Will, in law, the written instrument wherein a man declares his wishes in respect to the disposition of his property after his death. There is good reason to believe that the right of inheritance, or of descent to the children or kindred of the deceased, was firmly established and allowed earlier than the right of disposition by will. Blackstone says that until" modern times " a man could only dispose of one third of his personal property away from his wife and children, and, in general, no will of lands was permitted until the reign of Henry VIII. But it seems to have been the law in those early ages that a man's "goods," or, as we now call it, his personal property, was divided at his death, if he left a wife and children, into three parts, his wife taking one, his children jointly one, and the third being at his disposal by his will or testament. If he left a wife and no child, she took one half, and he could dispose of the other; and if he left a child or children, but no wife, they took one half, and he could dispose of the other; and if he left neither wife nor child, he could dispose of the whole. If he died intestate, the king, as parens patriae, took possession of his personals.

At first the king administered them through his common officers of justice, but at an early period he gave this power first perhaps to the county courts, but either originally or soon to his prelates. The bishops exercised it in their own courts, which were held either by them in person, or by their "ordinary," as the officer discharging this function was called. This word "ordinary " came to mean in England principally an ecclesiastical officer having judicial power. In some parts of the United States it is used as the designation of the judge who has jurisdiction in the matter of wills and administration. He is also in some states known by the title of surrogate, in others is called a judge of probate, and in others register of wills. - The general rule is, that all persons having property may dispose of it by will. To this rule there are important exceptions, relating principally to infants, persons of insufficient mind, and married women. At common law infants could not dispose by will of real estate, though males of 14 and females of 12 might dispose of personalty; but by statute 1 Victoria, ch. 26, no will made by any person under 21 years of age is valid.

The common law is variously modified in the different states of the Union, but there is a prevalent tendency toward the rule now in force in England; it is expressly adopted in many states, and there are many reasons which favor that rule. - What incapacity of mind invalidates a will is among the most difficult and most contested questions of law. All the resources not only of law, but of metaphysics and psychology, have been brought to bear upon the consideration of the question, What is a sound and disposing mind? It is certain that mere weakness of intellect will not deprive one of the power to make a will, nor will serious defects of memory, if the party still retains a recollection of those who would naturally be the objects of his bounty. A lunatic may make a will in a lucid interval, even though under guardianship, and a monomaniac may make one, though if his mania seems to have controlled its provisions it will be invalid. The apparent reasonableness. or unreasonableness of the provisions of a will is often allowed to have a controlling influence when the validity of a will made by one of impaired understanding or of alleged mental unsoundness is in question. - A married woman cannot, by common law, make any will whatever except with the husband's assent, and then it is rather his will than hers.

But this rule has received much modification in England, and much more in many of the United States. In a few of the states her common law disability remains almost entire; in most it is diminished by permitting her to exert some power of disposition over some part of her property; while in many she is allowed all the power which may be exercised by any other person. - No especial form of words is necessary to constitute a will or a legacy. It is always enough if the language used, however unusual or ungrammatical, convey with distinctness the intention and desire of the testator. Nor need the instrument be called, or in its form appear to be, a will or testament, if it was evidently intended to take effect after the death of the party executing it. As to the execution and attestation of wills, the law is far more stringent. The provisions of the statute of frauds are generally adopted in the United States. The will must be signed in presence of two witnesses, and in many of the states of three. But sometimes by statute exception is made where the will is wholly in the handwriting of the testator, especially if it be found among his papers, or disposes of personalty only. A seal is not usually required by statute, and when not so required is not necessary to the validity of the will.

A mark may be a sufficient signature of the testator or a witness; but it is unusual and perhaps unsafe to have a witness who cannot or will not write his name. Against the name of every witness his residence or address should be written, as a great convenience, where it is not required by law; but the absence of this, even where it is required, does not invalidate the will. The attestation must (with the exception of a few states) be in the presence of the testator, hut not necessarily in the same room, if he is so placed as to see the act; and he must have sufficient possession of his senses to know and undersfand the act of attestation. If he is blind, and the will is read to him and the attestation stated to him in good faith, this is sufficient. Nor is it necessary that he should actually see the attestation if he might do so. The execution of the will must under some statutes be " published" in the presence of the witnesses; which means that the testator must declare the instrument to be his will, or in some way inform the witnesses of this fact, when they attest it.

And it has been held that the distinct acknowledgment or recognition by the testator of the will, in presence of the witnesses, is equivalent to a signing by him before them. - As to revocation, the common law rule was, that a marriage and the birth of a child after the execution of a will revoked it; and this rule has much force in this country now, although it is variously modified by statute. So, too, it is a general rule that any children not mentioned in the will, or in any wise provided for thereby, take the share of the estate which would come to them if the father had died intestate. By the statute of frauds, a will was effectually revoked by burning, cancelling, tearing, or obliterating, by the testator himself, or in his presence and by his directions; and it was not necessary that any witnesses should be present. In most, if not all the United States, the same rule prevails, and extends to any voluntary destruction of the will, as it does now by statute in England. No mere intention or desire or even belief of revocation has the effect of revocation, without some act; but a very slight act, a little tearing, or burning, or obliteration, will have this effect, if it is proved to have been done for the purpose and in the belief of cancellation.

Whatever may be done, even if it be the actual destruction of the will, will not revoke it, unless the act be done animo cancellandi. Therefore the testator must have sufficient mind to know what he does; and consequently, if he destroys it in a fit of insanity, or by mistake for another paper, or without knowing that what he does will have the effect of cancellation, the will is not revoked. A will is always regarded, in the language of the law, as an ambulatory instrument, or as going always with the testator, and as being open to amendment, variation, or destruction by him, at his own pleasure, during his life; and a will is always revoked by a subsequent will incompatible with the prior will; but if the subsequent will does not expressly revoke the former, the two may stand together so far as they are not inconsistent. A will once revoked, but not destroyed, may be given validity by a new attestation by witnesses, at the testator's request; and this is called a republication. A codicil to a will may also have the effect of a republication, if the codicil is executed with the formalities required in a will. - The first principle in the construction of a will is to give effect to the intentions of the testator, disregarding so far as may be necessary any mere technical rules, such as are sometimes applied to other instruments.

If clauses seem repugnant, they will be reconciled if possible; but if that cannot be done, effect is given to the last clause, as expressing presumptively the last intention of the testator. Words and names are sometimes transposed, or even changed, where the obvious intention of the testator requires it. Thus "or" is not unfrequently read as "and." In one English case, not only was "all" changed into "any," but the phrase "without issue" was converted into its exact opposite, " leaving issue." But the intention on the face of the will must be clear to warrant such rulings. It has been said, in some cases, that all conditions in a will which act in restraint of marriage are absolutely void; but a condition that a widow shall not marry, or shall not marry a certain person named, has in other cases been held good. It is indeed quite certain that an annuity or other provision for a wife, " as long as she shall remain my widow," is common, and would probably be regarded as valid by most of the courts of this country, if not by all. Still, clauses and provisions are not unfrequently declared to be void, because repugnant to the principles or policy of the law.

It is a familiar and well established rule, that while words of grant to a person without the words " and heirs " give to the grantee by deed only an estate for his own life, the same words in a will give to the devisee an estate in fee, because the law supplies the words of inheritance. (See Legacy, Probate, etc).

Will #1

Will, a N. E. county of Illinois, bordering on Indiana, intersected by the Kankakee and Des Plaines rivers, which unite near its W. border to form the Illinois; area, 828 sq. m.; pop. in 1870, 43,013. It has a level surface, consisting mostly of prairie land, and is extremely fertile. Fine building stone is found. It is traversed by the Illinois and Michigan canal, the Illinois Central, the Chicago and Alton, the Chicago, Rock Island, and Pacific, and the Chicago, Danville, and Vincennes railroads. The chief productions in 1870 were 197,282 bushels of wheat, 1,131,458 of Indian corn, 1,868,682 of oats, 44,568 of barley, 224,845 of potatoes, 1,397,805 lbs. of butter, 62,442 of wool, and 106,196 tons of hay. There were 17,433 horses, 18,193 milch cows, 24,506 other cattle, 16,409 sheep, and 21,475 swine; 9 manufactories of agricultural implements, 3 of bricks, 16 of carriages and wagons, 4 of iron castings, 3 of machinery, 12 of saddlery and harness, 1 of Woollens, 9 flour mills, 2 tanneries, 4 breweries, and 3 planing mills.

Capital, Joliet.