by reason of alienage or other incapacity, be incapable of making a will. The statute may interpose a prohibition against devises or bequests to certain persons or corporations, or affix limitations; and wills made in violation of the statute will be void, either in whole or partially. Hall v. Hall, 81 N. Y. 130. A will may be procured by fraud or undue influence, and, if this is established, the will is void, because it is not in law the act of the testator. But the case presented by the fact [the killing of the testator] sought to be introduced by the amendment to the complaint in this action does not show, or tend to show, that the will was void. It alleges neither incompetency on the part of the testator, nor any defect in the execution of the will, nor that the devise to the testator's wife was in contravention of any statute, nor that it was procured by fraud or undue influence, nor that the wife was under any incapacity to take and hold property by will. If the fact sought to be incorporated in the complaint can be established, Riggs v. Palmer, 115 N. Y. 514 (22 N. E. Rep. 188; 12 Am. St. Rep. 819), is an authority that a court of equity wil intervene, and deprive her of the benefit of the devise. It will defeat the fraud by staying her hand and enjoining her from claiming under the will. But the devise took effect on the death of the testator, and transferred the legal title and right given her by the will. The relief which may be obtained against her is equitable and injunctive. The court, in a proper action, will, by forbidding the enforcement of a legal right, prevent her from enjoying the fruits of her iniquity. It will not and cannot set aside the will. That is valid, but it will act upon facts arising subsequent to its execution, and deprive her of the use of the property. The civil iaw debarred one who procured the death of another from succeeding to his estate, either as testamentary heir or by inheritance, on the ground that he was unworthy. Domat says he shall be deprived of the inheritance (part 2, bk. 1, tit. 1, § 3), and in the Code Napoleon (§ 627) such a person is classed among those unworthy to succeed, and as such excluded from succession.' This was one of the penalties for his misconduct. It operated to exclude him from the benefits of the devise on the principle that by his misconduct he had debarred himself from claiming it." For conflict of authority upon this subject, see cases cited in Vol. III, § 209; Vol. II, § 156. Sec. 977. Acceptance necessary-After acquired realty. A devise of land must be accepted before it becomes complete. Acceptance of the devise by a life tenant will be presumed if he goes into possession, although he claims the fee under sales for taxes while the property was in possession of a prior taker, but such presumption may be overthrown by proof of acts inconsistent with acceptance. Defreese v. Lake, 109 Mich. 415 (67 N. W. Rep. 505; 32 L. R. A. 744). Under the Florida statute of wills, of November 20, 1828 (McClel. Dig. p. 985, § 1), in force until the Revised Statutes took effect, on June 13, 1892, no one could by will devise lands located in Florida that he did not own and had no interest in at the time of the execution of such will. So long as said statute of 1828 remained in force, real estate in Florida acquired subsequently to the execution of a will did not pass thereby; and this whether such will was executed in or out of the state of Florida. Frazier v. Boggs, 37 Fla. 307 (20 So. Rep. 245). Sec. 978. Agreements to devise realty. A parol contract by one to will all his property to his neice if she lives with and cares for him during his life may be taken out of the statute of frauds by performance on her part and specific performance be decreed, but specific performance will not be granted in such case where it would operate to deprive a subsequent wife of the promisor of her rights in the property as a surviving wife, she having no knowledge of the contract. Owens v. McNally, 113 Cal. 444 (45 Pac. Rep. 710; 33 L. R. A. 369). A parol contract by which a father agreed, in consideration of the surrender to him by a daughter of her interest as heir in the unadministered estate of her mother, to devise to the daughter on his death one-fourth of his estate, part of which consisted of land, was held unenforceable, as being within the statute of frauds, in the absence of a showing of part performance by the father before his death. Swash v. Sharpstein, 14 Wash. St. 426 (44 Pac. Rep. 862; 32 L. R. A. 796), and many cases there cited. Sec. 979. Agreements to devise-Resulting trusts. Where the promise to devise real estate rests upon a sufficient and valuable consideration, the promisee may be protected by equity decreeing a resulting trust in the property even though the promise rests in parol. If a contract is to pay for services or for property by devise or bequest, an action will lie for the value of the service or the property in default of the promised testamentary compensation. If there is a promise to devise or bequeath specific property for services or for property, a court of law will allow an action to recover upon a quantum meruit, and a court of equity, where the contract is clearly proven, will, in its discretion, decree what is equivalent to a specific performance of the contract. Nor will the fact that the agreement rests in parol debar a court of equity from exerting its power in this way, if there has been part per. formance. Duvale v. Duvale, 54 N. J. Eq. 581 (35 Atl. Rep. 750). Citing, Johnson v. Hubbell, 10 N. J. Eq. 332.. The Sec. 980. Construction of wills-Rules of. cardinal rule in the construction of wills is that the intention of the testator shall prevail, but this rule will not be allowed to interfere with the established rules of law. Fowler v. Duhme, 143 Ind. 248 (42 N. E. Rep. 623). Where a will directs that the residue of an estate be apportioned among the heirs of the testator, they take per stirpes and not per capita. Jackson v. Alsop, 67 Conn. 249 (34 Atl. Rep. 1106). Words of survivorship in a will, unless there is a manifest intent to the contrary, always relate to the death of the testator. Moores v. Hare, 144 Ind. 573 (43 N. E. Rep. 870). In the absence of anything showing such an intention, a will should not be construed so as to exclude after-born children in order to avoid the rule against perpetuities. Lawrence v. Smith, 163 II. 149 (45 N. E. Rep. 259). A testator will not be presumed to have intended partial intestacy unless the language of the will compels such construction. Korf v. Gerichs, 145 Ind. 134 (44 N. E. Rep. 24). A will is to be construed as of the time of the death of the testator and not by the light of subsequent events; and the law presumes that the testator did not intend to die intestate as to any part of his property unless such intent clearly appear. Carney v. Kain, 40 W. Va. 758 (23 S. E. Rep. 650). It is a rule of intention that where a devisee is charged with the payment of money in respect to the estate in his hands, he takes a fee simple in such estate, there being no limitations over, on the principle that he might otherwise be loser. Korf v. Gerichs, 145 Ind. 134 (44 N. E. Rep. 24). Uncertainty in clauses of a will as to distribution of income will not render the will void if they could all be stricken from the will without impairing its integrity as a whole, or without affecting the general scheme of the testamentary disposition or interfering with or defeating the evident general intent of the testator. Chilcott v. Hart, 23 Colo. 40 (45 Pac. Rep. 391; 35 L. R. A. 41). Where there is no ambiguity on the face of the will, parol testimony is inadmissible to show the understanding or intention of the testator or the meaning in which words were used by the person who drew the will. Defreese v. Lake, 109 Mich. 415 (67 N. W. Rep. 505: 32 L. R. A. 744). Sec. 981. Construction-Children, heirs, issue, &c. Where a testator devises his property to his wife "for the remainder of her life; then it is to be sold, and the proceeds divided between my surviving brothers and sisters," the division is to be made among the brothers and sisters surviving at the time provided for the distribution. In re Winter's Estate, 114 Cal. 186 (45 Pac. Rep. 1063). Upon the death of one to whom land has been devised for life and then "to go to his living children," all the children of such devisee living at the time of his death take equally. Inge v. Jones, 109 Ala. 175 (19 So. Rep. 435). That a will giving a life estate to testator's widow and remainder to his children, or their survivors, contains a provision that, in case of the marriage of the widow, the estate shall be immediately divided into equal shares and be distributed between her and them, does not affect the interpretation of the will as to the character of the children's estates or the meaning of the word "survivors." Thorington v. Thorington, 111 Ala. 237 (20 So. Rep. 407; 36 L. R. A. 385). "Children" will not be construed to mean 66 heirs in conflict with the apparent intention of the testator. Rosenau v. Childress, 111 Ala. 214 (20 So. Rep. 95). As to when the word "issue" means grandchildren, see Chwatal v. Schreiner, 143 N. Y. 683 (43 N. E. Rep. 166). be construed to mean children. 603 (45 N. E. Rep. 201). Sec. 982. Construction of devise-Creation of a defeasible fee. Where a testator devised property to his wife for life or widowhood and upon her death or marriage to go to his eight children " to them and their heirs and assigns forever, and, in case of the death of any one of them without issue living at the time of his or her death, I do give and devise his or her share to the survivor or survivors; and this principle of survivorship I do direct to apply not only to the original, but to all accretions by survivorship until the death of any and all of such children as may die without issue at the time of his or her death," it was held that they took an estate in fee as tenants in common, defeasible as to each on his or her death without issue, in which event the share of the person so dying passed to the survivor, so that the last survivor took his estate, including that which survived to him, in fee absolutely. Anderson v. Brown, 84 Md. 261 (35 Atl. Rep. 937). See Crozier v. Cundall, Ky. (35 S. W. Rep. 546). Construing a devise by a testator to his son "and his heirs forever, but, in case he should die without issue of his body, then the same shall go to the heirs of N., to them and their use forever," it is held that the son took a fee determinable upon his dying without leaving children at his death, and that the limitation over to the "heirs " of N. was to N.'s children. Strain v. Sweeney, 163 Ill. 603 (45 N. E. Rep. 201). Sec. 983. Construction of particular wills. For cases which depend upon particular facts and construe particular wills, see, as to creation of life estate with power to dispose, Degman v. Degman, 98 Ky. 717 (34 S. W. Rep. 523); as to the creation of a precatory trust, Hill v. Page, Tenn. (36 S. W. Rep. 735); Nunn v. O'Brien, 83 Md. 198 (34 Atl. Rep. 244); Mitchell v. Mitchell, 143 Ind. 113 (42 N. E. Rep. 465); Coulson v. Alpaugh, 163 Ill. 298 (45 N. E. Rep. 216); as to when a legacy is a charge on land, Breck v. Parks, Ky. (37 S. W. Rep. 271): In re Newcombe's |