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evidence that the lessor is the real grantee; the burden of disproving this, and repelling the presumption, is thrown on the defendant; and he may prove that the deed was granted to a different person of the same name.” Thompson, C. J., observed that it was always open to a defendant in ejectment, to show that the lessor was not the person intended by the patent, though he may bear the same name. (Jackson v. Goes, 13 Johns. R. 518.)

In a late case which has been herein before referred to upon another point, the question of identity also came up. The lessees of the plantiff in ejectment claimed as heirs at law to Moses Miner, and proved that their ancestor was a soldier in the New York line. The name of the soldier to whom the patent was issued was Moses Minner. The court say, “the only difficulty in the case arises from the name being spelled Minner, instead of Miner. It is evident that the soldier under whom the lessors claim wrote his name Miner; and if it had been shown that there had been in the army any man by the name of Minner, the patent would be deemed to have issued to him. But, nothing of that kind appearing, it must be considered a mere mis-spelling of the name, which cannot affect the identity of the person ; nor is it such a difference in the spelling as to make it a distinct name.” (Jackson v. Boneham, 15 Johns. R. 226.)

And in a still later case, in the same court, the action was ejectment; the patent was to Patterson, who was described in the balloting book, by that name, and as a revolutionary soldier. The plaintiff proved and relied on a deed from Patterson, described as such soldier in the body, but signed Petterson, and the court held that it was no material variance, and that, at any rate, it was such an ambiguity as might be explained ; and that if the soldier intended by the deed was Petterson, and a man different from Patterson, it lay with the defendant to show this, and he had a right to show it. The court say, “ the letter e is often pronounced broad like a, and the two names, when spoken by the mass of ordinary men, in common and rapid conversation, would be pronounced alike.” (Jackson v. Cody, 9 Cow. R. 140. And vide also Jackson v. Hart, 12 Johns. R. 77. Jackson v. Stanley, 10 ib. 133. Franklin v. Talmadge, 5 ib. 84.) i

The rule adopted seems to be, that proof of identity may always be admitted when the proof is questioned ; leaving to the defendant the right of showing that the plaintiff is not the person in

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tended. And a plaintiff having the name of a patentee or a grantee, or being the descendant of a person having the name of the patentee or grantee, is never required to go further than the production of the deed or patent, and connect himself with the reputed patentee or grantee; unless the presumption of identity is first repelled by the defendant. And it is not sufficient for the defendant to prove that there was another person of the same name. He must prove that he was the person to whom the grant was made; otherwise the prima facie evidence of the plaintiff is not repelled. And whether the question of identity relates to the essee, or to a previous grantee, from whom the lessee derives his title, the rule is the same.

CHAPTER XXVIII.

THE EVIDENCE IN THE ACTION OF EJECTMENT THE PROOFS WHEN

THE LESSEE CLAIMS AS DEVISEE GENERAL RULES APPLICABLE TO WILLS THE LAWS OF ENGLAND AND NEW YORK, RESPECTING WILLS.

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Having considered the proof of the plaintiff's title when he claims by descent, the next question in order is the evidence of title when the claim is by devise; and it will be borne in mind that the presumption in all cases is, that the heirs have succeeded to the estate of their ancestor, and this presumption must be clearly dispelled before any other party is in a situation to recover the estate.

A devisee, who claims immediately upon the testator's death, must prove the seisin of the deceased, and that his will has been duly executed; and if the devise under which he claims be of a remainder, or a reversion, or the like, he must prove the determination of all the precedent estates, upon which determination the interest limited to him is made to vest in possession. He must also prove the due execution of the will, pursuant to the provisions of the statutes of the state where the same was executed, or where the property is situated, or both.

A considerable diversity prevails as to the solemnities required in the execution of wills, with regard to devises of freehold land, and to bequests of personalty; and it is therefore proposed to give, as succinctly as possible, the provisions of the statutes of the several states, so far as practicable, upon this subject. The proof required to be given by the claimant in ejectment under a devise cannot be made intelligible, except such statement be made.

There are, however, a few general principles applicable to wills in all of the states, and also in England, which may as well be stated here as anywhere, and need not be repeated in any other connection.

First. No testament is of any effect till after the death of the testator. During the life of the testator it is always ambulatory, and may be altered ; and, if there are many testaments, the last overthrows all the former. Nam omne testamentum morte consummatum est, et voluntas testatoris est ambulatoria usque ad mortem. This, Lord Loborough observed, was the most general maxim he knew. (Matthews v. Warner, 4 Vesey's R. 210.) In fact, it is essential to every testamentary instrument, that it may be altered even in articulo mortis ; irrevocability would destroy its essence as a last will. (Balch v. Symes, 1 Turn. & Russ. R. 92. Hobson v. Blackburn, 1 Addams' R. 278. Reid v. Shergold, 10 Vesey's R. 399.) Though a last will and testament be made irrevocable in the strongest words, the testator is at liberty to revoke it; because a man cannot make that irrevocable which is in its nature revocable; for this, says Lord Bacon, would be for a man to deprive himself of that which of all other things is most incident to human condition; and that is, alteration or repentance. “Therefore,” he adds, “if I make my will, and in the end thereof do add such like clause [also my will is, if I shall revoke this present will, or declare any new will, except the same shall be in writing, subscribed with the hands of two witnesses, that such revocation or declaration shall be utterly void; and by these presents I do declare the same not to be my will, but this my former will to stand], any such pretended will to the contrary notwithstanding; yet nevertheless this clause, or any the like never so exactly penned, and although it do restrain the revocation but in circumstance and not altogether, is of no force or efficacy to fortify the former will against the second. (Elements of Com. Law Reg. 19.)

Second. If a will be once duly executed, and once an existing will in the hands of the testator, unless there be evidence of its having been canceled or otherwise revoked by the testator, the law presumes its continued existence to the time of his death. (Johnston v. Johnston, 1 Phillimore's R. 466. Jackson v. Betis, 9 Cow. R. 208. Irish v. Smith, 8 Serg. & Rawle's R. 573.)

Third. Only one signature of the testator is required, though the will may be written upon several sheets of paper; and if the testimonium clause refers to the preceding sheets as severally signed with the name, whereas he has signed at the end only, this will suffice if it appears to have been in fact intended to apply to the whole. And it is not essential to the validity of a will, that the different parts of it should be physically connected. It is sufficient if they are connected by their internal sense, or by a coherence and adaptation of facts. When the will is found written on several sheets of paper, and the last only is signed and attested, the presumption is that all of the sheets belong to the will. (Winsor v. Pratt, 5 J. B. Moore's R. 484. Same Case, 2 Broderip & Bing. R. 650. Marsh v. Marsh, 6 Jur. N. S. 380. Wykoff's Appeal, 12 Penn. R. 281. But vide In the Goods of West, 9 Jur. N. S. 1158. Cook v. Lambert, Ib. 258.)

Fourth. The testator must be qualified in respect to age, mental capacity and freedom from legal disability to make a will; and when his will is attested he must have mental knowledge and consciousness of the fact. Should he be in a state of insensibility at the moment of attestation, his will would be void. (Shires v. Glascock, 5 Salk. R. 688. Casson v. Dade, 1 Brown's Ch. R. 99. Doe v. Manifold, 1 Maule & Selw. R. 294. Tod v. Earl of Winchelsea, 1 Moore & Malk. R. 12. Hill v. Barge, 12 Ala. R. 687. Right v. Price, Doug. R. 241.)

Fifth. The will must be attested by competent witnesses ; that is, by persons who are not rendered imcompetent to give testimony, by reason of insanity, mental imbecility, or other legal

The statutes of some of the states define the qualification of the witnesses; but the rule is universal that they must be competent to give testimony at the time they subscribe their names as witnesses to the will.

Sixth. The rule that the will may be signed by the testator with his own hand, or, if he is not able to write his name, he may

make his mark, is general, and not limited to any country or state ; and, as in the case of the testator, so also a mark made by a witness to the will as his signature is a sufficient attestation. (2 Greenl. Ev.

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$ 677. 1 Redfield on Wills, 229-231, 233. Nickerson v. Buck, 12 Cush. R. 332, 341.)

Seventh. The subscribing witnesses to a will may testify their opinions in respect to the sanity of the testator; though other witnesses can speak only as to facts. This rule obtains in respect to the subscribing witnesses to a will, for the reason that the law has placed them around the testator to try, judge and determine whether he is competent to execute it. They may, therefore, give their opinions upon the capacity of the testator ex necessitate. (Pool v. Richardson, 3 Mass. R. 330. Chase v. Lincoln, Ib. 237. Buckminster v. Perry, 4 ib. 593.) Some writers have placed this distinction between the witnesses to a will and other unprofessional witnesses upon the ground that the testator has chosen these witnesses; but Mr. Redfield thinks a better reason may be found in the fact, that the statute only requires credible or competent witnesses, and that courts should not require more than the statute, or say that when the statute defines the requisites of a witness, he is not to be regarded as competent to testify to every point directly involved in the issue, whether the instrument is the will of the alleged testator or not. (1 Redfield on Wills, 140.) But whatever the reason for the distinction, it is generally agreed that the subscribing witnesses to the will are competent to express an opinion of the testator's apparent sanity at the time of execution. (Grant v. Thompson, 4 Conn. R. 203. De Witt v. Barley, 9 N. Y. R. 371. Bambler v. Tryon, 7 Serg. & Rawle’s R. 90, 92. Woyan v. Small, 11 ib. 141. Gibson v. Gibson, 9 Yerger's R. 329. Vanauken's Case, 2 Stock. Ch. R. 186, 192. Kinleside v. Harrison, 2 Phill. R. 523. Sheafe v. Rowe, 2 Lee's R. 415.)

Perhaps there are no other rules in respect to wills which may be regarded as of universal application. The foregoing are supposed to be applicable everywhere, as they seem to be recognized by both English and American courts, and there are probably no statutes contravening them in any of the states. In respect to the mode of revoking a will, the effect of admitting a will to probate, the number of attesting witnesses required to give validity to a will of lands, and many other matters connected with the execution of wills, there is no uniformity, although in many of the states a similar rule prevails on several points.

Another rule, however, may be named, which is well nigh, if not quite universal, viz.: that which holds that after the lapse of wirty

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