perform. § 447. The provisions of this article do not abridge the Specific powers of courts to compel the specific performance of ance. agreements, in cases of part performance of such agreements; nor is the title of a purchaser, for value, impaired, unless it appears that he had previous notice of the fraudulent intent of his immediate grantor or of the fraud rendering void the title of such grantor. 2 R. S., 135, § 10; 137, § 5. TITLE V. WILLS. In this title, taken, for the most part, from the existing law, are inserted many new provisions relating to nuncupative wills; mutual and conditional wills; partial and total revocation; revocation of will executed in duplicate; effect of alteration or obliteration; wills procured by undue influence; republication by codicil; placing power to devise real property on the same footing as personal estate; the execution of wills in foreign countries; the law of domicil; the interpretation of wills; the payment and abatement of legacies. CHAPTER I. Execution and revocation of wills. II. Interpretation of wills, and effect of various provisons. CHAPTER I. EXECUTION AND REVOCATION OF WILLS. SECTION 448. Who may make wills. 449. Monomaniac incompetent. 450. Will procured by fraud, &c. 451. What may pass by wills. 452. Who may take by wills. 453. Nuncupative wills. 454. Mutual wills. 455. Conditional wills. 456. Written wills, how to be executed. 457. Nuncupative wills, how to be executed. 458. Witnesses to add residence. 459. Republication by codicil. 460. Will made out of this state. 461. Subsequent change of domicil. 462. Wills may be deposited for safe keeping. Who may make wills. Monomani ac incompetent. Will procured by fraud, &c. What may pass by wills. Who may take by wills. SECTION 463. Such to be sealed up. 466. Lost or destroyed wills. 467. Written wills, how revoked. 468. Revocation by obliteration on face of will. 469. Revocation of one duplicate. 470. Revocation by subsequent will. 471. Revocation of subsequent will does not revive a former. 472. Revocation by marriage and birth of issue. 473. Revocation of woman's will by marriage. 474. Contract of sale not a revocation. 475. Charge or incumbrance not a revocation. 477. Revocation of codicils. 478. Afterborn children, unprovided for, to succeed. 481. When witness may succeed. 482. Creditor a competent witness. § 448. Every male person of the age of eighteen years or upwards, and every female of the age of sixteen years or upwards, of sound mind or memory, and no others, may devise real property and bequeath personal property by a will duly executed, according to the provisions of this Code. From 2 R. S., 56, § 1; 60, § 21. § 449. A person having any insane delusion, is wholly incompetent to make a will. § 450. A will or part of a will procured to be made by coercion, restraint, fraud or undue influence, may be denied probate; and a revocation, procured by the same means, may be declared invalid. This section is new. 451. Every estate and interest in real or personal property, to which heirs, husband, widow or next of kin might succeed, may be so devised and bequeathed. From 2 R. S., 57, § 2. § 452. Devises and bequests may be made to any person capable by law of taking the property devised or bequeathed, except that no corporation can take by devise or bequest, unless expressly authorized by its charter or by statute so to take. 2 R. S., 57, § 3. tive wills. § 453. A nuncupative will of real or personal property, Nuncupa or both, is valid, when made in contemplation, fear or peril of death, by a soldier, whether he be an officer or private, or a surgeon, or a servant of the army, while in actual military service; or by a sailor, whether he be an officer or surgeon, a mariner or marine, or a servant of the vessel, after he finally goes on board the vessel for the voyage, and before he comes on shore, in port, after the voyage is over. Modified from 2 R. S., 60, § 22. By this section the § 454. A conjoint or mutual will is valid, but it may be revoked as any other will. § 455. A will, the validity of which is made by its own terms conditional, may be denied probate, according to the event, contingency or condition. This and the preceding section are new. Mutual wills. Conditional wills. § 456. Every will except nuncupative wills authorized by Written section 453, must be executed and attested as follows: 1. It must be subscribed at the end thereof, by the testator himself or by some person in his presence and by his direction; 2. The subscription must be so made in the presence of each of the attesting witnesses, or be acknowledged by the testator to have been so made, to each of the attesting wit nesses; 3. The testator must at the time of subscribing or acknowledging the same, declare the instrument to be his will; 4. There must be two attesting witnesses, each of whom must sign his name as a witness at the end of the will, at the testator's request. From 2 R. S., 63, § 40. wills, how to be executed. § 457. The nuncupative will is not required to be in Nuncupa writing, nor declared or attested with any formalities. tive wills, how to be executed. Witnesses to add residence. Republica tion by codicil. Will made out of this state. Subsequent change of domicil. Wills may be deposit § 458. A witness of a written will, must write, with his name, his place of residence; and a person who subscribes the testator's name by his direction, must write his own name as a witness to the will. A violation of this section does not affect the validity of the will. From 2 R. S., 64, § 41. § 459. Executing a codicil, referring to a previous will, has the effect to republish the will, as modified by the codicil. § 460. A will of real or personal property, or both, or a revocation thereof, made out of this state by a person not having his domicil in this state, is valid when executed according to the laws of the place in which the same was made, or in which the testator was domiciled at the time, as if it was made in this state and according to the provi sions of this article. But no such will or revocation is valid unless executed either according to the provisions of this article or according to the laws of the place in which it was made, or in which the testator was domiciled at the time. § 461. Whenever a will or a revocation thereof is duly executed according to the laws of the place in which the same was made, or in which the testator was domiciled at the time, the same is regulated, as to the validity of its execution, by the law of such place, notwithstanding the testator subsequently changed his domicil to a place, by the laws of which such will would be invalid. This and the preceding section are new. § 462. Each surrogate, county clerk and register of deeds ed for safe must deposit, in his office, any will delivered to them for that purpose, and give a written receipt to the depositor. keeping. To be sealed up, &c. 2 R. S., 404, § 67. 463. Such will must be inclosed in a sealed wrapper, so that it cannot be read, and the name of the testator, his residence, and the date of the deposit must be indorsed; and it must not be opened until delivered to a person entitled, as hereinafter directed. 2 R. S., 405, § 68. 464. Such will must be delivered only: 1. To the testator in person; 2. Upon his written order, duly proved by the oath of a subscribing witness; 3. After his death, to the persons named in the indorsement on the wrapper of such will, if any; 4. If there is no such indorsement, and if the will was not deposited with the surrogate having jurisdiction of its probate, then to the surrogate who has jurisdiction. 2 R. S. 405, § 69. § 465. The surrogate must, after the death of the testator, publicly open and examine the will and file it in his office, there to remain until duly proved, or must deliver it to the surrogate having jurisdiction of its probate. 2 R. S., 405, § 70. To whom to be delivered. will, when to be opened by surro gate. stroyed § 466. A lost or destroyed will of real or personal pro- Lost or deperty, or both, may be established in the cases provided in wills. section of the Code of Civil Procedure. The reference is to section 12 of Appendix D. wills, how § 467. No written will, except in the cases in this chap- Written ter mentioned, nor any part thereof, can be revoked or revoked. altered, otherwise than by a written will, or other writing of the testator, declaring such revocation or alteration, and executed with the same formalities with which a will should be executed by such testator; or unless such will be 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; and when so done by another person, the direction of the testator, and the fact of such injury or destruction must be proved by two witnesses. 2 R. S., 64, § 42. § 468. A revocation by obliteration on the face of the will, may be partial or total, and is complete if the material part be obliterated so as to show an intention to revoke. But where the testator attempts to revoke, by altering or obliterating on the face of the will, any provision thereof, in order to effect a new disposition, such revocation is not valid unless such new disposition is legally effected. Revocation tion on face by oblitera of will. |