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Page:Popular Science Monthly Volume 24.djvu/540

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THE POPULAR SCIENCE MONTHLY.

page occurring in the middle of the will, it can not be sustained (Heady's Will, 15 Abb. Pr., N. S., 211).

Instances might be multiplied to illustrate the serious consequences resulting from ignorance, carelessness, stupidity, or forgetfulness in the execution and proof of wills, but these are sufficient to emphasize the necessity of intelligence, accuracy, and forethought in the matter. Returning to the discussion of execution:

1. The will must be in writing, and subscribed by the testator at the end.

Apparently this is plain and concise enough, and adapted to the comprehension of a child, yet a long list of expensive appeals attest to the difficulty experienced in solving the meaning of this phraseology. What is writing? What is a signature? Where is the end of a will? are questions which appellate courts have been called upon to determine. If a will be printed; if it be done by a type-writer; if it be executed wholly in lead-pencil, instead of ink; if the signature be by a mark, or if it be made by another at the request of and for the testator; if the signature, as in the case of the will of J. Kelly (supra), be not immediately at the foot of the instrument—these and similar inquiries call for an answer to the quœre, "Have the requirements of the statute been complied with?" It has already appeared that J. Kelly's will was not a will. The Court of Appeals, it is true, decided this case on other grounds than the single fact that the signature occurred before reaching the end of the document. Perhaps, if nothing of importance had followed the signature (McGuire vs. Kerr, 2 Brad., 244), the court would have sustained the decision of the General Term, and held the will to have been properly executed; but the fate of this instrument conclusively shows that it is not safe to tamper with a statute, and that the end of a will is at the end; in other words, the testator should have signed immediately above the witnesses, at the conclusion of the document.

Printed wills and wills executed by a type-writer have been held to be written within the meaning of the statute. On March 9, 1883, Judge York, at New Haven, Connecticut, admitted the will of James Willey, which was in type-writing, to probate, holding that the legal definition of writing included printing. The Supreme Court of Pennsylvania, in the case of Myers vs. Vanderbilt (1 Schuylkill Leg. Reg., 55), recently decided that ink was not essential, by recognizing as valid a will which was wholly written in lead-pencil and so subscribed. This agrees with the views of ex-Surrogate D. C. Calvin, of New York, who, in October, 1878, admitted the will of Henry J. Mann, otherwise and better known as the actor Montague, to probate. This will was written and signed wholly in pencil, upon a leaf torn from an ordinary diary or small memorandum-book, and was as follows:

 

"If anything happens to me, I make this my last will and testa-