155. Definition of Wills and of Terms Thereof.

"A will," says Chancellor Kent (4 Kent Com. 50), "is a disposition of real and personal property to take effect after the death of the testator." Correctly speaking, a will of personal property is called a testament. A will of real estate is called a devise (Mitchell on Real Estate and Convey. 513).

The person who makes a will is called the testator, if female, testatrix. The person to whom the will gives real estate is called the devisee; and what he receives, a devise. One who receives personal property is called legatee, and what he receives, legacy. The apt words to be used in willing real estate are devise and for personal property bequeath. Latterly, however, this distinction has not been maintained and it has become customary to use the form, "I give, devise and bequeath," indiscriminately. When a will is written wholly by the testator, it is called a holograph will. A codicil is a supplement to a will altering or changing some part or parts of it.

156. Origin of Wills.

During the early history of mankind the only right man had to acquire and possess property was the right of might. Upon his

death, whatever he possessed or occupied was by law of nature open to any who choose to take it, and so the next occupant acquired title. Usually the next occupant was a member of the decedent's family for the obvious reason that a member of the family was usually nearest to the property when the death occurred. With the dawn of civilization and as society organized, to prevent this unseemly scramble and its attendant disturbance, the law declared who should be entitled to the decedent's possessions. Later, the dying person was given the right to dispose of his possessions by will.

The right, therefore, to make a will is just as is the right to inherit, purely a matter of grace on the part of organized society which we call the state. During the early days of the common law only personal property could be willed. Land descended by the inexorable laws of descent. It was not until the 16th century, after the advantage of willing estates in land became manifest, from the practice of devising equitable estates or uses, that the parliament of England passed an act (Stat. 32, Hen. VIII, C. I) enabling land to be devised by will.

157. Modern Requirements of Wills.

Since the right to make a will is derived from the permission given by the state, it follows that each state may prescribe the manner and form in which the will shall be made. This has been done by the states enacting various statutes, usually termed statutes of wills. Sometimes the question arises whether the will must conform to the law of the state in which the testator is domiciled, or to that of the state where the land lies. The rule is settled that in construing devises of real estate the law of the state in which the land lies governs all questions concerning the form and validity of the will. But with personal property it is otherwise. The law of the state in which the testator lives governs the disposition of his personal property, no matter where located.

In drawing a will containing a devise of real estate care should be taken to conform to the requirements prescribed by the state in which the real estate is situated. Happily, the requirements of the various states do not differ greatly. Still differences exist, e. g., in Pennsylvania, a will ordinarily may not require subscribing witness. In New Jersey a will would not pass title to real estate unless witnessed by two subscribing witnesses. Generally

speaking, however, it will be found that a will, in writing, made by an adult of sound mind, and signed by him in the presence of two subscribing witnesses, will be effectual to pass title in most any jurisdiction.

158. Statute of Wills in Pennsylvania.

The earliest statute of wills in Pennsylvania was the act of 1705 (Sm. L. 33), which was afterwards replaced by the Act of April 8, 1833 (P. L. 249), which provided in effect that every person of sound mind might by will dispose of his or her real estate, whether held in fee or for life, and whether by severalty, joint tenancy or common, and also his or her personal estate. Married women were excepted by this act, but later were given equal right to will (Acts of April 11, 1848, P. L. 537, and 8th of June, 1893, Sec. 1, P. L. 344).

The statute further provides that the will shall be in writing, signed at the end thereof. Provision is also made by the same statute for the making of a nuncupative will, i. e., an oral will. As personal property only can be bequeathed by a nuncupative will, we will limit ourselves strictly to the consideration of the wills by which title to real property may be passed. Let us, therefore, consider the essential requirements of a valid will under the Pennsylvania laws.

159. Who May Make a Will, Capacity.

Any person, whether male or female,* married or single, twenty-one years of age who is of sound mind may make a will.

What constitutes soundness of mind is difficult to define by general rule, nor can we do more in this book than to indicate generally what the law means. Probably the best known rule is that laid down by Judge King, in the case of Leech v. Leech, I Phila. 244, which, reduced to simple verbiage, is:

If a testator at the time of making the will knows what he is doing, knows what he is giving and knows to whom he is giving, he possesses sufficient capacity to make a will. As indicated by this rule, something more than mere weakness of mind must

*Possibly it should be noted that the Act of March 13, 1815, 6 Sm. L. 286, Sec. 10, deprives a woman who has been divorced for adultery and afterwards cohabits with her correspondent on whose account she was divorced, of all power to alienate land, whether by deeds, wills or otherwise.

exist before the will can be set aside on the ground of want of capacity (See also McNitt's Estate, 229 Pa. 71).

Where a person is of weak mind, especially when the weakness results from a great age, the usual allegation of those who seek to set the will aside is that it was made under undue influence. Undue influence is not to be confounded with want of capacity. The latter means the testator never had the requisite qualifications to make a will; in other words, was of unsound mind. But even if the testator had the requisite capacity a will may be set aside if made under undue influence, for then it is not really the testator's will, but the will of the person who dictated it. By undue influence is meant not mere solicitation or coaxing but such influence or constraint brought to bear upon the mind of the testator that at the time of the making of his will he was not a free agent (McMahon v. Ryan, 20 Pa. 329; Englert v. Englert, 198 Pa. 326).

160. Will Must Be in Writing.

The statute requires that the will must be in writing. Under certain circumstances the law allows an oral or nuncupative will to bequeath personal property. Title to real estate, however, cannot be passed by a nuncupative will. A will either typewritten, in lead pencil (Smith v. Beales, 33 Pa. Superior Ct. 570) or in ink is considered to be writing within the meaning of the statute. It may be written on parchment or paper or any substance which will preserve writing permanently.

161. Will Must Be Signed at the End. Execution.

The will must be executed by the testator signing at the end thereof or by some person in his presence and by his express direction; unless he shall be prevented by the extremity of his last illness (Act of April 8, 1833, P. L. 249, Sec. 6). It has been held that signature by mark (Act of Jan. 27, 1848, P. L. 16) or by initials is a valid signing within the meaning of the act (Greenough v. Greenough, 11 Pa. 497). However, it must appear that it was intended by the testator as a complete signature (Knox Estate, 131 Pa. 220).

The question has often arisen, What is the end of the will? It arose in a case (Baker's Appeal, 107 Pa. 381) where a will was written on the first and third pages of a sheet of foolscap paper, and was signed and sealed by the testator at the

foot of the third page and there attested by subscribing witnesses. On the fourth page was an unsigned and unattested clause which read as if it was meant to form part of the body of the will. The court held that although the instrument was not signed at the end thereof in point of space, it was signed at the end of the will in point of fact, and that it was, therefore, a valid will under the statute. "The end of a will is the logical end of the testator's disposition of his property wherever it manifestly appears on the paper, and the position of the signature with regard to the bottom or end of the page is only evidence as to whether the testator has completed the expression of his intention; prima facie the bottom or end of the will is the natural place for the signature to show the full expression of the testator's wishes, and is, therefore, presumptively the right place for it; but it is only evidence and must give way to evidence of a different intent" (Stinson's Estate, 228 Pa. 480).

Usually, however, it is unsafe to have anything written after the signature, and care should be taken to avoid it. A clause written after the signature if it has no bearing on the contents of the rest of the will or its interpretation will be ignored (Wikoff's Appeal, 15 Pa. 281). But if it bears upon the will or is essential to its interpretation the whole will is considered invalid (Wineland's Appeal, 118 Pa. 37; Taylor's Estate, 230 Pa. 346).

162. When Subscribing Witnesses Are Necessary.

A will whether devising real estate or personalty does not require subscribing witnesses in Pennsylvania unless it contains a devise or bequest to a church or other religious or charitable use. In such case the law provides (Act of April 26, 1855, P. L. 329, Sec. 4) that the will must have two disinterested credible subscribing witnesses and must be made one calendar month before the decease of the testator. "The purpose of this act is plain and was to make reasonably sure that testamentary gifts to religion or charity were the result of deliberate intent of the testator and were not coerced from him while in a weakened physical condition under the influence of the doubts and terrors of impending death" (Paxson's Estate, 221 Pa. 98). Says the court in Shoemaker's Appeal (39 Pa. C. C. 24), "A disinterested witness under this section is one who has no legal interest and a credible witness is one not disqualified to testify, while an attesting witness means a subscribing witness." "The witness need neither read nor have the