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there are suspicious circumstances, as where the language of the will is irrational or the dispositions made are disproportionate to the testator's estate, evidence should be introduced to explain the language or remove the suspicion.57

§ 1302. The Same Subject: Due Execution. Value of Attestation Clause,

The main question to which the attention of the court is directed is whether or not the will has been duly executed, the construction of its terms or the validity of the dispositions made is not at this time in question. The formalities of execution are proved by the surviving witnesses, one alone being sufficient for that purpose.58 If the will contains a full attestation clause showing strict compliance with all statutory formalities, it is in itself prima facie evidence of the facts therein recited and will overcome a want of evidence because of the failure of the subscribing witnesses to remember the facts.59 The attestation clause, however, is not conclusive evidence, since facts contrary to its recitals may be shown.60 A full attestation clause is of extreme value when the subscribing

57 See § 397.

58 Although the statute may require that a will be subscribed by two or more witnesses, it does not mean that due execution of the will can not be proved by but one of such witnesses.-Bruce v. Shuler, 108 Va. 670, 15 Ann. Cas. 887, 35 L. R. A. (N. S.) 686, 62 S. E. 973.

59 See § 507.

The formalities of execution

have been treated in Vol. I of this
work.

As to signature of testator, see
§§ 404-442.

As to the number and character of witnesses required for the execution of wills, see §§ 443-467.

As to acknowledgment of signa-
ture and publication of will, see
§§ 468-483.

As to attestation and subscrip-
tion by witnesses, see §§ 484-513.
60 See § 508.

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witnesses are dead or beyond the jurisdiction so that their evidence can not be produced."1

In the absence of a statutory requirement, an attestation clause is not necessary to the validity of a will,62 and a defective attestation clause will not invalidate a will if due execution can be otherwise satisfactorily established.63 Where there is no attestation clause and the witnesses to a will have no recollection of any of the facts surrounding its execution, but the signatures of the testator and of the subscribing witnesses are admitted or fully identified, and where there is good reason to suppose the will had been duly executed and that no fraud or want of testamentary capacity existed at the time it was made, the ends of justice require that the final intention of the decedent should not be defeated because of the failure of recollection on the part of the witnesses or because of their deaths or absence from the jurisdiction.64

Upon due proof of the death of the testator, the jurisdictional facts, the testamentary capacity of the testator, and the due execution of the will, the court will make its order admitting the will to probate.

61 See § 509, 510.

62 Woodruff v. Hundley, 127 Ala. 640, 85 Am. St. Rep. 145, 29 So. 98; Mead v. Trustees of Presbyterian Church, 229 Ill. 526, 11 Ann. Cas. 426, 14 L. R. A. (N. S.) 255, 82 N. E. 371; Barricklow v. Stewart, 163 Ind. 438, 72 N. E. 128; In re Monroe v. Huddart (Diener's Estate), 79 Neb. 569, 14 L. R. A. (N. S.) 259, 113 N. W. 149; Matter of Cornell, 89 App. Div. 412, 85 N. Y. Supp. 920.

63 Craft v. Pawlett, 2 Str. 1109; III.Com. on Wills-12

Deupree v. Deupree, 45 Ga. 415;
Barricklow v. Stewart, 163 Ind.
438, 72 N. E. 128; Waddington v.
Busby, 45 N. J. Eq. 173, 14 Am. St.
Rep. 706, 16 Atl. 690.

64 Thompson v. Owen, 174 Ill. 229, 45 L. R. A. 682, 51 N. E. 1046; Mead v. Trustees of Presbyterian Church, 229 Ill. 526, 11 Ann. Cas. 426, 14 L. R. A. (N. S.) 255, 82 N. E. 371.

As to a will regular on its face being presumed to have been duly executed, see § 511, and conflicting view, see § 512.

§ 1303. Proof of Holographic Wills.

A holographic will is one wholly written, dated and subscribed by the hand of the testator, no witnesses or other formalities of execution being generally required. Some statutes, however, demand that it be found among the valuable effects of the testator after his death. In some states a holographic will must be executed with the same formalities as other wills, but the rules are less strictly applied. The requirements regarding the execution of holographic wills have been hereinbefore fully covered. In offering a holographic will for probate, the procedure and proof is the same as with a will executed before subscribing witnesses except that proof must be produced showing that the statutory regulations regarding execution in the jurisdiction in question have been complied with.66 If the statute does not require the holographic will to be witnessed and compliance with other statutory requirements is shown, evidence is directed mainly to proof of the handwriting of the testator, which may be shown by witnesses, as in other cases. The number of such witnesses required may be fixed by statute.

§ 1304. Probate of Nuncupative Wills.

A nuncupative will is an oral will declared in the presence of witnesses by a testator in extremis, or under

65 See §§ 463-467.

66 See §§ 463-467, as to the execution of holographic wills.

Where the statute requires that a holographic will must be found among the valuable papers of a testator after his death, a holographic will found in a box in which the testator kept stamps

and stationery belonging to the post office of which he was postmaster, and his valuable papers were kept elsewhere, does not meet the statutory requirement.Brogan v. Barnard, 115 Tenn. 260, 112 Am. St. Rep. 822, 5 Ann. Cas. 634, 90 S. W. 858.

67 Arendt v. Arendt, 80 Ark, 204, 96 S. W. 982.

circumstances considered equivalent thereto, and afterwards reduced to writing.68 Those who may make nuncupative wills, the conditions under which they may be made, the value of the estate which may be transferred, the number of witnesses required, and the reduction of the will to writing, are matters largely regulated by statute in the various jurisdictions.69 The subject of nuncupative wills and their requirements generally have been hereinbefore treated.70

A nuncupative will to be valid must be shown to have been made in substantial compliance with the statute."1 When a nuncupative will is offered for probate, the burden of proving such compliance is upon the proponent and satisfactory evidence must be produced.72 Some courts, where the nuncupative will is of one other than a soldier or a seaman, require strict proof of compliance

68 See § 159.

69 See Synopses of Statutes, Appendix, Part One, this volume.

70 See § 159-190.

By the British Navy and Marines (Wills) Act, 1914, it is provided that notwithstanding the former acts of 1865 and 1897, the admiralty may, in the case of a will made by any person being or having been a seaman or marine who may have died or may hereafter die during or in consequence of the present war, pay or deliver any wages, grant or other allowance, or other money payable by the admiralty, or any effects or money in charge of the admiralty,

to any person claiming to be entitled thereto under such will though not made in conformity with the provisions of said act, if the admiralty are of the opinion that compliance with the requirements of those acts may be properly dispensed with.

71 Weir v. Chidester, 63 Ill. 453; Garner v. Lansford, 12 Sm. & M. (Miss.) 558.

72 Scaife v. Emmons, 84 Ga. 619, 20 Am. St. Rep. 383, 10 S. E. 1097; Estate of Grossman, 175 Ill. 425, 67 Am. St. Rep. 219, 51 N. E. 750; Biddle v. Biddle, 36 Md. 630; God. frey v. Smith, 73 Neb. 756, 10 Ann. Cas. 1128, 103 N. W. 450.

with the statute.73 If the mode of proving a nuncupative will is prescribed by statute, none other is allowed.74

Generally the time within which a nuncupative will may be offered for probate is prescribed by law.75 The act in this respect must be strictly complied with, as well as the manner in which the will shall be proved, but the time limitation has reference to the commencement of the proceedings rather than the time within which the will must be actually admitted to probate.76 It is a general statutory requirement that the witnesses to prove the will must be disinterested and be of a certain number. Thus if the witnesses are legatees under the will, the will is void;" although it has been held that the statutes as to subscribing witnesses apply to nuncupative wills and that a legatee may be a competent witness to a nuncupative will, but the legacy is void.78 Unless otherwise prescribed by statute, the procedure of proving a nuncupative will is the same as in the case of other wills, differing only in the character of the evidence produced.

§ 1305. Probate of Lost or Destroyed Wills.

By statute in some jurisdictions the establishment and probate of lost or destroyed wills is regulated by statute. In the absence of statute some decisions hold such

73 Scales v. Thornton's Heirs, 118 Ga. 93, 44 S. E. 857; Morgan v. Stevens, 78 Ill. 287; Godfrey v. Smith, 73 Neb. 756, 10 Ann. Cas. 1128, 103 N. W. 450; Bundrick v. Haygood, 106 N. C. 468, 11 S. E. 423; Rutt's Estate, 200 Pa. St. 549, 50 Atl. 171; Hunt v. White, 24 Tex. 643.

74 Kirby v. Kirby's Admr., 40 Ala. 492.

75 See Synopses of Statutes, Appendix, Pt. One, this volume.

76 Haygood's Will, 101 N. C. 574, 8 S. E. 222.

77 Godfrey v. Smith, 73 Neb. 756, 10 Ann. Cas. 1128, 103 N. W. 450. 78 Smith v. Crotty, 112 Ga. 905, 38 S. E. 110.

79 Cal. Code Civ. Pro., §§ 13381341; N. Y. Code Civ. Pro., §§ 1865, 2621; Waggener v. Lyles, 29 Ark. 47.

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