tives have contended over a deathbed to convince a weak and dying man that he should or should not make a purposed will or proposed provisions in a will.

A will requires care, foresight, and good judgment. Therefore, make your will when you know that you can exercise these qualities, and having made it under these conditions, do not change it when you are not equally capable.

Notes:

1. Make your will when well, sane, and under no pres

sure.

2. Do not, when sick, in pain, or under the influence of others, change the will so made.

§ 31. Making Will an Expression of Vindictiveness

It would be thought that a will to be read and have its effect after the testator had gone from earth would be the last place for the manifestation to the world of his petty spites, small grievances, and old grudges.

Nevertheless wills in which such spites appear form the basis of many a story where the rich uncle cuts off his nephew in a fit of anger or in revenge for some piece of waywardness. Wills of this description are also found in real life, and the usual consequence of such action is either that the will is contested or that it is granted probate to bring unhappiness upon many people undeserving of such penalty.

The law gives the owner of property the power to will it to whom he pleases. The moral right to do this is very different from the legal power. When one is nearing the end he should desire above all things to be just and fair, but if he is bent on satisfying old grudges and getting even for real or imaginary grievances, he is not likely to be either. In such case, if wise he will counsel with some judicious friend before he makes a will that is to take lasting effect when he has died.

The right of a testator to dispose of his estate, depends neither on the justice of his prejudices, nor the soundness of his reasoning. He may do what he will with his own; and if there be no defect of testamentary capacity, and no undue influence or fraud, the law gives effect to his will, though its provisions are unreasonable and unjust.*

Note:

I. Do not make your will the medium of showing those who come after you your spite, malice, and lack of

charity.

§ 32. Making No Provisions for Deaths and Births

Somehow it usually seems to a testator when making a will, that all things will continue to be as they are, and so he fails to make provision for deaths and births among those in whom he is interested. As a matter of fact, every few years show changes and shiftings in any group. Hence, if bequests are made to people advanced in years, it may be best to qualifying them by adding, "if living at the time of my death." The same phrase should be added in the case of younger people if the gift is intended to be personal. If it is desired that the gift shall be made in spite of the possible death of the donee, the phrase used is "or to his heirs."

When property is left in equal parts to a family of children, there are two contingencies to be borne in mind: (1) one or more may die unmarried, or (2) one or more may marry, have children, and then die. In the first case, it is usually provided that the share of the one so dying shall be divided equally among the others of the group. In the second case, it is usually provided that the share of the deceased brother or sister shall go to his or her children. Sometimes it is provided that the share of the deceased member of the group shall go to his widow, unless she marries again, or, if

· Clapp Fullerton, 34 N. Y. 190.

the property be considerable, that she shall have the income of her husband's portion so long as she continues his widow, and upon her death or remarriage the principal shall be divided among the other members of the group.

With all legatees there are these contingencies: death, leaving neither wife nor child; death, leaving wife and children; death, leaving wife but no child or children; death, leaving children but no wife. The testator should decide what is to be done in each possible case, and make his will so as to secure the carrying into effect of his wishes.

It is not always borne in mind that the marriage of the testator and the birth of a child will render void any will made before that time. Marriage alone will not have that effect, but the wife would be entitled to dower in her husband's real estate and in many states the widow is entitled to a certain interest that she cannot be deprived of by will. To this extent marriage will nullify the will made before marriage. The birth of a child after a will is made nullifies the will to the extent that the child will be entitled to whatever portion the other children have. The statute law in many states provides that no child shall be disinherited unless mentioned specifically by name in the will.

Notes:

1. It may be well to execute a new will from time to time.

2. A codicil may be added whenever a change makes it necessary.

§ 33. Leaving Estate in Bad Shape

Usually the man who owns certain property is in the best position to care for it, to dispose of it, and to settle it. It would seem only ordinarily prudent for all men, and especially men getting along in years, to put their estates into shape to

leave. It would likewise be prudent for men at all times to bear in mind the idea of keeping their property in such condition that if they themselves at any time should die those who come after will not have to do things that the owner should have done himself. There are times when men who are making their own way may be compelled to carry more outstanding liabilities than they themselves like. In such case, if they die and do not leave insurance enough to straighten out their affairs, the prospects for the welfare of their families are bad. Generally, the way in which a man would prefer to leave his affairs is the way in which he should want to have them while he is alive. Too many times executors have to close up at a loss matters to which the testator himself should have attended long ago. All of this, though, is too obvious to call for discussion.

Note:

1. Put your affairs in shape to leave.

them so.

§ 34. Sundry Mistakes

Then keep

Do not blindly copy someone else's will. There may be personal reasons why such a will would not work well with your estate and for your family.

Do not consult others as to the disposition of your affairs until you have made your own plan and have clear ideas as to how you wish to leave your property. Then consult wise friends, if you have such, and secure skilled legal advice. The man who draws your will should be more than merely a lawyer. He should be a wise, prudent man of business.

Do not name a man as executor who will not serve or who lacks time or business intelligence, to do what has to be done. If there is doubt, or if your executor is likely to die before you do or to die before your estate is settled, name a younger man or appoint a trust company or bank.

Do not have your executor or any legatee act as witness. Do not have for witnesses people as old as you are, for they may die before the time comes to prove your will. Secure witnesses who know you are sane and capable, for they may have to testify to this. Do not have a stranger as a witness if it can be avoided.

Do not put your will where it cannot be found, or where people who are not favorably disposed to your plans have access to it.

Do not try to change your will by alterations, interlineations, or crossing out parts after it is signed and witnessed. If you change it, do so by codicil, properly signed and witnessed, and referring to the will it changes, or by drawing up a new will. If possible, attach the codicil to the will.

If you are able to do more than provide for your family, do not forget the community in which you live and have made your money, and also those in the community who have not been able to play their part successfully, and who are helpless and dependent.

Do not forget that your wife has certain statutory rights and that unless you are giving her more than the law gives she has the right to elect whether she will take what the law gives or what the will gives.

Note:

1. We all make too many mistakes in our treatment of our fellows. Let us rectify any we can and make no more when we draw up our last wills.

REVIEW QUESTIONS

1. What is the argument for making a will? Why should a man with but little property make a will?

2. Why is it better to have a will simple? Why do men give the