Hemp seed, forty-four pounds; Millet seed, fifty pounds; Peas, sixty pounds; Bluegrass seed, fourteen pounds; Dried apples, twenty-four pounds; Salt, fifty pounds; Stone-coal, seventy-six pounds. The term "stone-coal" includes anthracite, cannel, bituminous, and all other mined coals. Bran, twenty pounds; Plastering hair, eight pounds; Turnips, sixty pounds; Unslaked lime, thirty-five pounds; Cornmeal, fifty pounds; Fine salt, fifty-five pounds; Hungarian grass seed, fifty pounds; Ground peas, twenty-four pounds; § 8. One hundred and sixty pounds net of Irish potatoes Acts 1869-70, 100 shall constitute a merchantable barrel. 9. Any person selling unscreened coal for screened coal shall be subject to a fine of not less than five nor more than twenty dollars, recoverable by warrant before a justice of the peace. Irish potatoes. Acts 1869-'70,103 Selling unscreen ed for screened coal-how ished. pun CHAPTER 113. WILLS. Written and Nuncupative-Pretermitted child-Construction of Devise-Revocation-Where probated-Appeal-Non-residents. Written and Nuncupative. § 1. Except where it would be contrary to the manifest intention, the word "will," as used in this chapter, shall signify a last will or testament, codicil, appointment by will, or writing in the nature of a will in exercise of a power, and also any other testamentary disposition. § 2. Every person of sound mind, not being under twentyone years of age, nor a married woman, may by will dispose of any estate, right, or interest in real or personal estate that make a will, when he may be entitled to at his death, which would otherwise descend to his heirs or pass to his personal representative; and though he may become so entitled after the execution of his will. (a) § 3. No person under twenty-one years of age can make A minor may any will, except in pursuance of a power specially given to that effect, and except, also, that a father, though under twenty-one years of age, may appoint by will a guardian to his child. § 4. A married woman may by will dispose of any estate Married woman, secured to her separate use by deed or devise, or in the exercise of a written power to make a will.(b) what she may will. valid will. § 5. No will shall be valid unless it is in writing, with the Requisites of a name of the testator subscribed thereto by himself, or by some other person in his presence and by his direction; and moreover, if not wholly written by the testator, the subscription shall be made or the will acknowledged by him in the presence of at least two credible witnesses, who shall subscribe the will with their names in the presence of the testator.(c) (a) As to testamentary capacity and undue influence see Tudor vs. Tudor, 17 B. M., 395; Wier's will case, 9 Dana, 440; Overton's heirs vs. Overton's executors, 18 B. M., 63; Quisenberry vs. Quisenberry, 14 B. M., 482; Ashley Howard's will, 5 Mon., 199; Reed's will, 2 B. M., 79; McDaniel's will, 2 J. J. M., 331; Elliott's will, 2 7. J. M., 340; Watson m. Watson, 2 B. M., 74; Harrell vs. Harrell, 1 Duvall, 204; Jones vs. Jones, 14 B. M., 474; Sechrest vs. Edwards, 4 Met., 174; Maupin vs. Wools, 1 Duvall, 223; Turley's executor vs. Johnson, &c., I Bush, 116; Smith vs. Kelly, &c., 2 Bush, 557; Kevil vs. Kevil, 2 Bush, 614; Munday, &c., vs. Taylor, &c., 7 Bush, 491. (b) A married woman may dispose of her separate estate by will, and with the assent of her husband she may dispose of her personal estate; but she has no power to dispose of her real estate by will, except in the execution of a written power. (George vs. Bussing 15 B. M., 563.) 2. A husband who has assented to the making of a will by his wife simply waives his right as her administrator, and may revoke his assent at any time before the will is probated. (Ibid.) (c) A strict compliance with the statute regulating the execution and attestation of wills is not required. A substantial compliance is sufficient. (Upchurch vs. Upchurch, 16 B. M., 112.) 2. If the name of the testator be subscribed to a will by another, and he afterward acknowledges it in the presence of witnesses, and one of them writes his own name as a witness, and also the name of the other, who cannot write, and they can recognize the paper as the same they attested. This is sufficient within the statute. (Upchurch vs. Upchurch, 16 B. M., 113; Montgomery vs. Perkins, 2 Metcalfe, 449.) 3. The attestation of a witness who is dead will be presumed to have been made according to the statute. (Tudor vs. Tudor, 17 B. M., 390) 4. If a testator requests a witness to attest his will, it will not be necessary that the witness should see him sign it, or that he should formally acknowledge it as his will; the signature and acknowledgment will be inferred from the request to attest it. (Ibid.) 5. Parol declarations of a testator are not sufficient to make that a will which otherwise would not be a will. (Maxwell vs. Maxwell, 3 Metcalfe, 107; Dougherty vs. Dougherty, 4 Metcalfe, 28.) 6. Since the Revised Statutes took effect, a will written wholly by the testator must, to be valid, be signed by him at its conclusion. (Jones vs. Jones, 3 Metcalfe, 268.) 7. A will executed before the Revised Statutes took effect must depend, for the validity of its execution, on the pre-existing law. (Ibid.) § 6. No appointment made by will in exercise of any Appointment by power shall be valid, unless the same is so executed that it valid. of a power, when 8. The presumption is always against a paper which bears self-evident marks of being unfinished, and it behooves those who assert its testamentary character to show, by the most unequivocal testimony, that the deceased subsequently adopted it, in its unfinished state, as his will. (Ibid.) 9. After a testator's name was signed to a writing he acknowledged it to be his will, in the presence of two witnesses, who subscribed it as such. The testator then made his mark to it between his christian and surname. Held-The execution was valid; the mark was unnecessary. (Sechrest vs. Edwards, 4 Metcalfe, 166; Swift vs. Wiley, 1 B. M., 114.) 10. The execution of a will, with the requisite solemnities, is presumptive evidence that the testator knew its contents, and that it conformed to his intention; and it is incumbent on those who seek to avoid, on the ground that it makes a disposition of the testator's estate of which he, at the time, was not fully apprised, to establish the fact aliunde. (Sechrest vs. Edwards, 4 Metcalfe, 168; Shanks vs. Christopher, 3 A. K. Mar., 144.) II. A will, to be valid under the statute of wills, must be in writing, with the name of the testator written at the foot or end. (Soward vs. Soward, 1 Duvall, 131.) 12. So the names of attesting witnesses must be signed at the end or close of the will; and an attestation by witnesses, made on the outside of a folded and sealed sheet of paper on which a will is written, with two blank pages intervening between the end of the will and the signatures of the witnesses, is not valid, and a will so attested cannot be established, though the evidence leaves no room to doubt the identity of the paper. (Ibid.) 13. If the subscribing witnesses sign a will, as such, in the presence and with the knowledge of the testator, it will be a valid execution. (Maupin vs. Wools, 1 Duvall, 223. 14. If both the subscribing witnesses to a will, neither of whom could read nor write, are unable to identify the paper as the one they witnessed, and which they heard read, and the draughtsman proves it to be the identical paper written by him and witnessed by them, it will be sufficiently identified. (Montgomery vs. Perkins, 2 Metcalfe, 450.) 15. A testator residing in Kentucky, but temporarily in Missouri, made a will, which was attested by two witnesses, which he sealed up and left with one of them for four or five years, during which time the testator visited Kentucky twice. He then called for the will and spoke of it as his will, and expressed an intention to alter it. On his way home he died in Louisville, Ky. The will contained this among other clauses: "It is my wish that all the notes and accounts found among my papers [against] my brothers should be destroyed or handed over to them. The words, "Should I never return" are confined to the disposition of the notes and accounts, and although the testator returned to his home in Kentucky, the extrinsic facts show it to have been intended as his will, and that it was not regarded by him as contingent. (Massie vs. Griffin, 2 Metcalfe, 365.) 16. A letter written by a husband to his wife, when absent from home under circumstances of danger rendering it doubtful whether he would reach home alive, said: "If I never get back home, I leave you everything I have in the world." Held-That it was a contingent will, and if the husband did not die before his return home, it was not his will. (Maxwell vs. Maxwell, 3 Metcalfe, 107; Dougherty vs. Dougherty, 4 Metcalfe, 26.) 17. If, in such a case, the alleged testator returns home, the paper cannot be revived and made his will by proof of his parol declarations that it was still his will. (Ibid.) 18. A writing, by which the holder of a note directed, in case of her death before it was collected, that her executor or administrator should deliver it up to the obligor as a gift, may be established as a will. (Knott vs. Hagan, 4 Metcalfe, 103.) 19. The attesting witnesses to a will having, by their attestation, authenticated the document as a good will, and vouched the testator's capacity, should be entitled to but little credence when they depose to the contrary. Such persons deserve popular rebuke and legislative denunciation. Had such attesting witnesses died, proof of their signatures would have implied an affirmation of a disposing capacity, and their signatures would have perpetrated a fraud. (McMeekin, &c., vs. McMeekin, &c., 2 Bush, 79.) 20. "A writing purporting to be the last will and testament of E. Butts, deceased, together with the codicil annexed thereto, was produced in court for probate, and proved by the oaths of S. C. Perrin and Alex. Hughes, subscribing witnesses thereto. Whereupon, the same is established as and for the last will and testament of the said E. Butts, deceased, and ordered to be recorded, which is accordingly done," etc. Held to be sufficient, it appearing from the transcript that the same persons who attested the execution of the will attested the codicil. (Feltman vs. Butts, 8 Bush, 115.) GEN. STAT.-53 would be valid for the disposition of the property to which the power applies if it belonged to the testator; and every will so executed, except the will of a married woman, shall be a valid execution of a power of appointment by will, notwithstanding the instrument creating the power expressly requires that a will made in execution of such power shall be executed with some additional or other form of execution or solemnity. § 7. A soldier in actual service, or a mariner at sea, may A soldier may dispose of his personal estate by an unwritten will made pative will--how. Within ten days of his death, and in the presence of two make a nuncu A will executed elsewhere, when valid in this State as to personalty. a will. competent witnesses present at the same time, and called upon by him to witness his intention, if the testamentary words or their substance be reduced to writing and subscribed by one of the witnesses within sixty days next after they were spoken. 8. The will of a person domiciled out of this State at the time of his death shall be valid as to his personal property in this State, if it is executed according to the law of the place where he was domiciled. $9. Every will made by a man or woman shall be revoked Marriage revokes by his or her marriage, except a will made in exercise of a power of appointment when the estate thereby appointed would not, in default of such appointment, pass to his or her heir, personal representative, or next of kin. cuted, how voked. re § 10. No will or codicil, or any part thereof, shall be reA will once exe- voked, unless under the preceding section, or by a subsequent will or codicil, or by some writing declaring an intention to revoke the same, and executed in the manner in which a will is required to be executed, or by the testator, or some person in his presence, and by his direction, cutting, tearing, burning, obliterating, canceling, or destroying the same, or the signature thereto, with the intent to revoke. how revived. § 11. No will or codicil, or any part thereof, which shall Once revoked, be in any manner revoked, shall, after being revoked, be revived, otherwise than by re-execution thereof, or by a codicil executed in the manner hereinbefore required; and then only to the extent to which an intention to revive the same is shown thereby. (a) (a) If a will, after having been duly published, be altered by the testator, by striking out one or more devises, it will not operate as a revocation of the whole will, but only of the parts stricken out. (Tudor vs. Tudor, 14 B. M., 389.) § 12. No conveyance or other act subsequent to the execution of a will shall, unless it be an act by which the will is revoked as aforesaid, prevent its operation with respect to such interest in the estate comprised in the will as the testator may have power to dispose of by will at the time of his death. ad § 15. If any person who attests the execution of a will shall, after its execution, become incompetent to be mitted a witness to prove the execution thereof, such will shall not, on that account, be invalid. And if a will is attested by a person to whom, or to whose wife or husband, any beneficial interest in any estate is thereby devised or bequeathed, if the will may not be otherwise proved, such person shall be deemed a competent witness; but such devise or bequest shall be void; except that, if such witness would be entitled to any share of the estate of the testator in case the will were not established, so much of his share shall be saved to him as shall not exceed the value of what is so devised or bequeathed. Creditor attesting witness will. a will competent though estate charged by § 14. If a will charging any estate with debts is attested by a creditor, or the wife or husband of a creditor, whose debt is so charged, such creditor shall, notwithstanding, be admitted a witness for or against the will. § 15. No person shall, on account of his being an execu- An executor comtor of a will, be incompetent as a witness for or against the will. § 16. A will shall be construed, with reference to the real and personal estate comprised in it, to speak and take effect petent witness. Will, how conit speaks. strued as to time 2. A codicil is, in effect, a republication of the will, and the whole is to be construed together, as if made at the date of the codicil. (Armstrong vs. Armstrong, 14 B. M., 338; Alexander vs. Waller, &c., 6 Bush, 330.) 3. If a codicil be attested by only one witness, it cannot amount to a republication, but it will be considered as showing the intention of the testator. (Ibid.) 4. The signature of the decedent remained appended to a codicil written on the margin of the paper from which decedent's signature had been cut or torn off. This codicil is held to have been revoked by the cutting or tearing off the signature from the body of the will. (Youse vs. Foreman, &c., 5 Bush, 337.) 5. The revocation of a will revokes all codicils appended to it, and especially all codicils which depend upon it for interpretation or execution. (Ibid.) 6. The party applying for the probate of a codicil, as an independent will, has the burthen of proof, and must show that the deceased intended that it should operate as his will. (Ibid.) 7. Where a testator does an act of cancellation or mutilation, with a view of having his will immediately changed or altered, where the act of cancellation and reconstruction are intended as part of the same transaction, and the reconstruction or republication of the will is not perfected, then the acts of cancellation are also to be disregarded as incomplete, because of the failure of the other essential acts. (Ibid.) 8. Revoking a will with the intent to make another, the failure to do so does not revive the revoked will. (Ibid.) |