528 THE POPULAR SCIENCE MONTHLY. 



nature of the paper, is bad (Harris's Estate, 1 Tuck., 293). Such ques- 

 tions as, " Will you witness my will ? " or " I want you to witness my 

 will," if addressed to both witnesses, are good (Yan Hooser vs. Van 

 Hooser, 5 N. Y. Surr., 365), but bad if addressed to only one of them 

 (Rutherford vs. Rutherford, 1 Denio, 33). 



Touching the question of the formalities of execution, a word on 

 foreign wills is in place. All wills of residents of this State executed 

 in foreign countries in accordance with the laws of the country where 

 executed, but not in accordance with the law of New York, and all 

 wills of foreigners executed in accordance with the law of their for- 

 eign domicile, if not also in accordance with the law of this State, 

 who die leaving no property situated or which afterward comes here, 

 are not admissible to probate, not because they are necessarily il- 

 legal, but because the statute-book declares this to be the law. The 

 importance of this provision must particularly commend itself to the 

 mind of every citizen intending to make a will, and contemplating 

 a visit beyond the jurisdiction of his own domicile. Sometimes an 

 action in the Supreme Court to establish such succeeds ; but who can 

 be found willing to unnecessarily involve his estate in litigation to 

 ascertain the validity of a will when it can easily be avoided ? The 

 surrogate has certainly no power to admit such wills. 



In concluding this discussion on the execution of a will, it may 

 properly be said that the instrument must be fully completed before 

 death — that is, it must have been subscribed by the testator at its 

 foot, in the presence of the witnesses, or the subscription so acknowl- 

 edged ; it must have been declared to them to be his last will and 

 testament, and the witnesses must actually have signed it, at his re- 

 quest, for, if he die ere this is accomplished, there is no will (Vernon 

 vs. Spencer, 3 Brad., 16). Simple as these statutory requirements are, 

 the instances cited prove that even the question of execution is not 

 free from serious snares. Yet a literal compliance with the formali- 

 ties of the statute is not required, a substantial observance of them 

 being sufficient (Coffin vs. Coffin, supra). 



It is entirely possible to execute a will so as to be technically incon- 

 testable. 



Touching the graver question as to preparing or drawing the will — 

 in other words, considering its contents, whether its provisions offend 

 the law or not — the scope of the inquiry broadens and becomes very 

 comprehensive. It presupposes on the part of the draftsman a knowl- 

 edge of the law as determined in unnumbered decisions adjudicated 

 both in England and the United States. The common law, principles 

 of international comity, and statute-books, all must be resorted to 

 in answering the question. It assumes in the writer of the will an 

 accurate and extended fund of information upon the subject of trusts, 

 powers, and uses, and generally an intimate acquaintance with all the 

 nice details relating to that great branch of jurisprudence — real estate. 



