CHAPTER I

THE IMPORTANCE OF THE LAST WILL AND TESTAMENT

“To put off making your Will until the hand of death is upon you evinces either cowardice or a shameful neglect of your temporal concerns.”

It has been thought appropriate, within a brief space, to introduce into this work some general observations on the importance and preparation of wills. For that purpose, the following address, under the title given this chapter, recently delivered before the Missouri Bankers’ Association, has been selected. It will be seen that the subject-matter is general in character, and this monograph has been favorably received by the legal profession and the legal and financial journals of the United States.

“No doubt most of my audience will regard my subject a lifeless, if not a commonplace one. Yet it is of daily and vital importance to bankers and business men generally, and it is to be regretted that there exist so many inaccurate impressions regarding wills.

“The _North American Review_ in a recent editorial said, ‘The writing of a will is a serious and formal matter, and into one a man puts his deliberate and well-reflected intentions. This makes a will stupendously revealing, and to read one over is to come very close to the spirit of the man who wrote: to know his treasures, to understand his feeling toward men, and to measure his fitness for adventures among seraphic and angelic beings. The words a man desires to have read when he lies dumb, the gifts he leaves, the grace with which he gives, all these lay bare the spirit, the heart of disposition, as few other things can. For a will is that which is to live after one, and it is written knowing that no wound inflicted can be remedied, no neglect repaired. How egotism, or miserliness, or conceit, or self-satisfaction can shine out in a will! How little exalting it is in most cases to read wills, and how often they turn us back to the authoritative statement, that it is easier for a camel to pass through the eye of a needle.’

“The power to dispose of property by a written will in the form known to us does not appear in any of the primitive systems of law, except in Egypt; yet testamentary dispositions in some form have come down to us from the earliest times. In the year 1902, the French government sent out a commission to make archæological investigations in Persia. At the city of Susa, they uncovered a stone on which was written the laws of Hammurabi, who reigned twenty-three hundred years before Christ, or one thousand years before Moses received the Ten Commandments on Mount Sinai. This code was translated by Professor Robert Francis Harper, of the Chicago University, and furnishes one of the most remarkable and readable books which has ever come into my hands; it treats of the laws of money, banking, inheritance, weights and measures, divorce, dower, crimes, and, singularly enough, some of its provisions are present-day law. There is, however, no mention of wills.

“In fact, the will, as we know it, is a Roman invention. Free liberty of disposition by will is by no means universal at this time. Complete freedom in this respect is the exception rather than the rule. Homesteads generally, estates of dower and curtesy frequently, as well as other portions of an estate, are not the subject of devise or bequest.

“There never was a fitter application of Pope’s line, ‘A little learning is a dangerous thing,’ than in the preparation of wills; and it is a most astounding fact that men who have lived prudently, who have been conservative and successful in business, who have accumulated large wealth, who have been buffeted by every wave of misfortune, will attempt, by their own hands or through incompetent agents, to write their wills. It is always a hazardous undertaking, unless the instrument is of the simplest character. If one’s child is sick, a doctor is called; if a man’s roof is defective, a carpenter is sent for; if a horse throws a shoe, the animal goes to the blacksmith; yet, when it comes to the making of a will, perhaps the most solemn and consequential act of a man’s life, the testator takes his pen, and frequently without aid or counsel does that which experience and our court records fully demonstrate he is incompetent to do.

“Mr. Daniel S. Remsen, of New York, an author of high repute on the preparation of wills, says that fully fifty per cent of wills contain some obscurity or omission. With this statement I find myself in complete accord. I believe that nearly half the wills written are open to attack and a large portion of them fatally defective. I have never seen more than a dozen perfectly drawn wills, gauged by the standards of perfect clearness, precision and legality.

“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.

“A few months ago I saw a will in which an estate of one million dollars was disposed of: the testator under the will divided the estate into ten parts, but overlooked the disposition of one of these parts; the omitted part passed under the general laws of inheritance, doubtless contrary to the wishes of the testator.

“There came under my observation not long ago a will drawn in Michigan: the testator owned property in Michigan and also in Missouri and South Carolina. The will had but two witnesses; it was effective in Michigan and Missouri, but in South Carolina, where three witnesses are required, it was inoperative.

“Within the last few days, I examined the will of one of our most gifted and eloquent United States senators, now deceased; an ample provision for his wife was followed by this clause: ‘The acceptance by my wife of the provisions for her benefit, contained in this will, shall bar all claim by her for dower in any real estate heretofore or hereafter conveyed by me to any one.’ This attempted exclusion of the wife’s dower was well-nigh meaningless: his intent was to preclude her right of dower in any real estate owned by him at the time of his death; but he said ‘conveyed by me to any one’; all real estate possessed by him at the time of his death was subject to dower and not excluded, because it had not been conveyed.

“A will was lately presented to me where the testator left a large estate,--one-third to his wife, one-third to a son, and one-third to a grandson; the wife predeceased the testator. The question arose as to what became of the one-third given to the wife.

“Generally speaking, under a bequest or devise to a ‘child, grandchild or other relative,’ the property passes to the lineal descendants of these, in the event the legatee or devisee dies before the testator; but it is otherwise as to all other persons: as to them, the devise or gift lapses; even the children of stepchildren would not take under these conditions.

“It is said ‘a will has no brother,’ meaning that no two are alike. The general rules of construction are too numerous and complex for a discussion here. Technical words are presumed to be used in their technical sense, unless a clear intention to use them in another is apparent from the context. Our courts are always busy in an endeavor to ascertain the intentions of testators. The truth is, few men write accurately and precisely. The proper use and selection of words in the construction of wills is a very grave duty.

“A general outline of the framework of a will may be stated as follows:

“(_a_) A will should revoke all former wills; if this is not done, the last will may be taken in connection with others. If the testator is unmarried, he should state that fact. His statement does not make it true, but it may serve a very excellent purpose in thwarting the claims of designing persons.

“(_b_) There may be a provision for funeral expenses, and suggestions with regard to a burial place and a monument.

“(_c_) A provision for the payment of debts should be made, and the executor given full power to pay debts and to sell and convey any portion of the estate.

“(_d_) A provision should be made for bequests and legacies to relatives and friends, and for charitable purposes.

“(_e_) Suitable provisions for the wife and children should be made.

“(_f_) Adequate provisions should be inserted for trust features; these are operative only after the probate administration is ended, unless otherwise directed, and they should be full, definite and clear.

“(_g_) There should be a residuary clause which catches up and disposes of any portion of the estate not already disposed of, including lapsed legacies and devises.

“(_h_) The executor should be named.

“(_i_) The date and signature.

“(_j_) Finally, the attestation.

“To me it is incomprehensible that nine men out of ten who make their wills, seek to hamper and restrain the remarriage of their widows; neither the age of the husband nor of the wife seems to deter a testator in this direction: on the other hand, I have never seen but one such restriction in the will of a married woman; and this spirit of faith and trust, in a comparative view of the sexes, is, I believe, quite as marked in the daily walks of life, notwithstanding the lines of Saxe which run:

‘Men dying make their wills, but wives Escape a work so sad; Why should they make what all their lives, The gentle dames have had?’

“It may be said that a condition subsequent in general restraint of the marriage of a person who has never married, annexed to a gift, is contrary to public policy and void.

“A man should make his will when he is in a normal and healthy condition; it should be done timely and deliberately. A prominent legal writer says: ‘It is astounding how frequently from indolence, procrastination, or superstition, men will postpone this needful act until the last. Some, like old Euclio in Pope, with the ruling passion strong in death, cannot endure the thought of parting with their possessions, even post mortem, and die intestate. Few testators know their own minds, and a deathbed will is as sorry a substitute for a carefully prepared instrument, as a deathbed repentance is for a well-ordered life.’ A sick man or a very aged man, as a rule, is not in a condition to judge fairly of the affairs of human life. He is apt to be unconsciously influenced and misled, or even coerced. He may be diverted from the natural channels of affection, right and justice. Frequently the result is disastrous litigation, the breaking of domestic ties, and the exposure of family skeletons.

“Lord Coke said a long time ago, ‘Few men, pinched with the messengers of death, have a disposing memory.’ ‘Such a will, he adds, ‘is sometimes in haste and commonly by slender advice and is subject to so many questions in this eagle-eyed world. And it is some blemish or touch to a man well esteemed for his wisdom and discretion all his life, to leave a troubled estate behind him, amongst his wife, children or kindred, after his death.’

“A man may work out his religion from within and for himself, but when it comes to writing a will, the advice of a good, level-headed friend cannot be overestimated.

“The will, unlike other instruments, is usually not open to criticism, and in my opinion, the testator will act wisely, who takes into his confidence some trusted friend who has good judgment and just ideas, whether he be a lawyer or a layman: this would be a poor world indeed, if such were not to be found.

“Statistics show that out of every hundred persons dying in modern times, sixty-five per cent leave no estate at all, and this is true in the most prosperous and wealthy portions of the United States. Out of the hundred mentioned, about thirty-five leave estates, but less than ten per cent leave estates exceeding five thousand dollars.

“Gifts through wills to charitable, educational and kindred institutions, in recent years, have been larger than during any other period in the history of this country. In the year 1909 the value of such gifts exceeded a hundred million dollars, according to the best statistics obtainable; yet it is much to be regretted, that testators who have been blessed with fortunes, do not leave more to charitable and public uses. Very little, if any regret would be expressed by beneficiaries under wills, if testators would set aside a few hundred or a few thousand dollars for such objects: a fountain in one’s native town, a scholarship, a hospital, or a park or plot of ground where the aged might rest, children play, and birds sing. Such gifts show noble natures, and all communities are proud to remember and honor the donors.

“Although the laws of our States differ somewhat in the matter of descent and in the rules as to the construction and requirements of wills, it may be stated that it is not generally necessary to mention or provide for any other persons than children or their descendants.

“The French author, Balzac, regarded by many critics as one of the keenest observers of the impulses that actuate human life, has one of his characters, a lawyer, say: ‘There are in modern society three men who can never think well of the world, the priest, the doctor and the man of law; and they wear black robes, perhaps because they are in mourning for every virtue and every illusion; the most hapless of these is the lawyer; he sees the same evil feelings repeated again and again; nothing can correct them; our offices are sewers which can never be cleansed; I have known wills burned; I have seen mothers robbing their children; wives kill their husbands; I could not tell you all I have seen, for I have seen crimes against which justice is impotent. In short, all the horrors that romancers suppose they have invented are still below the truth.’

“Whether this conclusion is correct or not, the fact is, that the law seals the lips of the priest, the doctor and the lawyer. The human heart is never completely revealed; there is always a nook or a corner that is closed to the world. But the lawyer does know human nature; and, take it all in all, I do not believe there is any class of men more outspoken, and who do more in the long run to uphold our rights, our morals and our liberties, than lawyers. The lawyer will tell you to have your will written and to have it well written; he will tell you that human nature is strongly marked in wills; he will tell you that his profession knows no more complicated and perplexing a document to prepare than a will; he will tell you that wills are frequently destroyed by unauthorized hands; he will tell you that when a provision is made by will which gives less than that which is allowed by law, that that provision will be attacked; he will tell you that wills are filed in probate in nearly every instance before the dust has adjusted itself on the grave of the testator; he will tell you, if candid, that lawyers are, in a measure, responsible for poorly written wills.

“No lawyer should be asked to write a will cheaply or hastily; the testator who has no proper appreciation of this service, and who drives a bargain for ten dollars, for that which is worth a hundred or more, usually gets about what he pays for.

“In law, as in other professions, ability and experience are essential to perfect work; when you seek a lawyer to write your will, see that he has these qualifications.

“Witnesses to wills should never be interested in the instrument. If the testator is aged, the witnesses should be those well acquainted with him; in fact, this is always a good rule, whether the testator be old or young; this precaution may prevent much trouble and complication, and it has the sanction of our highest courts.

“There is a class of gifts to which I wish to call your attention, and I refer to gifts _causa mortis_. A gift _causa mortis_ is a gift of personal property by a person about to die and in view of death. If there is an actual or constructive delivery of the property, the gift is good, notwithstanding the law of wills. The gift, however, must be absolute and the giver must die of that sickness.

“In making provision for children in wills, the corpus or principal fund is not infrequently to be turned over to them on arriving at legal age. According to my observation, the age of thirty is much preferable. It is not possible for any young man or woman at the end of minority to be possessed of much wisdom with reference to the care of property. Worldly knowledge is not congenital, and we have high authority that ‘in youth and beauty, wisdom is but rare.’

“Even you and I, my friends, have picked up some business knowledge since we passed the line of twenty-one.

“I cannot too highly recommend trust provisions in wills, where it is sought to make allowances to children or others; the use of the income for a time or for life, instead of an absolute gift of the principal, has in many cases a most beneficial result. In the selection of an executor, my judgment is that it is better to have one than two, and unless that one is a corporation of high standing and ample capital, I would always require a bond. This works no hardship, for bonds are readily obtainable by reputable persons.

“A codicil is a supplemental will. Its object may be to explain, modify, add to or take from a will. It should be written with care and precision and its execution is attended with the same formalities as the will itself.

“A well known author on wills says:

“‘In short, a will may be a man’s monument or his folly. Prudence, therefore, demands that the testator plan wisely, and frame his testamentary provisions with great care. That is, he should, if possible, use such words that his plan shall not be misunderstood and shall be carried into effect without dispute or litigation, for unlike instruments between living persons, it is only after the testator is dead and cannot explain his meaning that his will can take effect, or be open to dispute.’

“I recommend that of each will there be made a copy; the original should be placed in one safe place, and the copy in another. This very much lessens the chance of its being destroyed or falling into bad hands.”