witnesses are required in one of the other States named, he would die intestate as far as the real property in the other State is concerned. Difficult questions sometimes arise in regard to gifts to charities. Some States limit the amount which a charitable corporation may receive as a gift under a will, and other States require that the gifts must be executed within a certain time before the decedent's death. Where there is a question of this character involved only a careful examination of the decisions and statutes in the States concerned can furnish the basis for any satisfactory answer. If

zed that contracts of this nature are valid. The general rules applicable to contracts apply here. There must be consideration, the contract must be certain in its terms, and as such contracts are not favored by the courts, because they are open to many forms of fraud, they must be proved by clear and convincing evidence, and the contract would have to be in writing under the provisions of the Statute of Frauds. In the illustration suggested, the further question arises, what is the remedy on the part of

n for whom it is held is termed the beneficiary or "cestui que trust." Trusts are created for a great variety of purposes. It is very common to create them by a will, the testator appointing a trustee to manage a trust fund which he sets aside for the maintenance and support of a certain person or a certain institution. A new device for creating a trust for the carrying on of a business, seems to be growing in popularity. The practice apparently began in Massachusetts with the creation of a trust for the operation of

perty, and any one who seeks a transfer of the legal title of the property must get it from the trustee. Executors have exactly the same powers as administrators, aside from powers that may be expressly given in the will. The difference in name is simply because an executor is appoint

ntment by the court, and frequently is. A real estate trust may be created by simply conveying property to trustees on the trust that they manage it and pay the income to the beneficiaries, and a great variety of trusts are constantly created without an appointment from the court. Wherever any question on a trust arises, or wherever the appointment of a new trustee is necessary, however, the court has jurisdiction, and any person interested in the trust can bring the matter before the court. When a testator dies the person named as executor in the will peti

r is expressly given or unless the nature of the trust is such as necessarily implies the power, and courts are very slow in construing the existence of such power by implication. An executor, on the other hand, since his duty is to reduce the personal property of an estate to cash, and distribute it, has, in most States, implied power to sell personal property. He has, however, no power to sell real estate unless the will expressly gives such power. The court may authorize him to sell real estate, and will authorize him, if it is necessary to pay debts or legacie

to reduce the property to cash and distribute it to the proper parties. All these officers owe the same duty of fidelity to their beneficiary that an agent owes to his principal. There is the same duty to execute the trust personally and not delegate authority, except in regard to ministerial or mechanical acts. There is the same duty to account, and furthermore, the accounts of these officers, if they are appointed by the court, must be filed in court. The trustee to carry out his tr

d distinct from his own. This means that a trustee or executor receiving current income must keep a separate