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ments must be denied probate. Due execution is one of the first and essential proofs which the proponent must make. Where a will offered for probate is attacked as a forgery, the burden of proving that the instrument is genuine is upon the proponent. The burden of proving that the will was in fact duly signed by the testator rests upon the proponent throughout the proceedings whether the issue of forgery is or is not raised.? A slight preponderance of the evidence is sufficient to establish the fact of the due execution of a will where forgery has been alleged, and it is error for the court to charge the jury, that it must be proved by any greater preponderance than ordinarily obtains in civil cases. Again, however, the decisions are not harmonious, and it has been held that the forgery must be established by the contestant. Thus, in all civil cases involving a charge of criminality, like forgery, the rule of proof is not so strong as in a criminal prosecution; and for the contestant in a will case to recover on a charge of forgery, he is not compelled to prove the forgery beyond a reasonable doubt, but a fair preponderance of evidence has been held to be required.“

I Griffin v. Working Women's In case of a holographic will the Home Assn., 151 Ala. 597, 44 So. burden of proof is on the party 605; Mobley v. Lyon, 134 Ga. 125, presenting it for probate to show 137 Am. St. Rep. 213, 19 Ann. Cas. the actual delivery to him of the 1004, 67 S. E. 668; Beebe v. Mc- will where a mysterious or Faul, 125 Iowa 514, 101 N. W. 267; natural manner is indicated.-SucSuccession of Gaines, 38 La. Ann. cession of Gaines, 38 La. Ann. 123. 123; Green v. Hewett, 54 Tex. Civ. 3 Beebe v. McFaul, 125 Iowa 514, App. 534, 118 S. W. 170; Kennedy 101 N. W. 267; McBee v. Bowman,

. Upshaw, 66 Tex. 442, 1 S. W. 89 Tenn. 132, 14 S. W. 481. 308. See, also, McBee v. Bowman, 4 McDonald V. McDonald, 142 89 Tenn, 132, 14 S. W. 481.

Ind. 55, 41 N. E. 336. 2 Matter of Burtis' Will, 43 Misc. In a suit to have a holographic Rep. (N. Y.) 437, 89 N. Y. Supp. will decreed null on the ground 441.

that it has been forged, the

un

5

§ 619. Requirements as to Pleadings.

Where objection is made to the probate of a will on the ground of duress, menace, fraud or undue influence, the facts constituting it should be stated so that the court may determine whether these facts constitute in law the result alleged. A general statement that undue influence was exercised over the testator, or that the will was the result of duress, menace or fraud, is not sufficient. Such matters are not ultimate facts, but a conclusion of law to be drawn from the facts. The facts relied upon, not the evidence of such facts, must be stated. It can not be expected that a pleading specify in detail the manner in which the execution of the will was wrongfully procured since “men love darkness rather than light because their deeds are evil.”? If the ultimate facts are alleged from which the legal conclusions fairly follow, it is sufficient.8 weight of the testimony to justify 6 Sheppard v. Kendall, 149 Cal. a judgment annulling the will 219, 85 Pac. 312, 313. should make it appear clearly, di- 7 Piercy v. Piercy, 18 Cal. App. rectly, and positively that the will 751, 761, 124 Pac. 561. is a forged paper.-Barlaw v. Har. 8 Estate of Gharky, 57 Cal. 274, rison, 51 La. Ann. 875, 25 So. 378. 279; Estate of Sheppard, 149 Cal.

5 Myers' Estate, Myrick's Prob. 219, 85 Pac. 312; Murphy v. Nett, (Cal.) 205. See, also, Taylor v. 47 Mont. 38, 130 Pac. 451, 453. Nuttle, 62 Md. 342.

CHAPTER XXIII.

RIGHTS OF HUSBAND, WIFE AND CHILDREN.

$ 620. Limitations upon testamentary power, in general. $ 621. Limitations because of public policy. $ 622. Rights of husband or wife as limiting the testamentary

power of the other. $ 623. Husband or wife may consent to the will of the other:

General or specific consent. $ 624. The same subject: Nature and effect of consent. $ 625. Antenuptial agreements. $626. The same subject: Statute of Frauds. $627. The same subject: What property rights may be affected. $628Postnuptial agreements. $ 629. Agreements between husband and wife as limitations on

testamentary power. $630. Rights of pretermitted children generally. $ 631. After-born and posthumous children defined. $ 632. Rights of after-born and posthumous children. $ 633. The term “children" includes after-born children. $ 634. Object of statutes providing for children omitted from

will. $ 635. Intent to omit children from will: How expressed. § 636. Presumption that omission of children was unintentional. $ 637. Parol evidence as to intention of testator to omit child

from will: Conflict of authority. $638. The same subject. § 639. The same subject: Reason for conflicting decisions. $ 640. Remedies of pretermitted heirs. $ 641. Rights of adopted children. $ 642. Rights of illegitimate children. $ 643. Forced heirs : Law of Louisiana. $ 644. Nature of ownership of forced heirs.

8 620. Limitations Upon Testamentary Power, in General.

The power of making a testamentary disposition of property is not a natural right. The extent of its exercise depends upon the will of the legislature, and may be subjected to such burdens and limitations as the legislature may deem advisable. Legislatures generally have seen fit to impose various limitations upon the power of making testamentary dispositions of property wherever it has appeared that too great latitude might prove injurious to the demands of the state or the rights of individuals. This does not prevent a testator from making an unjust, unwise or unreasonable will if the maker possesses testamentary capacity, and the will is executed according to the required formalities and does not contravene any limitation of the statute or policy of the law.2

Provisions limiting the right to dispose of the homestead or of an estate valued at less than a fixed amount, or the right of a husband or wife to devise or bequeath property in which the law gives the other an interest, are instances of limitations fixed by legislation upon the power of testamentary disposition. Also the legislatures have placed general restraints on alienation, have protected the rights of husband, wife and children, have laid

1 In re Beck's Estate, 44 Mont. 2 Estate of Hayes, 55 Colo. 340, 561, 121 Pac. 784, 1057; Matter of Ann, Cas. 1914C, 531, 135 Pac. 449. White, 208 N. Y. 64, Ann. Cas. See, ante, $$ 354, 355. 19140, 75, 46 L. R. A. (N. S.) 714, 3 Sulzberger v. Sulzberger, 50 101 N. E. 793.

Cal. 385; Estate of Walkerly, 108 The legislature has the exclu- Cal. 627, 653, 49 Am. St. Rep. 97, sive power to designate those 41 Pac. 772; Estate of Miller, 158 whom the testator may make the Cal. 420, 111 Pac. 255, 258. objects of his bounty.-Beck's Es. See, ante, $ $ 251-254, 310, as to tate, 44 Mont. 561, 121 Pac. 784, community property, and rights of 1057.

dower, curtesy and homestead.

down rules against perpetuities and accumulations, have enacted statutes of mortmain, and have limited devises to charities and charitable uses.

8 621. Limitations Because of Public Policy.

Limitations have, from time to time, been imposed by the judiciary wherever testamentary provisions have contravened the general policy of the law. For example, devises for an illegal purpose, as to promote the separation of husband and wife, can not take effect according to the intent of the testator. Under the Louisiana code a devise to the testator's concubine is void. So, too, devises operating in general restraint of marriage are declared invalid. On the other hand, in order to carry out the intention of the testator so far as it may legally be done, equity has evolved the doctrine of cypres, a principle of equitable construction which substitutes the nearest feasible condition or purpose for an impossible one.

8 622. Rights of Husband or Wife as Limiting the Testamen

tary Power of the other.

In some jurisdictions the husband may make a testamentary disposition of his personal property, and the surviving wife has no right or interest therein as against the

4 Cary v. Abbot, 7 Ves. Jun. 490; Habershon v. Vardon, 7 Eng. L. & Eq. 228; Conrad v. Long, 33 Mich. 78.

A legacy upon a condition that it shall be valid only if the legatee's wife be dead or divorced does not come within the rule which invalidates gifts based upon

a future separation of the husband and wife.-In re Gunning's Estate, 234 Pa. St. 139, 49 L. R. A. (N. S.) 637, 83 Atl. 60.

5 Gibson v. Dooley, 32 La. Ann. 959.

As to illicit relationship and undue influence, see $$ 590-59

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