Ancient, Curious, and Famous WillsHarris, Virgil M. (Virgil McClure)
History
Ancient, Curious, and Famous Wills
Harris, Virgil M. (Virgil McClure)
Wills
“As stated by Mr. Remsen, ‘A will is an ex-parte document and is written
from one point of view; it is the expression of the wishes of the
testator regarding the work of a lifetime; upon its legality depends the
future happiness and welfare of the persons and objects most dear to the
testator; and whether viewed from a property or a family standpoint, it
is often the most important document a man of large or small means is
ever called upon to prepare.’
“How many are there, in this audience of a thousand bankers, who can
tell me the manner in which, under the laws of descent and distribution,
is to be divided an estate consisting of five thousand dollars in cash,
and real estate of the value of five thousand dollars, the testator
leaving a wife and two children?
“Unfortunately the idea prevails that a will is a very simple instrument
to prepare. Nothing in business life can be further from the truth; on
the contrary, a will may be, and usually is, the most intricate of all
legal documents. This is always true where there are gifts or devises
depending upon contingencies, or where trusts are created. A deed or a
contract may be changed; not so with a will, after the death of the
maker. Therefore, foresight in its preparation is imperative.
“There is a well-marked legal distinction between the words, heirs,
devisees, legatees, distributees, and legal representatives. Each of
these terms has a clear and well-defined signification. One who has the
preparation of wills must deal with the law against perpetuities. An
estate cannot be tied up for a longer period than ‘a life or lives in
being and twenty-one years thereafter.’ This is the general law of our
country. The law of dower and curtesy is by no means simple. The law of
vested and contingent remainders is a most intricate subject and
requires years of legal study to comprehend, and cannot be simplified.
The creation of life estates and trusts demands the most careful
inquiry. There are spendthrift provisions which are easier to break than
to prepare. The statute of uses cuts an important figure in testaments.
The provisions with reference to the powers of executors and trustees
are very comprehensive and must be framed with great care and
precision. The subject of joint tenants, and tenants by the entirety,
frequently requires the most profound consideration in the
interpretation of wills.
“I recently saw a decision of one of our highest courts, where a
testator gave a large sum of money by will to his wife ‘to hold, possess
and enjoy during her natural life’; at her death, the fund was to go to
a certain college. The widow promptly set about to ‘enjoy’ the fund by
spending it; the court held, and properly, that she had a right to do
so, and that the college got nothing. The will was improperly drawn. Had
it been stated that she might ‘enjoy the income,’ a different result
would have followed.
Public-domain text, read in full here on John Shaqi.
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