Mr. Winchester Hall sends us his pamphlet review of Mr. Carter's paper on Codification. It is a thoughtful, candid and courteous production, and perhaps even at this late day not wholly superfluous, although possibly liable to the charge of slaying the slain and jumping on the dead. Mr. Carter himself is a living and lively force, but his pamphlet in our judgment has been so thoroughly exposed and confuted that it is as dead as Julius Cæsar. On the subject of definitions Mr. Hall observes: "I deny, from the experience of an active practice for many years, that the 'definitions of the Louisiana Code were found to be one of the greatest difficulties in administering it.' I affirm definitions are no more necessary under written than unwritten law; that while accurate definitions are good under any system of law they are not absolutely essential to any system, written or unwritten; and that when certain elements are necessary to constitute a transaction to which the law is to be applied, that transaction may be defined by its elements, as in a sale, the elements are- the thing sold the price and the consent of the parties — a sale therefore may be defined. In like manner a bill of exchange may be defined because certain elements constitute it. The difficulty about definition, I apprehend, is that many attempt to define, but omit some one or more of the elements constituting the thing or transaction, and the definition of course is incomplete as if in the definition of murder one should omit the expression with malice aforethought, express or implied.' I maintain that whether the law is written or unwritten there will be necessarily controversies concerning words, and that unwritten law is prolific in controversies of this character. Taking it for granted the author makes this assertion in good faith, one is forced to the conclusion he has never seen 'Adjudged Words and Phrases,' by Winfield of the New Jersey bar, an octavo volume of perhaps 500 pages in which controversies respecting words and phrases have been settled by various courts, chiefly under the unwritten law; nor has he heard of Lawson's Concordance of Words and Phrases Construed, in the decisions of English and American courts. Nor has he even heard of a dictionary of American and English law by Rapalje and Lawrence, in which there are citations of over 40,000 reported cases in which words and phrases have been judicially defined and construed. It is true a portion of these citations are from the decisions of courts in States where the law is codified, but the bulk of them doubtless are under unwritten law." We may add that Mr. Carter (as well as Mr. Hall) seems not to have heard of a little book of our own, entitled "The Judicial Interpretation of Common Words and Phrases," made up from these columns. In the present number of this journal may be found a solemn adjudication of the English court of appeal, reversing the decision below, that rats are not a "danger of the sea." And in Mr. Carr's article on Wills may be found a review of decisions as to what is "the end of a will."

The bar of this city are to be congratulated on the accession of Mr. Esek Cowen to their number. Mr. Cowen on the 1st of January will form a partnership with Mr. Matthew Hale and Mr. Alpheus T. Bulkley. Mr. Cowen does wisely in coming here, and will probably fully supply the place which was held by the late Samuel Hand. We have expressed our opinion of his talents in connection with his candidacy for the Court of Appeals. His brethren of the bar and our citizens generally will find him a man of the most excellent and agreeable personal qualities. His coming here will do much to supply the losses which our bar has recently experienced by death and judicial promotion, and will give us a resident counsellor worthy to succeed to the mantle of Hill, Reynolds and Hand.

A strong effort has been made to induce Governor Hill to commute the sentence of Mrs. Druse, now under sentence of death for killing her husband. It is urged that hanging women is barbarous, and that only two have ever been hanged in this State. Ordinarily this plea should have great weight, but although hanging is not a ladylike death, Mrs. Druse did not slay her husband in a ladylike manner. On the contrary, the history of crime hardly shows & parallel for the deliberate and fier.dlike manner in which she killed the partner of her bosom and the father of her children. Druse was unquestionably a very unpleasant character,-"a shiftless farmer, a poor provider, often abusive to his family," say the Court of Appeals, and frequently quarreling with his wife for contracting debts. He was a good man to leave. But Mrs. Druse's method was different. She procured a revolver, with which and a rope and the help of a nephew, 14 years old, she despatched the wretched man, and then she cut his head off, and with an axe chopped his body into small pieces and burned them, and the unconsumed portions she dumped into a swamp. She even compelled her daughter, 19 years old, to assist her in chopping up and burning the husband and father. She hid the axe and revolver and telegraphed an inquiry for "William." This is the woman who asks for mercy. It should be observed that she did not testify on her own behalf, and her defense was not insanity, but self-defense. The sentimentality that would save the life of such a fiend is puling and morbid. We hope the Governor will disregard it and execute the law. Aside from the peculiar circumstances of this case, we see no reason why a governor should ever be asked to save a criminal from the gallows on account of sex. If it is ordinarily barbarous to hang women let the legislature interfere, nevertheless so long as we have a law making no such distinctions, let us have it executed. The bane of our institutions is unexecuted laws.

exist between the same persons, and if they can exist, the extent, nature, effect and qualifications of their existence, such discussion is unnecessary in this case; since even admitting that the relation of master and servant existed between the said defendant and her said husband, and that the husband was the servant, and his wife the master, the remaining essential element or requisite which must exist before the liability of the defendant could arise would be wanting, in that it does not appear, from a careful and discriminating inspection of the testimony and the surroundings of the case, that the husband, M. J. Dinneen, when he committed the assault and battery upon the plaintiff, was doing his master's business, or executing his master's order, or acting within the scope of his duty or authority as the servant of such master; but on the contrary, it is plainly manifest, that granting that at the time he committed the act complained of, he was in the employ, as her servant, of his wife as his master, the assault and battery committed by him was neither his wife's business, nor done by her order or consent, nor ratified by her after its occurrence, nor was it within the actual or apparent scope of his duty or authority as her servant. The injury inflicted by the said M. J. Dinneen upon the eye of the plaintiff was a part and the result of a personal altercation or quarrel between said M. J. Dinneen and the plaintiff whom he assaulted; and to hold his wife responsible in damages for his tort, as his master, under the circumstances, would not be in accord with any principle of law or equity, but a violation of wellsettled principles of both."

THE FORMALITIES OF A LAST WILL.

Na former article on "Testamentary Capacity," an

IN a former article on the circumstances attending

the right to make a last will and testament.

How one, possessing such right, must proceed to give it valid expression shall now be discussed. A great civilian, Modestinus, has defined a will thus: "Testamentum est voluntatis nostrae justa sententia de eo, quod quis, post mortem suam, fieri velit," which Blackstone translates as follows: "The legal declaration of a man's intentions which he wills to be performed after his death," and upon which definition he comments thus: "It is called sententia to denote the circumspection and prudence with which it is supposed to be made; it is voluntatis nostrae sententia because its efficacy depends on its declaring the testator's intentions, whence in England it is emphatically styled his will; it is justa sententia, that is drawn, attested and published with all due solemnities and forms of law; it is de eo quod quis post mortem suam fleri velit, because a testament is of no force till after the death of the testator."

One may express his ideas by either of two means, orally or by writing, and so the law directs that a man may declare his last will either by writing or by spoken words alone. When our modern civilization was in its infancy the art of writing was possessed but by few, and consequently the law did not demand a written instrument where the same was either an impossibility or obtainable only at great expense and inconvenience. Hence we have inherited from medieval law what is known as an unwritten or noncupative will.

In the earlier ages this form of a last will, which was almost universally used, was made by a solemn declaration in the presence of witnesses, under prescribed formalities, of the testator's intention, and was called noncupative from the Latin verb noncupare, meaning to solemnly declare. However as civilization advanced the art of writing became more widely pos

sessed, and owing to this fact, and the facility with which spurious noncupative wills had been proved, the right to make the same was almost completely abolished by the statute of frauds of 29 Charles II, ch. 3, and still further limited by subsequent legislation, so that to-day noncupative wills can be made only by soldiers in actual military service and marines while at sea, and in every other case the "justa sententia of the civilian must be expressed in writing and in accordance with the various formalities by law prescribed. The terms "soldier in actual military ser vice" has been held to mean soldiers on a military expedition, and to exclude those housed in barracks (3 Curt. 522, 818), and the term "mariner while at sea" to mean superior officers and common seamen while absent from home on a voyage, even while the vessel is lying at a wharf or at anchor in a harbor (Hubbard v. Hubbard, 8 N. Y. 199; Ex parte Thompson, 4 Bradf. 154), in which cases many authorities on this subject will be found collated. No precise number of witnesses are required (Ex parte Thompson, ut supra), and no express declaration of the testator's intention to make a will (Hubbard v. Hubbard, ut supra), though it seems that the testator must be in extremis, at least in fear of death. Prince v. Hazleton, 20 Johns. 502; opinion by Chancellor Kent. Unwritten or noncupative wills being restricted to the classes before mentioned, the vast majority of people are obliged by law to make a written will, if any they make. Whether the right to make a will is a natural right or a mere political privilege, it is unnecessary to discuss at present. The various States have surrounded the execution of a last will with prescribed formalities, and their courts will not give effect to instruments in the making or the execution of which the statutory requirements have been ignored.

What then does the law require of a last will in order to give it effect? The New York statute of wills, and in this respect the statutes of many of our States, require, first, as has been said before, that such last will should be in writing. What kind or form of "writing" the statute does not declare. The word "writing" however is broad enough to include printing, type-writing, etc., and is used in contradistinction to "speaking." It was not the intention of the statute to require any thing further than a fixed, indelible and immutable form of testamentary expression. Nor shall the phraseology of this " writing" take any particular form. It will be enough if the maker intends it as a will, if it furnishes evidences from which such intention may be inferred, and if its provisions are of a testamentary character. Under the earlier statutes, when the requisite formalities were fewer, instruments assuming the form of a letter, or a deed, were held and construed to be a will, because a testamentary intention was inferred from their terms. Now however when the formalities are increased and the maker of an instrument required to declare it as a will, the court rests upon his declaration and considers the instrument, however expressed, as the intended will of the testator.

The statute next requires that this instrument in writing shall be signed by the testator at the "end" thereof. The testator's "mark" is a sufficient signature, and if the signing be done by a second person at the testator's request, such act will be held to be the signature of the testator on the principle of "qui facit per alium facit per se."

The words "end of the will" seem sufficiently clear, and apparently could give rise to no doubt about the meaning. Yet what constitutes the end" of a will has given rise to much discussion. While the testator has a right to make a will in such form as he deems proper, and may make it as short or as long, as simple or as complex, as his fancy dictates, yet the mere fact of his signing it at any particular place, intending that place to be the end of the will, does not make it so, for in determining the "end" of the will, not the testator's intention, but the intention of the statute, is to be considered, as is held by the decisions on this matter.

In the case of Sisters of Charity v. Kelly, 67 N. Y. 409, the question arose on the following facts: "The testator, Kelly, drew up the will himself and signed it in two places, once in the body of the will, in the middle of the last clause appointing his executors, and again at the beginning of the attestation clause, as follows: "Subscribed by John Kelly." these words being written in his handwriting. The signatures of the attesting witnesses however preceded, and did not follow, the attestation clause. The will was drawn up by the testator himself, and though embodying his testamentary wishes, was awkwardly executed. Probate was denied the instrument on two grounds, viz., that it was not signed at the "end thereof," and that it was not properly attested. The Court of Appeals, while sustaining the second objection, was called upon to decide on the first ground, it being claimed in support of the will that the first signature should be held a sufficient signing (and if this were so, the second objection would be baseless). It was urged that wherever the testator affixed his signature, he intended to make that place the end of his will, and his intention should govern. As there was no doubt that the instrument was the will of a competent and free testator, and as the law favored wills, his signature at that place should be considered a substantial observance of the statute, even if all the matter following it were to be considered invalid. The court however did not incline to this view. It took a ground that may be termed extremely technical. Folger, J., in the opinion reasons thus: "Can we say that the end of a will has been found until the last word of all the provisions of it has been reached? To say that where the name is, there is the end of the will, is not to observe the statute. That requires that where the end of the will is there shall be the name. It is to make a new law to say that where we find the name, there is the end of the will. The instrument offered is to be scanned to learn where is the end of it as a completed whole; at the end thus found, must the name of the testator be subscribed." Probate was refused.

The question arose again in the Matter of O'Neil, 91 N. Y. 516, upon a state of facts as follows: The will was drawn up and executed on a "printed blank," and the blank space customary in such instruments being not large enough to contain all the clauses of the will, which was almost completed, the remaining half of the last clause, conferring a power of sale, was continued over on the top of the fourth page. The testator however signed his name in the usual blank space left for that purpose. The incomplete clause conferring power of sale on the executors was a sufficient expression of such power and its continuation over on the other page modified it but slightly, and in no material respect. There was no doubt about the instrument being the last will of a competent testator, and probate was refused on the sole ground that it was not signed at the end thereof. Ruger, C. J., in his opinion, enters into a son ewhat elaborate consideration of the question, citing many English authorities, and deciding the point on the strength of Sisters of Charity v. Kelly, ut supra. In support of the will however it was

contended that as the whole instrument was read to the testator in manner as if the completed clause preceded this signature, and as the phraseology of both parts of the clause connected them both together. showing one to be but the continuation of the other, it should be held on the strength of Tonnele v. Hall, ut supra, that the remainder of the clause was to be deemed constructively inserted in the will at the point of connection, and that therefore the instrument was properly signed. The court however, refused to take this view, in the following words: "It is not believed that any paper or document containing testamentary provisions not authenticated according to the provis ions of the statute of wills has yet been held to be a part of a valid testamentary disposition of property, simply because it was referred to in the body of the will. It was held in Tonnele v. Hall that a map appear

ing after the signature upon a will, *** and which was referred to in the body of the will, did not require the signature of the testator and witnesses to follow it in order to make it a part of the will. It is to be observed that the paper there in question was referred to merely to identify the subject devised, and contained no testamentary provisions. It is further to be observed, the will in the case cited was complete without such additions, and that the map could probably have been used as evidence to identify the property devised, even if no reference had been made thereto in the will."

It will be observed that in the language thus quoted the hitherto generally accepted doctrine in relation to incorporating extrinsic documents in the body of a will is repudiated, or at least doubted. As this doctrine did not come squarely before the court, the words on the fourth page of the instrument not having been explicitly referred to in the body of the will as a part of the instrument, it may be then stated that Judge Ruger's remarks are merely dicta-dicta however concurred in by the remainder of the court, and which may be taken as evidence of the light in which this doctrine is viewed by that body. Considering the rigid rules of execution hitherto held by the court, it may not be amiss to say that there is great probability that the doctrine referred to will be repudiated whenever the same is fairly presented to the court as it is at present constituted.

Younger v. Duffie, 95 N. Y. 535, is the latest case on the question before considered. There the will was executed in Spain, in accordance with the formalities of that country. After all the testamentary clauses were completed an attestation clause followed, inter vening between the body of the will and the signa tures of the testator and the attesting witnesses. To the claim that the will was not signed at the end thereof, the court, through Earl, J., answered as follows: "The purpose of the law which requires the subscription to be at the end of the will is to prevent fraudulent additions to a will before or after its execution, and the statute should be so construed as to accomplish this purpose. What shall form part of the instrument which the testator intends as his will must be determined by him. It is true that a proper definition of a will is an instrument by which a person makes a disposition of his property, to take effect after his decease. But every word contained in the instrument may not relate to or bear upon the disposition of property. It is not uncommon for the testator to recite in the will his religious faith and hopes, etc., and to give directions concerning his body, and to make many declarations which have no bearing whatever upon the disposition of his property; and yet they are all part of the instrument which he intends as his will. Such matters and declarations are usually inserted at the commencement of the will, but they may as well be placed after the disposing

*

* *