Commentaries on the Law of Wills: Embracing Execution, Interpretation and Administration, Including Those Rules of Real Property and Principles of Equity which Effect Testamentary Dispositions, with Full References to American and English Statutes and Decisions, and Also an Appendix Containing Forms and Precedents, and the Leading Wills Acts, Volume 2

Bender-Moss Company, 1918 - Wills - 2904 pages

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Page 846
... 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 ..... 936 .... 937 937 623. Husband or wife may consent to ...

Page 855
... limitation and of purchase .. 910. " Heirs ' as a word of limitation ..... 1332 1332 911. Rule does not apply where the limitation is to particular heirs ... 1334 912. The same subject : " Heirs " as meaning " children " . 1335 913 ...

Page 856
... limitation ...... 936. The same subject : Creation of estates generally : Limited to those recognized by law ... limitation or of purchase .... 1374 1375 1376 1377 1377 947. Creation of estates tail by implication : Gift over if devisee ...

Page 859
... Limitation over if first taker die under age or unmarried .... 1029. Executory interests in personalty ...... 1030 ... Limitations distinguished from conditions .... 1493 1039. The same subject ....... 1495 1040. Illegal or void ...

Page 860
... limitation ... 1526 1529 1065. Condition in restraint of remarriage of widow .. 1530 1066. Condition in restraint of ... Limiting or prohibiting conveyance to particular person or class : English decisions .... 1543 1074. The same ...

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Title Page

Table of Contents

Index

CHAPTER XXII	865

Die without issue English rule	866

Sec Page 573 Undue influence refers to mental coercion	867

Undue influence allied to coercion	868

Influence to be undue must destroy the free agency of testator	869

Undue influence is determined by effect produced not by means employed	871

Must not be remote	873

Influence resulting from kindness or affection is not wrongful	874

With reference to the statutes of distribution	1249

As to the date which determines who are included	1250

Who included in the term relatives or relations	1252

As to the date which determines who are included	1254

Who included in the term representatives or legal repre	1255

sentatives	1257

Who included in the term cousins	1260

Who included in the term family	1261

Advice argument flattery or persuasion alone does not estab lish undue influence	876

The same subject	878

How considered	879

Mental weakness in conjunction with other matters may raise suspicion of undue influence	880

A testator has the right to make an unequal disposition of his estate	881

An unjust will alone causes no presumption of undue influence	883

When provisions of an unjust will may be considered	884

Suspicious circumstances dehors the will are heightened by unjust provisions	885

Influence resulting from family relations	886

The same subject	888

Illicit relationship alone raises no presumption of undue influence	889

Contrary view	891

Page	892

Beneficiary directing execution of will	893

Influence although combined with opportunity and motive does not render will void	895

Parent and child	897

Some decisions hold that the law presumes undue influence	898

A suspicious circumstance to be considered	900

Slight evidence only may be required	902

Fraud and undue influence distinguished	904

Either may exist without the other	905

The same subject	906

Seo Page 601 Duress and undue influence distinguished	908

Forgery and mistake	909

Great latitude is allowed as to the character of evidence	910

Undue influence may be established by circumstantial evidence	911

Matters not establishing	913

Suspicious circumstances	914

Declarations of testator Conflict of authority	915

Declarations of testator not proof of facts stated	917

Undue influence	918

Declarations of testator as evidence of mental condition	920

The same subject	922

Will void in part only	923

Conspiracy	924

Not admissible in evidence	925

Presumption	927

May be shown by circumstances	928

Burden of proof on the issue of undue influence	929

Burden of proof	932

Requirements as to pleadings	934

RIGHTS OF HUSBAND WIFE AND CHILdren	935

Limitations upon testamentary power in general	936

Limitations because of public policy	937

General or specific consent	939

Nature and effect of consent	940

Antenuptial agreements	942

Statute of Frauds	944

What property rights may be affected	945

Postnuptial agreements	947

Agreements between husband and wife as limitations on testa mentary power	948

Rights of pretermitted children generally	949

Afterborn and posthumous children defined	950

The term children includes afterborn children	953

How expressed	955

Presumption that omission of children was unintentional	956

Conflict of authority	957

The same subject	958

Reason for conflicting decisions	960

Rights of adopted children	963

Law of Louisiana	965

CHAPTER XXIV	967

Legacies classified	968

Specific legacies not favored	969

General legacies defined	972

Specific legacies defined	974

As of the date of the will	976

Descriptive words	977

Money may be specifically bequeathed	978

Stocks bonds and securities	979

Insurance policies	981

Real estate	982

Distinction between specific and demonstrative legacies	984

Demonstrative legacies defined	985

Illustrations	987

Sources from which they may be directed to be paid	988

Annuities defined	989

Annuity and gift of income distinguished	991

Time when annuities are payable	993

From what source delinquent installments of an annuity may be collected	994

Interest on delinquent payments of an annuity	995

When allowed	996

Residuary devises and legacies defined	997

Lapsed and void legacies	1008

Residuary legacies abatement	1021

Legacies given for a valuable consideration	1027

Sec Page 701 Additional legacies given by codicil	1032

Order in which legacies are stated is immaterial	1033

Relationship of legatee to testator generally immaterial	1034

Devastavit by executor	1035

To make up share of a pretermitted heir	1036

CHAPTER XXVI	1038

Ademption defined	1039

Ademption and satisfaction distinguished	1041

The same subject	1043

Effect of ademption	1045

As to evidence of the testators intention	1046

The same subject	1047

Delivery by testator to legatee	1049

Ademption by loss or destruction of property specifically be queathed	1050

Ademption by alienation of property bequeathed	1052

Ademption by change in form of property bequeathed	1053

Conversion after testators death or while he is of unsound mind	1054

Ademption by fulfillment of purpose for which legacy was given	1055

Satisfaction of general legacies	1056

Presumptions	1058

No presumption that debt is for given	1060

Parol evidence of intention	1062

Exceptions to general rule	1064

Gifts and debts distin guished	1066

Meaning of in loco parentis	1068

Gift by parent to spouse of child	1070

General rule	1072

Slight differences between gift and legacy	1074

Exceptions to general rule	1075

Reason for presumption of satisfaction of legacy by advanced por tions	1076

Advancements value thereof and interest thereon	1077

Statutory regulations as to gifts and advancements	1078

Statutory regulations and pro visions of the will	1079

Parol declarations and other evidence	1080

Oral declarations By whom time when made and parties present	1083

Declarations against interest	1084

Effect of reacquiring ownership	1086

Effect of agreement to sell	1087

Effect of mortgage	1088

Realty directed to be converted into money	1089

CHAPTER XXVII	1091

Lapsed legacies and devises defined	1092

Distinguishing features	1093

Instances of lapsed legacies or devises	1094

Statutory regulations as to lapse	1095

Purpose of statutes	1098

Descendants rel atives and lapse	1099

Beneficiary dead when will is executed or dying before testator	1101

Conditional or contingent legacies or devises may lapse	1104

Legacy given to pay a debt owing to legatee	1105

Legacy of a debt owing testator	1106

Legacy charged upon real estate	1107

Contingent charges Exception differs from charge	1108

Legacy of proceeds of real estate	1110

Effect of failure of residuary devise or legacy	1111

Divorce will not cause a lapse	1112

Gifts to joint tenants and tenants in common	1113

Sec Page 768 Death of beneficiary before or after title vests	1114

Death of life tenant does not cause gift of remainder to lapse	1115

Testator may by provisions in his will prevent lapse	1117

Substituted legatees or devisees	1118

Words of inheritance	1119

Gift to beneficiary and his heirs	1120

Gift to beneficiary or his heirs	1122

Construing and as or and or as and	1123

To whom the benefit of lapsed legacies and devises accrues	1126

The same subject	1128

To whom the benefit of void legacies and devises accrues	1129

The same subject	1131

General rule as to lapsed or void legacies or devises	1132

CHAPTER XXVIII	1135

Common law rule	1136

Statutory changes	1137

Order in which property is resorted to for payment of debts	1138

Personal property of estate is primarily liable for debts and lega cies	1139

Direction in will that all debts and legacies be paid	1141

Construed if possible as referring to per sonalty	1143

Doubtful expressions	1144

Direction in will that executor pay all debts and legacies	1145

Presumption where testator knows the personalty is inadequate	1147

Waste of personalty by executor	1148

Personalty specifically bequeathed	1149

Common law rule as to debts secured by mortgage	1151

Expressions of intent	1152

Exceptions to rule	1153

Modern rule	1154

Effect of blending realty with personalt	1156

Effect of realty ged personalty being blended in the residuary Base	1157

Whether the charge is upon the devise or upon the devisee	1159

The same subject	1160

Limitations upon charges	1161

Charges following the land	1162

Marshaling of assets	1164

The same subject	1165

Widows right of dower	1166

Constructive or equitable conversion defined	1167

How expressed	1168

Time when conversion is considered to take place	1170

Effect of failure of purpose for which sale was directed	1172

Realty converted into personalty does not bar dower but other wise is distributed as personalty	1174

How effected	1175

CHAPTER XXIX	1177

Election defined	1178

Immaterial whether or not testator knew he did not own the prop erty disposed of	1180

Community property	1181

Where testator had only a partial interest in property devised	1182

Doctrine of election founded on equitable principles	1183

Nature of cases calling for election	1185

Manner in which intent to put widow to her election must be expressed	1186

The same subject	1188

No absolute rule	1189

Gifts in trust of life estates or of income	1192

Reasons for election immaterial	1195

Creditors can not force survivor to claim stat utory rights as against the will	1196

Court may make election for donee if he be alive but incapable of acting	1197

Acts constituting election	1198

Election made through ignorance fraud or mistake may be repudiated	1199

Election by estoppel	1200

Where the widow is executrix	1202

Effect of acceptance of benefits under will	1203

What law goverus election in case of conflict	1205

Waiver of dower includes claim of dower in lands conveyed by husband alone during coverture	1208

Beo Page 833 Rights of widow who elects to take under will as to intestate property	1209

Rights of widow as affected by debts of husband	1211

Rights of widow where property reverts to estate because of her remarriage	1212

Rights of widow	1213

Rights affected by widow electing against the will	1214

Where widow relinquishes life estate Doctrine of acceleration	1217

Effect on balance of will of election to take under the statute	1218

CHAPTER XXX	1220

Gifts to children who included	1222

The same subject	1224

Children en ventre sa mere	1226

When may take under will	1227

When may take under will	1231

Effect of marriage of parents of illegitimate child	1232

Illegitimate child as heir of the mother	1234

Adopted children how considered	1235

Strict rule	1237

Modern tendency	1238

Who included in the term heirs	1240

The same subject	1243

As to the date which determines who are included	1245

Who included in the term next of kin	1248

Neither husband nor wife is heir or next of kin of the other	1263

Effect of an illegal marriage	1265

Effect of divorce	1266

Directions by the testator as to division	1276

Effect of statutes to prevent lapse	1282

Where share	1288

American decisions	1311

Intention of testator	1313

Accrued interest of one survivor generally does not pass at his death to remaining survivors	1315

RULE IN SHELLEYS CASE 898 Rule in Shelleys Case defined	1317

Purpose of the rule	1319

Reasonableness of the rule	1320

A rule of law and property not of construction	1322

Circumstances under which the rule is applicable	1324

Limitation must be to heirs of first taker in their capacity as such heirs	1326

Effect of a limitation to the heirs of the heirs	1327

Estates in trust	1328

Where the remainder is vested or contingent	1329

Effect of words of limitation and of purchase	1332

Rule does not apply where the limitation is to particular heirs	1334

Heirs as meaning children	1335

Children as a word of purchase	1337

Children as a word of limitation	1339

Where the limitation is to issue or issue of the body	1341

Burden of proof	1342

CHAPTER XXXII	1345

The word heirs unnecessary	1346

Context may show intent to pass the fee	1349

Effect of use of word estate	1351

Effect of use of such words as property or real effects	1352

Effect of use of such words as forever absolutely or exclusively	1353

25 Where devisee is charged with payment of debts	1354

Devise of life estate with no gift over	1355

The same subject	1356

Where devise is limited to a life estate or power of disposition is restricted	1357

Gift over of what remains unexpended by devisee	1358

Where fee is devised rights of devisee can not be limited	1359

As to cutting down a devise in fee by subsequent provisions in the will	1360

The same subject	1361

Where the expressions are of doubtful meaning	1363

Statutory changes regarding words of limitation	1364

Creation of estates generally Limited to those recognized by law	1366

CHAPTER XXXIII	1367

As to personalty	1368

Effect of the statute de donis on conditional fees	1369

Converting estates tail to fees simple by fine or common recovery	1370

Statutory regulations	1371

Words sufficient to create an estate tail	1374

The same subject	1375

Statutory requirements	1376

Adding words of inheritance	1377

Gift over if devisee die without issue	1379

At common law meant indefinite failure of issue	1380

Statutory changes	1381

Referring to death of first devisee	1382

Referring to death of testator	1384

Children as a word of purchase	1385

Children as a word of limitation	1387

Rule in Wilds Case	1388

The same subject	1389

Will speaks as of date of testators death	1390

CHAPTER XXXIV	1392

Sec Page 957 Life estates defined	1393

Common law rule and statutory changes	1394

Words sufficient to create life estates	1395

Effect of the use of the word loan or lend	1396

Gift of rents issues profits income etc of land	1397

Gift of the right of use enjoyment and occupation	1399

Gift of a home on certain property	1400

Devise during widowhood or until marriage confers a life estate	1401

Creation of estates by implication	1402

Exceptions	1404

Creation of life estate by implication	1405

Devise to A upon death of B	1406

Gift over if first taker die without issue	1407

Where devise to first taker is a life estate	1409

Where devise to first taker is in fee	1410

Apparent devise of fee limited by additional provisions to a life estate	1411

Life estate coupled with absolute power of disposition	1413

Statutory regulations	1415

Life estate with limited power of disposition	1416

Where power of disposition is not exercised	1418

Money	1420

Gift of income of personal property	1421

Specific and general or residuary bequests distinguished	1423

Compelling security from life tenant of personalty	1425

Respective rights of life tenant and remainderman	1426

Extraordinary dividends from stock	1428

Massachusetts rule	1429

Kentucky rule	1430

CHAPTER XXXV	1431

Effect of expressions of contingency	1432

Where the contingency occurs during lifetime of testator	1434

Effect of intermediate gift of income of principal which is to pass	1441

The same subject	1447

Testamentary disposition of contingent and executory interests	1454

Contingent remainders must vest at termination of preceding	1460

Power of disposition in life tenant does not make remainder con	1466

Executory devises defined	1472

Seo Page 1023 Remainders and executory devises distinguished	1476

Effect on contingent remainder of termination of preceding estate	1477

Executory devise converted into remainder by change of circum stances	1478

Limitation over if first devisee die without issue	1479

The same subject	1480

Limitation over if first taker die under age or unmarried	1483

Executory interests in personalty	1484

Executory devises as affected by the rule as to perpetuities	1485

TESTAMENTARY GIFTS UPON CONDITION	1487

Conditions precedent and subsequent defined	1488

No particular language required to create a condition	1489

Examples of conditions precedent and subsequent	1490

General effect of conditions precedent	1491

General effect of conditions subsequent	1492

Construction favors conditions subsequent	1493

The same subject	1495

Illegal or void conditions	1496

Civil law rule	1497

Where conditions precedent are impossible of performance	1498

Statutory regulations	1499

Where conditions subsequent are impossible of performance	1500

Effect of accepting gift burdened with a condition of payment or the like	1502

Where no time specified	1504

Conditions as to occupation study and habits	1506

Conditions requiring residence at a certain place	1507

Conditions as to change of name	1509

Conditions affecting religious freedom	1510

Conditions against making claims against testators estate	1511

Conditions against contesting will	1512

Where annexed to gifts of personalty Doc trine of in terrorem	1514

Where probable cause for contest exists	1517

What amounts to a contest	1520

The same subject	1521

Conditions in restraint of marriage	1522

A limited restraint is valid	1523

Limited restraint	1524

Condition invalid if annexed to gift of per sonalty unless there is a gift over	1525

Words of condition or of limitation	1526

Intent of testator governs whether condition or limitation	1529

Condition in restraint of remarriage of widow	1530

Condition in restraint of remarriage of widower	1532

Conditions predicated upon divorce or separation	1533

The same subject	1534

Condition that beneficiary marry only with consent of certain persons	1537

The same subject	1539

General restraint upon alienation void	1541

English decisions	1543

American decisions	1545

Restraining alienation until donee reaches a certain age	1546

Restrictions on alienation do not follow the land	1547

CHAPTER XXXVIII	1549

of appointment	1550

Condition of forfeiture if beneficiary becomes insolvent	1552

Voluntary and involuntary assignments distinguished	1555

Inalienability of property and nonliability for debt secured through spendthrift trusts	1556

Devises in trust to defeat claims of creditors of beneficiaries	1557

English decisions	1560

American decisions	1562

Necessary incidents of spendthrift trusts	1564

Language sufficient to create a spendthrift trust	1566

PRECATORY AND SECRET TRUSTS	1569

Points to be considered in construing the effect of precatory	1576

No universal rule of construction	1582

Where words merely express motive for gift no trust is created	1588

Where trust is created	1594

The same subject	1600

Charitable trusts distinguished from private trusts	1606

Statutes of Charitable Uses of 43 Eliz ch 4	1613

Seo Page 1117 Restrictions on corporate holdings of land in the United States	1614

Statutory restrictions on gifts to charity as to amount and time of execution	1615

Purpose of statutes	1617

How value of estate is computed	1618

Charity in a legal sense defined	1619

Objects construed as not charitable	1622

Examples of charitable uses	1623

The same subject	1627

English rule	1628

American rule	1629

Religious and pious uses	1632

Churches	1634

Christian Science	1635

Christian associations for young men or women	1636

Home and foreign missions	1638

Hospitals	1640

Libraries	1641

Prohibition and temperance	1643

Womans suffrage	1644

Medals and prizes	1645

Rule as to perpetuities as affecting charitable gifts	1646

Where gift vests in the future	1648

Testamentary gifts to charity liberally construed	1649

Purpose of trust must not be so indefinite that chancery can not correct abuse	1651

Purpose of trust must be stated in will	1652

Uncertainty of objects of charitable trusts	1653

Corporations and voluntary associations as trustees	1656

Trustees may be rested with discretionary power of administra tion	1658

Statute of Limitations	1660

General American rule stated	1662

The same subject	1663

English rule where object or purpose of trust fails	1665

The same subject	1666

American authorities	1667

PERPETUITIES AND TRUSTS TO ACCUMULATE Sec Page 1156 Perpetuities defined	1669

Development of the rule against perpetuities	1670

Statement of the rule against perpetuities	1671

The same subject	1673

To what interests the rule applies	1674

Contingent and vested interests distinguished	1675

Provisions construed as of date of testators death	1677

Cases illustrating application of rule	1679

Time runs from date of testators death	1681

Effect of if void	1682

Effect of provisions violating rule against perpetuities	1683

Effect on preceding estates	1685

Effect on other estates	1686

Gifts to a class	1687

Accumulations defined	1689

The Thellusson Case	1690

The Thellusson Act	1691

Statutory regulations regarding accumulations	1692

Charities	1694

Effect of trust to accumulate for longer period than allowed by rule or statute	1696

TABLE OF CASES OF VOLUME TWo	1697

INDEX FOR VOLUME TWO	1785

Legacy or devise in exercise of a power of appointment 1031	1787

Where right to share in benefits depends upon an indefinite future	1792

Gift with limitation over in event of death of beneficiary 1267	1796

When word survivor is construed to mean other	1813

Where gift to survivors depends upon a con	1824

Copyright

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Commentaries on the Law of Wills: Embracing Execution ..., Volume 2
John E. Alexander
Full view - 1918

Commentaries on the Law of Wills: Embracing Execution, Interpretation and ...
John E. Alexander
No preview available - 2015

Commentaries on the Law of Wills: Embracing Execution, Interpretation and ...
John Edmundson Alexander
No preview available - 2015

Common terms and phrases

adeemed ademption Admr Allen annuity Appeal Attorney Beav beneficiary bequeathed bequest Brown charge charitable child Clark clause common law condition Conn construed contingency court create Davis debts dispose disposition dower effect estate tail executor executory devise expressed Exrs favor fee simple fund given H. L. Cas heirs held husband income intention interest intestacy Iowa issue Johnson Jones Kenaday L. J. Ch land lapse legacy or devise legatee limitation Mass Matter Misc Moore N. J. Eq N. Y. Supp Ohio St payment personalty precatory presumption provisions real estate realty References remainder remainderman residuary rule rule against perpetuities rule in Shelley's Smith specific legacy spendthrift trust Stat statute tate tator Tenn testamentary gift testator's death testatrix tion trust undue influence vested void widow wife words

Popular passages

Page 1087 - ... subsequently to the execution of a will of or relating to any real or personal estate therein comprised, except an act by which such will shall be revoked as aforesaid, shall prevent the operation of the will with respect to such estate or interest in such real or personal estate as the testator shall have power to dispose of by will at the time of his death.‎

Appears in 183 books from 1837-2006

Page 949 - When any testator omits to provide in his will for any of his children, or for the issue of any deceased child, unless it appears that such omission was intentional, such child, or the issue of such child, must have the same share in the estate of the testator as if he had died intestate, and succeeds thereto as provided in the preceding section.‎

Appears in 135 books from 1860-1999

Page 1455 - ... all contingent, executory, or other future interests in any real or personal estate, whether the testator may or may not be ascertained as the person or one of the persons in whom the same respectively may become vested, and whether he may be entitled thereto under the instrument by which the same respectively were created or under any disposition thereof by deed or will...‎

Appears in 150 books from 1834-2006

Page 1128 - ... unless a contrary intention shall appear by the will. XXV. And be it further enacted, That, unless a contrary intention shall appear by the will, such real estate or interest therein as shall be comprised or intended to be comprised in any devise in such will contained, which shall fail or be void by reason of the death of the devisee in the lifetime of the testator, or by reason of such devise being contrary to law or otherwise incapable of taking effect, shall be included in the residuary devise...‎

Appears in 175 books from 1832-2006

Page 1585 - ... in order to create a trust, it must appear that the words were intended by the testator to be imperative ; and when property is given absolutely and without restriction, a trust is not to be lightly imposed, upon mere words of recommendation and confidence.‎

Appears in 41 books from 1830-1992

Page 945 - ... liberally construed so as to give effect to the intention of the parties...‎

Appears in 42 books from 1847-2006

Page 1049 - And be it further enacted, that no conveyance or other Act made or done subsequently to the execution of a will of or relating to any real or personal estate therein comprised, except an Act by which such will shall be revoked...‎

Appears in 106 books from 1832-2000

Page 1620 - ... for the benefit of an indefinite number of persons, either by bringing their minds or hearts under the influence of education or religion, by relieving their bodies from disease, suffering or constraint, by assisting them to establish themselves in life, or by erecting or maintaining public buildings or works, or otherwise lessening the burdens of government.‎

Appears in 217 books from 1830-2008

Page 1167 - that nothing was better established than this principle, that money directed to be employed in the purchase of land, and land directed to be sold and turned into money, are to be considered as that species of property into which they are directed to be converted...‎

Appears in 157 books from 1813-2005

Page 1649 - They may, and indeed must, be for the benefit of an indefinite number of persons ; for if all the beneficiaries are personally designated, the trust lacks the essential element of indefiniteness, which is one characteristic of a legal charity.‎

Appears in 60 books from 1870-2007

Bibliographic information

Title	Commentaries on the Law of Wills: Embracing Execution, Interpretation and Administration, Including Those Rules of Real Property and Principles of Equity which Effect Testamentary Dispositions, with Full References to American and English Statutes and Decisions, and Also an Appendix ..., Volume 2 Commentaries on the Law of Wills: Embracing Execution, Interpretation and Administration, Including Those Rules of Real Property and Principles of Equity which Effect Testamentary Dispositions, with Full References to American and English Statutes and Decisions, and Also an Appendix Containing Forms and Precedents, and the Leading Wills Acts, John Edmundson Alexander
Author	John E. Alexander
Publisher	Bender-Moss Company, 1918
Length	2904 pages

Export Citation	BiBTeX EndNote RefMan

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