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Page:Popular Science Monthly Volume 24.djvu/543

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LAST WILLS AND TESTAMENTS.

Here, again, nice questions have arisen. What is a declaration that "this is my last will and testament "? Is it sufficient that the question be asked me and that I assent thereto by "yes" or a nod? If I say "This is my free will and deed," have I fulfilled the requirement, or must I use the precise words "This is my last will and testament"? These and kindred inquiries have perplexed the courts, and weary litigants have been forced to possess their souls in patience, awaiting the interpretation of blunders which could easily have been avoided in this particular of execution. The courts say it is not imperative that the word "declare" should be employed—I "acknowledge" this paper to be my last will and testament is enough (Seguine vs. Seguine, 2 Barb., 385). But a mere nod of assent to the inquiry, "Is this your last will and testament?" observed only by one of the persons present, is not enough (Burritt vs. Silliman, 16 Barb., 198), while an answer "yes" to the inquiry has been held sufficient (Coffin vs. Coffin, 23 N. Y., 9). To say "This is my free will and deed" is not good, for, as above appeared, the Court of Appeals has held that Thomas Lewis failed to acknowledge his will, although he used these particular words, and rejected his final testamentary disposition as a nullity. What apparently could be easier than to say "This is my last will and testament" at the proper time and under the proper circumstances? yet that many fail to either use these simple words, or to know the proprieties of time or circumstance, is shown by the foregoing cases.

4. There shall be at least two attesting witnesses, each of whom shall sign his name as a witness at the end of the will, at the request of the testator.

A will with but one witness is bad on its face—it is no will; it is a plain failure to observe an all-important formality, but questions "What is a signing by a witness?" "Where is the end of a will?" and "What constitutes a testator's request?" have been before the courts for determination. To answer the first two inquiries briefly, it is enough to state that the same rules which apply to the testator's signature and to the place of his subscription apply with equal force to witnesses. A witness's mark is good (Meehan vs. Rourke, 2 Brad., 385; Morris vs. Kniffen, 37 Barb., 336), and he should sign after the testator, immediately at the conclusion of the instrument. Concerning the third "inquiry" as to the request, some contrariety of opinion has existed as to what shall be deemed sufficient. The following cases are in point:

A request may be implied; it need not be in express terms, as, if the testatrix be told in the presence of the witnesses that they have come to witness her will, and she then bow assent and they sign it, it is a request (Brown vs. De Selding, 4 Sand., 10; Peck vs. Carey, 27 N. Y., 9). Handing a will to the witnesses, at the same time evincing a desire to have them sign it, is enough (Gamble vs. Gamble, 39 Barb., 373). But a mere request to sign, without in some way disclosing the