rection for the reversion of a share, not vesting, "for the benefit of my other
heirs", the great-granddaughter of the testator was to be deemed of the "law-
ful issue" of her grandfather and therefore absolutely entitled to his share
and its capital. An adjudication construing a will does not bind the unborn
where they take by purchase directly from the testator, nor does it bind where
it is upon a question not necessary to the determination of the issues then
before the court. Harrison v. McAdam, 18.
2. Testamentary capacity. The will of a woman seventy years old, made in
Nov., 1900 and in conflict with her previously expressed intentions to give
her property to her crippled son, was refused probate where it appeared that
she, in Aug., 1900, was suffering from a tumor in her face accompanied by
symptoms of insanity, that she then had an unfounded delusion that she was
the subject of persecution, that, in Oct., 1900, she was stricken with paralysis
accompanied by progressive aphasia and by symptoms of paresis, which prac
tically never ceased, and that long after she had made her will she stated that
she had made none. Matter of Soden, 25.
3. Waiver of revocation of probate — Subscription of will by the witnesse3.
Waiver of issue and service of a citation to prove a will of personal prop
erty and consent that it be probated forthwith do not amount to a waiver of
the statutory right of a person interested to apply, within one year after the
recording of the decree admitting the will to probate, for a revocation thereof.
Probate will be revoked where a will written on a two-sheet printed form,
although executed by the testator and subscribed by the witnesses at the foot
of the first page, has on that page, at the end of the clause making disposi-
tions, the words "Continued on next page," and has on the third page nine
lines, creating two money legacies, written and signed by the testator and
shown to have been intended by him as a part of his will, for it cannot be held
that the witnesses subscribed at the physical end of the will as they are re-
quired to do by the statute. Matter of Albert, 61.
4. Cancellation of codicils.—A codicil to a will is cancelled within the mean-
ing and intent of the statute (2 R. S. m. p. 64, § 42) where the testator has
drawn across all its provisions, including the signature and attestation clause,
numerous cross-marks in lead pencil and has also written the word "can-
celled" in two places in the attestation clause and in another place the words
"April 19, 1895". A codicil to a will is cancelled within the meaning and in-
tent of said statute where its first clause only has several similar pencil marks
made by the testator and he has written and signed at the foot of the attesta-
tion clause the following: "Brooklyn April. The codicil in the within is
this day 20th. 1895 canceld for personal abuse and ungratefulness on her
part. Geo. Alger 203 12th St in the City of Brooklyn, N. Y.". Matter of
Alger, 143.
5. Testamentary capacity.- Where the owner of a small estate had long be-
fore her death made and signed a memorandum as to the disposition of her
estate giving all her property to her daughter in exclusion of her son and
the memorandum was such that if properly witnessed it would have been good
as a will, the surrogate admitted to probate a will of the testatrix whose terms
were the same as those of the memorandum, although she became unconscious
after signing the will and died on the next day, was so weak as to be unable
to assent to its terms when read to her or publish it as her will or request
the witnesses to sign it except by nodding assent to proper questions asked
her as to these matters, and could not have signed the will unless the executor
and draftsman of it and the memorandum had guided her hand. Matter of
Wilde, 149.
6. Bequest to a widow in lieu of dower and "all statutory allowances".
Her right to a distributive share. Where a testator dies leaving no minor
child but adult children and a widow and devises to her specific real estate in
lieu of dower" and also of all statutory allowances," she, if she elects to take
under the will, is not entitled to dower, and, in view of her necessary waiver
of "all statutory allowances," is not entitled to her quarantine nor to the ex
emptions of Code of Civil Procedure, section 2713, but need not waive her dis-
tributive share in the personalty. Where the testator subsequently directs the
balance of his property to vest in "the persons" entitled thereto by the Laws
of the State of New York, the widow is entitled under Code of Civil Procedure,
section 2732, to one-third of the personalty. Matter of Mersereau, 208.
7. Undue influence — Confirmatory declarations of the testator.-The will
of a testator, aged sixty years and long separated from his wife and married
daughter, made during his last illness and about three months before his death,
giving to his grandniece all his estate amounting to $6,400 as compensation to
her for nursing him during his last illness-consumption which during the
last five months of the disease assumed a serious form-sustained where he
was a man of strong mind, conducted his business affairs until a month be-
fore his death and there was no evidence of undue influence, the proof showing
merely an opportunity for the grandniece to exercise it. Statements which he
made to others, in one case nearly two years before his death, that he intended
to give his property to his grandniece, that his relatives did not care for him
and that he did not propose to leave them anything, are strongly confirmatory
of the will. Matter of Munger, 268.
8. Subscription by an illiterate.- If a testator is illiterate his subscription
of his will may be by a mark or symbol but it cannot be dispensed with. An
instrument, disposing of property, written in Italian by a New York notary
public, an Italian speaking English so imperfectly as to require an interpreter,
contained the clause: "The present will is not subscribed by the testator be-
cause he has stated that he is illiterate"; and the subsequent clause:
was read to the testator, and it is only signed by the witnesses and by me,
the notary", this course being in uniformity with the law of Italy in regard
to wills of illiterates. The only thing which could be claimed as a signature,
was a checkmark, such as people sometimes use to indicate that a document
is correct, occurring on the line after the above word "illiterate". The no-
tary stated that it was a mark made by the party to signify that he was in
fact illiterate. There was no evidence that the party made the mark as and
for his signature. Held, that the paper was not so executed by the testator as
to entitle it to be probated as a will. Matter of Beneventano, 272.
9. Legacy A general residuary clause controls a lapsed legacy.— Under a
will giving all a testator's residuary estate to his executors and directing them
to sell it and dispose of it to certain persons and also containing a final clause
directing the executors to divide all the rest, residue and remainder of said
proceeds equally among the children of his brother Oliver when they reached
majority, legacies to another brother and two sisters of the testator, which
lapsed because they died before he did, do not go to the next of kin but to the
children of Oliver as the provision in their favor is to be deemed a general
residuary clause. Matter of Woolley, 353.
10. Precatory words Sole devisee "desired" to make a gift out of his de-
vise.- Under a devise and bequest by a testatrix of all her estate to her son,
accompanied by the proviso "but out of this inheritance he is desired by his
mother to pay as soon after as possible that it comes into his ownership Five
hundred dollars ($500) to her grandniece", Ellie Clark, "recognizing in this
form the kindness bestowed upon your mother in her youth by her brother, the
grandfather of said Ellie Clark", the grandniece is entitled to the gift to her
as the above provisions are precatory words showing an intention to make it.
Matter of Copeland, 402.
11. When not republished by a codicil as of the date of the codicil.- Where
a testatrix executes a will in March, 1897, and another in September, 1897, and
in April, 1900, executes, on a separate sheet annexed to the March will, a
codicil, not referring to either will, and containing nothing more than appoint-
ment of a guardian for her grandchildren, invalid because their parents were
living and controlled the appointment, the codicil does not republish the March
will as of the date of the codicil. Matter of Trost, 404.
12. Execution - Publication — Viewing signature — Republication by codi
cil.— Where many circumstances attending the execution of a holographic will
and a holographic codicil, both having holographic attestation clauses, indi-
cated compliance with the statute of wills, the court admitted the papers to
probate although the subscribing witnesses testified, seven years after the
fact, that the testator neither subscribed the papers in their presence nor ac-
knowledged to them subscriptions, theretofore made, as made by him. No par-
ticular form of publication of a will is necessary. If the witnesses could have
seen the signature of the testator then legally they did see it. A codicil can-
not aid a will unless the will was duly executed. Matter of Carll, 471.
13. Republication of one insufficiently executed by codicils properly executed.
- Where a will, not signed by the testatrix at the end thereof, is accompanied
by codicils, duly executed, referring to the will and reaffirming it, the codicils
republish the will and they and it are the will of the testatrix. Matter of
Douglass, 609.
14. Determinable fee - Vesting.— A testatrix, after giving and devising by
the eighth clause of her will her residuary estate equally to her children, di
rected by the ninth clause thereof that if a child died during minority and
without descendants its share should pass to the surviving children and to the
descendants of those who died leaving descendants. She left three children,
George, Albert, and Frederick, and of these George died, and then Albert, both
minors, intestate and unmarried. Held, that the one-sixth interest in the es-
tate which passed from George, upon his death, to Albert vested absolutely
in Albert and was not subject to further devolution under the ninth clause
of the will. That Albert took this one-sixth interest from his mother and not
from George. Matter of Clark, 617.
15. Testamentary power of sale.- Where a testatrix devises, after all her
lawful debts are paid and discharged, to her sister the income for life of all
her real estate and subsequently gives one of her executors the management
and control of her real estate to sell and convey the same after her death, he
has power to sell it to pay her debts, as she must be deemed to have contem-
plated the possible or probable necessity for such a sale. Therefore a pro-
ceeding to sell it for that purpose under the statute cannot be maintained.
Code C. P., § 2759. Matter of Rowley, 622.
16. Remainder Vesting ·Devise to be construed, if possible, so as to
sustain it. The will of a testatrix, after giving a life estate in her farm to
her daughter Eunice, gave the remainder upon Eunice's death to her three
sons, but further provided that if any of them died without legal heirs the
farm should pass to the sons "who are living". A son of Eunice died after
her without issue and disposed of his share by will. Held, that he had a right
to do so, as the remainder vested absolutely upon the death of the life tenant,
Eunice, in her three sons. Where a testamentary provision is susceptible of
two constructions, a construction which would illegally suspend the power
of alienation should be rejected. Coon v. Coon, 693.
See Gift; Infants; Legacy; Promise; Trusts.
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