person may deposit the will with the judge of probate, or he may leave it in the custody of some other person. Statutes also provide how such will shall be kept and disposed of, and that the judge shall give notice of his possession of the will. There is also a statutes relating to the duty of persons having custody of wills upon the death of the testator. In depositing a a will for safe keeping either with the judge of probate or other person, care should be taken to make the endorsement upon the outside of the sealed envelope sufficiently full to positively identify the testator, as confusion from a similarity of names is very apt to occur if this is not done. All original data and memoranda used in drawing a will together with a duplicate of the final draft should be kept in the office of the drawer, this because of the frequency with which wills are lost, or intentionally or unintentionally destroyed by persons other than the testator, and the statute provides that a lost will may be

him, with the judge of probate in the county where the testator lives, and the judge of probate shall receive and safely keep such will, and give a certificate of the deposit thereof.

7. C. L. 97 (9272), Sec. 11. Such will shall, during the lifetime of the testator, be delivered only to himself, or to some person authorized by him by an order in writing, dulv proved by the death of a subscribing witness; and after the death of the testator, and at the first probate court after notice thereof, it shall be publicly opened by the judge of probate, and be retained by him. (9273) Sec. 12. The judge of probate shall give notice of such will being in his possession, to the executor

therein appointed, if there be one, otherwise to the persons interested in the provisions of the will; or, if the jurisdiction of the case belongs to any other court, such will shall be delivered to the executor, or to some other trusty person interested in the provisions of the same, to be presented for probate in such other court.

8. C. L. '97 (9274) Sec. 13. Every person other than the judge of probate, having the custody of any will, shall, within thirty days after he has knowledge of the death of the testator, deliver the same into the probate court, which has jurisdiction of the case, or to the person named in the will as executor.

probated where its execution and contents can be proved. In conclusion, the subject of wills not only appeals to laymen, jurists, moralists and statesmen on account of its laying bare human nature, but it fascinates the legal mind, for the rules of law appertaining to the subject have been stripped of many of their technicalities, yet in their application to concrete cases they are open to reasoning of the highest order. The subject is full of human nature, human nature in all its phases. Oftentimes the wills of persons of wealth whose reputations during their lifetime have been unquestioned, show, when under the fire of a contest, most sordid lives, while the wills of persons of whom we least expected it, show virtues that shine forth resplendent in the light of their character. It is thus that wills and the litigation arising out of them reveal human nature in all its nakedness, and all human virtues and vices may be found recorded in the yellow, musty documents of the Probate Court.

HENRY S. HULBERT.

PART ONE-COMMENTARY.

CHAPTER I.

THE NATURE AND SCOPE OF TESTAMENTARY POWER AND OF WILLS.

§1. The Psychological and Ethical Aspects of Wills.

§2. The Economic Right.

§3. The Right to Make a Will.

§4. Restrictions on the Right to Make Wills.

§5. Definition of Will.

§6. Codicil.

§7. Testament.

§8. Different Kinds of Wills-Mutual and Joint Wills.

89. Difference Between Will and Gift.

§10. Difference Between Will and Other Dispositions of Property. §11. Words of Disposition.

§12. Words Creating Estates.

§1. The Psychological and Ethical Aspects of Wills.

The primitive psychology of common sense assumes that every man has a will of his own, and upon this assumption the law of wills has been developed. It is the power of choice, of determination, as distinguished from intellect and emotions. The subjective aspect of the will, as interpreted legally, has its source in the animus testandi and in the psychological fact as expressed in the maxim, voluntas testatoris est ambulatoria usque ad mortes and the will becomes fixed and ready for objective consideration under the maxim which reads, omne testamentum consummatum morte est.

Thus, every man can exercise his choice in making a will1 and the law cannot interfere with his voluntary bequests2.

In their ethical aspect there will be found in wills latent expressions of ambition, avarice, charity, hate, hypocrisy, love and pride. The motives that have given rise to the making of bequests may be classified from saintly benevolence to malignant revenge, and it is not infrequent that the criminal instinct has been aroused in persons whose interests have been affected by wills, so that crimes have been committed as the direct result of wills.

§2. The Economic Right.

Some doubt may be expressed from an economic standpoint as to the value of wills, and there are writers who maintain that the law of succession as fixed by the collective will is more satisfactory and equitable in making its distribution than the fluctuating and oftentimes unreasonable and unnatural distributions made by the individual will. In illustration it may be said there are many cases of unreasonable distributions and tying up of estates that deserve the same comment as was made in a celebrated case, by Chancellor Kent, of which he said: "This is the most extraordinary instance upon record of calculating and impelling pride and vanity in a testator, and disregarding the ease and comfort of his immediate descendants, for the miserable satisfaction of enjoying in anticipation the wealth and aggrandizement of a distant posterity. Such an iron-hearted scheme of settlement, by withdrawing property for so long

1. Pierce v. Pierce, 38 Mich.

412.

2. Latham v. Udell, 38 Mich. 238.