sonal covenants, and are broken if the grantor have not the possession, the right of possession, and the right of property. It is no breach of this covenant if there is a less number of acres. The effect of a covenant in a deed is to give the grantee a claim for pecuniary damages. The covenant of seizure and right to convey is broken as soon as the deed is delivered, if the grantor is not seized. The covenant of quiet enjoyment and warranty are not broken until the enforcement of the adverse title to the injury of the grantee. Covenants are present or future. Present covenants are personal covenants, such as seizin and right to convey, which do not run with the land. Future covenants are real covenants, such as warranty and for quiet enjoyment, and these run with the land. Fraud renders a deed void as against the party defrauded. Duress renders a deed voidable, and the grantor must reenter within twenty years. The evidence of fraud must be clear and conclusive. A fraudulent delivery, as well as a fraudulent execution, renders the deed void. The deed of a person of unsound mind is voidable. If he is under guardianship, it is absolutely void. A deed may be avoided by reason of alterations or interlineations. An alteration made by the obligee will avoid the deed, whether material or immaterial, or even if advantageous to the other party. An immaterial alteration made by a stranger does not avoid the deed.

How broken? What is the effect of a covenant in a deed? When is the covenant of seizin and right to convey broken? When are the covenants of quiet enjoyment and warranty broken? What covenants are present covenants? Which are future covenants? Which run with the Ĩand? What is the effect of fraud upon a deed? What is the effect of duress? What evidence of fraud must be produced? What is the effect of a fraudulent delivery? If the grantor be of unsound mind? If he be under guardianship? What is the effect of alterations and interlineations in a deed? If the alteration is made by an obligee? If made by a stranger?

CHAPTER LXII.

WILLS.

1. A will is a formal statement in writing of the disposition of a person's estate, which he wishes to have carried into effect after his death. The word testament is used also as nearly synonymous with will. The person who makes a will, is called the testator or testatrix. When a testator conveys real property to another by will, he is said to devise it. In such cases he generally uses the term, "I give and devise." The person to whom real estate is conveyed by will, is called the devisee. When a testator conveys personal property by will, he is said to bequeath it. In such case he generally uses the term, "I give and bequeath." The person to whom personal prop erty is conveyed by will, is called a legatee. Real property conveyed by will, is called a devise. Personal property conveyed by will, is called a legacy. The person appointed to execute the will, is called the executor. If a person die without a will, he is called the intestate. The person appointed to administer on the estate of an intestate, is called an administrator.

2. All persons who can transmit real property by deed can also transmit the same by will, to take effect after their death. Persons of unsound mind, .and infants, and in some States, married women, cannot devise their real

1. What is a will? What word is used as synonymous with will? What is the person who makes a will called? When a testator conveys real property by will, what term is used? What is the person called, to whom real estate is conveyed by will? When a person conveys personal property to another by will, what term is used? What is the person called, to whom personal property is conveyed by will? What is a devise? What is a legacy? Who are executors? If a person die without a will, what is he called? Who are administrators?

2. Who may make a will of real property? Who cannot devise their

estate by will. All persons who can devise real property can bequeath personal property. In many of the States male infants, of the age of eighteen years, and female infants of the age of sixteen years, may bequeath their personal property.

3. The statutes of the several States require wills to be made in writing, except such as are made by a soldier while in actual military service, or by a mariner while at sea. It must be subscribed by the testator at the end of the will. The subscription must be made by the testator in the presence of the attesting witnesses, or the testator must acknowledge his signature to each of the attesting witnesses. The testator, at the time of signing the will, or acknowledging his signature, must declare to the witnesses that the instrument so subscribed is his last will and testament. Two witnesses only, in many of the States, are required to the execution of a will. In the New England States, and in New Jersey, Maryland, South Carolina, Georgia, Alabama, and Mississippi, three wit nesses are required. The witnesses must sign their names as witnesses at the end of the will, at the request of the testator. In New York, the witnesses must write opposite their names their places of residence, under a penalty of fifty dollars for omission. In many of the States, it is necessary for the witnesses to sign their names as witnesses in the presence of the testator. If the testator were in a position where he could see the witnesses sign, if he made the attempt, this would be sufficient. But if he

real estate by will? Who can bequeath personal property? At what age may infants bequeath personal property?

3. How must wills be made in the several States? Who may make an unwritten will? Where must a written will be subscribed? By whom? In whose presence? What acknowledgment may the testator make to the witnesses? What must the testator declare to the witnesses? How many witnesses are required in many of the States? In what States are three required? Where must the witnesses sign their names? At whose request? What do the statutes of New York require the witnesses to write opposite their names? What is the penalty for omission? Is it necessary for the witnesses to sign their names, as witnesses, in the presence of the testator? What would be decided to

were in a position where he could not see them sign, although they were in the same room, it would not be sufficient. In New York, the witnesses are not required to sign their names in the presence of the testator.

4. All property which would descend to heirs may be devised or bequeathed. Such devise or bequest may be made to any person capable in law of holding the same. A will does not take effect until the death of the testator. If the testator devise all his real estate, such devise will be so construed as to pass all his real estate at the time of his death. An acknowledgment by the testator of his signature before the witnesses, is sufficient, though they did not actually see him sign. In case of such acknowledgment, the will need not be before the testator at the time. It may be at a distance on the table. Where the statute requires that the witnesses attest and subscribe as witnesses in the presence of the testator, if he subscribe in their presence, and they go into another room and there attest the will, it is void, unless the testator could see them. It is sufficient if the testator can see the attesting witnesses. If he turn his back upon them, or they go into another room, at his request, where he could see them if he chose, the attestation is good. When the testator and the witnesses are in the same room, it is presumed to be attested in the testator's presence. When they are in different rooms, the contrary is presumed. Either presumption may be rebutted.

be in the presence of the testator? Are the witnesses in New York required to sign their names in the presence of the testator?

4. What property may be devised or bequeathed? To whom may such devise or bequest be made? When does a will take effect? If a testator devise all his real estate to a particular person, and afterwards purchase other real estate, what will pass by such devise? In case of acknowledgment to the witnesses, is it necessary that the testator have the will before him at the time? If the statute require the witnesses to attest the will in his presence, and after he subscribes his name they go into another room and subscribe their names as witnesses? What will be sufficiently in his presence? If he turn his back upon them, or they go into another room at his request, where he could not see them, if he chose? If the testator and witnesses are in the same room, what is presumed? If in different rooms? Can these presumptions be rebutted?

5. The officer before whom a will is proved is called, in some States, surrogate; in others, judge of probate. Any person interested in the estate may apply to the proper surrogate to have the will proved. On application to the surrogate, he will ascertain by satisfactory evidence-1. To what property the will relates; 2. The names and ages, with the place of residence, of the heirs of the testator, or that the same could not be found on diligent inquiry; 3. The names and residences of the widow and next of kin. The surrogate will ascertain if any of the next of kin are minors, and the residence of their general guardian, if they have any. If there is no guardian, the surrogate will appoint a guardian ad litem. The surrogate issues citations requiring the heirs, widow, and next of kin, and guardians of minors, at a specified time and place, to attend the probate of the will.

6. The surrogate issues subpoenas for witnesses, and he may require any person, having the will in his possession, to produce the same before him for the purpose of its being proved. The surrogate may punish any witness for disobeying his subpoena, as for contempt. Before proceeding to take proof of the execution of the will, the surrogate will require satisfactory evidence of the service of the citations. The surrogate will then cause the witnesses to be examined before him. The examination must be reduced to writing. Two, at least, of the witnesses to the will, if so many are living within the State, and of sound mind, and are not prevented from attending by sickness, must be produced and examined. The absence of any witness must be satisfactorily accounted

5. What is the officer before whom a will is proved called? Who may apply to the surrogate, or judge of probate, to have a will proved? On application to the surrogate, what will he ascertain by satisfactory evidence? If any of the next of kin are minors? To whom does the surrogate issue citations? What does he require them to do?

6. Who issues subpoenas for the witnesses? If any witness has the will in his possession? If a witness disobeys the subpoena? Before proceeding to take proof of the will, of what will the surrogate require satisfactory evidence? What will the surrogate then cause to be done? Must the examination be reduced to writing? How many witnesses