in a church, or the inhabitant of a town which is the

beneficiary.*

In

Where the witness is clearly disqualified by being beneficially interested in the will, an attempt is sometimes made to validate the will by having such witness release his interest under the will. The decisions are in conflict as to the effect of such a release, the majority holding that the release is not effective, since the witness must be competent at the time of subscribing. many States, by statutory provision, where a beneficiary under the will acts as a subscribing witness, the gift to such witness is void unless there are the required number of competent witnesses without him. By thus avoiding his interest such a witness is made competent. It is also frequently a provision of such statutes that the gift to the subscribing witness will not be void, if he gets no more than he would have taken if there had been no will.‡

Neither the wife of the testator, nor the husband of the testatrix, were qualified at Common Law to attest the will of the other, but this rule is altered or modified

*Jones v. Habersham, 63 Ga. 146; Will's Est., 67 Minn. 335; Marston v. Judge of Probate, 79 Me. 25.

†Page on Wills, Sec. 195; Fisher v. Spence, 150 Ill. 253; Smith v. Jones, 68 Vt. 132; contra, In re Wilson, 103 N. Y. 374.

Davis v. Davis, 43 W. Va. 300; Kumpe v. Coons, 63 Ala. 448; In re Noble, 124 Ill. 266; Clark v. Clark, 54 Vt. 489. In several states such a witness has the option of releasing his interest or of avoiding the will. Nixon v. Armstrong, 38 Tex. 296; Grimm v. Tittman, 113 Mo. 56.

in many States.* It was the rule at Common Law that neither the husband or wife could act as a subscribing witness to a will under which the other was the beneficiary. This rule is also changed by modern statutes in two ways: (a) by making husband or wife a competent witness where the other party is interested and so competent to attest such a will, and (b) by making a gift to a subscribing witness void. In this latter case there is some conflict of authority as to the gift being void when the husband or wife of the beneficiary is the attesting witness.‡ Sec. 983. NUMBER OF WITNESSES QUIRED TO ATTEST A WILL.-The number of witnesses is fixed by the statute of each State, and must be conformed to in every case. The number is rarely less than two, or more than three.§

RE

Sec. 984. THE PUBLICATION OF A WILL. -We have seen (ante, Sec. 976) that the witnesses are

*Pease v. Allis, 110 Mass. 157; Dickinson v. Dickinson, 61 Pa. St. 401.

†Hatfield v. Thorp, 5 B. & Ald. 589; Sullivan v. Sullivan, 106 Mass. 474; Key v. Weathersbee, 43 S. Car. 414, 49 Am. St. Rep. 846.

Page on Wills, Sec. 198. In Fisher v. Spence, 150 Ill. 253; Sullivan v. Sullivan, 106 Mass. 474, it is held that the gift is not void and the husband or wife of beneficiary therefore not a competent witness; contra, Key v. Weathersbee, 43 S. Car. 414; Winsloy v. Kimball, 25 Me. 493.

§Poore v. Poore, 55 Kan. 687; Simmons v. Leonard, 91 Tenn. 183; Gay v. Sanders, 101 Ga. 601. It does not affect the validity of the will if more than the required number sign as witnesses. Scattergood v. Kirk, 192 Pa. St. 263; Boone v. Lewis, 103 N. Car. 40.

in some States required to attest the publication of the will by the testator. This is the case in those States where the publication of the will is made imperative by statute. By publication of a will is simply meant that the testator makes known in the presence of the witnesses that the instrument about to be signed is his will.* No exact form need be followed by the testator in the publication of his will, and it is sufficient whether made in words or by acts and gestures or by adopting and assenting to a statement of a third person as to the character of the instrument. It is immaterial whether the publication precedes or follows the signing of the will, and the contents of the will need not be read to the witnesses. But the acknowledgment of his signature by the testator is not a publication, where the statute requires both an acknowledgment and publication.§

REQUIRED

IN

Sec. 985. FORMALITIES HOLOGRAPHIC WILLS.-As we have have seen (ante, Sec. 925), a holographic will is one written entirely by the testator and signed by him. By reason of these facts, which tend to show not only that the will is

*Page on Wills, Sec. 225; Thompson v. Stevens, 62 N. Y. 634; Hildreth v. Marshall, 51 N. J. Eq. 241.

In re Beckett, 103 N. Y. 167; Elkinton v. Brick, 44 N. J. Eq. 154, 1 L. R. A. 161; Hildreth v. Marshall, 51 N. J. Eq. 241; Denny v. Pinney, 60 Vt. 524.

Jackson v. Jackson, 39 N. Y. 153; Ayres v. Ayres, 43 N. J. Eq. 565; Voorh's Will, 125 N. Y. 765.

§Ludlow v. Ludlow, 36 N. J. Eq. 597; Baskin v. Baskin, 36 N. Y. 416.

executed animo testandi, but that it is unquestionably the desired disposition by the testator, in a number of States such wills are valid without subscribing witnesses and the usual proofs of a formal execution.* In order that this may be done such will must be written entirely in the handwriting of the testator, including the date of the will, so that a will written on a printed form can not be upheld as a holographic will. Where certain words not in the handwriting of the testator can be rejected from the will without altering its sense, the rest may stand as a holographic will.‡

In other States, not founded on the Civil Law, a will in the handwriting of the testator is required to be signed by witnesses and executed as other wills.

Where holographic wills are allowed by statutes, other provisions are usually enacted governing their making, as that such wills must be dated, and in some States that the signature of the testator must be at the end of the holographic will, and must be found after his death among his "valuable papers."§

*Soher's Est., 78 Cal. 477; Morris v. Morten, 20 S. W. Rep. 287; Robertson's Succession, 49 La. Ann. 868. Holographic wills are derived from the civil law and prevail in those states. where the Roman or civil law was in force and in a few other states which have adopted similar statutes. Pearson's Est., 99 Cal. 30.

Robertson's Succession, 49 La. Ann. 868; Rand's Est., 61

Cal. 468.

#McMichael v. Bankston, 24 La. Ann. 451; Vanhille's Succession, 49 La. Ann. 107.

the

The date may appear anywhere on the will, but must include

year, month and the day.-Martin's Est., 58 Cal. 530;

Sec. 986. CODICILS DEFINED AND EXPLAINED.-A codicil is some addition to, or qualification of, a will.* It requires the same capacity, must be executed with the same formalities, and is governed by the same rules, as the will of which it forms a part.† A codicil may add to, subtract from, alter, explain, confirm, re-execute, revive or republish, any will with which it can be incorporated.‡ And there may be a number of codicils to the same will.

In construing a will with codicils all the papers are to be taken together, as constituting one instrument. So far as it is inconsistent with, or repugnant to, the terms of a will, the codicil will govern; otherwise the original will remains unaffected by the codicil.§

Zerega v. Percival, 46 La. Ann. 590; Armant's Will, 43 La. Ann. 310, 26 Am. St. Rep. 183, hold that the provision as to signing at the end must be followed. As to the meaning of valuable papers, see Hughes v. Smith, 64 N. Car. 493; Little v. Lockman, 4 Jones (N. Car.) 494.

*See Sec. 926.

†Heise v. Heise, 31 Pa. St. 246; Barnes v. Crowe, 1 Ves. Jr. 485; Shaw v. Camp, 163 Ill. 144; Pope v. Pope, 95 Ga. 87.

Hobart v. Hobart, 154 Ill. 610; Gilmore's Est., 154 Pa. St. 523; Skinner v. Am. Bible Soc., 92 Wis. 209; Vogel v. Lehritter, 139 N. Y. 223. However, a However, a holographic and unattested codicil will not republish a previous will not written by the hand of the testator.-Sharp v. Wallace, 83 Ky. 584.

§Newcomb v. Webster, 113 N. Y. 191; Reeves Cases on Wills, No. 41; Rhode's Est., 147 Pa. St. 227; Collier v. Collier, 3 O. S. 369; Pendergast v. Tibbetts, 164 Mass. 270. In Grimball v. Patton, 70 Ala. 626, it is said, "The codicil is part of the will, and they must be construed together as one instrument. If the codicil expressly revokes any part of the will, then the part