children.

ez necessitate would unquestionably be negatived by declarations of the party showing animus manendi, and such animus would probably be inferred from the party remaining in such place after a competent physician had pronounced him so far recovered as to render it safe for him to depart. Still v. Woodville, 38 Miss. 646; Dupuy v. Wurtz, 53 N. Y. 556. So, too, if the residence be not on account of health, but merely for pleasure.

18. In a recent case in New York it was held that the domicile, as well as the habitation of infants, follows that of the father, and after his death that of the mother, until her remarriage; also that the mere fact of being at a place is prima facie evidence of having a domicile there. Ryall v. Kennedy, 40 N. Y. Superior Court 347. It has also been held in New York that upon the death of the father the mother may change the domicile of the child. If she marry again she would take the domicile of her second husband, but that of the child would remain unchanged. Her control over that would

be gone. Brown v. Lynch, 2 Bradf. 214. So, too, in West Virginia. She cannot render the estate of the child subject to the law of succession and distribution of the state into which she may move. Mears v. Sinclair, 1 W. Va. 185. And in Tennessee. Allen v. Thomason, 11 Humph. (Tenn.) 536.

(1) Pottinger v. Wightman, 3 Mer. 67; but see Story, 46. [The general rule is well known that infants and married women cannot change their domicile by their own acts. See Kay 353, Robins v. Dolphin, 1 Sw. & Tr. 37, in D. P.. 29, L. J., Prob. 11; In re Daly's Settlement, 25 Beav. 456; Yelverton v. Yelverton, 29 L. J., Matr. 34. So in the case of one lunatic from infancy. Sharpe v. Crispin, L. R., 1 P. & D. 611. But the scope of this treatise does not admit of a full exposition of the law of domicile; this will be found in books specially devoted to the subject; and see Hayes & Jarman Conc. Forms of Wills, p. 543, 8th ed., by Dunning.]

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[(a) Where one by will said, "I propose to give the residue by codicil, or otherwise to let it devolve as if I had died intestate," and he left no codicil, he was held not to have disposed of the residue. Ash v. Ash, 10 Jur. (N. S.) 142.]

1. A will is defined by Johnson, J., in Tomkins v. Tomkins, 1 Bailey 96, to be a declaration of a man as to the manner in which he would have his estate disposed of after his death. The words "will" and "testament" are held in these days to be synonymous, and are used interchangeably in the law. How ever, by the civil law, such an instrument was recognized as a testament only when an executor was made by and named in the instrument. An old writer says: "A testament is the full and complete declaration of a man's mind, or last will of that he would have to be done after his death; * and this is sometimes called a will, or last will." Shep. Touch. 399. "At one time the word 'testament' or the combined form, 'will and testament,' applied strictly to a bequest of chattels, 'will' having been employed to signify a devise of realty, although Littleton states that 'a man may devise by testament his lands and tenements." " Flood on Wills 56. See also 2 Black. Com. 373; Id. 493. Blackstone, however, confuses the terms, although in the

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main distinguishing between devises of lands and bequests of chattels; thus he says (2 Com. 493), "a man may devise the whole of his chattels." See also Shep. Touch. 400. An old author of repute says that "a testament taken strictly according to the definition thereof, differeth from a last will, yet not as opposite thereto, but only as the species differeth from the genus, for every testament is a last will, but every last will is not a testament. A last will is a general word, and agrees with each several kinds of last wills or testaments; but a testament, properly so called, is only that kind of last will wherein an executor is named." Godolph. Orph. Leg. 5; Flood on Wills 57. The word "will" is understood to include prima facie all instruments of a testamentary character which could go to make the will. Crosby v. MacDoual, 4 Ves. 610; Gordon v. Lord Reay, 5 Sim. 274; Aaron v. Aaron, 3 DeG. & Sm. 475. Bacon says: "According to some, a will is the declaration of the mind, either by word or writing, in disposing of an estate, and to take effect after the death of the testator." 7 Bac. Abridg., tit. Wills, 299, a. See also Estate of Wood, 36 Cal. 75, 80; Ragsdale v. Booker, 2 Strobh. Eq. 348, 352; McGee v. McCants, 1 McCord 517, 522; Lucas v. Parsons, 24 Ga. 640; Jackson v. Betts, 9 Cow. 208. Blackstone says

that the power to make a will is "a right given to the proprietor of continuing his property after his death in such persons as he shall name." 2 Black. Com. 490. If the instrument has no operation inter vivos, but depends for its operation entirely upon the death of the maker to consummate it, it must be regarded as a will. Carey v. Dennis, 13 Md. 1. The appointment of an executor may be, by the will, delegated to another. Hartnett v. Wandell, 60 N. Y. 346. A date is not a material part of a will. If it have no date, or if the date be a wrong one, the will may still be a good will. And parol testimony is admissible to prove the actual time of its execution. Wright v. Wright, 5 Ind. 389; Deakins v. Hollis, 7 Gill & J. 311. But when the will is dated, the presumption is that it was made at the time of its date. Sawyer v. Sawyer, 7 Jones L. 134. Nor is it necessary that a will should show where it was made. This is a matter dehors the will, and may be proved like any other fact. Succession of Hall, 28 La. Ann. 57. Before the passage of the recent wills act in England (1 Vict., c. 26,) there was little formality required as to the execution of a will of personalty or as to the form of the instrument, but any writing which could have been established as having been made by the testator animo testandi was admitted to probate as a will. But prior to the recent wills act devises of real estate in England were required to be in writing and attested by at least three credible witnesses. The recent wills act has, however, placed all wills on the same footing. In the United States statutes similar to the wills act generally prevail. 4 Kent 501; 1 Redf. on Wills 4, 168; Wms. Ex'rs (6th Am. ed.) 6, 7, 8; Best on Evidence, 222; Theobald on Wills 64; Walkem on Wills 9. The onus is upon the proponent of the will to establish all those facts which the

statute requires, in order to impress upon the instrument a testamentary character. Roberts v. Welch, 46 Vt. 164. A codicil is a supplement to a will, by which the will is either enlarged or restricted. It may add to or subtract from, alter, explain, confirm, re-execute, revive or re-publish any will with which it can be incorporated. There may be many codicils, but there can be but one will. "A codicil also is in writing or by word, as a testament is." Shep. Touch. 399. In the old English law a codicil was understood to be a will in which no executor was named, and was accordingly defined by Godolphin to be "the just sentence of our will, touching that which we would have done after our death without the appointing of an executor," and was by him called "an unsolemn last will." Godolph., pt. 1, ch. 6, § 2. But its more modern sense is as given above, and in the modern sense it is part of the will, all making but one testament. Wms. Ex'rs (6th Am. ed.) 8. See the case of Sherer v. Bishop, 4 Bro. C. C. 55, for a good illustration of the principle that the will and all codicils together make but one testament. See also Day'v. Croft, 4 Beav. 561; Warwick v. Hawkins, 5 DeG. & Sim. 481; but see, to contrary effect, Hall v. Severne, 9 Sim. 515; Fuller v. Hooper, 2 Ves., Sr., 242. In construing a will with codicils, all the papers are to be taken together, as parts of one instrument, and if there be a codicil, which appears to have been executed and attested at the same time and place with the will itself, it would undoubtedly be taken to constitute a part of the original will. Negley v. Gard, 20 Ohio 310. An instrument which disposes of no property, but simply declares an intention to revoke a previous will, is not a will or a codicil, and is therefore not entitled to probate. In the goods of Fraser, 39 L. J., Prob. 20; 2 L. R., P. & D. 40; 21 L. T. (N. S.) 680.

England, lived some years afterwards and died. It was held by Lord Hardwicke that the will was contingent, depending upon the event of the testator's returning to England or not; as he did return, the will could have no effect, but was void. Parsons v. Lanoe, 1 Ves., Sr., 190. See also In the goods of Graham, 41 L. J., Prob. 46; 2 L. R., P. & D. 385; In the goods of Newton, 42 L. J., Prob. 58. The will of a mariner, commencing, "Instructions to be followed if I die at sea or abroad," is conditional. Lindsay v. Lindsay, 2 L. R., P. & D. 459; 42 L. J., Prob. 32. In Todd's Will, 2 Watts & S. 145, it was held that an instrument by which a party disposed of his property in case he should not return from a journey then contemplated, could not be admitted to probate as a will, after his subsequent return and death. See also In the goods of Smith, L. R., 1 P. & D. 717; Turner v. Scott, 51 Penna. St. 126; Frederick's Appeal, 52 Penna. St. 338; Ritter's Appeal, 59 Penna. St. 9; Wagner v. McDonald, 2 Harr. & J. 346. Nor can a will be admitted to probate, at least to overthrow the rights of a wife subsequently married, which was inade in contemplation of a change of residence, and stated that it was made to prevent disputes that might arise after the death of the maker. Jacks *. Henderson, 1 Desaus. 543. In Kentucky a will saying, "If I never get back home I leave you everything I have in the world," was held to be a contingent will, and as the husband returned home it could not be taken as his will after his death. Maxwell v. Maxwell, 3 Metc. (Ky.) 101. See also Augustus v. Seaboldt, Id. 155; Dougherty v. Dougherty, 4 Id. 25; Tarver v. Tarver, 9 Peters 174. In New York a testatrix commenced her will with these words: "According to my present intention, should anything happen to me before I reach my friends in St. Louis, I

wish to make a correct disposal of the three hundred dollars now in the hands of E," &c. ; it was held that the words ", according to my present intention" expressed the occasion of making the will, and not a condition on which the will was to depend, and it was therefore admitted to probate. Ex parte Lindsay, 2 Bradf. 204; Thompson v. Connor, 3 Bradf. 366. In Damon v. Damon, 8 Allen 192, a testator made a will as he was about to depart for Cuba. The will began as follows: "In the name of God, amen. I, J. W. D., being about to go to Cuba, and knowing the dangers of voyages, do hereby make this my last will and testament," &c. The first item was thus: "First. If, by casualty or otherwise, I should lose my life during this voyage, I give and bequeath to my wife A," &c. He then went on to give other specific devises. He went to Cuba, returned, lived two or three years and died. The will was admitted to probate. Hoar, J., said, in delivering the opinion, "There seems to be no reason, upon principle, why an instrument cannot be made which is to take effect as a will, only on the happening of a contingency named in it. As every devise or legacy, and the appointment of an executor may be made conditional, if the same condition applies to all, it may be as well annexed to the entire instrument as to a single provision; and the happening of the condition can then be ascertained when the will is offered for probate. But there are two points to be settled before a will can be rejected from probate on the ground that it is a conditional will, and that the condition has failed; first, whether the intention of the testator is to make the validity of the will dependent upon the condition, or merely to state the circumstances and inducements which lead him to make a testamentary provision; and secondly, if the