Text: Hervey Allen, “Appendix 03,” Israfel: The Life and Times of Edgar Allan Poe (1926), volume 2, pp. 857-873

[page 857:]

III

THE following correspondence, and legal documents are here appended, in full, as tending to dear up many erroneous and vague statements of years past, concerning the matters with which the letters and wills, here printed, deal. As all of the persons mentioned in the wills, here appended, have long been dead, and the matters to which they relate are almost a century (in some cases more than a century of past date), — the only genuine interest which now attaches to them is purely literary, in so far as they tend to throw light upon the early condition of affairs in Richmond in Poe's boyhood, the persons surrounding him, and the causes of the troubles in the Allan household. The will of John Allan, in particular, is, in itself, a striking comment on the character of Edgar Allan Poe's guardian. It is felt that much of the text, and the construction put upon events in Poe's boyhood, in the earlier part of this biography, will be materially strengthened by thus publishing the chief documents upon which many of the assertions made in the body of the text must, in the final analysis, rely for proof.

For three quarters of a century the character of Edgar Allan Poe has been persistently under a cloud, in regard to his relations with his guardian. The second Mrs. Allan charged Poe with forgery, and he was supposed to have been callously ungrateful for the “tender cherishing” he received at John Allan's hands. Poe, on his part, it must be remembered, must inevitably have known of all the facts here shown, and more. The present biographer is in possession of still further facts, casting additional light on still other domestic relations of Poe's guardian which, for reasons at the present, still cogent and delicate, it is not felt advisable to print. The documents printed below are:

ONE

TWO

Following receipt of the above, request was made to the Clerk's Office, Chancery Court of the City of Richmond, Richmond, Virginia, for certified copies of the wills of William Galt, and of John Allan deceased, which are here printed verbatim from the copies supplied.

THREE

Last Will and Testament of William Galt

I, WILLIAM GALT, of the City of Richmond, State of Virginia, bearing always in mind, and admonished by the circumstances of my present state, as well as by the word of truth, recorded in Sacred Scripture, which I cherish as the foundation of my firm faith and the anchor of my hope for happiness in an eternal state, how encertain is the tenure of human life, as it now exists, and being desirous, while it is permitted me, to dispose of my temporal means and estate, the result, under Divine Providence, of my own, I trust, honest exertions, as it becometh my duty and my relations to God and man, do make this my last will and testament, which it is my desire should bear witness to my firm faith in the Gospel of our Lord and Savior Jesus Christ, the source of all my existing hope and consolation. [page 860:]

1st. I desire that all my just debts be paid, they are few and small, compared with my means. Intending an equitable distribution of my visible estate in Virginia, with the exception after mentioned, among my near kinsmen near me, namely, John Allan, William Galt, Jun. and his brother James Galt, all of the City of Richmond, the first my nephew, the other two, nearest kinsmen of my name, children of my adoption and nurture.

2nd. I give, devise and bequeath to the said John Allan, my three landed estates, named the “Byrd,” lying and being situate in the Counties of Goochland and Fluvanna, on the Byrd Creek, with the slaves, stocks and property of all kinds belonging thereto; also, the following real estate in the City of Richmond, to-wit: my land and tenements on E Street, now occupied by Hall & Moore, and Mrs. Higginboth, with the stores of the latter tenement; my vacant lot corner of F and 2nd Streets, opposite the residence of Charles Ellis; my land and tenement on 14th Street, now in his occupation, and my land and store on 15th Street, occupied by Ellis and Allan, wooden tenement on the same street, occupied by Pascal, and my square parcel of land in the rear thereof, having some old buildings thereon, which, and the other property on isth Street, I purchased at a sale of the property of Ellis & Allan, to him, the said John Allan, his heirs, and lawful distributees, in absolute property forever. I give and bequeath to Mrs. Allan, the wife of said John, my Carriage and horses.

3rdly. I give, devise and bequeath to the said William Galt, Junior, one equal moiety in value of my landed estate in Fluvanna, named “The Fork” containing at this time three several plantations on the Fluvanna or James River, with a like moiety of the slaves, stocks and property of all kinds belonging thereto. Also the following real estate in the City of Richmond, to-wit: my land and tenement fronting on E Street occupied by myself as a dwelling house, by Norman Stewart, and by William and William Galt, Jun. for their business, that is to say, for a store and lumber house; the land and tenement on 14th Street the ground floor whereof is occupied by the Clerk of the United States Court, for his office, to the said William Galt, Junr. his heirs and lawful distributees in absolute property forever, with all the appurtenances thereunto belonging.

4thly. I give and bequeath to the said James Galt, one equal moiety in value, of all my slaves, stocks and property of all kinds belonging to the Fork estate, whereof the other moiety has been, in the last article given and bequeathed to William Galt, Jun. his brother; but as the said James Galt is a native of Scotland, and although he has sometime since, in due form of law, declared his intention to become a citizen of the United States of America, and in pursuance thereof has abjured allegiance to his native Soverign, yet has not been actually naturalized, [page 861:] and so may not, according to law, be capable of taking and holding real estate. I give and devise to the said John Allan and William Galt Junior, and the survivor of them, and his heirs, upon the trust and condition after mentioned, the other equal moiety in value of my said landed estate named “the Fork” whereof one such moiety I have already herein given to the said William Galt, junior, in absolute property, together with the following real estate in the City of Richmond, to-wit: my parcel of land on 13th Street, whereon is a tenement occupied by Shepherd & Pollard, and a lumber house occupied by Otis, Dunlop & Company, my land and tenements corner of E and 13th Street, partly occupied by Charles Z. Abraham, as an Apothecary's Shop, with the land and tenements in the rear thereof on 13th Street, and the strip of land adjoining Poore's property, which I purchased of Gallego's estate, and whereon Dr. Tazewell, when my tenant, had a stable, with the appurtenances, but charged with the payment to the said James Galt of the sum of ninety thousand dollars, within twelve months after the time limited by law, pursuant to his declaration aforesaid, for being admitted a citizen of the United States, or to his lawful representatives; but upon this express trust and condition, that the said charge shall be satisfied and acquitted if the said John Allan and William Galt, Jun. the survivor of them, or his heirs, do, within the time aforesaid, by deed sufficient in the law, convey to the said James Galt, or his heirs, able to take and hold real estate in fee by the laws of Virginia, all the said lands tenements and appurtenances hereby to them as aforesaid devised, in absolute property and inheritance, together with the nett mesne rents, issues and profits thereof, or so dispose thereof, with the assent and consent of the said James Galt, or his aforesaid, that he or they may receive the actual and true nett proceeds thereof.

5thly. It is my will and desire that the men of my married slaves, if both husband and wife belong to me, shall be considered as belonging to and accompanying the plantation on which their wives respectively reside; and that the division of the Fork estate hereinbefore mentioned, be so made, that the slaves, stocks &c upon and attached to the upper plantation, may remain thereon, and those belonging to the two lower plantations may remain upon the same, but so as not to infringe the foregoing arrangement designed by me for the comfort of married persons.

6thly. I give and devise to the said John Allan and William Galt, jun. in equal and undivided moieties, my lumber house, stables and lots of land inclosed on Tobacco Alley, between 13th and 14th Streets, to them and their heirs forever.

7thly. I give and bequeath my household furniture to William Galt, Jun. and my watch and wearing apparel to the said James Galt. [page 862:]

8thly. It is my will and desire that the business carried on in the City of Richmond under the firm of William & William Galt, jun. be continued for the benefit, from its commencement, of the said John Allan, William Galt, jun. and James Galt, each being equally, that is to say, one third interested; and that the said James Galt be in relation to such interest be admitted by the said John Allan and William Galt, jun. and actually exist as a partner in the said business, as soon as he attains his full age of twenty one years; to which effect, and that this my desire may be fulfilled. I give and bequeath my funds appropriated to the said business or which ought to accrue to me therefrom, and substitute the said John Allan and James Galt in my place, and give to each of them one third share of the interest therein, that is to say, a moiety to each, of my two thirds of the concern and my slave Dandridge to the concern.

9thly. I give, devise and bequeath to Elizabeth Galt, the land and brick tenement now occupied by her, with the adjoining two vacant lots of land in the said City, all which I purchased at the sale of John Lesslie's estate, and also the negro woman Annie, with her increase, to her and her heirs forever.

10thly. I give and bequeath to John Allan and William Galt, jun, and the survivor of them, in trust, that they and he shall hold and apply the same to and for the sole use and benefit of the said Elizabeth Galt and her children, fifty shares of the new stock of the Bank of Virginia, and fifty shares of the stock of the Farmers’ Bank of Virginia.

11thly. I desire that the acting executor or executors hereinafter named set free my negro woman Patty and my negro boy Belmour, and thereupon give the former twenty, the latter forty dollars.

12thly. I release to the Rev. John H. Rice and to Phill Pleasants, the debt which each respectively owes me.

13thly. I direct, authorize and empower my Executors hereinafter named or such of them as are qualified to act, to sell my plantation in the Counties of Campbell and Amherst, on the part whereof in Amherst a Merchant Mill has been built, with the slaves, stock and property of all kinds thereon; also all the real estate which I own in the town of Lynchburg, and the vacant lot opposite the Monumental Church, which I purchased of Mayo.

14thly. I give and bequeath to the trustees of Hampden Sidney College in addition to the permanent fund of the Theological Seminary, thirty shares of the Stock of the Farmers’ Bank of Virginia.

15th. I desire that ten shares of my old stock of the Bank of Virginia, be secured to the use of the First Presbyterian Church, in the City of Richmond, so that the profits accruing therefrom, be applied in aid of the Minister's salary; and I enjoin it upon my Executors to have this well and lawfully done. [page 863:]

16th. I give and bequeath to the Rev. Mr. Armstrong, Pastor of the First Presbyterian Church, one thousand dollars.

17th. I give and bequeath to Miss Ann M. Valentine, two thousand dollars.

18th. Should any balance upon the settlement of the business of Galt & Galt appear against John Garth, such balance is to be remitted and given up to him, upon condition that he surrender to my executors any real property he may have purchased with the funds of the concern.

19th. I give and bequeath to James Galt five hundred dollars, in addition to what is before given him, to equalize my disposition of the furniture &c &c.

20th. I give and bequeath to Miss Rosanna Dixon, one thousand dollars.

21. I give and bequeath to my friend and man of business, John Forbes, One thousand dollars, which is to be in full of all accounts between us, and a testimony of my good will.

21. I give and bequeath to the said John Allan, William Galt, Jr. and James Galt, the survivors and survivor of them in trust to the sole use and benefit of Elizabeth Forbes, wife of the said John Forbes, and her family, that is to say her children, twenty shares of old stock of the Bank of Virginia.

22. I can rely on my executors for paying the foregoing legacies without needless delay; but none are to be demanded until after they shall have collected of my debts sufficient to satisfy the same without leaving any unsatisfied.

23. I give my pew in the First Presbyterian Church to the said John Allan, William Galt, Jr. and James Galt.

I give and bequeath to Doctor James Black in trust for and to the exclusive use of Mrs. William Dennison, one thousand pounds sterling.

I give and bequeath to Miss Mary Allan, one thousand pounds sterling. I give and bequeath to Jane Walch one thousand pounds sterling on condition that she marry with the consent of Mr. Miller, Mrs. Fowlds and her father, or of the survivors or survivor of them; to be paid within twelve months after her marriage with such consent shall have been certified to my acting executors or either of them.

All the residue of my estate not herein previously disposed of exclusive of six hundred pounds sterling to be remitted to Mr. Fowids during the summer of this year, I give and bequeath to Mrs. Fowids, Mrs. Johnston, Mrs. Mfller, Mrs. Black, Doctor James Black in trust for Mrs. Dennison, Miss Mary Allan and Miss Jane Walch.

Lastly, revoking all wills and testaments by me heretofore made I hereby name and appoint the said John Allan, William Galt, Jr. and James Galt, executors of this my last will and testament; but the said James Galt is not to act as such, until he be of full age, and I [page 864:] hereby direct that my said executors be not required to give security as such, nor to ask or require security or indemnity from my legatees in Scotland.

In witness whereof, I the said William Galt, the testator have to this my last will and testament, set my hand and seal this twenty fifth day of March, in the year of our Lord, one thousand eight hundred and twenty five.

WILLIAM GALT W. G.  
(Seal)

Signed, sealed, published and declared by William Galt, Sen’r, as and for his last will and testament, in the presence and hearing of us, who at his request, in his presence, and in the presence of each other, have subscribed our names as witnesses attesting the same.

At a Superior Court of Law for Henrico County, held at the Capitol in the City of Richmond, on Tuesday the twenty-ninth day of March, in the year 1825.

This last will and testament of William Galt, late of the City of Richmond, deceased, was proved according to law by the oaths of Robert Gordon, James H. Brown and Norman Stewart, witnesses thereto, and ordered to be recorded. And on the motion of John Allan and William Galt, two of the executors named in the said last will and testament (the said William Galt being therein appointed by the name of William Galt, Junior) who made oath thereto and entered into and acknowledged a bond in the penalty of Two hundred and fifty thousand dollars, conditioned as the law directs, but without security (the said William Galt, deceased, having by his said will directed that none should be required of them) certificate is granted them for obtaining a probate of the said will in due form; liberty being reserved to the other executor in the said will named to join in the probate when he shall attain the full age of twenty one years.

[page 865:]

FOUR

Last Will and Testament of John Allan (foster-father of Edgar Allan Poe)

IN THE name of God, Amen: I, John Allan, of the City of Richmond, being of sound mind and disposing memory, do make and ordain this my last will and testament, revoking all other wills by me heretofore made.

Item 1. I desire that my executors shall as soon as possible, pay all my just debts.

Item 2nd. I devise unto Miss Ann Moore Valentine, three hundred dollars annually, and her board, washing and lodging to be paid and found her by my executors out of my estate during her natural life, but this provision is to be in lieu and in discharge of the sum of two thousand dollars which I have in my possession belonging to her, and of which she is to discharge and acquit my estate in case she accepts of this bequest.

Item 3rd. I give and bequeath to my sisters Nancy Fowlds, Jane Johnston and Elizabeth Miller of Scotland three hundred pounds sterling each and to my sister Mary Allan one hundred pounds sterling.

Item 4th. I will and desire that my whole estate, real and personal shall be kept together and under the management of my executors hereinafter named, until my eldest child arrives to the age of twenty one years, except my present residence, with all the ground thereto attached, & the lot of ground at the intersection of F and 2nd Streets, opposite the present residence of Charles Ellis, which property I hereby authorize and empower my executors, or such of them as may act, to sell at the expiration of five years from this date if they shall think it advisable, and invest the proceeds arising from such sales in Bank Stocks or other public or private securities, which is to be held as the residue of my estate.

Item 5th. I give and bequeath to my beloved wife, Louisa Gabriella Allan, one third of the nett annual income of my whole estate during her natural life, or until our eldest child becomes of age, to be paid her annually by my executors. If she should be living when our eldest child becomes of age and the division of my estate takes place, then I desire that my beloved wife shall have during her natural life one third of my whole estate, to be so laid off as to include in her share my whole property in the City of Richmond, which may then remain unsold, but if the net annual rent or value of my property in Richmond shall not be equal to one third of the nett annual rent or value of all my estate then I desire and request that the difference may be made up to her [page 866:] out of some other part of my estate, and in case it shall exceed the one third of the net annual rent or value of my estate, then I desire that so much of the property in Richmond as may produce the excess may be withdrawn from her share.

Item 6th. I desire that the remaining two thirds of the income of my estate shall be applied by my executors to the support, maintenance & education of my children or so much thereof as may be necessary, and the balance invested for their benefit in stocks or other securities.

Item 7th. I give and bequeath all the residue of my estate to my children who may be living at the time of my death and to such as may be born after my death of which my wife at the time may be enscient, to be divided among them when the eldest becomes of age in the following manner, viz: if they shall all be boys then I desire that the division may be equal among them, or if they shall all be girls, then that the division shall also be equal among them, but if I should have children living at the time of both sexes, then I will and desire that the shares or parts of the boys shall be double that of the girls.

Item 8th. I will and desire that the part of my estate above devised to my wife for life, shall at her death be divided among my children in the same manner, and in the same proportions as the residue of my estate is above directed to be divided.

Item 9th. In the event all my children should die before they marry or arrive at the age of twenty one years, I then give and devise to my relations William Galt and James Galt and to Mr. Corbin Warwick and to the survivors and survivor of them and the heirs, executors and administrators of such survivor, all my estate, real and personal hereinabove devised to my children. Upon this special trust and confidence that they or the survivors of them or the survivor of them, and the heirs, executors and administrators of such survivor shall and will sell publickly or privately, as to them may seem best, the said estate real and personal, and pay over and apply four fifths of the proceeds of such sales to the sole and separate use and benefit of John Allan Fowlds son of my sister Nancy Fowlds, William Galt Johnston, son of my sister Jane Johnston and to the eldest son of my sister Elizabeth Miller, but in the event that they or either of them may be dead at that time, then I desire that the parts or shares of such of them as may be dead, may be divided among the brothers and sisters which he may have living, the remaining one fifth part of the proceeds I wish held and disposed of as I may hereafter by codicil direct and appoint. I deske that my relations shall out of my estate give to —— and —— a good English education.

Lastly. I constitute and appoint my beloved wife, Louisa Gabriella Allan and James Galt and Corbin Warwick executrix and executors of [page 867:] this my last will and testament. In testimony whereof I have hereunto set my hand and affixed my seal this Seventeenth day of April, in the year of our Lord one thousand eight hundred and thirty two.

JOHN ALLAN (Seal)

Signed, sealed, published & declared by John Allan, as & for his last will & testament in our presence & attested by us in his presence.

Mrs. Louisa Gabriella Allan, wife of Jno. Allan

John Allan, child & 1 enseignt

1/3 ¹ 3/3 n for life of 1/3 of perisha estate

1st pay all my debts.

2nd. My whole estate to be kept under the management of my exors. hereinafter mentioned until my eldest child becomes of age, the house and all the ground contiguous and attached to the same, I hereby authorize and empower my executors, or such of them as may act, to sell if they shall think it advisable after the expiration of 5 years from this date, also lot at intersection of F and 2nd Street, opposite Mr. Ellis, money arising from such sales to be invested in Bank Stocks or other public securities in discretion of exors. 1/3 of the net annual income of my whole estate to be paid to my beloved L. G. A. during her natural life or until my eldest child becomes of age. At the division of my estate I desire that my wife shall have one third of my estate for her life to be so laid off as to include the Town property, which if it should not amount to one third of the nett annual income then the same is to be made up to her out of some other part of my estate, if it should exceed it, then a part of it is to be deducted.

To Miss Ann Moore Valentine $300. per annum and her board lodging and washing to be paid and found her out of my estate during her natural life, and this provision is to be in lieu of $2000. which I hold of her money, and of which my estate is to be discharged if she accepts this bequest. To each of my sisters Nancy Fowlds, Jane Johnston, Elizabeth Miller £300 Sterling, and to my sister Mary Allan £100 Sterling, all residing in Scotland. I devise the whole of my estate among my children which may be alive at the time of my death and of such as my wife may at that time prove to be ensignt, in case they should be all boys I then desire that the estate may be equally divided among them in case of the birth of a daughter or daughters then I desire that my son or sons as the case may be shall be entitled to [page 868:] double what my daughters may have, my children to take the part of such of them as may die under age. In case of the death of all my children without being married or arriving at the age of 21 years I then give and devise to my relations Wm. Galt & Jas. Galt & to Corbin Warwick & to their heirs, exors. & admrs, all the estate given above to my children, upon this special trust and confidence that they or such of them as may act, shall sell all the estate, real and personal, and out of the proceeds apply 4/5ths for the sole, seperate use and benefit of John Allan Fowlds son of sister Nancy Fowlds, William Galt Johnston, son of my sister, Jane Johnston and to the eldest son of my sister Elizabeth Miller, and in case of the death of either or all of them before my own death, before the death or marriage of my children, then and in that event I wish the brothers and sisters of such of them as may be dead to take his or their part or share, the remaining 1/5th part I wish disposed of in such manner as I may hereafter appoint by codicil. I desire that my executors shall out of my estate provide give to ———— a good english education for two boys sons of Mrs. Elizabeth Wills, which she says are mine, I do not know their names, but the remaining fifth, four parts of which I have disposed of must go in equal shares to them or the survivor of them but should they be dead before they attain the age of 21 years then their share to go to my sister's Fowlds children in equal proportions with the exception of three thousand dollars, which must go to Mrs. Wills and her daughter in perpetuity.

JOHN ALLAN, Dec. 31st, 1832

[Originally in John Allan's own Handwriting]

This memo, in my own handwriting is to be taken as a codicil and can be easily proven by any of my friends. The notes preceding are in the handwriting of my friend, Jno. G. Williams.

The twins were born sometime about the 1st of July, 1830. I was married the 5th October 1830 in New York, my fault therefore happened before I ever saw my present wife and I did not hide it from her. In case therefore these twins should reach the age of 21 years & from reasons they cannot get their share of the fifth reserved for them, they are to have $4000. each out of my whole estate to enable them to prosecute some honest pursuit, profession or calling.

March 15th, 1833, I understand one of Mrs. Wills’ twin sons died some weeks ago, there is therefore one only to provide for.

My wife is to have all my furniture, books, bedding, linen, plate, wines, spirits &c &c, Glass & China ware.

JOHN ALLAN

[page 869:]

At a Circuit Superior Court of Law and Chancery held for Henrico County at the Capitol in the City of Richmond, the 8th day of May, 1834.

This last will and testament of John Allan, deceased, and codicil thereto annexed, were produced in Court by James Galt, an Executor in the said will named, and the said will was thereupon proved according to law by the oaths of Thomas Nelson, Micajah Clarke and Robert H. Cabell, the witnesses thereto; and there being no subscribing witnesses to the said codicil, William Galt and the said Thomas Nelson were sworn and severally deposed that they are well acquainted with the testators handwriting, and verily believe that the parts of the said codicil stated therein to have been written by the testator and his name thereto in two instances subscribed are of the said testators proper handwriting. Whereupon the said will and codicil and the notes written on the same sheet of paper with the codicil and mentioned in the latter, are ordered to be recorded, and at the same Circuit Superior Court, continued and held at the Capitol aforesaid on the 26th day of the same month of May, 1834. Louisa G. Allan, widow and relict of the said John Allan, deceased, and executrix named in his said last will and testament, appeared in Court and renounced the Executorship, and also declared that she will not take or accept the provision or any part thereof made for her by the said will, and renounced all benefit which she might claim thereby.

And on the motion of the aforesaid James Galt, one of the executors in the said will named, who made oath thereto according to law and with William Galt and the said Louisa G. Allan, his securities, entered into and acknowledged a bond in the penalty of one hundred thousand dollars, conditioned as the law directs, certificate is granted the said James Galt for obtaining a probate of the said will in due form. Liberty being reserved to the other executor named in the said will to join in the probate when he shall think fit.

[page 870:]

FIVE

Comments on Some Legal Aspects of John Allan's Will

“The document probated May 8,1834, consists of a will of nine Items executed April 17, 1832, some notes said by the testator to be in the handwriting of “my friend, Jno. G. Williams,” and an undated holographic codicil signed without witnesses, on the same sheet as the notes, which from reference in its fourth clause can be ascribed to March 15, 1833, or some date subsequent thereto. This description has the authority of the Circuit Superior Court of Law and Chancery for Henrico County, Virginia. The certificate states “and his name thereto in two instances subscribed” refers to the two signatures of John Allan appearing respectively at the bottom and the top of the holographic codicil. The first is obviously not subscribed to the codicil. Since notes and codicil are on the same sheet, in the order named, the first of the two signatures, if subscribed to anything, was subscribed to the notes with the intention of constituting them as a first codicil. There would seem to be no other explanation for the signature beneath the notes and above the holographic codicil, and it is made more probable by the fact that the notes are written in the first person throughout as though intended for execution by the testator, and in form as good as, or better than, the holographic provisions. Inasmuch as the notes are adopted as part of the holographic codicil by the testator by reference, they were probated along with the will and holographic codicil, so that the error, if the above surmise be correct, would be of importance only in regard to the sequence of separate codicils. While this might be of the greatest importance in a given case it appears to be of little moment here except as a matter of interest.

The will proper, the notes and the holographic codicil constitute an odd legal document. The will and the notes bear internal evidence of having been composed by the same person, either a layman with some conceit of legal learning or a singularly ignorant lawyer. “Enceinte” has two forms, both misspellings, in the will, and a third variant misspelling in the notes, which would point rather to their joint authorship than to the contrary. Aside from this and some minor errors which a professional scrivener might be expected to avoid, the will and notes are inexpertly drawn. Both are couched in pseudo-legal phraseology apt to be affected by lay friends who “have had a great deal of experience drawing wills”; expressions of outright ambiguity are used; incongruous or even conflicting provisions occur; ordinary contingencies, the test of intelligent forethought, are ignored; clauses are inserted as afterthoughts, out of legal or logical order; certain provisions achieve absurdity which it is hard to believe the testator intended, as [page 871:] for instance in the bequest of a share of his estate to twins, where he leaves them equal shares of one-fifth, as though they were one child! As a whole the document is the very type and example of the litigation-breeding will, such as frequently proves the reliance and mainstay of a local bar for a generation.

A very few examples in point appear in the following:

1. Makes bequests of money, presumably to be paid forthwith out of capital as such bequests usually are, then in Item 4th directs that “my whole estate” be held in trust until eldest child is 21, thereby raising the conflicting presumption that the money bequests are to be paid only out of income. Which?

2. Does not by appropriate words constitute his executors testamentary trustees. Provides for the distribution of his estate on his eldest child becoming twenty-one, which would give their shares to minors, the remaining children; but appoints no testamentary guardians of minor children's estates until they become of age.

3. “My eldest child” does not specify whether eldest at testator's death or merely first surviving child to reach 21; if eldest child at his death dies before 21, how is time of distribution of estate determined? If guessing were permitted in interpreting a will it would be a fair venture that the testator really had in mind his youngest child instead of eldest, and became confused in terms; substitution of youngest for eldest, however, leaves distribution equally indeterminate, as to date.

4. “At the expiration of five years from this date” (Item 4th) apparently meant in the testator's mind “from my death,” since he might not die for more than five years from “this date,” namely, the date of execution of the will. This is almost certain from the fact that during the interval from the execution of the will to his death, whenever that might be, he would have control and discretion over the sale of any of his property himself, and discretion in his executors could not inhere until he died. He obviously wanted them to have five years in which to await a good market and exercise their discretion. This sheer oversight lends probability to the hazard as to “eldest child” above.

5. “My children” includes legitimate as well as illegitimate offspring. Inasmuch as this testator is believed to have had several of the latter in various places, this unequivocal language creates a flat inconsistency with the later division of the estate into fifths. Which is the oversight? Appellate courts take successive guesses at such problems until the estate goes in fees.

6. Share of boys to be double that of girls. Quaere: if one boy and several girls, would share of boy be double that of all the girls? According to wording in notes, the answer would be Yes. But did testator mean this?

7. “And to the survivors aud survivor of them and the heirs, executors [page 872:] and administrators of such survivor, all my estate, real and personal, hereinabove devised to my children,” etc., (Item 9th). This is almost Gilbertian. John Allan actually devises in praesentia to the heirs, administrators and executors of a survivor. These do not have heirs, etc., who can inherit until they cease to survive. Technically one does not devise personal property. This is less than an untechnical will; it is grossly stupid and ineffectual. The holographic codicil by Allan himself in private makes no pretense at legal verbiage. John Allan doesn’t say whether the specific bequest of furniture, etc., is to be taken as part of or in addition to his wife's share provided in the will — a very important financial question to the other heirs.

8. The codicil which John Allan wrote himself in private was really not actuated by a desire to make any additional devise (real estate) or bequest (personal property). It was a mere subterfuge to save his face, square himself with his conscience, or bolster up his post-mortem reputation. It was not a devise but a device.

He was either shamed into it by the mother of the twins, or by the discovery of his “fault” by his wife. Note: he had already provided the “fifth” for these twins; the codicil giving them $4000. each, if they could not get their shares of the fifth, was a subterfuge; unnecessary, since, if they could not get the “fifth,” they could not get $8000. either; — both depended on the same will and the same “reasons” would inhere.

All of the holographic codicil was written at one sitting. The date inserted in the body of it, meant to give the impression that the death of one of the twins had occurred — or become known to him — just after he had written the first few sentences — is palpable stage-business. The proof of this is that had he written the first part of the codicil separately, he would at the same time have signed his name beneath it, to give it effect. He did not do so, showing it was all written at one time and signed as a whole.

He therefore knew that one twin was dead before he started to write the codicil at all. The real excuse for writing it is the exculpation passage where he says his “fault” occurred before he met his present wife. This in law is known as “self-serving testimony.” Such narrative statements, like dissertations on history, religion, etc., have no proper place in a will. Like all extraneous passages in any legal document they are called “surplusage.” Allan's remarks had no testamentary value and should have been left out. They were, however, the real purpose and object of the codicil. The futility of the $4000. bequest is at once apparent when it is reduced to its simplest terms: “If you can’t get what I left you on page 2 of this same will, then get what I leave you on page 3.” It was a subterfuge in order to get in his self-serving testimony about himself. [page 873:]

The final paragraph — furniture, books, etc, — was a palpable sop to the wife after the disclosure of the illegitimate children. Its elect would be likely to get her into litigation over the total amount of her share — whether the furniture, books, etc., were to be counted into her third, like the residence property, or to be in addition to it. The value of the furniture, books, etc., might make this an important question to all concerned.

There is no doubt that the wife wisely dodged a lot of trouble by renouncing all her rights under the will and electing to take her share under the intestate law. This would be determined once for all by the court.

No attempt at the pseudo-legal verbiage adorns the codicil. It is colloquial in every word, straight from the heart. But it is the heart of a man not aching to provide for the fatherless and to comfort a bereaved wife, but suddenly stung with shame and torn with anxiety over his own post-mortem reputation.”