for her and her sister Kate at a nominal rent. From 1912 till the fall of 1919 she and her sister Kate had lived together and had occupied this house. In October, 1919, she determined to "shake the dust of Virginia from her feet," and go to Kentucky and make her home with her son. She accordingly packed all of her effects in two trunks and a barrel and went to her son in Kentucky. Her life there was anything but happy, owing chiefly to the treatment she received from the wife and children of her son, and what she regarded as their extravagant habits. She accordingly returned to Virginia in the latter part of January or the first of February, 1920, with the fixed purpose of spending her "last days" amid her old surroundings. It is clear that she never intended to return to Kentucky. It is equally clear that she intended to "change her will" and disinherit her son. Under the circumstances, she felt the necessity of providing, from her own means, the care and attention usually incident to old age and declining health. Whether the period of her "last days" would be few or many she could not foretell, but she declared in her will: "It is to those who shall take care of me in my last days that I want the residue of my estate to go in fee simple."

For a number of years prior to 1912 the testatrix and her sister Kate had made their home with their brother-in-law, William Y. Fauver, in the city of Staunton, and upon his death in 1912, they moved to the house at Parnassus hereinbefore mentioned. While in Staunton they lived next door to Mrs. Tribbett, and a very close intimacy subsisted between the two families. The testatrix became very much attached to Miss Blanche Tribbett, a daughter of the family, who afterwards married the appellant, L. B. Bosserman, in 1914. This attachment continued during the life of the testatrix, and, after removal to Parnassus, the testatrix made the Bosserman home her headquarters whenever she came to Staunton, and

when she started on her trip to Kentucky she left from the Bosserman home. The attachment was mutual, and she was always cordially received as a welcome visitor. She called Mr. Bosserman "Luther" and his wife "Blanche," and they called her "Aunt Beck" or "Mammy Beck." On her return from Kentucky she stopped by for a visit of about two weeks to her sister, Mrs. Alexander, and went thence to the house of the appellant, without previous notice of any kind. She arrived during the supper hour, and was invited to take supper and spend the night, which invitation she accepted. There had been no correspondence between the testatrix and the Bossermans during her absence, and they did not know of her return to Virginia until she walked into their house. While there she related her troubles in Kentucky and her inability to live there, and stated that she was out of a home and did not know where to go, and Bosserman testified: "I told her then, 'Miss Beck, just make your home right here;' and she had her baggage moved to my house, and it is there now."

She was a woman "who had a great deal of trouble," and the Bossermans sympathized with her. It is said of her in appellees' brief that she was "nervous and worried," and that she was "old, and dissatisfied everywhere." She was unable to live with her son, and was unwilling to live with her sister Kate, because "she was too old to be nagged, and she couldn't stand the treatment her sister gave her," while the Bossermans always received her with hospitality, and "had been kinder to her than any of her own people; had done a great deal more for her." Such was the situation when the testatrix applied to the appellant to draw a will for her. This he declined to do, for want of adequate knowledge of such matters, and suggested that she apply to some lawyer. She then applied to Mr. Kennedy, a lawyer of standing in Staunton, and an old acquaintance, who

She

prepared the will in controversy substantially at her dictation, and it was duly signed and attested. seemed to be greatly relieved and pleased at the execution of her will, and later told Mrs. Bosserman and others of the provisions she had made for care and attention in her "last days," though Bosserman himself says he had no knowledge of the nature of her will prior to its probate. The will shows on its face that at the time of its execution the testatrix had not finally determined on the place at which she would spend her last days. The difficulties she had encountered in living with her own kindred seem to have caused her to mistrust herself, but she said to Kennedy, the scrivener of her will, that "she was not absolutely sure yet with whom she would make her home; that she probably would spend the rest of her life in the home of Mr. L. B. Bosserman, but as to that she was not absolutely sure, and she preferred that the name of the person with whom she would make her home should have her estate, for that reason, be not included in the will." The rec

ord does not show that this tentative purpose was ever changed, or any other arrangement made. There is some testimony as to some proposals made by Mrs. Bettie Miller and to Mr. Ellis, but they were never carried out, and neither of them does or could lay any claim to the legacy. It is claimed, however, by the appellees that these proposals show an abandonment of any purpose the testatrix may have had of remaining in the Bosserman home, and, as there was no other person who answered the description given in the will of the residuary legatee, the testatrix died intestate. But the proposals themselves, if ever made when the testatrix was mentally capable, were never acted on, or were withdrawn, and the testimony is far from satisfactory that there was any such abandonment. The will is dated February 18, 1920, two days after the testatrix arrived at Bossermans. She remained there for a week or

ten days, and then she went to Parnassus for a few days on business with her agent, but was detained there ten days or two weeks by the illness of her sister Kate. She then returned to the Bossermans, and remained there until March 18, when she was notified of the death of her brother-in-law, Mr. Alexander, at Lyndhurst, in Augusta county. Her brother, William, who lived at Parnassus, came by for her, and carried her to Lyndhurst to attend the funeral. She remained there until March 21, when she was taken suddenly ill. Her brother, William, was phoned to at Parnassus by a neighbor to come and look after her, but, being unable to do so, he requested that Bosserman be notified and requested to go and get her and bring her to Staunton. Thereupon Bosserman and his wife took an automobile and went to Lyndhurst and got her and brought her to their home in Staunton. Her condition was found to be serious, and a doctor was sent for at once, and a trained nurse obtained, and these, together with Mrs. Bosserman, gave her every attention possible, but she lapsed into unconsciousness early the next morning, and so continued until her death on March 25. She was buried from the Bosserman home. Her son was promptly notified of her serious illness, and subsequently of her death, but did not attend. When Bosserman and his wife went to Lyndhurst for her on March 21 to bring her to their home they found her anxious to return. The scene is thus described by Mrs. Bosserman: "Well, we got the machine and went up after her, went up to see about her, and as soon as she saw me she said, 'Oh, Blanche, I am so glad you have come!' and caught hold of my hand, and wouldn't let loose of me while we were getting her ready. She said, 'Please take me with you,' and kept begging me to take her. She wouldn't let me loose long enough to put her wraps on, because she was afraid I was not going to bring her home with me. She said she

wanted to come back with me to my house."

When asked how they came back, Mrs. Bosserman says: "Well, we were in the back seat, and I fixed her as comfortable as I could; kind of propped her up, and held her as good as I could in the machine; and she stood the trip fine, and talked all the way home, and every now and then she would say, 'I am so glad you all came for me; I am so glad to get away from that place!'"

Mr. Bosserman's statement on the subject was: "On Monday evening, March court, 1920, I took my machine and my wife, and, we went down there and found the old lady in pretty bad shape. She was conscious, and knew everything that was going on; and I says, 'Miss Beck, do you want to go home with me, or what do you want to do?' She says, 'For God's sake, Luther, take me away from this place!' I gathered her up in my arms, and carried her out and put her in the machine, and brought her home, and called Dr. Parkins and got a nurse. lapsed into unconsciousness that night, and was never conscious any more."

She

The record is replete with evidence that the testatrix had determined that her son's family should not have any portion of her estate, and that she would never again attempt to live with any of her relations. It is also clear that Bosserman and his wife had been very kind to her, and had offered her a home with them. The probability that she "would spend the rest of her life in the home of Mr. L. B. Bosserman," spoken of by her at the time her will was drawn, seems to have been confirmed by her subsequent conduct, and is not removed by the testimony as to the proposal made by Mrs. Miller, or that de

clined by Mr. Ellis. There is serious conflict in the testimony as to the Miller proposal, and it is doubtful if the testatrix's mental condition at the time of the proposal to Mr. Ellis was such that it could be seriously considered. Ellis himself, when asked as to her mental condition the night the proposal was made to him to take care of her, states: "I can't say about that. She was wild. Seemed to be excited all the time when she talked."

The record fails to disclose a fixed purpose on the part of the testatrix to abandon her expectation, expressed when her will was written. When the will was written she was at the home of Bosserman, and so far regarded that as her home that she thought it probable she would remain there the rest of her life. If there was ever any wavering in that purpose, it never went to the extent of an abandonment. She clung to the Bossermans in her last conscious hours, and they gave her the faithful and tender ministrations which she sought by her will to provide. We are of opinion that Luther B. Bosserman and Blanche, his wife, answer the descrip- Evidencetion of the residu- designation ary legatees given of legateein the will of the testatrix, Rebecca H. Burton, and that the corporation court of the city of Staunton erred in holding otherwise. The decree of said Corporation Court will therefore be reversed, and a decree will be entered in this court directing the appellee Randolph C. Keller, executor of Rebecca H. Burton, after the payment of the debts of the said Rebecca H. Burton and the costs of administering her estate, to pay the residue of said estate to Luther B. Bosserman and Blanche, his wife, in equal shares.

sufficiency.

I. Introductory, 775.

II. Gifts to one who shall care for testa

tator or another, 775.

III. Gifts to "servants," "employees," and "clerks:"

a. In general, 779.

b. Identity of master or employer,

780.

c. Date of employment, 781.

d. Length and continuity of employment:

1. In general, 782.

2. Bequests of a year's wages, 784.

e. Occasional and part-time employees; pieceworkers, 785.

1. Introductory.

This annotation does not deal with cases involving misnomer, or inconsistency between the names and the descriptions of beneficiaries. Nor does it purport to cover devises or bequests to charities. It is to be observed, also, that, while the devises and bequests considered herein are contingent upon the rendition of the service or the occupation of the position or status described, cases involving devises or bequests to named individuals, on condition that they shall render such services or occupy such positions, are not within the scope of the present annotation. The question of the validity of provisions vesting discretion in executor or third person as to objects of the testator's bounty is the subject of an annotation in 3 A.L.R. 297.

The general rule laid down in BosSERMAN V. BURTON (reported herewith) ante, 767) to the effect that it is not essential that a legatee or devisee be designated by name in the will, provided he is so described therein as to be readily ascertained and identified by the aid of extrinsic evidence, is established beyond question, not only by the cases hereinafter set forth, but by many other cases which do not fall within the scope of this annotation. The real questions which arise in connection with gifts of this sort are

III. continued.

f. Effect of individual bequest, 786. g. Who are "servants:"

1. In general, 786.

2. "Domestic" servants, 787.
3. "Household" or "homestead"
servants, 788.

4. Servants "living with me,"
789.

5. "Indoor and outdoor" serv

ants, 790.

h. Who are "employees," 790.
i. Who are "clerks," 790.

IV. Gifts to "friends," 790.

V. Gifts to "unmarried" persons, 791. VI. Gifts to "pastors" and the like, 792. VII. Miscellaneous, 793.

whether the description is such as to render the identity of the intended beneficiary susceptible of definite proof, and whether the extrinsic evidence offered, taken in connection with the description, is sufficient definitely to establish that identity.

It must be borne in mind throughout this discussion that precedents are of only limited value and authority on questions relating to the validity and construction of particular provisions in wills, since each such provision presents an individual problem which the court must solve, not merely from the language used therein, but from that language viewed in the light of all the other provisions of the will involved and of the surrounding circumstances.

II. Gifts to one who shall care for testator or another.

Testamentary gifts, similar to that in BOSSERMAN V. BURTON (reported herewith) ante, 767, to the one who shall take care of the testator during his last days, have been held valid and enforced in a number of other cases. Dennis v. Holsapple (1897) 148 Ind. 297, 46 L.R.A. 168, 62 Am. St. Rep. 526, 47 N. E. 631; Lear v. Manser (1916) 114 Me. 342, 96 Atl. 240; Glasgow's Estate (1914) 243 Pa. 613, 90 Atl. 332; Reinheimer's Estate (1919) 265 Pa. 185, 108 Atl. 412; Re Mangan

(1924) 185 Wis. 328, 200 N. W. 386; Re Woeffle (1912) 20 Ont. Week. Rep. 896, 1 D. L. R. 105.

Thus, in Dennis v. Holsapple (Ind.) supra, a devise of all the testatrix's property to "whoever shall take good care of me and maintain, nurse, clothe, and furnish me with proper medical treatment at my request, during the time of my life, yet, when I shall need the same," with a further provision that the person or persons selected should have a written statement signed by the testatrix to that effect, was sustained as against the contention that it was invalid because no devisee was named, and because the testatrix undertook to reserve to herself the right to name the beneficiary by a subsequent written statement, the court saying: "It is true, as insisted, that it did not name any particular person as devisee, nor was there anyone at the time of its execution who occupied the status, or answered to the beneficiary therein described; still, however, it so designated the person whom the testatrix contemplated and intended should have the estate bequeathed that he or she, by the means thereof, at her death, could be clearly identified and ascertained by the aid of extraneous facts.

The testatrix substantially declared therein that whoever, at her request, performed the services exacted thereunder, and complied with the conditions imposed, should have all of her property, . . and further provided that the person selected by her to serve as mentioned should have the statement referred to in clause 5. These facts were the standard or test by which the beneficiary was to be determined. . . . The insistence of appellant's counsel may be conceded that, in making her will, Mrs. Shull left the person whom she thereby intended to become the object of her bequest to depend, in a sense, upon the happening of future events. This person, it is true, depended upon the future volition of the testatrix in being chosen to perform the exacted services, and upon the consent of the latter in accepting the request, and in discharging the obligation imposed by

the will; but the subsequent volition exercised by Mrs. Shull in this respect cannot be deemed or considered in a legal sense as testamentary in its nature or character."

And in Lear v. Manser (1916) 114 Me. 342, 96 Atl. 240, a residuary bequest to testator's executor in trust, "to be paid by him to such person or persons, or to such institution, as shall care for me in my last sickness, such payment to be made to the person or persons, or institution, or any or all of them as may in the discretion of my said executor be equitably entitled thereto," was held not to be void for uncertainty, since the testator had prescribed a rule whereby his beneficiary could be identified with certainty.

Similarly, in Re Woeffle (1912) 20 Ont. Week. Rep. 896, 1 D. L. R. 105, a bequest "to the person at whose house I die" was held not to be void for uncertainty, and the head of the household where the testator was living at the time of his decease was held to take under it, rather than the owner of the house.

In Reinheimer's Estate (1919) 265 Pa. 185, 108 Atl. 412, it was held that a devise of the residue of testator's estate "to the party or parties, their heirs and assigns forever, who may be farming my farm and taking care of me at the time of my death," passed the property to a lessee of the farm who was actually conducting it and caring for the testator at the time of his death, and that the court could not go into any question as to the degree of efficiency of the lessee's farming, or the character of the attention given to the testator's wants, and it was further held that this provision did not constitute a condition, and that, even if it were to be so considered, the only person to judge of its fulfilment was the testator, and the best evidence that he was satisfied was to be found in the fact that the tenant remained with him up to the time of his death and took care of him. It was also held in this case that the residuary devise was not rescinded by a subsequent codicil which was not inconsistent therewith, but which named a specific