Document Type

Article

Publication Date

1892

Abstract

The New York Law Journal for May 23, 1892, contains a suggestive editorial headed "A Will or Not a Will," in which the writer says "Interesting questions are constantly arising in the classification of instruments which, although expressing wishes or intentions to be carried out after death, are open to criticism on the score of testamentary execution." As is intimated by the writer, the difficulty of placing an instrument in either the class of contracts or wills is considerably diminished if the statutory provisions as to execution of wills are elaborate. Where holographic wills are allowed, or wills of personal property require no witnesses or no signature of the testator, the question of whether a promise to pay may be a good testament or a valid obligation is not uncommon. In this connection it is well enough to remark that a writing good as a testament at the time when passed upon might not be good to-day in the same court, by reason of change in the formalities required in executing a testament, and for this reason the dates are given when cases referred to in this article were decided. The ecclesiastical law, which required no particular form in the writing or executing of a will of personalty, nor even a signature where prevented by act of God, is true in this country save where modified by statute. 1 Woerner on Adm., § 38; 1 Redfield Wills, Ch. VI, Sec. 1 §§ 1-11; Masterman v. Maberly, 2 Hag. Eccl. 235, 247 (1829). But while the possibility of uncertainty has been reduced materially, at least three interesting cases have arisen lately involving the question of whether certain writings were testamentary or not. These are referred to in the above editorial, and of them the two first are Re Richardson's Estate (29 Pac. Repr., 484), where the instrument was a letter and the question was whether it might be probated as a holographic will, and Robinson v. Brewster (30 N. E. Repr., 683) where the same question arose as to a deed.


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