Page:The American Cyclopædia (1879) Volume XVI.djvu/652

628 WILL WILLARD the will. The attestation must (with the ex- ception of a few states) be in the presence of the testator, but not necessarily in the same room, if he is so placed as to see the act ; and he must have sufficient possession of his senses to know and understand the act of attestation. If he is blind, and the will is read to him and the attestation stated to him in good faith, this is sufficient. Nor is it necessary that he should actually see the attestation if he might do so. The execution of the will must under some statutes be " published" in the presence of the witnesses ; which means that the testator must declare the instrument to be his will, or in some way inform the witnesses of this fact, when they attest it. And it has been held that the distinct acknowledgment or recognition by the testator of the will, in presence of the wit- nesses, is equivalent to a signing by him before them. As to revocation, the common law rule was, that a marriage and the birth of a child after the execution of a will revoked it ; and this rule has much force in this country now, although it is variously moditied by statute. So, too, it is a general rule that any children not mentioned in the will, or in any wise pro- vided for thereby, take the share of the estate which would come to them if the father had died intestate. By the statute of frauds, a will was effectually revoked by burning, cancelling, tearing, or obliterating, by the testator him- self, or in his presence and by his directions ; and it was not necessary that any witnesses should be present. In most, if not all the United States, the same rule prevails, and ex- tends to any voluntary destruction of the will, as it does now by statute in England. No mere intention or desire or even belief of revocation has the effect of revocation, without some act; but a very slight act, a little tearing, or burn- ing, or obliteration, will have this effect, if it is proved to have been done for the purpose and in the belief of cancellation. Whatever may be done, oven if it be the actual destruc- tion of the will, will not revoke it, unless the act bo done animo cancellandi. There- fore the testator must have sufficient mind to know what he does; and consequently, if he destroys it in a fit of insanity, or by mistake for another paper, or without knowing that what ho does will have the effect of cancella- tion, the will is not revoked. A will is always regarded, in the language of the law, as an am- bulatory instrument, or as going always with the testator, and as being open to amendment, variation, or destruction by him, at his own pleasure, during his life ; and a will is always revoked by a subsequent will incompatible with the prior will ; but if the subsequent will does not expressly revoke the former, the two may stand together so far as they are not inconsis- tent. A will once revoked, but not destroyed, may be given validity by a new attestation by witnesses, at the testator's request ; and this is called a republication. A codicil to a will may also have the effect of a republication, if the codicil is executed with the formalities re- quired in a will. The first principle in the con- struction of a will is to give effect to the in- tentions of the testator, disregarding so far as may be necessary any mere technical rules, such as are sometimes applied to other instru- ments. If clauses seem repugnant, they will be reconciled if possible ; but if that cannot be done, effect is given to the last clause, as expressing presumptively the last intention of the testator. Words and names are sometimes transposed, or even changed, where the ob- vious intention of the testator requires it. Thus "or" is not unfrequently read as "and." In one English case, not only was "all" changed into "any," but the phrase "without issue" was converted into its exact opposite, " leaving issue." But the intention on the face of the will must be clear to warrant such rulings. It has been said, in some cases, that all conditions in a will which act in restraint of marriage are absolutely void ; but a condition that a widow shall not marry, or shall not marry a certain person named, has in other cases been held good. It is indeed quite certain that an an- nuity or other provision for a wife, " as long as she shall remain my widow," is common, and would probably be regarded as valid by most of the courts of this country, if not by all. Still, clauses and provisions are not un- frequently declared to be void, because repug- nant to the principles or policy of the law. It is a familiar and well established rule, that while words of grant to a person without the words " and heirs " give to the grantee by deed only an estate for his own life, the same words in a will give to the devisee an estate in fee, because the law supplies the words of inheri- tance. (See LEGACY, PROBATE, &c.) WILL, a N. E. county of Illinois, bordering on Indiana, intersected by the Kankakee and Des Plaines rivers, which unite near its W. bor- der to form the Illinois; area, 828 6q. m.; pop. in 1870, 43,013. It has a level surface, consist- ing mostly of prairie land, and is extremely fertile. Fine building stone is found. It is traversed by the Illinois and Michigan canal, the Illinois Central, the Chicago and Alton, the Chicago, Rock Island, and Pacific, and the Chi- cago, Danville, and Yincennes railroads. The chief productions in 1870 were 197,282 bushels of wheat, 1,131,468 of Indian corn, 1,868,682 of oats, 44,568 of barley, 224,845 of potatoes, 1,397,805 Ibs. of butter, 62,442 of wool, and 106,196 tons of hay. There were 17,433 horses, 18,193 milch cow?, 24,506 other cattle, 16,409 sheep, and 21,475 swine; 9 manufactories of agricultural implements, 3 of bricks, 16 of car- riages and wagons, 4 of iron castings, 3 of ma- chinery, 12 of saddlery and harness, 1 of wool- lens, 9 flour mills, 2 tanneries, 4 breweries, and 3 planing mills. Capital, Joliet. WILLAMETTE RIVER. See OREGON. W ILLARI), Emma (HART), an American edu- cator, born in Berlin, Conn., Feb. 23, 1787, died in Troy, N. Y., April 15, 1870. At the