witness. Any third party designated by a testator may also sign for him. This is generally, throughout the country, considered a valid procedure. Where a testator signs himself by having another party guide his hand, it is always considered as his own signature, and no statement need be made by a witness.

In New York and New Jersey, the statutes require that the testator at the time of the signing by the witnesses shall also expressly declare that it is his last will and testament. In signing deeds it is common for a man to sign and then later to ask a friend who knows his signature to witness it. A will witnessed in this way would have no validity. In New York and a majority of the states a signing by the testator after the witnesses have signed would not be considered a legal execution.

Attestation Clause. The attestation clause is a statement assented to and signed by the subscribing witnesses to the effect that these witnesses saw the testator sign the will and that they, in the testator's presence and in the presence of each other, at his request signed their names. Any will subscribed by a less number of witnesses than is required by the statute will be void. If a legatee acts as a witness, the will is good but he forfeits his legacy.

Holographic Wills. A holographic will is one written entirely in the testator's handwriting. In New York and Massachusetts, such wills have no special privileges and must be witnessed as any other will. Under the statutes of a few states, such as California, Texas, Louisiana, and Mississippi, the attestation of subscribing witnesses is not required on a holographic will. It must, however, be entirely written, dated, and signed by the testator, to come under the provisions of the statutes. It has therefore been held that a will written on a printed form cannot be considered a holographic will.

Nuncupative Wills. A nuncupative will is one made by

word of mouth to two or more witnesses, usually written down later in as near the words of the testator as possible. This form of will has never been popular with the courts because it is too conducive to fraud. At the present time in most of the states these wills may be made only by soldiers in the performance of their duty and mariners on the high seas. The term "mariners" includes sailors of the United States and all seamen in mercantile service. Even where such wills are allowed, they take effect as to the personal property of the decedent only, and have no effect on the realty, which passes by law to the proper person.

§ 21. Choosing an Executor

In choosing an executor, someone should be selected who has good judgment and business experience, and who can afford to give the time and thought needed. The task has become more difficult of late years, as income and inheritance taxes increase the complexity. It is wise to make sure that the man to be named can and will give the time and care required and that he is willing to act. If the executor named declines, it may be difficult to find another friend to act, and it may end in the court appointing a stranger to you and your family to wind up your affairs. When you can select someone of tested integrity and business ability, who already knows something of your affairs, and who by ties of blood or friendship is closely in touch with your family, it is more likely to work out well. It is to be remembered that you are imposing no small burden on your friend, and that if he is a busy man he may not be able to attend to it and his own affairs at the same time. In New York the legal fees for an executor who handles an estate with $50,000 of personal property would be less than $700. In some cases testators recognizing the fact that the legal fees may not be adequate compensation for the service to be rendered, make a liberal bequest in lieu

of the legal fees. It is also to be remembered that if you name someone of your own generation that he may die before you do, or may die before he has settled the estate, and it is therefore best to appoint an executor somewhat younger than yourself.

Because of these conditions many men prefer making a bank or a trust company their executor. Such an institution can work to better advantage as an executor than can an individual. If it is desired that a friend who knows something of your affairs should act with the bank or the trust company, that can easily be managed. Some friend of the family, familiar with the circumstances, can readily advise and furnish the personal touch that might be lacking if the financial corporation acted by itself. This subject is considered more fully in Part V, which is written from the banker's viewpoint.

The duties of the executor may be summarized as follows:

1. To prepare an inventory of all the personal prop-
erty of the estate.

2. To take possession and care for that property.
3. To pay the expenses of administration, funeral ex-
penses and debts owed by the testator.

4. To distribute the balance of the property in accord-
ance with the terms of the will, not omitting to
set aside any trust funds that may be specified.
5. To account to the court of his appointment, present-
ing a report showing the cash and property which
he has received, the disposition which he has made
of it, and the balance, if any, on hand.

Thereupon the court will determine the commissions due the executor, will authorize him to retain for himself the amount of his commissions together with an amount fixed by the court to reimburse him for the cost of the final accounting, and will order him to distribute in accordance with the

court's directions the cash and other estate assets then remaining in his hands.

The same rules will apply to the administrator except that for (4) will be substituted the rules resulting from the condition of intestacy.

§ 22. Custody of a Will

A will after due execution may be kept in a safe or a safe deposit box, or may be turned over to the testator's lawyer or banker for safe-keeping. In some places provision is made for filing wills with the clerk of the court of probate or other public official.

A copy of a will should be preserved by the lawyer who prepares it, or by the testator, or by both. This copy should be made after the will has been signed by testator and witnesses. Sometimes wills are prepared in duplicate so that each copy is an original. In such case it may be required that both copies be presented for probate, or otherwise, that the absence of one be explained. This is sometimes difficult to do.

In some states a safe deposit box may not be opened after death until an executor is appointed or an order from the court of probate obtained. In some states a representative of the State Tax Department must be present when a safe deposit box is opened after death. It is probably safest to put an executed will in charge of a responsible lawyer, a banker, or an official authorized to receive it, if there is one. The testator should keep his own copy and also a memorandum as to where the original is to be found.

§ 23. Adding a Codicil to a Will

A codicil is an addition to a will. It may be written on the same sheets as the will or it may be a separate instrument. It should be headed "Codicil," as the term defines its function as an addition to an existing will. It must be signed, sealed,

and attested in all respects as is an original will. It should refer plainly to the date of the will it supplements. (See Form 5.)

If a codicil changing a will is duly executed and later this codicil is revoked, the part of the will that has been changed may remain changed unless a new codicil re-executing that part of the will is executed. The decisions on this point are conflicting, and it is better not to take chances.

§ 24. Revoking a Will

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The simplest way to revoke a will is to execute a will of later date, with this statement in the preamble: hereby revoking and annulling any and all wills heretofore made and executed by me." Then the signature to the old will should be canceled and a memorandum written on the old will, in the writing of the testator, stating that he has revoked it on the date of the new will.

A will may also be revoked by the testator burning, tearing, obliterating or canceling it, or he may direct someone else to do this in his presence. If a testator destroys a duly executed will and leaves no record of the fact of destruction and dies without making a later will, it may be supposed that the will has been lost or destroyed by someone else, and a carbon copy or rough copy may be secured and proved as a lost will. (See § 41, "Proving a Lost Will.”)

A will may be revoked by the execution of a codicil of revocation duly signed, sealed, and witnessed in all respects as the original will.

A number of dubious things are sometimes done by testators that leave the revocation of wills or the reinstatement of prior wills uncertain, and cause litigation of much interest and profit to the legal profession. It is easy to make a will, to change it by codicil, or effectually to revoke a will that has been executed, and instructions for the performance of