fied by the evidence. Findings of undue influence held not justified. by the evidence.84

173. Effect of undue influence-Will void in part-The fact that a particular gift in a will was procured by undue influence does not necessarily invalidate the whole will.85

174. Question on appeal-The supreme court will not set aside the findings of the trial court or jury as to undue influence unless they are manifestly and palpably contrary to the evidence. It will not do so merely because it would have found differently had the question been submitted to it originally.80

EXECUTION

175. Who may make a will-Manner of execution Statute-Every person of full age and sound mind, by his last will in writing, signed by him, or by some person in his presence and by his express direction, and attested and subscribed in his presence by two or more competent witnesses, may dispose of his estate, real and personal, or any part thereof, or right or interest therein; and the words "every person" shall include married women.87 The mere fact that one is under guardianship does not disqualify him from making a will.88 Blindness does not disqualify a person. A female is of full age and qualified to make a will at eighteen.90

89

176. Strict compliance with statute required-The right to dispose of property by will is purely statutory and the statutory requirements as to the execution of wills must be followed with reasonable strictness.o1 177. Date-A will need not be dated.92 The written date of a will or its attestation is prima facie evidence of the date of its execution."3

83 Tyner v. Varien, 97 Minn. 181, 106 N. W. 898; Kletschka v. Kletschka, 113 Minn. 228, 129 N. W. 372; Chamberlain v. Gordon, 129 Minn. 523, 151 N. W. 529. 84 In re Hess' Will, 48 Minn. 504, 51 N. W. 614; Buzalsky v. Buzalsky, 108 Minn. 422, 122 N. W. 322; Buck v. Buck, 122 Minn. 463, 142 N. W. 729; Bush v. Hetherington, 132 Minn. 379, 157 N. W.

505.

$5 Woodville v. Morrill, 130 Minn. 92, 98, 153 N. W. 131; Old Colony Trust Co. v. Bailey, 202 Mass. 283, 88 N. E. 898; Note, 34 L. R. A. (N. S.) 975; 29 A. & E. Ency. of Law (2 ed.) 108; 40 Cyc. 1149; Woerner, Am. Law of Adm. (2 ed.) § 34.

86 Woodville v. Morrill, 130 Minn. 92, 153 N. W. 131; Emery v. Emery, 222 Mass. 439, 111 N. E. 287.

87 G. S. 1913, § 7250.

ss In re Sturtevant's Estate, 92 Or. 269, 178 Pac. 192. See 8 A. L. R. 1375. 89 See §§ 185, 191, 201, 268. 90 See § 18.

91 In re l'enniman's Will, 20 Minn. 245 (220); Waite v. Frisbie, 45 Minn. 361, 365, 47 N. W. 1069; Tobin v. Haack, 79 Minn. 101, 106, 81 N. W. 758; Pederson v. Christofferson, 97 Minn. 491, 500, 106 N. W. 958. See for an extremely liberal construction, Cunningham v. Cunningham, 80 Minn. 180, 83 N. W. 58.

92 Peace v. Edwards, 170 N. C. 64, 86 S. E. 807; 30 A. & E. Ency. of Law (2 ed.) 591; 40 Cyc. 1098; L. R. A. 1916E, 499.

93 In re Kohn's Estate, 172 Mich. 342, 137 N. W. 735.

178. Seal-Our statute does not require a seal to a will."

179. On Sunday-A will may be executed on Sunday.95

180. Intention of testator immaterial-In determining whether a will has been executed with the requisite formality the intention of the testator is immaterial.""

96

181. Fraudulent interference-The law will not permit the formalities of the execution of a will to be dispensed with because of fraudulent interference.97

182. Variance between will and instructions-In the absence of fraud or undue influence, a variance between the will and the instructions from which it was drawn will not defeat probate. 98

183. Incorporation by reference-It is generally held that another document may be made a part of a will by apt reference though it is not itself executed and attested as a will and is of a testamentary nature. It is essential that the document should have been in existence at the time of the execution of the will and be clearly proved." It is the better practice to admit the extraneous document to probate as part of the will, but this is not necessary to render it a part of the will for purposes of administration.1

184. Conflict of laws-At common law the lex loci rei sitæ governs the execution of a will of real property and the law of the last domicil of the testator governs the execution of a will of personal property. These common-law rules have been materially modified by statute in this state.2

94 Avery v. Pixley, 4 Mass. 460. See 30 A. & E. Ency. of Law (2 ed.) 591; 40 Cyc. 1099; 28 R. C. L. 118; Woerner, Am. Law of Adm. (2 ed.) § 39; Fitzgerald v. English, 73 Minn. 266, 76 N. W. 27.

95 Bennett v. Brooks, 9 Allen (Mass.) 118.

96 In re Manchester's Estate, 174 Cal. 417, 163 Pac. 358.

97 Graham v. Burch, 47 Minn. 171, 174, 49 N. W. 697.

98 In re Gluckman's Will, 87 N. J. Eq. 638, 101 Atl. 295. See In re Knutson's Estate, 144 Minn. 111, 174 N. W. 617.

99 Taft v. Stearns, 234 Mass. 273, 125 N. E. 570; In re Bresler's Estate, 155 Mich. 567, 119 N. W. 1104 (reference to books of account of testator held sufficient); Shulsky v. Shulsky, 98 Kan. 69, 157 Pac. 407 (reference to deed held sufficient); Jennings v. Reeson, 200 Mich. 559, 166 N. W. 931 (id.); In re Hopper's Estate, 90 Neb. 622, 134 N. W. 237 (id.);

Magnus v. Magnus, 80 N. J. Eq. 346, 84 Atl. 705 (a bequest to one "to dispose of in accordance with my instructions" held invalid); 30 A. & E. Ency. of Law (2 ed.) 574; 40 Cyc. 1094; 28 R. C. L. 112; Woerner, Am. Law of Adm. (2 ed.) § 222; 68 L. R. A. 353; 107 Am. St. Rep. 64; 19 Harv. L. Rev. 528; 26 Id. 278; 31 Id. 1170; 11 Colo. L. Rev. 456; 1 Ann. Cas. 393; Ann. Cas. 1915A, 870; 13 Probate Reports Ann. 111. In New York extraneous instruments of a testamentary character cannot be incorporated by reference. Booth v. Baptist Church, 126 N. Y. 215, 247, 28 N. E. 238; Smith v. Browne, 222 N. Y. 232, 118 N. E. 611; Reynolds v. Reynolds, 224 N. Y. 61, 121 N. E. 61.

1 Newton v. Seaman's Friend Soc., 130 Mass. 91; In re Willey's Estate, 128 Cal. 1, 60 Pac. 471.

2 See §§ 155, 156, 293, 299.

SIGNING BY TESTATOR

185. In general-What constitutes-The statute does not prescribe how the will shall be signed by the testator. An imperfect signature is sufficient if the name can be made out without difficulty, and it is written by the testator voluntarily and with knowledge of the fact that he is signing a will. It is no objection to a signature that it is fantastic or illegible if the testator had mental capacity. A blind person may execute a will. It is not essential that it should be read to him at the time of its execution. It is sufficient if he is in any way made aware of its contents.

186. Signing by mark-The testator may sign by making his mark and it is not necessary to prove his inability to write. The signature of a testator by mark is valid, though his name, leaving a space for his mark, is written at the end of the will by another, without his express direction. 8

187. Hand of testator may be guided by another-The hand of the testator may be guided by another, at his request or with his consent, either in signing his name or making his mark. It is not necessary to prove an express request for such assistance. It is not a case under the statute of a signing by another at the "express direction" of the testator. It is regarded as a signing by the testator himself.10

188. Place of signature-Formerly the statute expressly provided that the testator should sign the will at the end thereof, but this is no longer necessary. The signature of the testator may be below that of the witnesses and the attestation clause.12

11

3 Geraghty v. Kilroy, 103 Minn. 286, 114 N. W. 838. See Woerner, Am. Law of Adm. (2 ed.) § 39; L. R. A. 1915D, 902: Ann. Cas. 1917B, 874.

4 Hanson v. Hanson, 141 Minn. 373, 170 N. W. 348.

5 Crowley v. Farley, 129 Minn. 460, 466, 152 N. W. 872.

6 Ann. Cas. 1916D, 792; 9 A. L. R. 1416.

7 Geraghty v. Kilroy, 103 Minn. 286, 114 N. W. 838; Wilson v. Craig, 86 Wash. 465, 150 Pac. 1179; Scott v. Hawks, 107 Iowa 723, 77 N. W. 467; In re Hersperger's Estate, 245 Pa. St. 569, 91 Atl. 942; Reed v. Hendrix's Executor, 180 Ky. 57, 201 S. W. 482; 30 A. & E. Ency, of Law (2 ed.) 584; 40 Cyc. 1102; 28 R. C. L. 116: Woerner, Am. Law of Adm. (2 ed.) § 39.

It is sufficient if the name of

8 Geraghty v. Kilroy, 103 Minn. 286, 114 N. W. 838.

In re Allen's Will, 25 Minn. 39; In re Baumann's Will, 148 N. Y. S. 1049; In re Knight's Will, 150 N. Y. S. 137; In re Clark's Estate, 170 Cal. 418, 149 Pac. 828; 30 A. & E. Ency. of Law (2 ed.) 585; 40 Cyc. 1104; Woerner, Am. Law of Adm. (2 ed.) § 39; L. R. A. 1915D, 906.

10 In re Cozzen's Will, 61 Pa. St. 201; 40 Cyc. 1104.

11 See In re Penniman's Will, 20 Minn. 245 (220, 226); Waite v. Frisbie, 45 Minn. 361, 365, 47 N. W. 1069; 40 Cyc. 1105.

12 In re Busch's Will, 150 N. Y. S. 419; Matter of Laudy, 161 N. Y. 432, 55 N. E. 914; In re Young's Will, 153 Wis. 337,

the testator appears in the body of the will in his handwriting.13 It is sufficient if the name of the testator appears in the exordium in his own handwriting if the evidence shows that he intended that as his signature to the will. Where a testator signed his name on the margin of one of the pages intending it as his signature to the will, and the will was then duly attested, a subsequent signing by him between the testimonium and attestation clauses, was held no part of the will.15

14

189. Testator must sign before witnesses-It is generally held that the testator must sign the will, or it must be signed in his behalf by another, before it is subscribed by the witnesses.16 There are many cases to the effect that if the signing by the testator and the witnesses is substantially one transaction the order of their signing is immaterial. The question is an open one in this state.1 A witness cannot sign after the death of the testator though the testator requested him to do so.18 The fact that the testator signed the will before the witness may be proved by his subsequent declarations.19 It will be presumed that the testator signed before the witnesses, in the absence of clear proof to the contrary.20 Where the signatures of the testator and witnesses are undisputed there is a conclusive presumption that the testator signed before the witnesses.21

190. Need not sign in presence of witnesses-Concealment of signature-It is not necessary that the testator should sign the will in the presence of the attesting witnesses, or that they should see his signature if it is not concealed from them.22 But if the will is not signed by the testator in the presence of the attesting witnesses they must see it

141 N. W. 226; In re Dutcher's Will, 172 Cal. 488, 157 Pac. 242.

13 Peace v. Edwards, 170 N. C. 64, 86 S. E. 807. See Ann. Cas. 1916E, 137.

14 Meads v. Earle, 205 Mass. 553, 91 N. E. 916. See Barnes v. Chase, 208 Mass. 490, 94 N. E. 694; Better v. Hirsch, 115 Miss. 614, 76 So. 555; In re McMahon's Estate, 174 Cal. 423, 163 Pac. 669; In re Manchester's Estate, 174 Cal. 417, 163 Pac. 358; in re Hurley's Estate, 178 Cal. 713, 174 Pac. 669; 29 L. R. A. (N. S.) 63; L. R. A. 1917D, 778; Ann. Cas. 1916E, 137.

15 Thomas v. Carruth, 220 Mass. 77, 107 N. E. 395.

16 Chase v. Kittredge, 11 Allen (Mass.) 49; Marshall v. Mason, 176 Mass. 216, 57 N. E. 340; Barnes v. Chase, 208 Mass. 490, 94 N. E. 694; In re Kunkler's Will, 147 N. Y. S. 1094; Lacey v. Dobbs, 63 N. J. Eq. 325. See 14 L. R. A. 160; 26 L. R. A. (N. S.) 1126; L. R. A. 1916D, 1063;

30 A. & E. Ency, of Law (2 ed.) 597; 40 Cyc. 1101, 1127; 28 R. C. L. 128.

17 Horn's Estate v. Bartow, 161 Mich. 20, 125 N. W. 696; Enright v. Griffith, 165 Wis. 601, 163 N. W. 138. See 26 L. R. A. (N. S.) 1126; L. R. A. 1916D, 1063; 12 Probate Reports Ann. 286; 30 A. & E. Ency. of Law (2 ed.) 597; 40 Cyc. 1101, 1127; 28 R. C. L. 128.

18 In re Fish's Will, 34 N. Y. S. 536, 153 N. Y. 679, 48 N. E. 1104. 19 Nixon v. Snellbaker, 155 Iowa 390, 136 N. W. 223.

20 Allen v. Griffin, 69 Wis. 529, 35 N. W. 21: Flood v. Kerwin, 133 Wis. 673, 89 N. W. 845. See 28 R. C. L. 128.

21 Nixon v. Snellbaker, 155 Iowa 390, 136 N. W. 223.

22 Nickerson v. Buck, 12 Cush. (Mass.) 332; Dewey v. Dewey, 1 Met. (Mass.) 349; Hogan v. Grosvenor, 10 Met. (Mass.) 54; Ela v. Edwards, 16 Gray (Mass.) 91; Nunn v. Ehlert, 218 Mass. 471, 106

and he must acknowledge it to be his. If the signature is kept from their sight and he merely tells them that he has signed the will it is not enough.23 A will is not properly attested if the testator conceals his signature from the subscribing witnesses so that they cannot see it or know that it is there. This rule does not apply where the will is folded but not so as to conceal the signature of the testator.2

25

191. Signature of testator by another-Where a will is not personally signed by the testator by writing his name or making his mark, but his name and mark are written by another, the will is void, unless his name was so signed by his direction and in his presence. It is not, however, necessary that such direction should be given in express words. It may be by pantomine; but the acts relied upon to show such direction must be unambiguous, and clearly indicate the necessary direction or request, and the act of signing must be in obedience to the direction thus conveyed. Where another signs for the testator by the latter's "express direction," the direction must precede the signing and the signing must be in obedience to the direction. Subsequent acquiescence by the testator is alone insufficient. If the direction is by gestures they must be as unambiguous as words. One of the witnesses may sign the name of the testator at his request.27 The "express direction" to another to sign for the testator may be a nod or simple "yes" to a query whether another should sign his name for him.28 A blind person may have his will signed for him by another.o1 The signature of the testator by mark may be made for him by another at his request.°2

26

192. Same-Will not drafted according to instructions-Where a will is not read by or to the testator, and it has been prepared by another person from instructions given by him, and is then signed upon an assurance that it expresses what he desires, if the language inserted is not the language of the instructions, and if it does not make, in legal effect, the provisions which the testator apparently desired, it is not his will. But this rule should not be applied where by the terms of the will there is no departure from the instructions given, and where the property of

N. E. 163; Pratt v. Dalby, 223 Mass. 559, 112 N. E. 232; Dougherty v. Crandall, 168 Mich. 281, 134 N. W. 24; Flynn v. Flynn, 283 Ill. 206, 119 N. E. 304. See 38 L. R. A. (N. S.) 161.

23 Nunn v. Ehlert, 218 Mass. 471, 106 N. E. 163.

24 Tobin v. Haack, 79 Minn. 101, 81 N. W. 758; Nunn v. Ehlert, 218 Mass. 471, 106 N. E. 163; Hawkes v. Hawkes, 230 Mass. 11, 119 N. E. 122.

25 Pratt v. Dalby, 223 Mass. 559, 112 N. E. 232; Dougherty v. Crandall, 168 Mich. 281, 134 N. W. 24.

26 Waite v. Frisbie, 45 Minn. 361, 47

N. W. 1069; Pederson v. Christofferson, 97 Minn. 491, 106 N. W. 958; Geraghty v. Kilroy, 103 Minn. 286, 114 N. W. 838; Reed v. Hendrix's Executor, 180 Ky. 57, 201 S. W. 482; 30 A. & E. Ency. of Law (2 ed.) 585; 40 Cyc. 1102; 28 R. C. L. 118; Woerner, Am. Law of Adm. (2 ed.) § 39.

27 Steele v. Marble, 221 Mass. 485, 109 N. E. 357.

28 Steele v. Marble, 221 Mass. 485, 109 N. E. 357.

01 Welch v. Kirby, 255 Fed. 451.

02 Flynn v. Flynn, 283 Ill. 206, 119 N. E. 304, Ann. Cas. 1918E, 1034.