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IN GENERAL

135. Definition-A will is a legal declaration of the intention of a person as to what he would have done after his death in respect to the distribution of his property, the administration of his estate, or the guardianship of his children. In its usual form a will is a disposition of one's property to take effect after death. In English law the word "will" was originally used only of a disposition of real property to take effect at death, the word "testament" being then used, as in the Roman and civil law, of a like disposition of personal property. Hence the use of the redundant phrase "last will and testament." In our practice the word "will" includes a testament. An instrument may be a will and entitled to probate though it does not dispose of property but merely provides for the appointment of an executor or guardian, or revokes a prior will. In the construction of statutes the word "will" is to be construed as including codicils."

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136. What constitutes-Deeds deliverable after death-Gifts causa mortis-A written instrument of a testamentary character is a will regardless of its form, and if it is not executed as required by the statute, it is void.10 The test of a gift, as distinguished from a will, is that in case of a gift some interest vests at once in right. It has been questioned whether a contract to make a will, executed and attested as provided in the case of wills, may be probated.12 A deed delivered by the grantor to a third person, to be delivered by him to the grantee after the death of the grantor, the latter reserving no right to control or recall the deed, is valid and vests title in the grantee upon its delivery after the death of the grantor. It is immaterial that the enjoyment of the estate granted is postponed until the death of the grantor, or that the deed expressly reserves a life estate in the grantor, or that the deed is subject to the contingency that the grantee survives the grantor, or to

5 See Century Dict.; 30 A. & E. Ency. of Law (2 ed.) 550; Smith v. Bell, 6 Pet. (U. S.) 68; Hardenberg v. Ray, 151 U. S. 112; 89 Am. St. Rep. 486; 28 R. C. L. 58.

Tobin v. Haack. 79 Minn. 101, 107, 81 N. W. 758. See 30 A. & E. Ency. of Law (2 ed.) 550; 40 Cyc. 995; 89 Am. St. Rep. 486; 41 L. R. A. (N. S.) 39; 28 R. C. L. 58.

7 Century Dict.; 30 A. & E. Ency. of Law (2 ed.) 550.

8 Lowery v. Hawker, 22 N. D. 318, 133 N. W. 918; Sullivan v. Murphy, 92 Or. 52, 179 Pac. 680; 30 A. & E. Ency. of

Law (2 ed.) 573; 40 Cyc. 1078; 1 Ann.
Cas. 368.

9 G. S. 1913, § 7412(23).

10 Conrad v. Douglas, 59 Minn. 498, 61 N. W. 673; Fitzgerald v. English, 73 Minn. 266, 76 N. W. 27; Thomas v. Williams, 105 Minn. 88, 117 N. W. 155. See German v. McKay, 136 Minn. 433, 162 N. W. 527; 30 A. & E. Ency. of Law (2 ed.) 572; 40 Cyc. 1084; Woerner, Am. Law of Adm. (2 ed.) § 38; 41 L. R. A. (N. S.) 39; 89 Am. St. Rep. 486.

11 Innes v. Potter, 130 Minn. 320, 153 N. W. 604.

12 Kleeberg v. Schrader, 69 Minn. 136, 138, 72 N. W. 59.

any other contingency, so long as it is one over which the grantor has no control. The grantor in such a deed cannot recall it. It is not testamentary in character. It cannot be invalidated by declarations of the grantor, while in possession after the delivery of the deed to the third person, to the effect that he retains the right to recall the deed. 13 The fact that the grantor has the right to have the contract canceled and the deed returned if the grantee fails to perform the conditions of the contract, is not such a reservation by the grantor of the right to recall or control the deed as to affect the validity of the agreement or the title of the grantee.14 The test whether an instrument is a deed or will is the intention of the maker, which is primarily to be determined from its language. If it cannot be given effect as a will but may be as a deed it will be construed as a deed in doubtful cases. The fact that an instrument, in form a deed, postpones the enjoyment of the subject-matter of the grant until the death of the grantor, and is contingent upon the grantee surviving him, is not necessarily conclusive that the deed is testamentary in character. The test in such a case is whether the grantor intended the instrument to be ambulatory, serving no purpose until after his death, or whether he intended to convey thereby some vested right or interest, absolute or contingent, in the subject-matter of the grant, with the enjoyment thereof postponed until after his death.15 Similar principles apply to a gift of personal property. A gift of stock deposited with a third person with instructions to deliver it to the donee only in case of the death of the donor has been held not of a testamentary capacity.16 A trust deed, made by the grantor some years prior to his death, provided that the trustee should take possession of personal property, transferred to him as trustee, consisting of secured notes; that he should pay the accruing interest to the grantor, reinvest the principal in real estate securities, and on the death of the grantor pay the principal to the children of the latter. Held, that the deed was not

18 Haeg v. Haeg, 53 Minn. 33, 55 N. W. 1114; Logenfield v. Richter, 60 Minn. 49, 53, 61 N. W. 826; Wicklund v. Lindquist, 102 Minn. 321, 113 N. W. 631; Thomas v. Williams, 105 Minn. 88, 117 N. W. 155; Exblaw v. Nelson, 124 Minn. 335, 144 N. W. 1094; Dickson v. Miller, 124 Minn. 346, 145 N. W. 112; Wortz v. Wortz, 128 Minn. 251, 150 N. W. 809; Innes v. Potter, 130 Minn. 320, 153 N. W. 604; Shaughnessy v. Shaughnessy, 135 Minn. 262, 160 N. W. 769; Pettis v. McLarne, 135 Minn. 269, 160 N. W. 691; Hagen v. Hagen, 136 Minn. 121, 161 N. W. 380. See German v. McKay, 136 Minn. 433, 162 N. W. 527; 30 A. & E. Ency. of Law (2 ed.) 576; 40 Cyc. 1084; 28 R. C. L. 63; .11 A. L. R. 23; 14 Col. L. Rev. 403, 452;

89 Am. St. Rep. 486; 54 L. R. A. 869; 9 L. R. A. (N. S.) 224; 38 Id. 942; 18 Mich. L. Rev. 470.

14 Malley v. Quinn, 132 Minn. 254, 156 N. W. 263.

15 Thomas v. Williams, 105 Minn. 88, 117 N. W. 155; Smith v. Wold, 125 Minn. 190, 145 N. W. 1067; Innes v. Potter, 130 Minn. 320, 153 N. W. 604; Hagen v. Hagen, 136 Minn. 121, 161 N. W. 380; Trumbauer v. Rust, 36 S. D. 301, 154 N. W. 801; Smith v. Thayer, 234 Mass. 214, 125 N. E. 171. See 1 L. R. A. (N. S.) 315; 30 A. & E. Ency. of Law (2 ed.) 576; 40 Cyc. 1085; 28 R. C. L. 63.

16 Innes v. Potter, 130 Minn. 320, 153 N. W. 604.

testamentary in character. An oral contract that, in consideration of support and maintenance of another for life, the person furnishing the consideration should, after the death of the person supported, take his estate, hold the same in trust until a certain minor reached his majority and then deliver it all to the cestui que trust, is void as a testamentary disposition of property. If under such a contract title and possession to the property were delivered during the life of the owner it would be a valid transaction.18 A deed of property executed by a person in expectation of death, who adopts that mode of distributing his property rather than by will, his intention being that the deed shall take effect on its execution, there being no unlawful purpose contemplated, is to be treated as a disposition by deed and not by will.19 A warranty deed, containing the provision that the grantor shall remain in full possession and ownership of the premises conveyed during his lifetime, and that the deed shall not be recorded until after his death passes the title to the grantee subject to an estate for life in the grantor.20 A direction to a trustee to deliver the subject of a gift to the donee only in case of the death of the donor is not decisive of testamentary character. Nor is a statement of a donor that he wants to "leave" the property to the donee. A gift causa mortis is distinguished from a will, in that a gift causa mortis may be made by parol, and must be made under apprehension of impending death, and be accompanied by a delivery, while writing is ordinarily required for a will, which, though commonly made in view of the fact of death, is not generally made because of its immediate proximity, and no delivery of property is had pursuant to a will until after the testator's death, the legatee deriving his title from the executor while, in the case of a gift causa mortis, the gift is claimed in spite of the executor.2

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137. Right statutory-The right to dispose of property by will is purely statutory. It may be enlarged, abridged or abolished at the will of the legislature.23 Statutes of wills are enabling acts and prior to the statute of 32 Hen. VIII there was no general power at common law to devise lands. The power was opposed to the feudal policy of holding lands inalienable without the consent of the lord.24 The control of the

17 Smith 7. Wold, 125 Minn. 190, 145 N. W. 1067.

18 Larson v. Lund, 109 Minn. 372, 123 N. W. 1070.

10 Brown v. Atwater, 25 Minn. 520. 20 Ekblaw v. Nelson, 124 Minn. 335, 144 N. W. 1094.

21 Innes v. Potter, 130 Minn. 320, 153 N. W. 604.

22 Vosburg v. Mallory, 155 Iowa 165, 135 N. W. 577; 30 A. & E. Ency, of Law (2 ed.) 576; 20 Cyc. 1230; 28 R. C. L. 63.

23 Tobin v. Haack, 79 Minn. 101, 108, 81 N. W. 758; Tyner v. Varien, 97 Minn. 181, 106 N. W. 898; Pederson v. Christofferson, 97 Minn. 491, 500, 106 N. W. 958; Minnesota Loan & Trust Co. v. Douglas, 135 Minn. 413, 426, 161 N. W. 158; State v. Probate Court, 137 Minn. 238, 244, 163 N. W. 285; Peace v. Edwards, 170 N. C. 64, 86 S. E. 807; In re Brown's Estate, 101 Wash. 314, 172 Pac. 247.

24 United States v. Fox, 94 U. S. 315.

legislature over wills, estates of decedents, succession and administration, is absolute, within constitutional limitations.25 The right of testamentary disposition of property is carefully guarded and protected by statute and judicial construction.26 Subject to slight statutory restrictions the power of testamentary disposition is absolute.27 The right to dispose of property by will is not a natural or inalienable right and is not guaranteed by the state or federal constitution.28

138. Must be in writing-Oral instructions-The statute expressly provides that a will shall be in writing. It cannot be partly written and partly oral. Property cannot be given by will to be disposed of as the beneficiary has been orally instructed by the testator.29 The total failure to designate the beneficiaries of a trust in a will makes it to that extent an unwritten will, ineffectual for any purpose.30

139. When takes effect—Ambulatory-A will takes effect only on the death of the testator. Until then it is ambulatory, that is, changeable, not fixed.31

140. Testator's knowledge of contents-A person does not execute an instrument as and for his last will according to law unless he knows its contents.32 A will may be valid though the testator is unacquainted with the English language in which it is written, if he has a full and accurate knowledge of its contents. Where a will has been drawn in the English language, but all the directions as to its preparation have been given by the testator in another tongue, it may nevertheless be found to be his last will and testament, if, prior to its execution, a substantially accurate translation or explanation of its provisions is given the testator, so that he understands their meaning. It is not necessary that he should correctly appreciate their legal effect. If a testator comprehends and approves the instrument as written it should not be refused probate because it fails to carry out the intention of the testator as to part of his property.33

25 In re Mousseau's Will, 30 Minn. 202, 14 N. W. 887; Minnesota Loan & Trust Co. v. Douglas, 135 Minn. 413, 426, 161 N. W. 158.

26 In re Penniman's Will, 20 Minn. 245 (220, 226); Tyner v. Varien, 97 Minn. 181, 106 N. W. 898.

27 Tyner v. Varien, 97 Minn. 181, 106 N. W. 898.

28 Moody v. Hagen, 36 N. D. 471, 162 N. W. 704.

29 Moore v. O'Leary, 180 Mich. 261, 146 N. W. 661; Reynolds v. Reynolds, 224 N. Y. 429, 121 N. E. 61; Wilcox v. Attorney General, 207 Mass. 198, 93 N. E. 599. See Ann. Cas. 1912A, 833; Lar

son v. Lund, 109 Minn. 372, 123 N. W. 1070.

30 Reynolds v. Reynolds, 224 N. Y. 429, 121 N. E. 61.

31 Penstock v. Wentworth, 75 Minn. 2, 4, 77 N. W. 420; Thomas v. Williams, 105 Minn. 88, 90, 117 N. W. 155; Moultrie v. Hunt, 23 N. Y. 394; 40 Cyc. 1073; 28 R. C. L. 60; 89 Am. St. Rep. 488. See In re Tibbetts' Estate (Minn.) 189 N. W. -.

32 Richardson v. Richards, 226 Mass. 240, 115 N. E. 307; 30 A. & E. Ency, of Law (2 ed.) 572; 40 Cyc. 1100; L. R. A. 1918D, 747. See § 268.

33 Benrud v. Anderson, 144 Minn. 111,

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