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Page:Popular Science Monthly Volume 24.djvu/544

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THE POPULAR SCIENCE MONTHLY.

nature of the paper, is bad (Harris's Estate, 1 Tuck., 293). Such questions as, "Will you witness my will?" or "I want you to witness my will," if addressed to both witnesses, are good (Van Hooser vs. Van Hooser, 5 N. Y. Surr., 365), but bad if addressed to only one of them (Rutherford vs. Rutherford, 1 Denio, 33).

Touching the question of the formalities of execution, a word on foreign wills is in place. All wills of residents of this State executed in foreign countries in accordance with the laws of the country where executed, but not in accordance with the law of New York, and all wills of foreigners executed in accordance with the law of their foreign domicile, if not also in accordance with the law of this State, who die leaving no property situated or which afterward comes here, are not admissible to probate, not because they are necessarily illegal, but because the statute-book declares this to be the law. The importance of this provision must particularly commend itself to the mind of every citizen intending to make a will, and contemplating a visit beyond the jurisdiction of his own domicile. Sometimes an action in the Supreme Court to establish such succeeds; but who can be found willing to unnecessarily involve his estate in litigation to ascertain the validity of a will when it can easily be avoided? The surrogate has certainly no power to admit such wills.

In concluding this discussion on the execution of a will, it may properly be said that the instrument must be fully completed before death that is, it must have been subscribed by the testator at its foot, in the presence of the witnesses, or the subscription so acknowledged; it must have been declared to them to be his last will and testament, and the witnesses must actually have signed it, at his request, for, if he die ere this is accomplished, there is no will (Vernon vs. Spencer, 3 Brad., 16). Simple as these statutory requirements are, the instances cited prove that even the question of execution is not free from serious snares. Yet a literal compliance with the formalities of the statute is not required, a substantial observance of them being sufficient (Coffin vs. Coffin, supra).

It is entirely possible to execute a will so as to be technically incontestable.

Touching the graver question as to preparing or drawing the will—in other words, considering its contents, whether its provisions offend the law or not—the scope of the inquiry broadens and becomes very comprehensive. It presupposes on the part of the draftsman a knowledge of the law as determined in unnumbered decisions adjudicated both in England and the United States. The common law, principles of international comity, and statute-books, all must be resorted to in answering the question. It assumes in the writer of the will an accurate and extended fund of information upon the subject of trusts, powers, and uses, and generally an intimate acquaintance with all the nice details relating to that great branch of jurisprudence—real estate.