WILLS AND LETTERS OF ADMINISTRATION.
Any person of full age and sound mind
may dispose, by will, of all his property except what
is sufficient to pay his debts, or what is allowed
as a homestead, or otherwise given by law as privileged
property to his wife and family. [Se.] The validity
of a will depends upon the mental capacity of a testator
and the fact that he was uninfluenced in making the
disposition of his property. If it appears that
the testator was incapable of exercising discretion
and sound judgment and of fully realizing the effect
and consequences of the will, though he may not be
absolutely insane, he will not be in such mental condition
that he can make a legal will. If he is of weak
mind and it appears that he was imposed upon or unduly
influenced, such facts will invalidate the will.
A testator having testamentary capacity may dispose
of his property in any manner, and to any person he
may choose, and may deprive his heirs of any share
in his estate, without any explanation or any express
declaration of disinheritance. The fact that a
will is unjust and unreasonable, in the absence of
proof of undue influence, or insufficient capacity,
will not render the will void.
Property to be subsequently acquired
may be devised when the intention is clear and explicit.
[Se.] If the intention to convey property acquired
after the execution of the will is apparent or may
be inferred from a fair construction of the language
used, it will be sufficient, although the intention
may not be directly expressed.
Personal property to the value of
three hundred dollars may be bequeathed by a verbal
will, if witnessed by two competent witnesses. [Se.]
A soldier in actual service, or a
mariner at sea, may dispose of all his personal estate
by a will so made and witnessed. [Se.]
All other wills, to be valid, must
be in writing, witnessed by two competent witnesses
and signed by the testator, or by some other person
in his presence and by his express direction. [Se.]
It is necessary that the witnesses shall subscribe
the will, but not that they shall have any knowledge
of its contents, nor that they shall see the testator
sign it. It is sufficient if the signature is
adopted or acknowledged in their presence. If
a will is made with the intention of disposing of
real property it must be executed according to the
requirements of the laws of the state where the real
property is situated.
No subscribing witness to any will
can derive any benefit therefrom, unless there be
two disinterested and competent witnesses to the same.
[Se.] But if, without a will, he would be entitled
to any portion of the testator’s estate, he
may still receive such portion to the extent in value
of the amount devised. [Se.]
Wills can be revoked in whole or in
part, only by being canceled or destroyed by the act
or direction of the testator with the intention of
so revoking them, or by the execution of subsequent
wills. [Se.] The birth of a child after the
execution of a will but before the death of the testator,
operates as a revocation of the will, and the birth
and recognition of an illegitimate child has the same
effect. Declarations of the testator to the effect
that he intended to revoke the will, will not be sufficient
to prove a cancellation.
When done by cancellation, the revocation
must be witnessed in the same manner as the making
of a new will. [Se.]
If no executors are named in the will,
one or more may be appointed to carry it into effect.
[Se.]
Posthumous children unprovided for
by the father’s will, shall inherit the same
interest as though no will had been made. [Se.]
If a devisee die before the testator,
his heirs shall inherit the amount so devised to him
unless from the terms of the will a contrary intent
is manifest. [Se.] The word heir in this section
does not include the widow of the testator, and she
cannot inherit from a child to whom property has been
devised by his father, but who has died before the
father.
A married woman may act as executor independent of
her husband. [Se.]
If a minor under eighteen years of
age is appointed executor, there is a temporary vacancy
as to him until he reaches that age. [Se.]
In other cases where an executor is not appointed
by will,
administration shall be granted:
1. To the wife of the deceased;
2. To his next of kin;
3. To his creditors;
4. To any other person whom the
court may select. [Se.]
Individuals belonging to the same
or different classes, may be united as administrators
whenever such course is deemed expedient. [Se.]
To each of the above classes in succession
a period of twenty days, commencing with the burial
of the deceased, is allowed within which to apply
for administration upon the estate. [Se.]