title be lost, without laches in the owners. So, if an infant is disseised, and marries under twenty-one years of age, and continues under coverture more than five years, after attaining her full age, without asserting her rights, her title is lost, and that without laches; but if marrying under twenty-one is to be accounted her own folly (though her minority must protect her from this imputation) if at the age of twenty she becomes non compos, and does not bring her action, or make her entry, within five years after she is of full age, she is also barred, and that without any imputation of laches or folly.

Where, then, is the distinction between the hardship of the present case, and that which existed in the case of Bunce v Wolcott, and many other cases? The necessity of protecting long and peaceable possession of land is much more urgent than any considerations resulting from the pretended hardship of the rule; and if this rule is not adopted, but the saving of the statute, instead of being confined to disabilities existing at the time of the disseisin, is to be extended to successive disabilities in the heirs of the person first disseised, there is no telling to how long a period they may extend, or how much evil such a construction would entail on the community. Every reason, which can be urged against admitting supervenient disabilities in the same person, to protect his title, equally applies to the present case; for although some supervenient disabilities may be voluntary, and others not so, yet, as I have already remarked, the distinction between them is exploded

There is no substantial difference between the case of Bunce v. Wolcott, before cited, and the present. In that case the court decided that the saving of the statute applied only to such disabilities as existed at the time when the right of entry first accrued, which, they said, was at the time when the owner was first disseised, and not to any supervenient disabilities; and although a disability in the heir of a person disabled is not properly a supervenient disability, yet it falls within the same reason; and, what is more conclusive, the statute declares, that if the person first disseised is under a disability and dies before it is removed, his heirs shall have five years from his death to make their entry; and if they suffer this time to pass, they are barred, whether under a disability or not.

* * *

SECTION 4.-ACCRETION

A. owns land bordering on a stream or a lake, or the ocean. Gradually, and hardly noticeably, land forms in the side of the body of water, along A.'s land. Such land becomes A.'s, by virtue of the doctrine known as that of accession.2

2 "The owner of land upon a stream or body of water is entitled to such other land as may be added thereto by "accretion"; that is, by the gradual and imperceptible formation of land adjacent thereto by alluvial deposits. Such owner, on the other hand, loses so much of his land as may be gradually washed away, or upon which the water may gradually encroach. A sudden and perceptible change does not affect the ownership of a particular part of the soil." Tiffany on Real Property, § 453.

CHAPTER XIII

WILLS, EXECUTORS AND ADMINISTRATORS

Section

1. In General.

2. Incorporation by Reference.

3. Testamentary Capacity.

4. Powers and Duties of Executor or Administrator.

SECTION 1.—IN GENERAL

The law in each state lays down certain rules of descent, under which the title to the land passes to certain relatives, and the title to personalty passes to the administrator for purposes of administration. After the payment of debts by the administrator and certain required acts in the proceeding, the personalty may be distributed to the heirs in kind, or may be sold and the proceeds divided among the heirs. Ordinarily the statute does not permit the sale of land to pay debts, unless the money and other personalty do not suffice to pay the debts.

The law of each state also makes provisions under which the owner of property may provide for the disposition of his property after his death, by making a "last will and testament." Each state has its own requisites to the validity of a will. Some states permit, under certain circumstances, a nuncupative or oral will. Some states permit an unwitnessed holographic will, which is a will entirely in the handwriting of the testator. But the most important and usual form of will is the written will, properly signed by the testator in the presence of a required number of witnesses, who sign as witnesses. Some states require two witnesses, and others require three. Inasmuch as even the testator living in a state requiring two witnesses may own land in a state requiring three witnesses or may later acquire such land, and the conveyance of land by will or otherwise must be according to the law of the state in which the land lies, it is exceedingly imprudent, in most cases, to execute a will with less than three witnesses. The execution of wills with only two witnesses has often made a great deal of trouble, by failing to convey the title to lands lying in a state requiring three witnesses. This trouble is, in some states, removed by the enactment of statutes making valid for the conveyance of lands any will that is good for that purpose in the state where it is executed.

The following is a good form of will, which is valid in most, and probably all, states in the United States. It is adapted from the form found in Rood on Wills, §§ 252, 288.

Last Will and Testament.

I, William Williams, merchant, residing at 75 West Springfield avenue, in the city of Champaign, county of Champaign, state of Illinois, do make and declare this to be my last will and testament, revoking all wills hitherto made by me.

1. I direct my executor, hereinafter named, to pay out of my estate, all my just debts and funeral expenses.

2. I give, devise, and bequeath to my son, Harold Williams, lot three hundred and five in College Place, being an addition to the city of Champaign, in the county of Champaign, state of Illinois.

3. I give, devise and bequeath to my daughter, Sarah Williams, the southeast one-quarter (S. Ë. 14) of the northeast one quarter (N. E. 4) of the northeast one-quarter (N. E. 14) of section 14, township ten (10) north, range nine (9) east of the third (3d) principal meridian, in the county of Champaign, and state of Illinois, being ten (10) acres, more or less.

4. I give, devise and bequeath the sum of $100 to my uncle, Roger Williams.

5. I give, devise and bequeath to my beloved wife, Wilhelmina Williams, all of the rest of my property, real, personal, and mixed.

6. I name my nephew, John White, to be executor of this, my last will and testament, and I hereby authorize him to make all sales and conveyances of real and personal property necessary to effect the purposes of this will.

In witness whereof I have hereunto set my hand and seal, at Urbana, Illinois, this 1st day of August, A. D. 1924.

William Williams. [Seal.]

We, the undersigned, bear witness that the above instrument, consisting of two (2) typewritten sheets of Hammermill bond paper, each bearing our initials, and fastened together with paste and steel duplex fasteners, was, this 1st day of August, A. D. 1924, signed, sealed and declared by the said William Williams, as his last will and testament, in the presence of all of the undersigned, the said testator then being of sound mind and good memory and free of constraint or compulsion in any form, whereupon we, not being related to said testator by either consanguinity or marriage, and having no direct or indirect interest in the matter, and being well acquainted with him, immediately subscribed our names hereto in the presence of said testator and of each other, for the purpose of bearing witness to said will, as said testator requested us to do.

Hiram T. Scovill, University Professor,

605 Michigan Ave., Urbana, Illinois. Bert E. Spalding, Druggist.

710 West Park St., Champaign, Illinois. Roger E. Zombro, Clothier,

1004 West Hill St., Champaign, Illinois.

It is to be noticed that no question as to the identity of the testator is likely to be raised, as his occupation and residence address are stated. This may seem a trivial matter; but it is really a thing worth considering. Suppose that the testator's name is John Smith or John Johnson. If he is one of several persons of that name in the locality, there is a bare possibility that, after the death

of all of the witnesses, and perhaps the misplacing of the will, and the finding of the will away from the premises of the testator, there may be a question which of the several persons of the same name the testator really is. Ordinarily, of course, no trouble will come from neglect of this detail in drawing the will, but it is prudent to cut off all possibility of such difficulty by nailing down the identity of the testator at the very beginning of the will. Likewise, it is seen that we fix with great certainty the identity of the witnesses, in order that they may be found, or that their signatures may be proved if the witnesses be dead at the time of the probate of the will.

Where different parcels of land are devised by the will, it is best that each parcel be accurately described, although all that is strictly necessary is that such description be given as will leave no doubt as to what land is meant. Instead of giving such careful and accurate descriptions as are given in the above form, it is possible to achieve the purpose by saying "my farm," if the testator has but one farm, or “my farm in Prairieton township," if the testator has but one farm, or "my farm on the Springfield-Decatur hard road," if the testator has but one farm on that road, or "my house and lot at 1151 Arbor street, Champaign, Illinois," instead of describing the property more properly as "lot 305 in College Place, being an addition to the city of Champaign, county of Champaign, state of Illinois." However, only in cases of emergency should the less proper description be used, as where the testator is on his deathbed and the will must be quickly drawn and executed, without descriptions of his lands at hand.

Section 5 of the above will is what is known as the residuary clause. Inasmuch as it carries all of the residuum or rest of the estate, after the other devises and bequests have been satisfied, no descriptions are necessary, though valuable and extensive lands may be carried by this clause.

Personal property is said to be "bequeathed," and real property is said to be "devised." This is so, according to strictly correct legal verbiage. But many lawyers use for every disposition of either real or personal property the expression "give, devise, and bequeath," as is done in the above will. This is to avoid all possibility of the kind of wrangling that has sometimes occurred over the use of these words. This matter, however, is now rendered rather unimportant in most jurisdictions, by statutes or judicial decisions making it possible to use the words "bequeath" and "devise" interchangeably.

The testimonium clause, or statement of the witnesses, as given in the above will, may seem unduly elaborate; but the laws of different states as to signing by the witnesses "at the request of the testator," "in the presence of the testator," and "in the presence of each other," and the further requirement that the testator acknowledge to the witnesses that this is his will, make it prudent that these facts be recited. Then, too, it has sometimes happened

that, years afterward, when the will came up for probate, the witnesses have been induced to testify, perhaps falsely, that they believed the testator to be insane, and incapable of intelligently making his will at the time he made the will. If the witnesses have recited, in their testimonium clause, the fact that the testator is of sound mind and good memory, or that they believe him to be so, it makes it very difficult for them to make a court believe afterward their statement in court that they believed the testator to be insane. A much less elaborate testimonium clause is sufficient, is commonly used, and might be used in case of genuine necessity for great haste; but it is best, whenever possible, to clinch the matter by making the full recitals indicated in the testimonium. clause above.

In general, wills should be drawn only by lawyers, and only by lawyers well versed in the intricacies of property law. However, in rural sections, many wills are, and probably always will be, drawn by bankers and notaries, there being no lawyers in the locality. Emergencies occur, in which, with no lawyer within many miles, some one must hastily draw a will for a testator on his deathbed. In such a case, the banker or notary is usually called. Where one not a lawyer is requested to make a will, he will, if he is prudent, follow a good form, and refuse to attempt to make complicated dispositions of property. Even the lawyer often makes serious errors where he attempts to create trusts, or to create such estates as estates tail, contingent remainders, and executory devises. But there is no reason why, in an emergency, a simple will cannot be drawn satisfactorily by a banker or notary, if he will act with the skill and care which one should exercise under the circumstances.

As has been said, in general, wills should be drawn by lawyers. In selecting a lawyer to draw a will, one should select one well versed in the law of personal and real property and the law of wills and administration. You will probably find in your town some lawyer or lawyers examining many abstracts of title to real estate, filing bilis to quiet title, and acting as attorney for many executors and administrators. If a lawyer continually in this kind of practice has had good preliminary training, he should be able to write a very satisfactory will, unless there be unusually complicated features demanded, in which case the work should be done by a lawyer expert in the feature that happens to be demanded.

One of the things not to do in the drafting of a will is to try to make some letter or other document a part of the will, by mere reference to it in the will. Making extraneous documents a part of the will by reference is known as "incorporation by reference." That this practice is unwise is evident from what occurred in the case in the following section.