communicated to the donor, does not pass the property in the chattel without delivery28.

§10. Difference Between Will and Other Dispositions of Property.

A document in general form of a warranty deed, if properly executed and not delivered as a deed may take effect as a will and be admitted to probate29. It is apparent that an intent manifested in a deed that the title shall remain in the grantor until his death, and then pass to the grantee in case he shall have performed certain conditions, makes the intent testamentary in character and therefore could not be consummated by a deed, but it must be given the effect of a will30, so may a deed be admitted to probate where in form it is to take effect after the death of the grantor31. An absolute agreement, given upon a good and valuable consideration, actually delivered, and where upon being delivered, it passed beyond the power and control of the party executing it, is not, although the contract was made payable after the death of the maker, a testamentary disposition of his property so as to bring the document under the statute relative to wills32. Notes executed by the decedent and payable after his death are not in the nature of a bequest33.

§11. Words of Disposition.

The usual phrase of testamentary disposition is "I give, devise and bequeath." "Give" is a general word and the

28. Cochrane v. Moore, 25 Q. B. Div. 57.

29. Lautenschlager's Estate, 80 Mich. 285, 45 N. W. 147.

30. Culy v. Upham, 135 Mich. 134, 106 Am. St. Rep. 388, 97 N. W. 405; Leonard v. Leonard, 145

Mich. 563, 108 N. W. 985.

31. Lincoln v. Felt, 132 Mich. 49, 92 N. W. 780.

32. Reithmaier v. Beckwith, 35 Mich. 110.

33. Taylor v. Taylor's Estate, 138 Mich. 658, 101 N. W. 832.

word gift embraces all voluntary transfers of property without consideration. The words "devise" and "bequeath" are more technical in their meaning. "Devise" is applied to real estate and "bequeath" to personal property. "Give" applies to both.

§12. Words Creating Estates.

"I give, devise and bequeath to A. B., my son or daughter, his or her heirs and assigns forever," or "I give and devise to A. B., my son;" in which case the law supplies the rest. "I give, devise and bequeath to H. C., my son, and after his decease said real estate is to belong to his heirs"34. “I give, devise and bequeath to my beloved son, G. C., my eldest, and after he, my said son, G. C. is deceased, to become the property of said G. C.'s male heirs."35 "I give, devise and bequeath to my daughter, L. D., during her natural lifetime, and after her death to her heirs and assigns"36. "I give, devise and bequeath unto A. B. at the end of ten years after my death ." "I give, devise and bequeath unto A. B. to be paid him at the end of ten years after my death The former interest is contingent, the latter is

vested37.

34. Defreese V. Lake, 109 Mich. 415, 67 N. W. 505.

81.

35. Fraser v. Chene, 2 Mich.

36. Cousino V. Cousino, 86 Mich. 323, 48 N. W. 1084.

37. Hibler v. Hibler, 104 Mich. 274, 62 N. W. 361.

CHAPTER II.

TESTAMENTARY CAPACITY.

§13. Animus Testandi, Evidence. Testamentary Capacity in General. §14. Sound and Unsound Mind.

$15. Test of Testamentary Capacity.

$16. Degree of Memory.

$17. Insanity.

$18. Insane Delusion or Monomania.

$19. The Rule When the Monomania is Conceded.

$20. Lucid Interval.

$21. Eccentricity.

§22. Spiritualism.

$23. Intoxication and Delirium Tremens.

$24. Senile Dementia. Idiocy.

§13. Animus Testandi, Evidence. Testamentary Capacity

in General.

The animus testandi is clearly related to testamentary capacity, for a person may not only lack mental capacity, which may be either temporary or permanent, to form an animus testandi, or he may not be in that state of mind when he makes and executes the instrument purporting to be a will. It may be defined as that state of mind, to make disposition; the firm and advised determination to make a testament, closing all inquiry as to the existence and manifestation of one intent. Evidence is admissible to show that an instrument on its face testamentary was not written animus testandi, but with this qualification that "in seeking the intention of the maker of an instrument the court must, in the first instance, consult the language of the writing itself. The fact that the writing which is presented for

probate is testamentary in form is some evidence that it is a will. The form of the instrument is not controlling. The court of probate may, go outside of the writing to ascertain its character, not to supply an intention which cannot be found in it, but to ascertain with what intention the execution of the instrument was accompanied,"* for when a sane testator, not subject to undue influence, duress, coercion or restraint, mistake, fraud or deceit, intentionally executes with the formalities required by the statute, a writing which in form and substance is testamentary, the writing of itself imports, and conclusively imports, the animus testandi. The cases relating to the animus testandi or testamentary intent may be divided into three classes: (1) There are those cases in which the animus testandi is clearly deducible from the writing.**

(2) There are those cases in which the animus testandi is not clearly manifest because the instrument is ambiguous, or of doubtful meaning.†

(3) There are those cases in which there is nothing to indicate an animus testandi.

The general rule is that parol evidence is not admissible to add to, alter, vary, or contradict a will, for evidence is inadmissible to show that declarations were made by the deceased that he did not intend the will to be a final disposition of his estate.tt

*In re Kennedy's Estate, 159 Mich. 548. Clay v. Layton, 134 Mich. 317, 96 N. W. 458.

Compare Lincoln v. Felt, 132 Mich. 49, 92 N. W. 780; Underwood on Wills.

**Bigley v. Souvey, 45 Mich. 370, 8 N. W. 98. +Laulenschlager

V. Laulen

schlager, 80 Mich. 285 45 N. W. 147.

Clay v. Layton, 134 Mich. 317; Haines V. Hayden, 95 Mich., 332, 35 Am. St. Rep. 566, 51 N. W. 911; Kempsey v. McGinnis, 21 Mich. 123.

In re Kennedy's Estate, 159 Mich. 548.

The general rule as to testamentary capacity is that any person of sound mind, who has arrived at the age of discretion, and is under no constraint of will, may be said to be capable of making a testamentary disposition of his property in accordance with the prescribed forms of law1. Three elements in this definition are essential, namely, normality, discretion and freedom in the exercise of one's will. The paramount question is, was the testator qualified or not at the time of making the will? No effect is had upon the validity of a will where a testator was qualified at the time he made the will, but became disqualified after he made the will2. The normality of the testator at the time of making the will is the test of its validity from the standpoint of capacity, i.e., according to the common law a person to have testamentary capacity must be of sound disposing mind and

memory.

§14. Sound and Unsound Mind.

In law all persons are either of sound or of unsound mind. If the testator was not of sound mind, the law regards him as of unsound mind; and the testator is to be compared with himself, and not with others, in determining whether he was

1. C. L. '97, $9262. Every person of full age and sound mind being seized in his own right of any lands or of any right thereto, or entitled to any interest therein descendible to his heirs, may devise and dispose of the same by his last will and testament in writing, and all such estate not disposed of by the

will, shall descend as the estate of an intestate, being chargeable in both cases with the payments of all his debts. See Lane v. Lane, 160 Mich. 492.

2. Haines v. Hayden, 95 Mich. 332, 35 St. Rep. 566, 54 N. W. 911; Kempsey v. McGinnis, 21 Mich 146; Taff v. Hosmer, 14 Mich. 316.