A. D. 1912. vise persons to devise their lands. 2475. 3237. Who may devise; persons in- 3238. Devises shall be in writing, 3239. Estates pur autre vie devis- 3240. Devises of crops on lands. terest. 3242. Creditor may attest the execu- 3243. Devises to be revoked only by 3244. Marriage a revocation, un- 3245. Words of limitation unneces- devise. 3246. Posthumous children to re- SEC. 3248. Share of child dying in life 3249. Certain legacies declared vold 3254. Proof of signature of s upon exemplifica tion and certificate; provise 3258. Nuncupative wills exceeding fifty dollars to be proved by three witnesses. 3259. Time of proving. may contest. Who may de- Section 3237. Any person having right or title to any in capacitat ed lands, tenements, or hereditaments whatsoever, (persons of unsound mind and infants excepted,) may dispose thereof Civ. '02, by will, in writing, at his or her own free will and pleasure. except as hereinafter provided; but all wills or testaments made of any lands, tenements, or other hereditaments, by any person within the age of twenty-one years, idiot, or by any person de non sane memory, shall not be taken to be good and effectual in law. Municipal corporation may take by devise.-McIntosh v. City of Charleston, 45 S. C., 584; 23 S. E., 943. A minor of eighteen can make a will of personalty, as this Section only restricts such right as to realty.-Posey v. Posey, 3 Strob., 167. Any form of words that expresses intention to dispose of estate at death is a will.-Lyles v. Lyles, 2 N. &. McC., 531; Brown v. Shand, 1 McC., 409; McGee v. McCants, 1 McC., 517; Kinard v. Kinard, Speer Eq., 256. Provided it be formally executed.-Carter v. King, 11 Rich., 125. Buchanan v. Anderson, 70 S. C., 454; 50 S. E., 12; Major v. Hunt, 64 S. C., 97; 41 S. E., 816; Sloan v. Hunter, 65 $. C., 235; 43 S. E., 788; Kennedy v. Kennedy, 74 S. C., 541; 54 S. E., 772. A. D. 1912, be in writing, three or more Sec. 3238. All wills and testaments of real and personal Devises shall property shall be in writing, and signed by the party so attested by devising the same, or by some other person in his presence witnesses. and by his express directions, and shall be attested and sub- Civ. '02, § scribed in the presence of the said devisor, and of each other, by three or more credible witnesses, or else they shall be utterly void and of none effect. Must be in writing, except nuncupative wills as prescribed by this Chapter.-Ex parte Turner, 24 S. C., 214. As to signing by testator, may be by his mark.-Wright v. Lewis, 3 Strob., 302. He must sign in presence of the witnesses or so acknowledge his signature.-Turnipseed v. Hawkins, 1 McC., 272; Black v. Ellis, 3 Hill, 68; Tucker v. Oxner, 12 Rich., 141. Blind testator may sign by his mark on the will.-Ray v. Hill, 3 Strob., 297. Or otherwise show his cognizance of contents.-Harleston v. Corbett, 12 Rich., 604. As to undue influence.-O'Neale v. Farr, 1 Rich., 8; Floyd v. Floyd, 8 Strob., 52; Means v. Means, 5 Strob., 9; Means v. Means, 6 Rich., 1. It is a question of fact for jury.-Thompson v. Farr, 1 Speer, 103; Martin v. Teague, 2 Speer, 265. That question is whether testator was a free agent ; and each case depends upon its circumstances.-Thompson v. Farr, 1 Speer, 03. There must not only be proof of influence, but that it was brought to bear on execution of the will.--Ib. As to witnesses, two witnesses not suficient.-Dunlap v. Dunlap, 4 DeS., 305. Since Act of 1824, wills of both ealty and personalty are required to have three witnesses.-Houston v. Houston, 3 McC., 491; Johnson v. Clarkson, 3 Rich. Eq., 305. The three lleged witnesses to a lost will must be proved; jury cannot say another ubscribed in place of one who denied it.-Bauskett v. Keitt, 22 S. C., 195. redible means competent at the time.-Garland v. Crow, 2 Bail., 24; Taylor Taylor, 1 Rich., 531; Workman v. Dominick, 3 Strob., 589; Noble v. urnett, 10 Rich., 505; Harleston v. Corbett, 12 Rich., 604. Witness may test by his initials.-Adams v. Chaplin, 1 Hill Ch., 265. It is imperative at witnesses sign in presence of testator-where he may see them; otherise will is void.-Reynolds v. Reynolds, 1 Speer, 253; Wright v. Lewis, 5 ich., 212; Tucker v. Oxner, 12 S. C., 141. Prior to amendment of Section 1882, they need not have signed in presence of each other.-Tucker v. ner, 12 S. C., 141. If testator be blind and witnesses attest within reach his senses, it is sufficient.-Ray v. Hill, 3 Strob., 297. They are also to help termine the capacity of the testator.-Heyward v. Hazard, 1 Bay, 335. nerally, no formal publication of will, or even declaration of the nature of e instrument, is necessary.-Black v. Ellis, 3 Hill, 68; Verdier v. Verdier, Rich., 135. Wills of personalty must be executed according to law governgat death.-Houston v. Houston, 3 McC., 491; in re Elock, 4 McC., 39. As attestation: Ex parte Brock, 37 S. C., 348; 16 S. E., 38; Kaufman v. ughman, 49 S. C., 159; 27 S. E., 16. In re Crawford's will, 46 S. C., 299; S. E., 69. Signing by another.-Ex parte Leonard, in re Bowen's estate.— S. C., 518; 18 S. E., 216. 2476. A. D. 1912. visable, shall &c. 2477. Sec. 3239. Any estate for the life of another shall be autre vie de devisable by a will in writing, signed by the party so devisbe assets ining the same, or by some other person in his presence and hers' hands, by his express directions, attested and subscribed in the Civ. '02, presence of the devisor by three or more witnesses; and if no such devise thereof be made, the same shall be chargeable in the hands of the heir, if it shall come to him by reason of a special occupancy, as assets by descent, as in case of lands in fee simple; and in case there be no special occupant thereof, it shall go to the executors or administrators of the party that had the estate thereof by virtue of the grant, and shall be assets in their hands. Devises of crops and lands. Civ. '02, § 2478. witnesses not petent be terest. Civ. § 479. 02, Sec. 3240. Any widow may bequeath by will the crop or crops standing or growing on the grounds of her dower, or on other lands planted for her use. Subscribing Sec. 3241. No subscribing witness to any will, testament. to be incom-or codicil, shall be held incompetent to attest or prove the cause of in-same by reason of any devise, legacy, or bequest therein in favor of such witness, or the husband or wife of such witness, or by reason of any appointment therein of such witness, or the husband or wife of such witness, to any office, trust, or duty; and such devise, legacy, or bequest shall be valid and effectual, if otherwise so, except so far as the property, estate, or interest so devised or bequeathed shall exceed in value any property, estate, or interest, to which such witness, or the husband or wife of such witness, would be entitled upon the failure to establish such will, testament, or codicil; but, to the extent of such excess, the said devise, legacy, or bequest, shall be null and void; and such appointment shall be valid, if otherwise so, but the person or persons so appointed shall not, in such case, be entitled by law to take or receive any commissions or other compensation on account thereof. Where devisee of life estate is a witness the remainders are accelerated and take effect at once.-Key v. Weathersbee, 43 S. C., 414; 21 S. E.. 324. Legatee competent witness, if he have equal or greater interest against the will.-Garland v. Crow, 2 Bail., 24. As to rule prior to enactment of this Section in 1865, see Henderson v. Kenner, 1 Rich., 474; Taylor v. Taylor, 1 Rich., 533; Workman v. Dominick, 3 Strob., 530. Generally-Richardson v. Richardson, Dud. Eq., 184; Henderson v. Kenner, 1 Rich., 474; Taylor Taylor, 1 Rich., 531; Filson v. Filson, 3 Strob., 288; Workman v. Dominick, 3 Strob., 589; Cannon v. Setzler, 6 Rich., 471; Mathis v. Guffin, 8 Rich. Eq., 79; Noble v. Burnett, 10 S. C., 505; Harleston v. Corbett, 12 Rich., 604. A. D. 1912, Creditor may a will or co Sec. 3242. In case by any will or codicil any lands, tenements, or hereditaments, shall be charged with any debtret the or debts, and any creditor whose debt is so charged shall execution of attest the execution of such will or codicil, every such and lands, & C., creditor, notwithstanding such charge, shall be admitted with his debt. as a witness to the execution of such will or codicil. Civ. '02, § 2480. revoked only stroyed by Sec. 3243. No will or testament, in writing, of any real Devises to be or personal property or any clause thereof, shall be revoca- by writing or ble but by some other will or codicil in writing, or other by being dewriting declaring the same, attested and subscribed by three testator. witnesses as aforesaid, or by destroying or obliterating 2481. the same by the testator himself, or some other person in his presence, and by his directions and consent. As to revocation by written instrument.-Legare v. Ash, 1 Bay, 464; Johnson v. Brailsford, 2 N. & McC., 272; Taylor v. Taylor, 2 N. & McC. 482; O'Neal v. Farr, 1 Rich., 80; Peoples v. Smith, 8 Rich., 90; Godbold v. Vance, 14 S. C., 475. By destroying.-Johnson v. Brailsford, 2 N. & McC., 272; Durant v. Ashmore, 2 Rich., 184; Watkins v. Watkins, 13 Rich., 66; Bauskett v. Keitt, 22 S. C., 192. By obliteration.-Pringle v. McPherson, 2 Brev., 279; Pringle v. McPherson, 2 DeS., 524; Means v. Moore, Harp., 314. By change of property.-Scaife v. Thompson, 15 S. C., 353; Prater V. Whittle, 6 S. C., 44. Revocation must be intended to be effectual.-Johnson v. Brailsford, 2 N. & McC., 272; Taylor v. Taylor, 2 N. & McC., 482; Means V. Moore, Harp., 314; O'Neall v. Farr, 1 Rich., 80; Durant v. Ashmore, 2 Rich., 184. Such intention may be implied.-Scaife v. Thompson, 11 S. C., 353. Devised lands conveyed to devise, and reacquired by devisor.-Gregg v. McMillan, 54 S. C., 378; 32 S. E., 447. Civ. '02, § revocation, will contain Sec. 3244. If any person making a will shall afterwards Marriage a marry, and die, leaving his widow or leaving issue of such unless the marriage, unless the will shall have been made in contem- provisions for plation of marriage expressed on its face, and shall contain future wife provision for future wife and children, if any, it shall be deemed and taken to be a revocation to all intents and pur poses. and children. Civ. '02, § 2482. limitation un convey a fee Sec. 3245. No words or limitation shall be necessary to Words of onvey an estate in fee simple by devise, but every gift of necessary to and by devise shall be considered as a gift in fee simple, by devise. mless such a construction be inconsistent with the will of civ. '02, § he testator, expressed or implied. Applied in Haynesworth v. Goodwin, 35 S. C., 54; 14 S. E., 491. This C. & W. C. Ry. v. Reynolds, 69 S. C., 481; 48 S. E., 476; Joyce v. Bode, 2483. A. D. 1912. children to re Sec. 3246. If no provision shall be made by the will of Posthumous the testator for any child or children that may be born after ceive equal his death, such child or children shall be entitled to a Civ. 02, equal share of all real and personal estates given to the share. 2484. Provision for children born after will. other child or children, who shall contribute to make up sach share or shares according to their respective interests o portions deriving to them under such will. Talbird v. Verdier, 1 DeS., 592; Burke v. Wilder, 1 McC. Ch., 551; Myer v. Myers, 2 McC. Ch., 214; er parte Wamer, Dud. Eq., 154; ex parte Warre Chev. Eq., 44. Sec. 3247. Any child or children of any person, whic may be born after the making and executing the last wil Civ. 02, and testament, but previous to the decease of such person shall be provided for and by the preceding Section. 2485. Share of testator. Richardson v. Sinkler, 2 DeS., 127; Ewing v. Ewing, 2 DeS., 451; M Lemore v. Blocker, Harp. Eq., 137; Heath v. Heath, 2 Hill Ch., 100. Sec. 3248. If any child should die in the lifetime of the life time of father or mother, leaving issue, any legacy of personalty devise of real estate given in the last will of such father or mother shall go to such issue, unless such deceased child was equally portioned with the other children by the father or mother when living. Civ. § 2486. C. 02, Certain legacies declared void. 2487. Mathis v. Hammond, 9 Rich. Eq., 137; Pegues v. Pegues, 11 Rich. F 554 Rountree v. Rountree, 26 S. C., 450; 2 S. E., 474. But prior to amendment of 1883 a devise of land lapsed; the Section was restricted legacies.-Pratt v. McGhee, 17 S. C., 428; Logan v. Brunson, 56 S. C. 33 S. E., 737. The term children does not include grandchildren and grea grandchildren.—Ib. Sec. 3249. If any person who is an inhabitant of this State, or who has any estate therein, shall beget any bastari Civ. '02, § child, or shall live in adultery with a woman, the said person having a wife or lawful children of his own living. and shall give, by legacy or devise, for the use and benefi of the said woman with whom he lives in adultery, or of his bastard child or children, any larger or greater proportion of the real clear value of his estate, real or personal, after paying of his debts, than one-fourth part thereof, such lega or devise shall be null and void for so much of the amount or value thereof as shall or may exceed such fourth part his real and personal estate. The gift, or devise, while voidable as to the excess over one fourth, is particular estate sufficient to support a remainder.-Beaty v. Richards of |