Commercial Law Part 13

COVENANTS AND STIPULATIONS.--A mortgage of real estate ordinarily contains the same covenants of warranty as a warranty deed of real estate. Where a mortgage still has its common law effect of transferring t.i.tle to the mortgagee, it is essential that the mortgage should contain a provision that until default the mortgagor shall be ent.i.tled to the possession of the premises. Covenants in regard to the payment of taxes by the mortgagor and the keeping of the premises insured for a certain amount, are usual and important provisions. There is also commonly contained in a mortgage a power of sale; that is an authority or agency given to the mortgagee to sell the premises free of the mortgagor's right of redemption in case default of payment is made, or in case such default continues for a certain specified time. In all States printed forms of mortgages are ordinarily used. These forms are prepared with care to suit the requirements of local law; and if you are sure that the printed form is prepared and sold for use in the State where the mortgaged land is situated, you may feel satisfied that the terms of the instrument are suitable to protect the rights of both parties.

EXECUTION AND RECORD OF MORTGAGE.--A mortgage of real estate must everywhere be executed with the same formality that is necessary for an ordinary deed of conveyance. Different forms are in use in different States, and it is always desirable to use the form of mortgage customary in the State where the land lies. It is important to ascertain whether a seal is necessary in that State, and the instrument must ordinarily be acknowledged before a notary public having a seal, or before a commissioner of deeds for the State in which the land lies.

There is in every State a recording act by virtue of which unrecorded mortgages are made invalid against subsequent purchasers and sometimes against attaching creditors. Though an unrecorded mortgage is, as between the parties, as effective as if recorded, it is of vital importance promptly to record every mortgage in the Registry of Deeds in the county where the land lies.

SPECIAL CASES.--Where a mortgage is executed by an agent or by a corporation, it is essential that the agent or corporate officer have authority to act. In the case of a corporation it is necessary both that the corporation have power to make the mortgage in question and also that the particular officer or officers who attempt to exercise the power are authorized so to do. The principles here involved, however, are not different from those generally governing the acts of agents and corporations. The same may be said in regard to mortgages by husband or wife, by a partners.h.i.+p, or by trustees. In the case of mortgages executed by any such person it is necessary to take special precautions.

A mortgage by husband or wife should generally be also executed by the other. A mortgage by a partners.h.i.+p should be executed in the same form in which the t.i.tle is held by the partners.h.i.+p, and if the t.i.tle is held by less than all the partners, it is desirable that the other partners should express their a.s.sent to the transaction either in the mortgage itself, or in a separate instrument executed with the same formality.

INTEREST IN PROPERTY.--Any kind of interest in real estate may be mortgaged and mortgages of property, not yet acquired by the mortgagor, have generally been held to attach to the property when acquired by the mortgagor, and then to give the mortgagee as full a right as if the mortgagor had owned the premises at the time he purported to mortgage them.

OTHER PARTICULARS.--The description of land in a mortgage should have the same exactness as is necessary in a deed. Unlike deeds, mortgages ordinarily state their consideration and must of course state the indebtedness which they are given to secure. A mortgage may be given to secure a past debt if the mortgagor, when he makes the mortgage, is solvent. If he is then insolvent, to give such a mortgage would be a preference, which is an act of bankruptcy, and subject the mortgagor to possible bankruptcy proceedings. If the mortgagee in such a case had reasonable cause to believe that the mortgagor was insolvent, the mortgage could also be set aside by a trustee in bankruptcy.

EQUITY OF REDEMPTION.--By the terms of the mortgage the mortgagor's right is ordinarily made dependent on payment of the debt on a fixed day, or of installments on fixed days. A day thus fixed in the mortgage is sometimes called the "law day." According to the terms of the instrument the only way in which the mortgagor can be revested with t.i.tle to the property is by complying with the express terms of the mortgage and paying the debt on the law day. The result of this provision, if enforced, would be that if the debt is not paid exactly when it is due, the mortgagee remains the absolute owner of the mortgaged premises. Courts of equity, however, long ago limited the mortgagee's right, holding that the real object of the transaction is to secure a debt, and that if the mortgagee obtains his debt and interest he ought to be satisfied. Accordingly if the mortgagor was in default in the payment of the debt, he was allowed to redeem the property by payment of the debt and interest until the time of tender. If the mortgagee refused to accept his debt and interest, the mortgagor could bring a suit in equity to redeem the property and the court would order the reconveyance to him of the property on payment of the debt. Because of this right on the part of the mortgagor, his interest in the property came to be called an equity of redemption, and it is often so called at the present day. The position taken by courts of equity, permitting redemption, might work a hards.h.i.+p on the mortgagee because he could never feel sure of his t.i.tle to the property, however long the debt might remain unpaid. This difficulty was met by allowing the mortgagee to bring a suit to foreclose the debtor's right of redemption. We speak of foreclosing a mortgage, but, strictly, it is the debtor's right to redeem which is foreclosed. When such a suit of foreclosure was brought equity would fix a time within which the debtor might redeem the premises by paying the debt and interest, and then the decree provided that if the debtor failed to pay within the named period, his right of redemption should be forever foreclosed. At the present time there are in practically all jurisdictions statutory rules, in regard to the foreclosure of mortgages, which we shall presently describe, but it is important to remember the fundamental nature of the mortgage transaction, and the original remedies of redemption and foreclosure.

A RECONVEYANCE IS NOT NECESSARY ON PAYMENT OF THE MORTGAGE.--If a mortgage is regarded as a mere lien to secure a debt, it is obvious that a payment of the debt discharges the lien, and the t.i.tle already vested in the mortgagor becomes free from any inc.u.mbrance. On the theory of the common law, though the t.i.tle pa.s.sed to the mortgagee, it was subject to a condition subsequent which would revest the t.i.tle in the mortgagor if payment of the debt was made at maturity. By mere operation of law, therefore, payment of the mortgage when due revested t.i.tle in the mortgagor without reconveyance. After a default, however, a subsequent payment is not strictly a performance of the condition upon which the mortgaged deed provided that t.i.tle should revest. Accordingly a reconveyance was necessary in such a case at common law, but at the present day it is generally not requisite even in case of payment after default.

THE MORTGAGOR IS LIABLE AS A DEBTOR.--The mortgagor is bound as a debtor ordinarily by a bond or promissory note in which he expressly agrees to pay the amount of his debt. It is perfectly possible that the debt secured by the mortgage should not be represented by such an instrument, but should rest merely in oral agreement or should be contained in a covenant in the mortgage deed itself, but it is usual and desirable to have a separate obligation. The fact that the debtor has given the mortgage does not in any way limit the rights of the mortgagee as an ordinary creditor. He may sue on the mortgage debt when it is due, in the same manner as if there were no mortgage. It is his option whether he will foreclose the mortgage, as a means of collecting his claim, or whether he will get judgment on the debt, and seek to collect that judgment in the same way that an ordinary judgment creditor would. This rule is changed by statute in California, and one or two other States, where by statute the mortgagee is required to realize from the mortgaged property what he can before seeking a personal judgment against the mortgagor. In many jurisdictions the creditor may, in a single proceeding, obtain foreclosure of the mortgagor's rights by sale of the property, and a personal judgment against the mortgagor for any deficiency which the proceeds of the property may leave. This is called a deficiency judgment.

RIGHTS OF MORTGAGOR AND MORTGAGEE IN MORTGAGED LAND.--Even though the mortgagor is regarded by the law as having no longer the legal t.i.tle to the premises, but only an equity of redemption, his interest is regarded as real estate and descends on his death according to the laws governing real estate. The mortgagee's interest, on the other hand, is regarded as personal property since the debt which the mortgagee is intended to secure is personal property, and even a legal t.i.tle to the real estate held by the mortgagee is held merely for security, and is an incident to the debt. So the mortgagor's interest in mortgaged property is subject to be seized on execution by his creditors while the mortgagee's interest can not be so seized. The mortgagee's creditors must reach his interest by means appropriate to realize upon the debt, not upon the land. The mortgagor's interest being regarded as real estate will give rise to the same estates of dower in favor of the wife of the deceased mortgagor or curtesy in favor of the husband of a deceased mortgagor, as are allowed by the law in the case of real estate generally. The mortgagor may, while in possession, deal with the property in any way in which an owner may, except that he will not be permitted to imperil the mortgagee's security by any kind of waste. The mortgagor may, subject to the mortgage, lease, sell or devise it. He may collect the rents and profits and use them as his so long as he is in possession. Where, however, the mortgagee is regarded as having the legal t.i.tle to the premises, he may eject the mortgagor at any time from possession, even though the mortgage is not due, unless prohibited by statute or by the express terms of the mortgage deed. In fact he usually is so prohibited. Even when not so prohibited, it is not always well for a mortgagee to take possession because, if he does so, he is bound to account not only for all profits actually received from the premises, but also for all that might have been received. He becomes liable for any waste of the premises or any failure to deal with them in a reasonably prudent manner.

SALE BY MORTGAGEE OR MORTGAGOR OF REAL ESTATE.--Either the mortgagee or the mortgagor may a.s.sign his interest. The mortgagee in a.s.signing his interest is in legal contemplation doing two things: (1) a.s.signing the debt; (2) a.s.signing the t.i.tle or lien which he holds on the mortgagor's real estate as security for the debt. As to the a.s.signment of the debt, the matter is governed by the same principles as govern the a.s.signment of choses in action generally. That is, if the mortgaged debt is represented by a negotiable instrument, the instrument may be negotiated to the purchaser in the ordinary way, and with the ordinary effects of such instruments. If the mortgaged debt is not represented by a negotiable instrument, the a.s.signment of the debt is an a.s.signment of a chose in action. Where the common law view of mortgage still prevails, that the mortgagee has the legal t.i.tle, he can only transfer it to an a.s.signee by a deed executed with the same formalities necessary for the transfers of real estate. As, however, the law recognizes that it is the debt which is the essential feature of the relation between mortgagor and mortgagee, and that the mortgaged estate is held merely as security for a debt, a valid a.s.signment of the debt is held to make the a.s.signee equitably ent.i.tled to the mortgaged property as security. And, in effect, one who obtains the mortgage debt will secure the benefit of the mortgaged property even though the local law regards a mortgagee as having the legal t.i.tle. Where the mortgagee is regarded as having merely a lien, the a.s.signment of the debt involves a transfer of the lien.

INCIDENTS TO MORTGAGE.--If the mortgagor wishes to convey his interest, he transfers the estate by deed exactly as if it were unmortgaged, except that the conveyance is stated to be subject to a specified mortgage, and it is sometimes added "which the grantee a.s.sumes and agrees to pay." It is desirable for the seller that the grantee shall a.s.sume and agree to pay the mortgage while it is desirable for the buyer that he shall buy the premises merely subject to the mortgage without a.s.suming it. The difference between the two transactions is this: In either event the grantee receives the premises burdened by a mortgage, the amount of which will be deducted from the consideration paid as the agreed value of the premises. In either event, if the debt is unpaid, the mortgagee will foreclose and the grantee will lose the premises. In order to save the premises, the grantee will have to pay the mortgage.

a.s.sUMPTION OF MORTGAGE.--The distinction is only seriously important when the mortgaged premises are worth less than the amount of the mortgage. In that event the mortgagee will be ent.i.tled to a deficiency judgment against the mortgagor. The mortgagor was the original debtor and cannot escape from his obligation to the mortgagee without the latter's a.s.sent. If the mortgagor is forced to pay, he cannot recover the amount from his grantee unless the latter a.s.sumed and agreed to pay the mortgage. If, however, the grantee did make such a.s.sumption, he will ultimately have to pay the deficiency. If the mortgagee, without foreclosing the property, should sue the mortgagor directly on the debt, the latter would be compelled to pay. Even if the sale to the mortgagor's grantee had been made merely subject to the mortgage, the mortgagor on paying the debt would be subrogated to the mortgage and would himself be enabled to foreclose the property. But if the property failed to realize enough to reimburse him for the payment of the debt, he would lose this deficiency unless the grantee had a.s.sumed and agreed to pay the mortgage. Whether the mortgagee may sue directly a grantee of mortgaged premises who has a.s.sumed and agreed to pay the mortgage, is a question which has been much litigated; but it is now held almost everywhere that the mortgagee may do so. Sometimes a succession of grantees, each in turn on buying the premises, a.s.sumes and agrees to pay a certain mortgage. The mortgagee, in such a case, is generally allowed to recover from any one of these grantees so far as is necessary to satisfy his claim; but the ultimate liability will rest upon the last purchaser who has a.s.sumed the debt. As against a grantee who has not a.s.sumed the debt, the mortgagee has no rights. He can deprive such a purchaser of his land, so far as is necessary to collect the debt, but he cannot hold him personally liable.

FORECLOSURE OF REAL ESTATE MORTGAGES.--According to the original theory of the law, the mortgagee became the absolute owner of the mortgaged premises by the failure of the mortgagor to pay the debt when due, and by the foreclosure or termination of the mortgagor's right of redemption. Foreclosure of this character is still possible in a few States, but in most States it has been wholly abolished, and everywhere the ordinary method of foreclosure is by sale of the mortgaged property.

Frequently the sale is made by virtue of an authority or power of sale given in the mortgage itself, but sometimes it is made under authority of a decree of court in foreclosure proceedings. Where a mortgage contains a power to the mortgagee to sell on default of the mortgagor, he is acting not simply on his own behalf but as agent for the mortgagor in transferring t.i.tle to the property. The proceeds will be applied first to the payment of the debt with interest and the expenses of the sale. Any surplus will be held by the mortgagee in trust for the mortgagor and must be paid over to the latter. The situation is entirely a.n.a.logous to that created by a collateral note where stock or other personal property is transferred as collateral to secure a debt. The statutes of all States contain regulations in regard to the foreclosure of mortgages, which must be observed. They are aimed generally to protect the mortgagor from forfeiture of his property to any greater extent than is necessary to insure the payment of the mortgage debt. In any case of foreclosure the local statute and practice must be consulted.

DEEDS OF TRUST.--In some States what are called deeds of trust have been largely subst.i.tuted for mortgages. The temptation to make such a subst.i.tution is greatest in jurisdictions which refuse to recognize the mortgagee as the legal owner of the premises. If the law denies the mortgagee this recognition, he can, by insisting, as a condition of his loan, that the premises shall be conveyed to a third person as trustee, achieve the result that the mortgagor at least is no longer the legal owner of the premises. Essentially the situation is the same under a deed of trust as under a common law mortgage. In both cases the legal t.i.tle is held merely to secure the debt, and the court will secure to the debtor all the value of the property which can be realized from its sale over and above the amount of the debt. If the debt is paid of course the debtor is ent.i.tled to the return of the security whether it is real estate or personalty, and whether held directly by the creditor or by a third person as trustee.

THE TORRENS LAW.--The Torrens system of registration of land t.i.tles received its name from Sir Robert Torrens who drew the first Torrens law enacted in South Australia in 1858. The practice of searching t.i.tles has gone through this development. In country districts the person purchasing real estate frequently accepted the grantor's deed without any search of the t.i.tle. Of course, if there were judgments against the grantor, or other claims against the real property, the purchaser or the grantee takes the property subject to these claims. Ordinarily, however, the careful purchaser employs a lawyer to make a search of the t.i.tle before he accepts it and pays the purchase price. In New York City to-day, and in some of the other large cities of the country, most of the t.i.tle searching has pa.s.sed out of the hands of the lawyers into the hands of the t.i.tle companies. The t.i.tle company makes the search now, the same as the lawyer formerly did, with an added advantage. Suppose I am to buy Blackacre, and employ attorney Blackstone to search the t.i.tle.

He reports it as being free and clear. I take possession and pay the purchase price. Six months later the wife of the grantor appears on the scene. When the grantor conveyed, he stated in the deed that he was single. The wife establishes the validity of her marriage, and her husband's, my grantor's, death. She is, of course, ent.i.tled to dower. I am obliged to make some kind of settlement with her, and there is no way, probably, by which I can hold my lawyer for failing to find that the grantor was married, when he made the search for me. If the t.i.tle to my property had been searched for me by a t.i.tle company, it would have issued a t.i.tle insurance policy in my name which would have protected me, in this instance, and I would have been reimbursed by the t.i.tle company for the loss which I sustained in having to pay the dower claim of my grantor's wife.

ECONOMY OF t.i.tLE SEARCHES.--Economically, the t.i.tle company is a big step in advance of the former practice of having lawyers make a search.

The t.i.tle company can do it much cheaper. If Blackacre was sold, when lawyers alone were making searches, probably a different lawyer would be employed at each sale, and he would make a search back to the earliest deed. After a t.i.tle company has made its search, the result is in its records and the next time it is on the same piece of property, the search would simply be what is called a continuation, which would carry the search from the last time the company was on the t.i.tle down to the present time. This enables the t.i.tle company to make its fee more reasonable than the lawyer, and we can now secure a t.i.tle company's search and insurance policy frequently for less than formerly was paid to the lawyer for the search alone.

ESCHEAT.--However, the policies issued by the t.i.tle companies are not absolutely satisfactory, and the next, and perhaps final, step is for the State to come in and guarantee the t.i.tle. This is perfectly logical.

The owners.h.i.+p of all land is in the State, theoretically, the same as under the English common law. The King, in those days, owned all the land. This is more than theory, even to-day. If a man dies, leaving no heirs and no will, his real property escheats to the State, this being based simply on the theory that the property goes back to its original owner, the State. If this is true, why should not the State insure the t.i.tle? This is the theory of the Torrens' system.

EFFECT OF TORRENS LAW.--The first Torrens law, enacted in this country, was in Illinois, and similar acts have been pa.s.sed in a number of the States, including New York. When such laws are on the statute books, generally the business of a t.i.tle company will be legislated out of existence. For that reason, opposition to the pa.s.sage of such laws has developed in some States. Perhaps the next fifty years may see them generally adopted throughout the country.

CHAPTER X

Estates and Trusts

ESTATES.--When a person who owns property dies, the first question which arises is as to what becomes of his estate; who pays the bills, who takes charge of his business affairs, and what are the rules as to the division of his property. The first question a lawyer always asks is, "Did the deceased die testate or intestate?" that is, did he leave a will or not. If he left a will, probably he has named one or more executors in his will to settle his estate, in which case such person or persons will take charge. If he has not appointed an executor in his will, an oversight which rarely occurs, the probate court will appoint an administrator. If, on the other hand, the man died intestate, it will be absolutely necessary for the court to appoint an administrator. The executor will settle up the estate according to the directions contained in the will, but if no will was made, the administrator will settle up the estate according to the rules of the probate court, under which he is acting, and the property will be divided in accordance with the statutes of the State or States having jurisdiction over the estate.

CHARACTER OF PROPERTY.--It is very essential to distinguish carefully between the two kinds of property, real and personal, which the deceased leaves. Real property, as we have explained, consists of land with the buildings permanently attached to it, and all other property is personal property, although it may relate to real property. Thus, a mortgage on land is personal property, also the shares of stock in a corporation, although the corporation may be organized to engage exclusively in the owners.h.i.+p of real property, is personal property.

Where a person dies leaving a will, his real property goes directly to the persons to whom he leaves it in the will. In the case where he dies intestate, his real property pa.s.ses directly to his heirs at law, who are designated by statute. In neither case is any formality necessary, beyond the probate of the will, to vest the devisee of the testator or the heirs at law of the intestate with the t.i.tle to the real property.

The situation in regard to personal property is quite different. Where the deceased died leaving a will, his executor immediately has t.i.tle to all the personal property. If he dies intestate, the administrator will take t.i.tle as soon as appointed. The personal property is used by the executor or administrator to pay debts, and the real property, whether a man dies testate or intestate, is never used to pay debts unless the personal property is insufficient.

WILLS DEFINED.--The definition of Jarman is commonly used in defining a will: "A will is the instrument by which a person makes a disposition of his property to take effect after his decease, and which is, in its own nature, ambulatory, and revocable during his life." This definition is open to one criticism. It does not include oral wills which, as we shall see, are sometimes legal. We shall also use other terms in this chapter which must be defined. A testator is the man who makes the will, while the testatrix is a woman making a will. A codicil is a supplement to a will, made and executed with the same formality as the original will, and it becomes a part of the original will, adding to it, or altering it, as the case may be. A devisee is a person who takes real property under a will, while a legatee takes personal property under a will, and the real property pa.s.sing under the will is called a devise, and the personal property a bequest. A legacy refers to money pa.s.sing under a will. This is why the ordinary will uses this phrase: "I give, devise, and bequeath." It is not fatal, however, to make a mistake of having the will read, "I hereby devise," referring to personal property. It is more a mistake in the use of English, than a mistake in law to make a wrong choice of these terms which we have just defined. A holographic or olographic will is a will which is wholly written in the testator's or testatrix's own hand. The statutes of a few States recognize these wills as valid without the formal execution or attestation if they are wholly written, signed, and sealed by the testator's own hand. A nuncupative will is an oral will. While most wills must be in writing, in many jurisdictions the oral wills made by sailors at sea, and soldiers in actual service are recognized as valid without being reduced to writing and without any specified number of witnesses. It is perfectly apparent why these exceptions are made, because of the difficulty of securing the materials with which to make a written will by these two cla.s.ses of people. Nuncupative wills are good only to dispose of personal property, unless a special statute has been enacted which provides otherwise, but this is not commonly done.

A WILL AND A GIFT CAUSA MORTIS DISTINGUISHED.--We have already referred to gifts causa mortis which are gifts of personal property made by the donor under apprehension of immediate death, coupled with the delivery of the property. The gift is defeated by the recovery of the donor. A gift causa mortis may be made orally, while, with the exception of nuncupative wills, all wills must be in writing. A gift causa mortis must be made under fear of pending death, whereas a will is ordinarily made with a view of the fact of death but not of its immediate happening. Again, delivery is necessary to make a gift causa mortis, whereas under a will delivery never takes effect until after the person dies, and then the legatee's t.i.tle comes through the executor or administrator, and not directly from the testator. Real property is not the subject of a gift causa mortis, whereas a will may dispose of both real and personal property.

WHO MAY MAKE A WILL.--As a general rule, any person of sound mind and of the age of twenty-one years may make a will. In some States, a person eighteen years of age may make a will of personal property. Formerly a married woman could not make a valid will excepting in a few instances, but to-day, by statute, this common law disability has been either wholly or largely removed. The statutes of the particular State in which the married woman resides, or in which her property is situated should always be consulted.

TESTAMENTARY CAPACITY.--Another qualification is that the testator must have sufficient intellectual powers to enable him to be said to have "a sound and disposing mind, memory, and understanding." The case of Whitney v. Twombly, 136 Ma.s.s. 145, gives us as good a general statement as there is concerning the nature of testamentary capacity: "A testator has a sound mind for testamentary purposes, only when he can understand and carry in mind, in a general way, the nature and situation of his property, and his relations to the persons around him, to those who naturally have some claim to his remembrance, and to those in whom, and the things in which, he has been chiefly interested. He must understand the act which he is doing, the disposition which he wishes to make of his property, and the relation in which he stands to the objects of his bounty and to those who ought to be in his mind on the occasion of making his will." The ability to make a will is not necessarily gone because the testator is old, weak or ill, even practically at the point of death. The physical condition is simply significant in determining the mental condition, but of course a very weak physical condition does not necessarily mean a weak intellectual condition. Insane persons are not capable of making wills, but a person who is insane may still have a "lucid interval" during which time he is sufficiently restored to his normal condition to enable him to act with such reason as to make a valid will, although he may, very soon, relapse into his former insane condition. Ordinarily most peculiarities and eccentricities on the part of the testator do not affect his ability to make a will; neither do peculiar religious beliefs have any effect unless, in any of these cases, the person's mind is so completely controlled as to prevent the exercise of rational judgment in disposing of his property. His eccentricities must amount almost, in such cases, to a form of insanity to have this effect.

HOW A WILL MUST BE EXECUTED.--There are four requirements for the execution of a valid will:

(1) It must be in writing.

(2) It must be signed by the testator.

(3) The testator's signature must be made by the testator or the marking acknowledged by him in the presence of the necessary number of witnesses.

(4) It must be declared by the testator to be his last will in the presence of the necessary number of witnesses, who are present at the same time and who subscribe their names as witnesses in the presence of the testator.

OTHER FORMALITIES.--No particular form of writing is necessary. Probably typing is the most common form in use to-day. As a precaution, lawyers sometimes have the testator sign at the bottom of each typewritten page, where the will is of several pages, or the doc.u.ment is fastened together with silk, the two ends of which are carried to the last page and imbedded in a wax seal. The testator should sign the will himself unless he is unable to, from lack of education or feebleness, in which case, the statute generally makes provision for another form of signing.

It is better practice for the testator to sign the will in the presence of his witnesses, acknowledge the signature, and then the testator should declare, in the presence of his witnesses, that this is his last will and testament. In many States, two witnesses are all that are necessary; a few States require three. Careful practice generally calls for three.

ILl.u.s.tRATION.--A testator lives in New York. He has two witnesses to his will. His will is valid as far as his real property in that State is concerned, but should it happen that he also owns real property in a State where three witnesses are required, his will would not pa.s.s t.i.tle to the real property in that State and, as far as that State is concerned, he would die intestate, and that real property would descend to his heirs in accordance with the laws of that State, which would quite likely not be what the testator intended to happen. By having three witnesses, his will is just as good in New York, where only two are necessary and the presence of the third witness makes the will good, and pa.s.ses the real property situated in the State where three are required. It is always best to have the witnesses add their addresses to their signatures. This is not required by statute in many States, but after a person's decease, it may help in locating the witnesses by having addresses to which to refer. It is, of course, wise to use some care in the selection of witnesses, although almost any person is competent. Adults, of course, are preferable as witnesses, but an infant is a perfectly good witness, but he should possess sufficient intelligence to be able to appreciate the importance of the act he is witnessing. In view of the formalities to be observed in the execution of a will, and the technical niceties in the use of the proper word or phrase, often required to insure the expression of the testator's exact intention, the drafting of a will should never be left to a layman, but should always be entrusted to a lawyer.

THE FORM OF A WILL.--In our discussion it is well to keep in mind the form of a will. A simple will reads as follows:

IN THE NAME OF G.o.d, AMEN:

I, John Jones, of the Borough of Manhattan, City and State of New York, being of sound and disposing mind and understanding, do make, publish, and declare this my last will and testament, as follows:

First. I direct that all of my just debts and my funeral expenses be paid as soon after my death as conveniently may be.

Second. I give, devise and bequeath all the rest, residue and remainder of my estate, whether real, personal, or mixed, of whatsoever kind, character or description, and wheresoever situated, unto my wife, Emma Jones, for and during the period of her natural life.

Third. Upon the death of my said wife Emma, I give, devise and bequeath the said residue and remainder of my estate to my children, Alice Jones, Sarah Jones, and George Jones, to them, their heirs, executors, administrators and a.s.signs forever, share and share alike, per stirpes and not per capita.

Fourth. This will shall remain in full force and effect notwithstanding children may hereafter be born to me.

Fifth. I nominate, const.i.tute, and appoint my said wife Emma, and the Inst.i.tute Trust Company, executors of this my last will, giving to them full power and authority to sell and convey any and all real estate, whereof I may die seized, at such times and for such prices as they may consider for the best interests of my estate.

Sixth. I hereby revoke any and all wills at any time by me heretofore made.

IN WITNESS WHEREOF, I have hereunto set my hand and seal this first day of July, 1921.

(Signed) JOHN JONES (L. S.).