The American Probate Reports (Volume 1); Containing Recent Cases of General Value Decided in the Courts of the Several States on Points of Probate Law, With Notes and References

This historic book may have numerous typos and missing text. Purchasers can download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1881. Excerpt: ... take charge of our property. By law, I suppose it would be divided between all my sisters. I would wish it otherwise. I wish all the property to be sold except any portion of Deal Emma would wish to retain for herself; then the money to be put in government securities, or any other sure investment. I make Emma Knapp my sole heir. I know she is just, and will give to those who need, and will be guided entirely by your advice. "Your affectionate daughter, "January 18th, 1876. Mary Boyle, "120 East 26th street. "Witnesses of signature--"Annie Jacob Walsh, "Catherine Cloake." It will be necessary to examine only the defendants' claim, for if that be substantiated, the plaintiffs must be without title. As to the instrument last recited, the plaintiffs contend, first, that it is not of a testamentary character. Its due execution, in accordance with the requirements of our statute, was sufficiently proved by the testimony of Annie Jacob Walsh (now Kelley), one of the subscribing witnesses. At that execution, it was declared by Mrs. Boyle to be her will. Its opening expression, "In case of anything happening us," clearly indicates that it was intended to take effect only in the event of her death Roberts v. Roberts, 2 Sw. & Tr. 337; In Goods of Porter, L. R. 2 P. & D. 22; In Goods of Robinson, L. R. 2 P. & D. 171), and the rest of the instrument declares her wishes as to the disposition of her estate in the juncture contemplated by her. Her capacity is not disputed. These are all the essentials of a valid will; and the first position of the plaintiffs cannot, therefore, be maintained. The plaintiffs insist, secondly, that this will was designed to take effect only under circumstances which never occurred. At the time of its execution, the testatrix and her husban...