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Conditional will.

Gifts to subscribing witnesses void.

Creditors

competent witness.

it may arise, does not prevent the probate and allowance of the will, if it is otherwise satisfactorily proved.

NOTE.-Stats. 1850, p. 177, Sec. 4. The general rule is, that the witnesses must be competent and credible at the time they witness the execution of the will, for it may be said that they do in fact, if not in form, testify at the time of subscribing; and this is so, because the witness becomes such for the express purpose, thereafter, to testify to the competency of the testator to execute a will. And before he signs he is supposed to have concluded, in his own mind, that the testator is of sound and disposing mind and memory, and free from compulsion or restraint.-Red. L. of Wills, p. 255, and Note 3; consult, also, 2 Greenleaf Ev., Sec. 691. This accords with the protest of Lord Camden against a majority of the Bench in the case of Doe A. Hindson vs. Hersey, 4 Burns Eccl. L., p. 88. His opinion is now acquiesced in as the true exposition of the Statute of Wills.-Bargrave vs. Winder, 2 Ves., p. 634, and numerous other cases cited therein.

1281. A will, the validity of which is made by its own terms conditional, may be denied probate, according to the event, with reference to the condition.

NOTE.-A conditional statement, annexed to a draft of that which was intended for a will, in these words: "I intend this as a sketch of my will which I intend making on my return home" (Torre vs. Castle, 1 Comb., p. 303), was held to be a will on the ground that final instructions for a will were valid as a will when death of the testator alone prevented its execution. A will with a condition precedent, if not performed, will not of course be held valid.-Red. L. of W., p. 179, Note 45. 1282. All beneficial devises, legacies, and gifts whatever, made or given in any will to a subscribing witness thereto, are void, unless there are two other competent subscribing witnesses to the same; but a mere charge on the estate of the testator for the payment of debts does not prevent his creditors from being competent witnesses to his will.

NOTE.-Stats. 1850, p. 177, Sec. 5. This rule is evidently on the ground previously, in a note to Sec. 1276, discussed, that the incompetency of a witness who really begins to testify when he signs his name as a

witness, cannot afterwards become competent by re

Cmoval of the disability.

1283. If a witness, to whom any beneficial devise, legacy, or gift, is made or given, would have been entitled to any share of the estate of the testator, in case the will is not established, he succeeds to so much of the share as would be distributed to him, not exceeding the devise or bequest made to him in the will; and he may recover the same of the devisees or legatees named in the will, in proportion to and out of the parts devised or bequeathed to them.

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1284. A will of real or personal property, or both or a revocation thereof, made out of this State by a person not having his domicile in this State, is as valid, when executed according to the law of the place in which the same was made, or in which the testator was at the time domiciled, as if it were made in this State, and according to the provisions of this Chapter. lim NOTE.-Stats. 1850, p. 179, Sec. 23.

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void.

1285. No will or revocation is valid unless exe- Will not duly cuted either according to the provisions of this Chap- executed, ter, or according to the law of the place in which it was made, or in which the testator was at the time domiciled.

change of

1286. Whenever a will, or a revocation thereof, is Subsequent duly executed according to the law of the place in domicile. which the same was made, or in which the testator was at the time domiciled, the same is regulated, as to the validity of its execution, by the law of such place, notwithstanding that the testator subsequently changed his domicile to a place by the law of which such will would be void.

NOTE. The three preceding sections change the rule of our statutes (as existing prior to the adoption of the Codes) requiring all wills to be executed ac

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Republication by codicil.

Nuncupative will, how to be executed.

Requisites of a valid nuncupa

tive will.

cording to our laws, and admitted to probate as our laws require. These sections seem to be more liberal and just, and were therefore adopted. Sec. 1324 of the Code of Civil Procedure is made to conform to these sections. Norris vs. Harris, 15 Cal., p. 226; see, also, Moultrie vs. Hunt, 23 N. Y., p. 394; Parsons vs. Lyman, 20 N. Y., p. 103.

1287. The execution of a codicil, referring to a previous will, has the effect to republish the will, as modified by the codicil.

NOTE.-Payne vs. Payne, 18 Cal., p. 291; see, also, Red. L. of Wills, p. 286, Sec. 23, Subdivision 6. The effect of the last codicil is to republish all former ones.Gurst vs. Willasy, 3 Bing., p. 614, S. C.; 12 J. B. Moore, p. 2. It must be formally executed to set up a former will (Buel vs. Cunningham, 3 B. Mon., p. 390), and clearly identify the paper set up.-Tonnel vs. Hall, 4 Comst., p. 140. But wills duly executed cannot give effect to codicils thereafter informally executed.-2 Ves., Jr., p. 204; 12 Vesey, p. 29; 2 Myl. and K., p. 765. A codicil, to take effect on the occurrence of an event which does not happen, may be probated if it refer to the will by date, on the above rule that it republishes the will.-Mendez da Silva in re, 2 Swab. and Trist., p. 315. The codicil is dependent on the will.-Grimwood vs. Cozens, 2 Swab. and Trist., p. 364; Dutton in re, 3 id., p. 66.

1288. A nuncupative will is not required to be in writing, nor to be declared or attested with any formalities.

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NOTE.-Hubbard vs. Hubbard, 8 N. Y., p. 196.

1289. To make a nuncupative will valid, and to entitle it to be admitted to probate, the following requisites must be observed:

1. The estate bequeathed must not exceed in value the sum of one thousand dollars;

2. It must be proved by two witnesses who were present at the making thereof, one of whom was asked by the testator, at the time, to bear witness that such was his will, or to that effect;

3. The decedent must, at the time, have been in his

last illness, or in actual military service in the field, or Same. doing duty on shipboard at sea, and in either case in actual contemplation, fear, or peril of death;

4. Except in the cases mentioned in Subdivision 3 of this section, it must be made at the dwelling house. of the testator, or where he was residing for the space of ten days or more, unless taken sick from home and death ensues before his return.

NOTE.-Stats. 1850, p. 177, Sec. 7; Prince vs. Hazleton, 20 Johns., p. 502; Ex. Thompson, 4 Bradf., p. 154; Hubbard vs. Hubbard, 8 N. Y., p. 196. The earliest English writers define a nuncupative will as one made by a testator who "lyeth languishing for fear of sudden death, dareth not to stay the writing of his testament, and, therefore, he prayeth his curate and others his neighbors to bear witness of his last will, and declareth by word what his will is."-Perkins. Sec. 476, in the time of Henry VIII; Swinburne, Part I, Sec. 12, where it is said "this kind of testament is made commonly when the testator is very sick, weak, and past all hope of recovery." Chancellor Kent, however, adds these words: "I do not infer from these passages that unwritten wills were always bad at common law, unless made in case of extremity, when death was just overtaking the testator."-Part I, Sec. 12, pl. 4. It is generally regarded as a good rule to be observed that the terms of the will be rigidly and strictly enforced, and the statute authorizing them be strictly complied with.

1290. No proof must be received of any nuncupative will, unless it is offered within six months after speaking the testamentary words, nor unless the words, or the substance thereof, were reduced to writing within thirty days after they were spoken.

NOTE.-Stats. 1850, p. 178, Sec. 8. Another requirement of the statute which must be strictly complied with. See, also, Sec. 1344, Co. Civ. Pro. Cal.

1291. No probate of any nuncupative will must be granted for fourteen days after the death of the

Proof of tive wills.

nuncupa

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nuncupa

tive wills.

Probate of testator, nor must any nuncupative will be at any time proved, unless the testamentary words, or the substance thereof, be first committed to writing, and process issued to call in the widow, or other persons interested, to contest the probate of such will, if they think proper.

Written will, how revoked.

Evidence of revocation.

NOTE.-Stats. 1850, p. 178, Sec. 9. This is required to allow time to produce a written will and for the discovery of other facts which help to strengthen or defeat the application to prove the will, and must be strictly complied with. See, also, Sec. 1345, Co. Civ. Pro. Cal.

1292. Except in the cases in this Chapter mentioned, no written will, nor any part thereof, can be revoked or altered otherwise than:

1. By a written will, or other writing of the testator, declaring such revocation or alteration, and executed with the same formalties with which a will should be executed by such testator; or,

2. By being burnt, torn, canceled, obliterated, or destroyed, with the intent and for the purpose of revoking the same, by the testator himself, or by some person in his presence and by his direction.

NOTE.-Intention of testator, as expressed in subsequent will, or writing formally executed, governs the question of revocation under first subdivision.-Red. L. of Wills, pp. 304-7, or gathered from other circumstances.-id. See, also, id., et seq., as to second subdivision of this section. There must be a concurrence of act and intention to revoke-a rule which is more easily understood and more readily applied by Courts and juries to a given state of facts than almost any other.

1293. When a will is canceled or destroyed by any other person than the testator, the direction of the testator, and the fact of such injury or destruction, must be proved by two witnesses.

NOTE.-Stats. 1850, p. 178, Sec. 10. This is required to make the act of revocation correspond somewhat in formality with the execution of a will.

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