§46. Revocability. The rule is well established that a will can be revoked any time before the death of the testator15. A testamentary grant of land in which it is provided that it shall remain the property of the grantor during his life time and go to the grantee on his death, is a mere devise, revocable at will16. (2) Forms and Contents of Document. §47. Form in General. Statute. No instrument will be entitled to probate unless the requirements of the statute have been complied with, although its disposition is testamentary in character. The test as to whether the dispositions are testamentary or not rests in the question, is there an animus testandi, and have the formalities of execution, attestation and acknowledgment prescribed by statute been complied with. Any form of words can be used to make a will, and all that is necessary to constitute such an instrument is that "it shall clearly appear by the intention of the party to have it operate after his death, and not before18." Thus, an instrument drawn up, at the request of a person lying at the point of death, as his will, purporting on its face to 15. No will nor any part thereof shall be revoked unless by burning, tearing, canceling or obliterating the same, with the intention of revoking it, by the testator, or by some person in his presence and by his direction; or by some other will or codicil in writing, executed as prescribed in this chapter; or by some other writing, signed, attested and subscribed in the manner provided in this chapter for the execution of a will; excepting only that nothing contained in this section shall prevent the revocation implied by law from subsequent changes in the condition or circumstances of the testator. C. L. '97, §9270. 16. Bigley v. Souvey, 45 Mich. 370, 8 N. W. 98. 17. Gibson v. Van Syckle, 47 Mich. 439, 11 N. W. 261. 18. Rue High, 2 Doug. 515. be his will, his last will, containing a bequest of all his property and a parting farewell to his relatives, and executed in the presence of witnesses, who attested its execution, complies with all the requisite formalities. An unwitnessed instrument is void as affecting the will or the estate of the devisee therein named19. An instrument executed with the formalities required by law for wills, certifying that upon a certain condition a certain sum is to be paid out of the estate of the deceased as compensation for services rendered is a will, and not a mere acknowledgment of indebtedness, since it was not to take effect until the death of the subscriber, and was subject to be defeated by his marriage20. Again, an instrument in form of a letter executed according to law is a valid will21. An instrument in the form of a bond is testamentary, when it does not pass an interest in præsenti. It must be revocable and must not take effect till the death of the maker22. As to deeds it may be said that the "line of separation between what constitutes a deed and what constitutes a will is sometimes so faintly drawn that distinction between them becomes extremely doubtful." Where a grantor expressed his intention in a deed that title should remain in him until after he died, and that it should pass upon the performance of certain conditions to the grantee, the deed is testamentary for the intent is testamentary in character and cannot be consummated by a deed23. A deed usually passes an estate in præsenti, although the right to posses 19. Finegan v. Theissen, 92 Mich. 173, 52 N. W. 619. 20. Ferris V. Norville, 127 Mich. 444, 54 L. R. A. 464, 80 Am. St. Rep. 480, 86 N. W. 960. 21. Rue High, 2 Doug. 515. 22. Matter of Lantenschlager, 80 Mich. 285, 45 N. W. 147. 23. Culy v. Upham, 135 Mich. 131, 106 Am. St. Rep. 388, 97 N. W. 405; Moody v. Macomber, 159 Mich. 657. sion and enjoyment may not accrue until some future time, while a will does not pass any interest until after the death of the testator24. A court of inferior jurisdiction sustained a will in which no beneficiary was named, the will being otherwise properly executed24a. $48. Evidence. The rule is established that evidence is admissible to show that a deed or other instrument of gift, which on its face is not testamentary, was not to operate until the death of the maker of the deed or instrument25. §49. Writing. All wills must be in writing with the exception of nuncupative wills. Verbal additions cannot affect wills. All additions must be made in writing by way of codicil. It is provided by statute that the words "written" and "in writing" may be construed to include printing, engraving and lithographing; except that in all cases where the written signature of any person is required by law, it shall always be the proper hand-writing of such person; or in case he is unable to write, his proper mark26. §50. Language. The language in which a will is written does not affect in any way the will, if it properly complies with the formalities required by law 27. §51. Will Written on Several Pieces of Paper. In general it may be said that under the Statute provid 24. Jenkinson v. Brooks, 119 Mich. 108, 77 N. W. 640. 24a. This case was kindly furnished us by William H. Wetherbee, Esq. It was tried in the Circuit Court of Macomb Coun ty. ing that wills must be in writing, a will is valid, although written on several pieces of paper. Where a sheet of foolscap was torn in two, and the top half of one sheet was pasted to the bottom half of the other, the will is valid28. In this case the signature of the testator came just below the line of union. §52. Reference to Documents to be Incorporated. The fact that a will may consist of several pieces of paper leads to the inference that reference may be made to documents which are to be made a part or incorporated in the will. In general it may be said that three requisites are essential to incorporate a document in a will. (1) It must be in existence at the time of the execution of the will29 (2) It must be readily identified by the reference in the will30 (3) It must be referred to in such a way that the intention of the testator is manifest that he incorporated the document in his will31. Where a will was made by a testator devising all his property and subsequently an unwitnessed paper certifying his wish that certain property included in the will should be applied to the benefit of a certain school, the paper was not properly incorporated in such will, nor was it valid31a $53. Erasures and Interlineations. It is manifest that a will is not rendered invalid, where 28. Lamb v. Lippincott, 115 Mich 611, 73 N. W. 887. 29. Smith v. Smith, 54 N. J. Eq. 1. 30. Skinner v. American Bible Society, 92 Wis. 209. 31. Hunt, ex rel v. Evans, 134 Ill. 496, 11 L. R. A. 185. 31a. Finegan v. Theisen, 92 a daughter at the request of the testator fills in the correct date upon his discovering its omission, although the daughter is the sole beneficiary mentioned in the will32. The presumption will be that where interlineations of the words "death" and "signed in the presence of" were made before execution of the instrument33, no effect having been had on the dispositions. §54. Certainty of Description. The description of the property must be clear and certain and not inconsistent with subsequent bequests, so that the will is consistent with itself and free from repugnancy34. (3) Execution of Written Wills. §55. The Law Applicable to Wills. The early English statute3 which formed the basis of our statute relating to the execution of written wills, provided, in effect, that "all devises and bequests of any lands or tenements devisable *** shall be in writing, and signed by the party so devising the same, or by some other person in his presence and by his express directions, and shall be attested and subscribed in the presence of the said devisor by three or four credible witnesses, or else they shall be utterly void and of no effect." The substance of this statute with some modifications was embodied in the statute26 which provides that, no will made within this state, except such nuncupative wills as are mentioned in the following section, shall be effectual to pass any estate, whether real Mich. 173, 52 N. W. 619. 32. Lange V. Wiegand, 125 Mich. 647, 85 N. W. 106. 33. Jersey v. Jersey, 146 Mich. 665, 110 N. W. 660. 34. Stebbins V. Stebbins, 86 Mich. 474, 49 N. W. 294. 35. 29 Car. II, §5, June 24, 1077. 36. C. L. '97, §9266. |