8. A soldier, before being ordered into the sessed finality. Adams v. Field, 21 Vt. 256. enemy's country, made a paper intended as, 41 Vt. 98. and in substance, a will, but not executed with 12. A will need not be signed in the presthe requisite formalities of an ordinary will. ence of the attesting witnesses; but if signed, Afterwards, while in the enemy's country and and the testator declares the instrument to be in "actual military service," he wrote a letter his will before the three witnesses, this is to the custodian of the paper, in which letter he equivalent to signing it before them, and satisreferred to the paper as his will, and explained fies the statute in respect to signing. Ib. So, if, a particular bequest in it. Held (Barrett, J., in such case, he declares it to be "his will, or his dissenting), that the paper and the letter should instrument." Roberts v. Welsh, 46 Vt. 164. be considered and treated as one instrument- 13. Publication. A formal publication of the letter as giving a testamentary operation to a will is not necessary. Writing and signing the paper, and as together constituting a valid the will is a sufficient publication; indeed, any soldier's will. Ib. act of the testator, by which he designates that 9. A soldier of the army of the Potomac, he means to give effect to the paper as his will, moving from Virginia to Maryland to protect is a publication. Dean v. Dean, 27 Vt. 746. Washington and Baltimore from an expected 14. Witness and witnessing. The perinvasion of the enemy, fell sick on the march son named as executor in a will, but who takes near Washington and was ordered to fall out no benefit under it, is a "credible" attesting and to come on when he got rested; and, con- witness, and competent to prove its execution. tinuing sick, he was ordered into a temporary Richardson v. Richardson, 35 Vt. 238. hospital, where he died. Held, that he was 15. A person to become an attesting wit "a soldier in actual military service," and was ness to a will must be aware of the character of on an expedition; and when, in such case, being the act he is called upon to perform, and must in extremis from sickness, he told a comrade, subscribe his name animo testandi. Where the animo testandi, how he wanted his personal witness did not know that the testator had estate disposed of, held, that this was a signed the will, and did not know what the good soldier's will." Gould v. Safford, 39 Vt. paper was that he was attesting, nor for what purpose he was attesting it;-Held, that this 10. A "soldier's will" may be established by was not a legal attestation. Roberts v. Welsh, the testimony of a single witness. 498. Ib. II. EXECUTION: REVOCATION. 11. Signing. A will commenced, I, 46 Vt. 164. 16. It is not necessary to the due execution of a will, that all the attesting witnesses should actually see each other sign it. If the situation of the parties--as, where they were all in the Samuel Adams," &c., "do hereby make this same room--was such as that the testator might my last will and testament." The testimonium have seen the attestation, and each of the witclause was: "In testimony whereof I have nesses might have seen the attestation of his hereunto set my hand," "and publish and associates, this is sufficient as an attestation declare," &c. Then followed: "Signed, in the presence of the testator and of each sealed, published and declared by the said other." Blanchard v. Blanchard, 32 Vt. 62. Samuel Adams as his last will and testa- 17. A will, after being signed, was duly ment," &c. The whole was in the handwrit-attested and subscribed by two witnesses, when ing of the testator, except the signature of the another person was brought in from without, witnesses, but was written by parts, or portions, to serve as a third witness. The testator with different pens and ink, and at different acknowledged to him his signature and requesttimes, and the name of the testator was not ed him to sign as a witness, and the other two subscribed, or written at the foot of the will. It witnesses also acknowledged to him their signawas objected that the will was not "signed by tures; whereupon he added his name as a third the testator," as required by the statute. But, witness. Held, that the will was not "attested it appearing that the testator produced the and subscribed by three or more credible witinstrument to the three subscribing witnesses, nesses, in the presence of the testator, and of and declared it to be his will in their presence, each other," so as to satisfy the statute. John and requested them to witness the same as his Pope's Will. Orleans Co., General Term, 1864. will, and that they did duly subscribe it as such Opinion by Aldis, J. witnesses;-Held, that the signing of the will 18. Revocation. In this State, under our in the beginning of it was a sufficient signing statute, no will can be revoked, in whole or in to satisfy the statute, if so intended; and that part, except in the way pointed out by the statsuch publishing of the will to the witnesses was, ute, unless by implication from the necessity of to all intents and purposes, an adoption of the case. Where the testator has aliened the such signature as was then affixed to the will, devised estate and there is nothing for the will and the will then became complete, and pos- to operate upon, so far it is revoked; if the whole devised estate be aliened, the will is always to go with that part of the will which wholly revoked; if a part only, it is revoked contained the disposition of the property, not pro tanto; but no alteration in the circumstan- indeed on the face, but on the back of such ces of the testator will amount to a revocation; disposition, was an act of cancelling, under the as, the purchase of other lands, &c. Graves v. statute, and the intent of the act was decisively Sheldon, 2 D. Chip. 71. Blandin v. Blandin, manifested by the terms of the writing, and Warner v. 9 Vt. 210. Parkhill v. Parkhill, Brayt. 239. that the will was thereby revoked. 19. A disposition in the codicil of a will, Warner, 37 Vt. 356. inconsistent with the former bequest, operates 24. Republication. A will revoked, as by pro tanto as a revocation implied, and the prop-cancelling, cannot be restored to its original erty will pass as last appointed. (See case for vitality and force by mere words, under a claim illustration.) Larrabee v. Larrabee, 28 Vt. of republication. In such cases we have no wills at, or by force of, common or ecclesiastical law, 274. 20. The rule that the marriage of a woman but only by statute. revoked her will before made, rested for its Ib. MENT. 25. Attestation clause informal. The reason on the fact that, by virtue of the hus- III. PROBATE OF WILLS-PROOF; IMPEACHband's marital rights the woman, becoming covert, became thereby disabled to dispose of the property named in the will, and so the will ceased to be ambulatory. In this case, as con- due execution and attestation of a will may be siderable of the property disposed of by the will proved, although the attestation clause be inforremained in the testatrix, unaffected upon her mal, or wholly omitted. Dean v. Dean, 27 death by any marital rights of the husband;-Vt. 746. Held, that the will was entitled to probate. 26. Witness deceased. Where a subscrib (The point whether such marriage in any case ing witness to a will has deceased, his handwould operate as a revocation was not decided.) writing may be proved as evidence of his attesMorton v. Onion, 45 Vt. 145. See Carey's tation. Ib. Extate, 49 Vt. 236. 21. If a testator executes his will and it is not found after his decease, such absence of the will amounts, prima facie, to proof of revocation. But this is but a presumption of fact, and may be rebutted and the will established ;-as, in this case, by "a paper found to be a true form and representation of the will," or a copy. Minkler v. Minkler, 14 Vt. 125. Dudley v. Wardner, 41 Vt. 59. 27. Copy. A will may be proved by a copy, the original being lost or destroyed. Dudley v. Wardner, 41 Vt. 59. Minkler v. Minkler, 14 Vt. 125. 28. Measure of proof. A fair balance of testimony is all that is necessary to prove the due execution of a will. Dean v. Dean, 27 Vt. 746. Thornton v. Thornton, 39 Vt. 122. 29. Proponent must produce and examine all the attesting witnesses. 22. Revocation prevented by fraud. Where the establishment of a will is contested, An intent or attempt to revoke a will, although the proponent must not only produce but must prevented by fraud, does not operate as a revo-examine all the three competent attesting witcation. By Bennett, J.: In such case, it may nesses, if within reach of process and obtainable, be quite probable that a court of equity would as to the fact of execution. This is the rule of interfere to prevent the guilty person from tak- the English court of chancery when a will is ing advantage of his own fraud, and to restore sought to be established, and is founded upon the fund to the channel from which it was reasons of policy and caution, and is adopted diverted by the fraud. Blanchard v. Blanch-here, instead of the rule of the English common law and ecclesiastical courts. Ib. ard, 32 Vt. 62. 30. This rule has no reference to the measure 23. Cancelling. One made his will in his own handwriting in 1857, writing it upon a of proof necessary to establish a will, which is sheet of foolscap paper and covering the first a measure no greater than is usually required to page and about one-third of the second page. establish a fact; and although a will cannot be The paper, when produced, had, upon the last established without the evidence of the attesthalf of the second page, the following words in ing witnesses, if obtainable, it may be estabthe handwriting of the testator: "This will is lished against the combined testimony of them hereby cancelled and annulled. In full this all, by proof from others. Ib. Adams v. Field, 15th day of March, in the year 1859;" and 21 Vt. 256. 31. May impeach them. The rule that several lines lower down upon the same page were the following words, erased: "In testi- a party shall not impeach his own witness, does mony whereof I here I have." Held (Kellogg, not apply to the case of instrumental witnesses J., dissenting), that the act of the testator being whom the law obliges the party to call and done, not only upon the paper on which the examine-as, the attesting witnesses of a will; will was written but upon such a part of it as and such witness may be impeached by the pro ponent calling him, by proving his previousness," was objectionable. Fairchild v. Bas 41. On the question of the mental capacity 32. There is no weight given by law to the of a testator, the opinion of a physician accustestimony of an attesting witness to a will, tomed to attend upon such cases to their termapart from or beyond what it would be entitled ination is admissible, as to whether and to to under those considerations which usually what extent "pulmonary disease, nervous govern the value of testimony-as, his oppor- derangement and general debility" would, in tunity for observation, his skill and care in the progress of the disease as indicated by other observing, his intelligence and powers of dis- physical facts, stated hypothetically, impair the cernment and memory. It has no fictitious mental powers at two hours before death [the official weight. time of executing the will.] Ib. Ib. 42. The declarations of a testator, made after the execution of the will, that he was induced to make it by undue influence, are not 33. Burden of proof. The burden is upon the proponent of a will to establish all those facts which the statute requires in order to impress upon the instrument a testamentary admissible to prove such fact. Robinson v. character. Roberts v. Welch, 46 Vt. 164. 34. Dictum. That a testator was of sound and disposing mind is a legal presumption. It is for those who object to the will to show incapacity if it exists. Isham, J., in Dean v. Dean, 27 Vt. 746. Robinson v. Hutchinson, 26 Vt. 45. Held contra, infra, 35. Hutchinson, 26 Vt. 38. Richardson v. Richardson, 35 Vt. 238. 43. But declarations of this character made about the time of the execution of the will, either before or after, which tend to show the state of mind of the testator at the time of the execution, are evidence for that purpose. Robinson v. Hutchinson. 35. The burden is on the proponent of a will to prove its due execution and the capacity 44. On the question of the mental capacity of the testator, and such capacity is not to be of a testatrix and undue influence;-Held, presumed from the fact of execution. Williams that it was competent for the contestants to v. Robinson, 42 Vt. 658. 46 Vt. 168. show that she had brothers and sisters not pro 36. A charge that the burden of proof of vided for in the will, who were known to her the incompetency of the testator rested upon to be poor and for whom she cherished affecthe contestant, was held erroneous, and judg- tion; also that the sole legatee, her brother, ment reversed. Ib. was known to her to be intemperate. Fairchild v. Bascomb, 35 Vt. 398. 37. There is no presumption in favor of a will; and the burden of proving everything 45. Where the probate of a will was conessential to its validity rests upon the pro- tested on the ground of incapacity and undue ponent, whether any one appears to contest the influence :-Held, that drafts of previous wills probate of the will or not, and, if contested, made by direction of the testator, though not whatever the special issues formed by the plead- executed, were evidence of previous intentions ings; for the judgment is conclusive upon all to be considered, and threw "very considerable the world, and the rights of persons not appear-light" upon the question of the testator's intening upon the record, cannot be conceded away tions as to the will on trial. Thornton v. Thornby the parties of record. Ib. 38. Plea. A plea that "said instrument ought not to be admitted to probate because the same is not entitled to probate as the last will," &c., states no fact, but only a conclusion, opinion or inference. Held bad on demurrer. Dudley v. Wardner, 41 Vt. 59. ton, 39 Vt. 122. 46. Where the probate of a will was contested on the ground of the mental incapacity of the testatrix, and of undue influence by the person named as executor, who was also a legatee in the will, though not the sole legatee, and was seeking to establish it ;-Held, that his declarations, made four years before the execution of the will, to the effect that the testatrix was of unsound mind, were admissible in behalf of the contestants, both on the ground that he 40. Evidence. In calling for the opinion was a party of record and in interest, and of a witness as to the mental capacity of a tes- because he was charged with the exercise of tator, the question should be so framed as to undue influence; and this, although he had a require him to state the measure of the testa-greater interest in defeating the will than in tor's capacity in his own language, and by such sustaining it. Robinson v. Hutchinson, 31 Vt. ordinary terms or forms of expression as will 443. 39. Question of capacity. The capacity of a testator, as also fraud or circumvention in procuring the will, may be tried by issue to the jury. Minard v. Minard, Brayt. 231. best convey his own ideas of the matter-to 47. Where a will was contested on the state it"in the best way he can." Held, that ground of incapacity, and undue influence the question whether the testator possessed employed by the sole legatee;-Held, that his sufficient mental capacity "to transact busi-statements, known by him to be false, as to the execution and contents of the will, were admis- [paid to their minister forever," is a bequest to sible for the contestants. Fairchild v. Bas- the society. Ib. comb, 35 Vt. 398. 57. A bequest "to the treasurer for the time 48. Foreign will. A will made and being of the American Bible Society formed in approved in another State, devising lands in New York in the year 1816, for the use and this State, cannot be read as evidence of title purposes of said society," and sundry like in the courts of this State, unless a copy bequests to charitable societies, not incorporaof such will and probate has been filed and ted, were (by a majority) held good, and were recorded in the probate court of this State; enforced against the heirs in chancery. Burr or, unless originally probated in this State. v. Smith, 7 Vt. 241. (G. S. c. 49, ss. 20, 21.) Ives v. Allyn, 12 Vt. 589. 49. But, as the title vests from the death of the devisor, the will may be read in evidence, if so filed and recorded at any time before the trial. S. C. 13 Vt. 629. 58. to devisee by description. A devisee, whether a corporation or a natural person, may be designated by description, as well as by name. It is only necessary that the description of the devisee be by words that are sufficient to denote the person meant by the 50. The jurisdiction of a foreign court in testator, and to distinguish him from all admitting a will to probate will be presumed, other persons. Button v. Am. Tract Soc'y, until the contrary appears, where the will and 23 Vt. 336. McAllister v. McAllister, 46 Vt. foreign probate have been allowed by the pro- 272. bate court in this State. 32 Vt. 183. Townsend v. Downer, 59. Evidence to identify devisee, &c. 51. The decree of the probate court allow-American home mission tract society for our ing a foreign will, proved abroad, cannot be western mission." There was no society of collaterally impeached by objections to the that name, but there were two charitable socieauthentication of the foreign probate. Such ties, one well known by the name of the Ameriobjection must be taken in the probate court. can Tract Society, the other by the name of the Ib. American Home Missionary Society. In order 52. Ancient will. Where both parties to determine the devisee intended, evidence was claimed under the same devisee in a will, and received that the testator was acquainted with possession had been had under such devisee, the objects and operations of the American and the will was ancient [made in 1774, and the Tract Society; that those operations were trial in 1842], the court said: "We see no mainly confined to the western States and were objection to the reception of the will as evi- there conducted through the agency of colpordence, whether duly proved or not." Giddings teurs, or missionaries; that the testator took a v. Smith, 15 Vt. 344. IV. VALIDITY; CONSTRUCTION; EFFECT. lively interest in that society, contributed to its funds in his lifetime, and expressed his preference for it over other charitable institutions; and upon such evidence, considered in connec53. Chancery jurisdiction. Probate of tion with the terms used in the will;-Held, the will of an infant, procured by the willful that the American Tract Society was intended. suppression of the fact of infancy and other Button v. Am. Tract Soc'y. fraud of the legatee, was set aside in chancery 60. After making certain bequests, the teson bill brought by the heir at law--the bill tator devised the residue of his property to praying and the case requiring an injunction. "The Methodist Episcopal Mission at Bombay." Goodell v. Pike, 40 Vt. 319. No person, corporation, or society, known by 54. In the case of Mead v. Heirs of Lang- that specific name, ever existed; and no such don, decided in Washington County in 1834, mission was located at Bombay. The testator, and never reported, this court [in chancery] set who had never been able, from defective eyeup and decreed the payment of legacies given sight, to read or write, had for a long time been in a will never proved in the probate court, a devoted member of the Methodist Episcopal but which had been suppressed by those inter-Church, and, as such, had been acquainted ested in the estate, and administration had been with, interested in, and a contributor to, the obtained without regard to the will. Adams v. work of missions as carried on by that church Adams, 22 Vt. 59. in foreign lands, and especially in India. That 55. Bequest to voluntary association. church distributed its contributions for misA voluntary association or society for religious sions, domestic and foreign, through a regupurposes may, under the constitution and laws larly incorporated society denominated, "The of this State, receive and hold a legacy. Smith Missionary Society of the Methodist Episcopal v. Nelson, 18 Vt. 511. Church." That society, several years before 56. A bequest to an unincorporated religious the making of that bequest, had established a society, "the interest thereof to be annually mission in India, which was among the largest and most prosperous of its foreign missions. by act of congress. McAllister v. McAllister, The missionaries sent out by the society to this 46 Vt. 272. field of labor landed at Bombay, and in return- 64. Evidence to explain. In the case of ing home sailed from Bombay, though the cen- an imperfect designation of the devisee in a ter of the operations of this mission was estab-will, where the description was partly applic lished at Lucknow, whence the missionaries able to either one of two, testimony of the went forth itinerating over a vast area peopled scrivener who drew the will, as to the instrucby millions of inhabitants. Held, that the tions and description given him by the testator, legatee was sufficiently indicated by the des- was held not admissible to prove the devisee cription given; that the gift was to said Mis- intended. Button v. Am. Tract Soc'y, 23 Vt. sionary society to be expended in carrying on 336. the work of that society in India, through 65. The declarations of a testator made subtheir mission located, according to the testator's sequent to the making of his will, that said will understanding, at Bombay, but which in fact did not vary from a former will which he had was located at Lucknow. McAllister v. Mc- made, are inadmissible to vary the provisions of Allister, 46 Vt. 272. the last will. Wells v. Wells, 37 Vt. 483. 61. Uncertainty. A court never construes 66. Repugnancy. The rule that of two a devise void for uncertainty, unless it is so inconsistent bequests, or clauses of a will, the absolutely dark that they cannot find out the latter supersedes and abrogates the former, is testator's meaning. Button v. Am. Tract to be applied only in cases of absolute repugSoc'y., 23 Vt. 336. nancy. If by any rational construction the 62. A will contained this clause: "I give several parts can be made to harmonize, and to and grant to my beloved son, John Nason, all consist with the obvious general intent of the my property after the decease of my beloved maker, no part should be rejected, or denied its wife, or marriage, he paying the legacies herein legitimate effect. Hibbard v. Hurlburt, 10 Vt. mentioned; also to my daughter, Peggy Nason 173. $200 to be paid as above mentioned, the horse 76. Construction on face of the instruI now own," (describing it), "and to live and ment-Instances. A testator by his will and remain, so long as she is unmarried, in my a codicil thereto, after sundry specific bequests, house, and have and enjoy the same privileges bequeathed the residue and remainder of the as she now does, and also one good cow." estate to be disposed of in accordance with the Held, (1), that here was a direct devise to Peggy laws of this State." By a subsequent codicil he of a right to all the privileges of the house that bequeathed to certain grandchildren, who would she had before enjoyed ; (2), that parol evidence have been entitled to share in such residuum was admissible to show the extent of the privi- under the former provision, $25 each, “to be lege which she had enjoyed in the house before in full of all, and for all other provisions by ne her father's death; (3), that this devise was not made for them in any will or codicil by me void for uncertainty, but a certain measure of made, hereby revoking all other provisions by the right was given, viz.: the extent of her pre- me heretofore made for said children." Held, vious enjoyment, to be ascertained by the that such grandchildren were entitled only to proof; and it appearing by the evidence that the sums named in the last codicil, and did not she had before and after her father's death occu-share in the residuum. Hayes v. Davenport, pied a particular room in the house as her sleep- 25 Vt. 109. ing room and as under her special control;– 68. A testator devised his Jackson farm to Held, that she was entitled to the exclusive "The American Home Mission Tract Society possession of it as against the plaintiff claiming for our western mission-twelve hundred dolunder John Nason; (4), that as this right was lars ;" and, in the next clause, devised $600 in a personal one and might be waived, evidence the same farm to his niece, the interest to be of her occupation of the room after the death of paid her yearly during her natural life," and her father was admissible. Maeck v. Nason, then to go to the above-named tract society for 21 Vt. 115. their use." There was a society well known as 63. The testator bequeathed the sum of the American Tract Society," and another $1000 "to be paid by my executor hereinafter well known as the "American Home Missionary named, for the education of the freedmen of Society." Held, that by reference to the genthis nation, as soon after my decease as it can eral scope of the will and to every clause of it, reasonably be collected and appropriated to that it was fairly to be inferred from the language of end-his best judgment and discretion to be the will that the testator intended the bequest exercised in said appropriation." Held, that for the American Tract Society. Button v. said bequest was not void for uncertainty; and Am. Tract Socy., 23 Vt. 336. that the executor named was the proper person 69. Precatory words-how construed. Van to appropriate the fund to the object of the Amee v. Jackson, 35 Vt. 173. bequest, and not the Freedman's Bureau created 70. Construction of the words of a will |