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WITH AN APPENDIX CONTAINING " THE WILLS ACT, 1873," AND A NUMBER OF USEFUL FORMS OF WILLS BY RICHARD THOMAS WALKEM, OF OSQOODE HALL, BARRISTBR-AT-LAW. TORONTO: WILLING AND WILLIAMSON. MDCCCLXXIII. .2 IS U)RL tC'^/n -z:;=:: — »^=:::=;;r=-isr- — - Hunter, rose & Co., I'rtnters and Binders, Toronto. TO THE HONOURABLE OLIVER MOWAT, FOR THE PROVINCE OP ONTARIO, THIS WORK IS RESPECTFULLY DEDICATED BY THE AUTHOR. AUTHOR'S PREFACE. The idea of wi-iting this work was suggested to me by the difficulty I experienced, when a student, of assuring myself of the true state of the law of this Province on the subjects treated of ill the following pages. There is probably no country in the world which can boast of a more perfect system of legal education than that established in Ontario, through the provident wisdom of the Law Society. To the Benchers of that body I, in common with others, owe a debt of gratitude for the efforts they have made in the cause of legal education. But students of law in this Province labour under the disadvantage of being obliged to use text-books which, unless very carefully studied, are likely to leave erroneous impressions, if we take up a modern English text-book, we will find in it a number of statutory provisions which have no place in our law ; and we will fail to find in it the changes in the old law which have been effected in this Province by the legislation of eighty years. To ascertain the true state of our law, the student must be care- ful to disregard the English Statute law, as stated in the text- books, and must search our own Statutes to ascertain the changes in the old law which have been effected in this country. I have endeavoured, by compiling this book, to obviate this inconvenience so far as concerns the subjects on which I have written ; and to furnish to the student or the practitionei a work which he may consult with confidence, and which will save him many hours of labour. With this view, I have stated the old law, and the changes which have been made by Statute, being careful to explain, as well as I was able, the effect of the Statutes upon VI AUTHORS PREFACE. the f)lcl law and u|X)n each other. I had thought, when I began my work, that my object could have been effected in a few pages ; and I had, more than a year ago, completed a book lor publication, when the pa.ssing of our new Wills Act compelled me to begin my woik afresh. As a compensation for the additional labour thus imposed on me, I am enabled t4> present to the profession a complete book, whose value will not probably be impaired by statutory changes for several years to come. Bearing in mind the necessity for logical division in a legal text-book, I have been careful .so to divide the various subjects that they can be readily referred to. The sources from which the matter of the work has been derived are acknowledged in the notes ; and I have incoi-porated into the text, to a greater extent, l)erhaps, than is usual, iwrtions of the judgments in what may be considered leading cases. The judgments which I have selected are such as contain valuable information. To the text is added an Appendix, containing " The Wills Act, 1873," and a number of useful Forms of Wills. I have collected the latest cases in our own and the English Courts. These latter are of peculiar value, inasmuch as our new Act has been adopted from the Imperial Statute 1 Vict. c. 26. I trust that the profe&sion, in judging of the result of my work, will bear in mind that the compiler of a legal text-book for use exclusively in this Province, can at present expect no material return for his labour, except the good opinion of his professional brethren, if he should be considered • to have succeeded in his undertaking. Even should the reverse be the case, they will, I am sure, always be gentle in their criticisms. R T. W. 23rcl October, 1873. ANALYSIS OF CONTENTS. BOOK THE FIEST. OF THE ORIGIN OF THE LAW OF ONTARIO AND OF THE NATURE AND INi'IDENTS OF WILLS. OHAlr TER T. OF THE ORIGIN OF HIE LAW OF ONTARIO. 1 . Law of Ontario derived from law of England. 2. Statute 32 Geo. 3, c. 1, Con Stnt. U. C, c. 0. s. 1. 3. Efifect of 1 Vict., c. 26. 4. State of the law as to Wills of personal estate iii Ontario unsatis- factory ..... . . 5. Effect of 4 W. 4, c. 1, ss. 48, 49, 50, 51. . . . . . Jurisdiction conferred on the Court of Chancery to set aside wills for fraud and undue influence .... 7. Nuncupative wills limited by 33 Geo. 3, c. 8. 8. Provisions of 32 Vict., c. 8. ..... J). Assimilation of our law to the English law by "The Wills Act, 1873." 3, 4 PAOK. 1 1 1, 2 1 I; I 2 2 2 h 2 3 3 CHAPTER II. BY WHAT LOCAL LAW WILLS ARE REGULATED. 1. The subject of this chapter of the highest importance. . 6 2. Law of testator's domicile at time of making will and of death governs execution of will of personal estate. . . . 5, 6 Vlll ANALYSIS OF CONTENTS. 3. Opinion of Lord Westbury in Enohin v. Wylie. . 6 4. Statement of the law by Lord Chelmsford in WJiicker v. Hume. . (i, 7 5. Will of real estate governed by the lex loci rei sitae. . 7 (>. DiflBculty of determining true domicile, and rules laid down by Lord Loughborough and Sir J . Leach upon the subject. .7,8 7. Question of domicile treated of fully by Story and other writers . 8 CHAPTER III. DEFINITIONS. 1. Definition of a "will." ..... 0,10 2. A will is in its own nature ambulatory and revocable during the testator's lifetime. . . . . . . lo 3. Opinion of early writers that an appointment of an executor was necessary to the validity of a will. This rule become obsolete, lo 4. Effect under old law of a will in which there was no appointment of an executor. . . . . . . 10, 11 5. Definition of a " codicil." . . . . . .11 6. A codicil forms part of the will. . . . .11 7. Definition of a " devise." . . . . .12 8. Difference between a devise of realty and a will of personalty . 1 2 n. (h) Powers conferred by 4 W . 4, c. 1 ; 32 Vict. , c. 8 ; and 3(i Vict., c. 20. ....... 12 9. Definition of "bequest." . . . . . .12 10. A will cannot be made merely for the purpose of appointing a guardian. . . . . , . . 12, 13 11. A will differs from a deed. . . . .13 12. Distinction between real and personal estate, as connected with the execution of wills. . . . . . .13 13. Swinburne's opinion concerning definitions. . . . 13, 14 ANALYSIS OF CONTENTS. IX BOOK THE SECOND. OF THE CAPACITY TO MAKE A WILL. CHAPTER I. CLASSIFICATION OF DISABILITIES. PAOE. 1. All persons capable of making a will, except those who labour under disability. ....... 15 2. Classification of disabilitif a adopted by Blackstone . . .15 .3. Blackstone's classification not sufficiently ample. . . . 15 4. Classification of persons of unsound mind, by Lord Coke . 15, 16 CHAPTER II. DISABILITY FROM ALIENAGE. 1. Old law prohibited aliens from holding real estate in Canada. . 17 2. Abolition of this restriction by 12 A''ict., c. 197, s. 12 (Con. Stat. C, C.8, s. 9) 17 3. Effect of this Act. ....... 18 4. Rule laid down by Sir E. Sugden, that alien incapable of holding real estate. ... .... 18 5. Trust of lands in favour of an alien invalid. . . . .18 6. Alien might take by devise, subject to right of Crown. . . 18, 19 7. Alien friend could take personalty under the ^vill of a subject. . 19 CHAPTER III. OF DISABILITY PROM INFANCY. 1. Law on this subject still the same as on 16th October, 1792. . 20 2. Powers conferred by 32 H. 8, c. 1. . . . 20 3. Effect of 34 and 35 H. 8, c. 5. . . . . 20, 21 X ANALYSIS OF CONTENTS. TAQB. 4. Effect of 12 Car. 2, c. 24. . . . . . .2] o. Infants thought to have power inider 32 H. 8, c. 1, to devise lands. Better opinion is, that they had not. ... 21 6. No power to devise lands conferred on infants since 34 and 35 H. 8, c. 5. . . . . . . . ,21 7. Power of infants to make wills of personalty. . . 21, 22 8. Infants deprived in England, by 1 Vict. , c. 26, of the power to make a will. ........ 22 9. Infants deprived in Ontario, by " The Wills Act, 1873," of the power to make a will . . . . . . .22 10. Power of infant to make a will dependent on his having sufficient discretion. . . . . . . .22 11. Effect of ratification on attaining majority. ... 22 12. Construction of 2l8t section of "The Wills Act, 1873." . . 23 13. Power of infants to appoint guardians to their children by will. 23 14. Consequences of this power as regards real estate. . .23 15. Infants' power of appointing guardians abolished by " The Wills Act, 1873." 23, 24 10. Mode of computing time of attainment of majority. . . 24 CHAPTER IV. OP DISABILITY PROM COVERTURE. SECTION I. ) , Character and Consequences of this Disability. 1. Classification of this disability. 2. Comparison of the Civil Law with the English Law 3. Character of disability from coverture. 4. Character of disability from infancy. . 25 25, 26 26, 27 27 Policy of recent legislation is to relieve married women from their disabilities. .... ... 27 Power of married women to make a v:ill of personalty. . 27, 28 Assent of the husband ..... .28 Effect of husband's death on wife's will made during coverture. 28, 29 9. Power of married woman to devise legal estate in her lands. . 29 10. Power of wife to make a will whose husband is civiliter moytmis. 29 11. A married woman may make a will under a power. . . .29 0. 7. 8. I ANALYSIS OF CONTENTS. XI PAOK. 12. A married woman, executrix, may bequeath property to which she is entitled as executrix. . . . . . 29, 30 13. Will of married woman not validated by death of husband during coverture. . . . . . . .30 14. Effect of 1st section of 32 Vict., c. 8, on wills of married women considered. . . . . . . .30 15. Case of Noble v. Phelps considered. . . . . 30, 31 (a) Deduction from Price v. Parker. . . . , .31 (6) Case of Thomas v. Joiies conp'iered .... 31 (c) State of facts in that case. . . . . 31, 32 (d) Opinions of the Judges in Thomas v. Jones. ... 32 (e) Married women's testamentary capacity not directly enlarged by the Statute. . . ... .33 (/) Enlargement of that capacity indirectly. . . 33, 34 ((/) Married woman's will should, under the Statute, be construed to speak and take effect as if executed immediately before her death. ....... 16. Twenty-seventh section of English Act not introduced by 32 Vict., c. 8 at 34 SECTION II. Of a married woiimn's jjower to dispose hy icill of property settled to her separate use. 1. Origin of the doctrine of separate use. . . .36, 37 2. Extension of the doctrine by late cases. . . . . 37, 38 3. Rights of wife separated from her husband under special agreement 38 4. Right to devise separate property still a valuable privilege . 38, 39 5. Woman deserted by her husband may bequeath her property ac- quired under order of protection. . . . .39 n. (6) Circumstances under which property acquired by a woman, separated from her husband will be considered separate estate. 39 SECTION III. Of the pou-er to ivill their property conferred on married women by Con. Stat. U. a, c. 73 ; 35 Vict., c. 16, and 36 Vict., c. 20. 1. Provisions of Con. Stat. U. C, c. 73. . . . . 40 2. Construction of this Act in Royal Canadian Bank v. Mitchell . 40, 41 3. Particulars of that case. . . . . . 41 42 m 1 Xll ANALYSIS OF CONTENTS. I'AOK. 4. Opinions of V.-C. Mowat and A. Wilson, J,, as to the effect of the Act on wife's personalty. . . . . .42 o. Remarks on judgment in Wright v. Garden . . -42, 43 6. Conclusion to be derived from the cases on the Act . . 43, 44 n. (a) Case of Mitchell v. Weir fully stated. Direct authority on IGth section. . . . . . . .44 7. Limitation of married woman's power to devise under the 16th section. ....... 45 8. Provisions of the " Married Woman's Property Act, 1872 " (3o Vict., c. 16) . . . . . .46 i). Effect of Ist section of that Act ..... 46, 47 10. Effect of 2nd section ....... 47 1 1 . Disability of married women to dispose of their property by will removed by "The Wills Act, 1873." . ... 47 CHAPTER V. OP DEAFNESS, DUMBNESS AND BLINDNESS CONSIDERED AS DISABILITIES.. 1 . Deaf and dumb persons formerly considered prima facie incapable of making a will. Relaxation of this rule ... 48 2. Proof required of the will of a deaf-mute . . . .48 3. Person born deaf, dumb and blind regarded by Blackstone as abso- lutely incapable of making a wUl .... 49 4. Persons deprived of hearing and sight, if instructed, thought to be capable ...... .49 6. Blind persons not incapable. Necessity for proof of knowledge and approval of contents required in such cases . . .40 CHAPTER VI. OF THE DISABILITY CREATED BY CRIMINAL CONDUCT. 1. Traitors and felons considered intestable by Blackstone. Reason of this rule ....... 50 2. Probate granted in a recent case of will of a felo-de-se . : 50 3. Felo-de-se may bequeath goods which he has as executor . 50 4. Forfeiture of estate consetiuent on treason or felony, regulated by Statute . . . . . . . .50 ANALYSIS OF CONTFNTS. XIU CHAPTER VII. 1. 2. 3. 4. UNSOUNDNESS OP MIND. SECTION I. Idiocy. PAor. Iiliots absolutely disabled from disposing of their property by will 51 Idiocy defined . •••... 51 Opinion of Dr. Ray . . . . . . 51 52 Idiocy a question of evidence in each particular case. Example furnished by the case of Bannatyiie v. Bannatytie . . 52 53 SECTION II. Insanity. 1. Meaning of term "lunatic" ... 2. Meaning of term " insanity " . 3. Main test of insanity said to be " delusion " 4. Definition of "delusion" ..... 5. Opinion of the Court in Stanton v. Wetherax . 6. Case of Smith v. Tebbitt considered in connection with delusion (a) Dr. Willis' definition of delusion .... (b) No fault to be found with the language of definitions referred to (c) Question of "insanity" and question of "delusion" one and the same ....... ((I) In simple cases, proof of the delusion proof of insanity (e) More complicated cases. What is to be said of them ? (/) What are to be the tests of insanity ? . ig) No tests furnished by the decided cases (h) The test of comparison with one's own mind (i) Insanity may be suspected without being proved. In other cases, patients' ideas, conduct, and demeanour, contrast with those of their fellow-men . . . . . 61 62 7. Of the test of sanity. Opinion of Dr. Ray . . . 62 63 (a) Comparison with himself as a test of a man's sanity . . 63 (b) Comparison with persons resembling the alleged patient in tem- perament and character ..... 6:' (c) Individual character endless in its varieties . . 63, 64 . 54 54, 55 . 55 55-57 . 57 57, 58 58, 59 50 50 59, 60 60 . 60 6(» 60, 61 XIV ANALYSIS OF CONTENTS. PAOB. I (d) Conclusiona to be drawn from same acts committed by different 04. Opinion of Dr. Prichard 65, 8. 9. 6.-, <)5 •it) »)<) W> 6»j persons (c) Comparison with the insane (/) Examples given by Esquirol . (j/) Another example by the same writer Mode of testing a person's sanity considered Difficulty of laying down any general rule 10. Insane person cannot make a will of lands or goods 11. Proof of insanity lies on the person who alleges it. Sanity is pre- sumed till the contrary is shown . . . . 66, (J7 12 . The burden of proof shifted if party who supports the will gives evidence of competency. Judgment in Sutton v. Sadler on question of presumptions .... (a) Reference to the cases cited on presumptions (6) Opinion of Lord Chancellor in Attorney-Oeneralv. Parnther (c) Opinion of Professor Greenleaf (d) Opinion of Mr. Starkie m his work on Evidence (e) Case of Barry v. Btitlin referred to . (/) Opinion of Lord Brougham in Waring . Waring (g) Conclusion to be drawn from the authorities Burden of proof in the case of a will foxind mutilated after death of testator, who became insane Will may be good as to one part and bad as to another 15. Instructions for a will may be supported as a will, if insanity super- venes before regular will prepared . . . .73, SECTION III. Of Partial Insanity or Monomania. 1. Monomania exhibits itself only to a limited extent . . 75, 2. Will of monomaniac may be connected with subject of the mono- mania or may not . . .... 3. The case of Greenwood, as stated by Lord Eldoi 13 14 67, C8 08 68, 69 69, 70 70, 71 71, 72 . 72 73 of . 73 73 76 76 76 Opinion of Case of Deio v. Clark, a leading authority on thi: Sir John NichoU. ...... (a) Violence, cruelty, or antipathy is not insRiiiby Thote must be mental perversion on the subject of the will (6) Partial insanity is known to the law. Lord Hale's definition of partial insanity. Difficulty of properly defining it . 77, 78 (c) The forms and developments of madness almost infinite . 78, 79 77 77 ANALYSIS OF CONTENTS. XV (d) The term " Madness" loosely applied in popular use . (e) DiflFerence between insane and other delusion (/) Dr. Battle defines it as " deluded imagination " (g) Locke supposes it consists in reasoning from false premises FAOR. . 79 8a . 80 80, 81 (h) But he includes false fancies and partial derangement in his definition ... .... 81 (i) Opinion of Dr. Willis referred to . . . .81 {k) A sound mind one wholly free from delusion . . . 81, 82 5. Cases establish that a will prompted by insane delusion is void . 82 6. Lord Brougham in Wariiig v. Waring, expressed his opinion that any person labouring under delusion was incompetent to make a will. ....... 82 7. This opinion approved of by Sir J. P. Wilde, in Smith v. Tehbitt 82, 83 8. This doctrine overthrown by recent case of Banks v. Ooodfelloiv 83 (a) Lord Cockburn treats the question of the effect of partial un- soundness on the testamentary capacity when such unsound- ness is unconnected with the will, as raised for the first time . . . . . . . 83, 84 (b) The text writers throw no light on the point ... 84 (c) Comov^s case, Greenivood's case, and other cases considered 84-8' {d) Remarks on the opinion of Sir William Wynne, in Cartimght v. Cartivright . . . . . . . 87, 88 (e) Case of Waring v. Waring stated . . . .88 (/) Doctrine under consideration not necessarily involved either in that case or in Smith v. Tebbitt .... 88-90 ((/) A connection between the will and the delusion allowed to be fatal ... ..... 90 {h) Opinions of foreign Jurists on the subject . . . 90-92 (i) These writers have not gone deeply into the subject . 92, 93 (fc) The law of civilized nations concedes right of leaving property by will ....... 93-95 (I) Foreign law differs in some respects from our own as to extent of this right, possession of the faculties, however, being an in- dispensable requisite . . . , . .95 (m) Effects of mental disease, &c. , on this power of disposition by will . . . . . . . 95, 96 (n) Power of testamentary disposition is founded on the principle that a rational will is a better disposition than can be made by the law itself . . . . . 96 97 XVI ANALYSIS OF CONTENTS. PAOK. 9. 10. 11. 12. 13. (o) Unsoundness arising from defective organization or supervening physical infirmity considered .... 97 (p) References to the American cases . . . 97, 98 {q) Case of Den v. Vancleve considered .... 98, 99 (r) Case of Stevens v. Vancleve considered . . . 99, 100 (s) Last case fully approved by the Court in Sloan v. Maxwell . 100 (t) Remarks on Harwood v. Baker .... 100, 101 («) Suggestion that standard of capacity in considering mental power should be adopted as standard in considering mental disease ....... 101 {w) Objection that latent mental unsoundness may exist con- sidered . . . . . . 102, 103 (as) Will sustained ...... 103, 104 Law settled by this judgment . . . . . 104 Monomania must be distinguished from eccentricity. Eccentricity merely will not void a will ..... 104 Will of eccentric man, however strange it may be, is such as, from his character and conduct, would be expected . . 104, 105 Case of Morgan v. Boys ...... 105 Case of A^istin v. Graham. Eccentric will sustained on appeal 105, 100 SECTION IV. Of Lucid Intervals. 1. During lucid intervals testamentary capacity is restored. . . 107 2. If a lucid interval is established, the order of proof and presump- tion is inverted. ...... 107 3. Lord Thurlow's definition of a lucid interval . . . 108 4. Lord Eldon's remarks upon this opinion. .... 108 5. Lord Thurlow's definition misunderstood by Lord Eldon. . 108 6. Insanity being once proved, the presumption is that it continues to exist. 109 7. No particular measure of proof required to establish a lucid interval 109 8. Great caution should be used in examining such proof . . 109 9. Suicide not conclusive evidence of insanity . . . .109 10. Presumption of lucid interval stronger in case of delirium than in case of insanity. ..... 109, 110 11. Presumption in favour of a rational will regularly executed . . 110 12. A rational Will strong evidence of a lucid interval . . 110 13. Case oi Cartwright V. CaHwriyht. . . • 110, 112 ANALYSIS OF CONTENTS. XVU PAOB. 14. Opinion of Sir John NichoU aa to elf uct of rationality of Will. . 112 15. Persons labouring under dolusions frequently instructed to conceal them. Caution to be exercised in such cases. . . 112 SECTION V. Effect of DruH' enness or Delirium oi>. Testametitari/ Capaciti/. 1. Intoxication to the extent of producing (jblivion incapacitates a per- son from making a will. Swinburne'.s rule on the subject. . 1 13 2. General rule of the Courts of Law and Equity as to the effect of in- toxication. ....... 113 3. Case of Shaw v. Thackray considered. . . . .114 4. The question to be decided by the jury laid down in Handley v. Stacey. .... . . 115 5. Intoxication short of producing oblivion will not incapacitate. . 115 6. The dispositions of the will may be considered ; but to defeat the will they must be extravagant and unreasonable. . 115, IIG 7. Intoxication usually more temporary than delirium, . . IIG 8. Insanity may be latent — Ebriety never. .... 110 9. Delirium from disease resembles insanity, but presumption of con- tinued incapacity does not arise in former. . 116, 117 SECTION VI. Old Age 1. No particular age fixed by law at which testamentary capacity shall be deemed to have ceased. . . . . .117 2. Old age of itself not an incajoacity. . . . 117, 118 3. Extreme old age raises a doubt of capacity. .... 118 4. Remarks of Chancellor Kent in Van Alst v. Hunter. . . 118 n (e). Remarks of Judge Bradford in Bleecker v. Lynch, . 118, 119 5. Consideration of the capacity of an aged person to make a will in- volved in consideration of mental capacity. Case of Swinfen iil V. Swinfen considered. 119, 120 SECTION VII. Of the Mental Capacity necessary to the m'lking of a Valid Will. 1. This subject treated of to a certain extent in former chapters. ii 121 XVlll ANALYSTS OF CONTENTS. ii! PAGE. 2. A testator must have a sound and disposing mind, memory and understanding. . . . . . .121 .'i. Opinion of C. B. Eyro in MonnUdn v. Bennett. . . . 121 4. Opinion of Judges in Combers case. . . 121, 122 n («). Rules by which competency of mind must bo judged. 122 5. Mere weakness of understanding does not incapacitate. . . 122 G. Swinburne's statement of the law. .... 122 7. Lord Kenyon's opinion . ...... 122 8. Opinion of Judge Erskino in Harwood v. Baker. . 122, 123 9. Case of Dunhani'H appeal. ...... 123 10. Opinion of Chancellor Walworth. .... 123 11. Case of MaHiH v. MaHitt, considered — Ability to dictate a will said to be no test of testamentary capacity. . 123, 124 12. Same case in appeal — reasons of appeal. . . 124, 125 13. Judgment of Chief Justice Draper. .... 125 (a) The will was written as the expression of testator's wishes. 125, 12(3 {h) No suspicion cast on the writer. .... 120 (c) Did not appear whether testator had, prior to his illness, settled the disposition of his property in his own mind. . 12G, 127 (d) Charge made in effect a charge of fraud. . . . 127 (e) Statement of medical man's evidence. .... 127 (/) Statement of Thornton's evidence . . . . 127, 128 (g) Observations of M. R. in Swinfen v. Swinfen approved. . 128 Qi) Deceased declared of sound mind. Will sustained. 128, 129 14. Swinburne's opinion as to wills made in extremis. . . 129, 130 15. Rule of Ecclesiastical Courts as to wills absurd in their character — such wills considered prima feme invalid. . . . 130 16. Contents of thewilldangerousgroundonwhichtobaseaconclusion. 130, 131 17. Roman law disallowed inofficious wills. .... 131 18. This rule has no jilace in English law. .... 131 19. Case of Bronnker v. Brouioker. . . , . .131 CHAPTER VIII. OF WANT OF LIBERTY AND FREE WILL. 1. Prisoners, captives, &c., considered intestable in former times. . 132" 2. The rule is now different, the question in each case being whether or not the testator had liberum aniwum, . . . 132 ANALYSIS OF CONTENTS. xix PAQR. 3. A will procured by force or fear may be sot aside. . . . 132 4. Nature and extent of the fear which will vitiate a will considered. 132 CHAPTER IX. OF FRAUD OR UNDUE INFLUENCE USED IN I'ROt'URINO A WILL TO BE MAPK. SECTION I. Of Fraud. 1. All transacti'jnf tainted by fraud are voidable. . . . 134 2. Degree of fvaud necessary to vitiate a will considered. . . 134 3. Opinion of Lord Cranworth in Boyse v. Rosahorowjh. . 134-13tj 4. Modes of fraud exceedingly various — Case of Wilkinson v. Jonghiu. 13G 5. Strong and clear evidence of fraud required. . . . 13U 6. Fraud, to vitiate a will, must be contemporaneous with the making of the will. . . . . . . .130 7. Clause introduced into a will ' v fraud does not become part of the will 137 SECTION II. 0/ Undue Injiuence. 1. Will procured by undue influence cannot stand. . . .138 2. Influence merely may be legitimately used to induce a testator to make certain provisions. ..... 138 3. The relative positions of the parties must be regarded in determin- ing what is undue influence. The relations of husband and wife considered. ...... 138, 139 4. Case of Hall v. Hall. Persuasive appeals to the aft'ections per- mitted ; pressure of whatever character interdicted. 139, 140 5. Leading case of Boyse v. Rossboroiigh — Lord Cranworth's Judgment. 140 (a) Difficulty of defining undue influence. . . . 140, 141 (b) Difficulty of this question increased where relation that of hus- band and wife. ...... 141 (c) Influence, to be undue, must be an influence exercised by coercion or fraud. ....... I4l (d) Consideration of coercion. . . . 141, 142 (e) Consideration of fraud. ...... 142 (/) Difficulty of stating what acts will constitute undue influence. 142 II M M ■mi SZ ANALYSIS OP CONTENTS. . ■; ; . )■ i I - PAOI. (fj) Bur(lonofpro\'ing undue influence lies on those who allege it. . 142 (h) Undue influence cannot be presumed. . . 142, 143 (i) Consideration of course which should have been taken by testator. 143 (A) That the course which he in fact took. , . , 143, 144 (/) To set aside the will <.f a person of sound mind, it is not sufficient to show that the circumstances of its execution are consistent with hypothesis of undue influence, the undue influence must be in relation to the will itself. .... 144 0. Cases of undue influence numerous in our own Courts— Case of Donaldmin v. Dimuhhon. .... 144, 145 7. C&aQof Wati'rlnjtufc V. Lcf. .... 145, 146 8. A will may be void as to one person and good as to another. . 146 9. The fact that a will is drawn by the person most bonetited by it, does not render it invalid. ...... 146 10. The Parish Will case. ...... 146 11. Casoof l?a»Ti/ v. Pi«) The law regarding wills very diflferent. . . . 155 (c) Influence necessarj- to set aside a will considered. . 155, 156 (d) Conclusion that tlie rule as to wills not the same as to gifts inter vivos. .... "... 153 n. (ii) Court of Probate alone can in England try validity of will on ground of fraud or undue influence ; in this Province the Court of Chancery has jurisdiction. ..... 156 ^1 t ' ANALYSIS OF CONTENTS. XXI BOOK THE rHIRD. OF THE MAKING AND EXECUTION OF WILLS. CHAPTER r. OF THE MODE OF WRITING AND FORM OF A WILL. 2. 4. 5. n 9. 10. 11. 12. 13. 14. 15. 16. 17. Statute of Frauds roquirod that will of real estate should be in writ- ing. Wills of personal estate must also generally lie in writing. loH Printing, lithographing, Ac, efjuivalont to writing. . . 158 Will m.ay be written on any material or in c.riy mode. . . 158 Pencil writings considered deliberative. . . . 158, 150 Will may be written in any language. Contractions may be used. 15l> A paper propounded as a will must have a testamentary character. Form of a paper immaterial. Exami)le8. . . 159, 160 A document making a " free gift " held testamentary on parol evi- dence. ..... . . 161 Examples of papers held to be testamentary. . . . 161 . (/) Mistake in a codicil as to date or place of deposit of will immaterial. 161 A paper may be a will, though not taking effect until some time after the testator's death. .... 161, 162 Parol evidence admitted to prove or disprove testamentary character of a paper. ....... 162 Example furnished by Lister v. Smith. Parol evidence must be cogent and conclusive. ..... 162 — 164 Caseof "In the goods of Pooie." .... 164,195 Not necessary that testator should intend to perform a testamentary act. ........ 165 Rule laid down by Sir E. V. Williams. . . . 165, 166 (e) Court will give effect to an instrument as a will if it cannot operate in the way in which testator intended it should operate. 166 Paper not a will if it takes effect immediately. . . . 166 A will must be a disposition of property to take effect after death 166, 167 Will may consist of several different papers or instruments. Ex- amples. ...... 167, 168 i it it XXll ANALYSIS OF CONTENTS, PAOB. n. (6) When probate granted of several papers, the grant is to all the executors therein named. ..... 167 18. Instructions may, in certain cases, be incorporated into the will. 168 10. No precise fonu of words necessary to a will. Examples of words creating trusts, ...... 1P8 20. Courts indisposed to extend the rule creating trusts. Example. 168,169 21. General rule laid down by Lord Cranworth as to the creation of trusts by precatory words. ..... 169 22. Rule laid down by Lord Langdale on same subject. . 169, 170 23. Will by two persons jointly. ..... 170 24. Conjoint or mutual wills. ...... 170 25. Agreement to leave property by will may be erfciceu. . . 170 2(i. Error in descrijition of codicil immaterial. .... 171 CHAPTER II. *>F THE EXECUTION AND ATTESTATION OF WILLS OF REAL ESTATE. ill !( SECTION I. Of the Statutes relating to the formalities of Execution. 1. Difl'erence in the forms necessary to execution of wills of realty and personalty respectively, significant of relative estimation in which they were formerly held. .... 172 2. Execution of wills of real estate governed by the Statute of Frauds — Provisions of that Statute. . . . 172, 373 ■x Clauses of Statute of Frauds reiatiiig to wills repealed in England by 1 Vict. c. 20, and in this Province by " Tlie Wills Act, 1873," Effect of Con. Stat. U. C. c. 82, s. 13. ... 173 4. Provisions of "The Wills Act, 1873." s. 7, as to the mode of exe- cuting wills. ...... 173—175 o. Section 8 of the same Act, as to powers of appointment. . 175 (i. Section 10 of same Act dispenses with publication. . . 175 7. Section 2 of same Act limits the application of the Act to wills made after 31st December, 1873. . . . .176 n. (a) Meaning of vrord " republished " considered . . . 176 8. The 7th section of " The Wills Act, 1873," adopted from the 9th section 6f 1 Vict. c. 26. . . . . 176, 176 R) i ANALYSIS OF CONTENTS. XXlll PAOB. he . 167 168 ds 168 58, 169 ts 169 9, 170 170 . 170 170 . 171 172 173 173 SECTION II. Of the mode in ivhich a Will of Heal Estate must he v:nttcn. PAOE. 1. Will must be in writing. Construction of the word " writing." 176, 177 2. Will may contain blank spaces. . . . . 177 SECTION III. Meqwlrements in regard to signing Will. The will must be signed by the testator .... 178 If a will is signed by a mark, testator shoalu be identified . 178 Modes in which signature may be made . . . 178, 179 Sealing without signing insufficient .... 179 One signature to the will sufficient, provided it was intended as a complete signature . . . . . .179 •H ■'I 14 I' i I i n I) • I • I •■ SXIV ANALYSIS OF CONTENTS. PAOB. 187 187 188 188 ^89 2. Requirements of " The Wills Act, 1873" .... 3. Acknowledgment of signature by testator to the witnesses sufficient 4. Case of White v. Trustees of the British Museum E. Remarks of Sir H . J. Fust on that case .... 6. Recent case of Beckett v. Howe .... 188, 7. Rule as to presumption that will was signed when presented to the witnesses ........ 189 8. Example of refusal by the Court to presume due signature 189, 190 9. Case of Morritt v. Douglas ...... 190 10. Acknowledgment may be made by person nearly blind . 190, 191 11. Result of the cases on the subject of acknowledgment . . 191 12. Case of In the goods of Sii)ivford ..... 191 13. Misreijreaentation by the testator of the nature of the instrument immaterial ..... 191, 192 14. Case of Crawford v, Currayh stated . . . , 192 15. Points presented by that case .... 192, 193 (a) State of the law under the Statute of Frauds . . 193 {b) Provisions of oiir Acts . , . . . . 193 (c) Diiference between our Statute and the Statute of Frauds . 194 (d) The Statute of Frauds not repealed by our Act . . . 194 (e) No inconsistency in both Statutes subsisting together 194, 195 (/) Other reasons for holding the Statute of Frauds to be still in force .... .... 195 ((/) Conclusion arrived at by the Court . . . 195, 196 n. (rt) Opinion of Draper C. J., in Byauv. Devereux. Positive evi- dence by the witnesses of the signing or acknowledgment not necessary . . - . . . .196 16. Re(iuirements of " The Wills Act, 1873" as to the presence of the witnesses . . . . . . . .196 17. Mode of subscription by the witnesses . . 196, 197 18. Attesting witness may authorize another to sign for him . . 197 19. Witnesses must subscribe in presence of the devisor . 197-199 20. Rimning over a previous signature with dry pen insufficient . 199 21. Attestation clause and remarks thereon . . . 199, 200 22. Case o( Boberts V.Phillips . . . . . .200 23. Meaning of the word "subscribe" considered , . . 201 24. Presumption as to due execution ..... 201 25. Regularity of attestation clause supports presumption of due execu- tion .... . . - 201 ANALYSIS OF CONTENTS. i XXV PAOR. n. (c) Certificate of attestation not of same force as viva voce evi- dence. Remarks on the question of presumption under various circumstances ...... 201 26. Due execution may be presumed against the evidence of the wit- nesses ....... 202, 203 n. (6) Remarks on presumptions ..... 203 27. A will may be supported by other evidence than that of the wit- nesses ...... 203, 204 28. Witnesses should sign in puch a place as to leave no doubt of the object of signature ..... 204 29. Alterations should be attested ..... 204 SECTION V. Presence of the Testator at the Attestation by the Witnesses. 1. Provisions of the Statutes as to the presence of the testator . . 20.5 2. The testator must be in a conscious state ; mere bodily presence insufficient ....... 200 3 . Testator should be aware that his will is being subscribed . 206 4. The subscription must be in a place where the testator can sec . 206 5. Examples of the rule, Shires v. Glasucock .... 206 (). Further example, Davy v. Smith .... 206, 207 7. Further example, Casson v. Dade ..... 207 8. Case of In the goods of Trimnell ..... 207 {>. Cases in which execution insufficient. Doe Wright v. Manifold 207, 208 10. Case of Eccleston v. Petty . . . . . .208 11. Rule where testator unable to move without assistance . . 208 12. Presumption of due attestation ..... 208 13. Rule where testator is blind ..... 208 14. Mode of attesting will of married woman under 16th section of Con. Stat. U. C, c. 73. . . . . . 208, 209 n. (a) Opinion of Mr. Leith on the construction of this section . 209 15. Attestation of a codicil ...... 209 16. A duly executed codicil republishes and confirms a defective will . 209 m SECTION VI. Of the competency of tlie ivitnesses. 1. Credibility of the witnesses . . 210 :xxvi ANALYSIS OF CONTENTS. PAOH. 2. Word " credible " does not occur in Con. Stat. U. C, c. 82, a. 13, but they must be credible unaei "^hat statute . . . 210 ^. Whether witnesses must be credible at tiiu- of execution of will, or at time of judicial inquiry . . . .210, 211 4. Persons interested in the will decided not to be credible . . 211 5, Statute 25 Geo. 2, c. 0, passed to obviate the inconvenience of this rule. Witnesses deprived by that statute of all benefit under the will ....... 211, 212 0. Statute extends only to persons taking beneficial interest . 212 7. Provisions of "The Wills Act, 1873," sec. 11 . . 212, 213 8. Section 12 of same Act ...... 213 0. Section 13 of same Act . . . . . .213 10. Section 14 of same Act . . . . . 213, 214 11. The new Act applies to wills of personal as well as real estate . 214 12. Gift to wife of attesting witness .... 214 13. Gift in a \vill no*^ affected by the fact that legatee is a witness to the codicil . . . . . . . 214 14. Gift must be for the benefit of the witness to be void . 214, 215 15. Evidence received to show for what purpose a legatee signs a will 215 Hi i Sf K' CHAPTER III. OF THE EXECUTION OF WILLS OF PERSONAL ESTATE. SECTION I. Of the Statutes relating to the formalities of Execution. 1. State of the law regarding the execution of wills of personal estate unsatisfiictory ...... 216 2. Opinion of the Real Property Commissioners as to the state of the law in England, before 1838 .... 216, 217 3. Provisions of 1 Vict., c. 26. and of "The Wills Act, 1873" . 217 4. Nature of papers now admitted as wills of personalty . . 217 5. Wills of personalty, made prior to 1st January, 1 874, governed by present law ... ... 217, 218 SECTION II. Of Nuncupative Wills. 1 , Definition of Nuncupative Will ..... 218 I ii ANALYSIS OF CONTENTS. XX vu 2. Restrictions placed on such wills by the Statute of Frauds 3. Provisions of Canadian Statute 33 Geo . 3, c . 8 PAGE. 219, 220 . 220 4. Provisions of the Statute of Frauds as to nuncupative wills con- demned by the Real Property Commissioners . . 220, 221 o. Nuncupative wills abolished in England by 1 Vict., c. 26 ; and in Ontario by Con. Stat. U. C. c. 1(5, s, 83, except as to soldiers on active service and mariners or seamen at sea . . 221 a. Provisions of " The Wills Act, 1873," regarding nuncupative wills 221 7. " Actual military service " means service on an expediti(jn. Wills of soldiers considered ..... 221 8. ^^'ill8 of seamen considered ...... 222 9. Will of soldier not revoked by return from expedition . 222 SECTION III. Of tlie mode of making a Will of personal estate, and if tlve requisites to the validity of such a Will. Wills of personal estate. ills, must be i ept nuncupativ but need not be signed or sealed .... 224 2. Any wTiting of a testamentary character, which is finished and com- plete, may be allowed as a good will of pevsonalty . 224 3. Instnmient without date or signature, and in hand\vTiting of a stranger, has been allowed as a good will of personalty . 224 4. A will written in pencil is good. ..... 224 5. There must be animv^ testandi ; and therefore if there is no such anitmts, the paper will be rejected, though complete in form . 225 (i. Wills made in extremis, without due formality, regarded with sus- picion ........ 225 7. The Courts inquire into the history and nature of the produced paper 225 8. The burden of proving an informal or unsigned instrument to be a will lies upon those who allege it . . " . 225, 226 Jarman's commentary upon such instruments . . 226 Principle that the testamentary intention is the guide, established by the cases ....... 226 11. Effect of a memorandum of attestation without the signatures of the witnesses ...... 226, 227 12 Opinion of Sir J. NichoU in Bea% V. fiea% . . . 227 13. If the completion of the will was prevented by accident, it may be supported ...... 227, 228 9 10. ^Sl'-! jr -w XXVlll ANALYSIS OF CONTENTS. PAliB 14. The result the same, if the completion is prevented by violence or supervening insanity ...... 228 15. But, if the incompleteness affects the substance of the paper, it will not be supported as a will ..... 22H 10. If proper excuse is given for delay in completing the instrument, it may be held good ..... 228, 22! > 17. Instructions for a will may be a good will . . 22!* 18. Exemplification of this rule ..... 229, 23(.> 19. Exception to this rule ...... 23fr 20. Importance of taking instnictions in proper form, for wills of per- sonal estate ...... 230, 231 n (b) Continued importance under "The Wills Act, 1873 " 231 21. Not necessary that instructions should be seen by the deceased ; but he should be shown to have been acquainted with their contents . . . . . . .231 22. Will dictated in answer to interrogations valid. Case of Greeic v. Sklpworth ...... 231-233 23. Judgment of Sir J. NichoU in that case .... 233 24. Remarks made in preceding chapter regarding 1 Vict., c. 2C, and its bearing on wills of realty, applicable to wills of personalty, executed under " The Wills Act, 1873 " . . 233, 234 25. An entry in an account-book, duly signed and attested, held testa- mentary ........ 234 2G. Orders on savings banks, duly signed and attested, held testamentary 2.34 27. Presumption is against an unfinished paper . . . 234 28. Tresumption is against an unsigned paper dealing with botli real and personal estate ..... 235 29. Rule laid down by Sir E. V. Williams . 236, 23(5 30. The introduction into a will of a provision, without instructions, does not make it part of a will ..... 23(> 31. But if the will was read over to the testator, such a provision should not be excluded, if he did not object to it . . 236, 237 32. Mode of executing the will of a married woman, under Con. Stat. U.C. c. 73 237 33. Will, well executed according to present law must, after " The Wills Act, 1873," comes into force, be presumed to have been made before Ist January, 1874. This presumption will di- minish with the lapse of time .... 237 34. Rule of Surrogate Court as to the mode of proving a will . 237, 238 ANALYSIS OF CONTENTS. XXIX y violence or . 228 )aper, it will . 228 istmment, it 228, 22!> 22!) . 229, 230 vills of per- 230, 231 231 3 deceased ; with their 231 ■ of Green v. 231-233 . 233 26, and its personalty, 233, 234 held testa- . 234 stamentary 234 2U h both real . 235 235, 23U istructions, . 236 jion should 236, 23T Con. Stat. . 237 Fter "The have been jn will di- 23T . 237, 238 1 •OF CHAPTER IV. THE INOORPORATION INTO A WILL BY EEPBRENCE OF UNEXECUTED PAPERS. PAGE. 1. The law permits the incorporation into a will of papers therein re- ferred to, subject to certain conditions - - 239, 240 2. The doctrine laid down in Hahergham v. Vincent - • - 240 3. Limitation of the doctrine. The paper must be referred to as being in existence -.--... 240 4. Statement of the law by Sir C. CresswoU in Straubenzie v. Monk - 240 5. And by Sir J. P. Wilde In the goods of Smiderland - 240, 241 I). Caae where reference insufficient ----- 241 n. (rt) Recent case of Andersun v. Anderson - - . 241 7. Reference to a paper as not in existence, or "to be made " insuffi- cient ------. 241, 242 8. Paper must be so referred as to be capable of being clearly identified 242 f>. Case of Straubenzie v. Monk - - . . . 242 10. Case of In the goods of Gill ---... 243 n. (rt) Case of Dickinson v. Stidolph - - - . 243 3 1 . Case of In the goods of Mercer .... 243 244 II. (a) Various cases remarked upon - - . . 244 12. Paper to be incorporated should be described in the will - - 244 13. Question how far parol evidence is admissible to assist in identifica- tion considered. Case of In the goods of Sunderland - 245, 246 1 4. Paper written after the will may be incorporated where the will is republished by a codicil ----.. 246 Jo. Case of In the goods of Truro considered . - . 246 16. Question when papers referred to should be included in probate considered. Dr. Lushington's opinion - - . 246 247 17. Deposit of a deed of settlement may be dispensed with. A notarial copy should be deposited - - - - . 247 18. A testator cannot create a power to dispose by a future unattested codicil 247, 248 CHAPTER V. OF THE testator's KN0WLED(JE OF THE CONTENTS OF HIS WILL. 1. A testator must know the contents of his will. He cannot adopt a paper as a will, if he is ignorant of its contents - - 249 XXX ANALYSIS OF CONTENTS. 3 2. When a person benefited draws the will, the proof of knowledge of contents by the testator mtist be clear - - - 249, It is not necessary to prove that the will was actually read over to the testator, but if testator was blind or incapable of reading, proof is required th.at he knew the contents of the will 4. Rule, as stated bj Dr. Lushington - . - . 250, 5. If testator shown to be of sound mind, it is presumed that he knew and approved of the contents of the will G, Rules laid down by Sir J. P. Wilde in Guardhouse v. BktckhwH 251, 7. Proof of signature only required - - - - - 8. Case of Murrit v. Duwflass ----- 252, 9. Presumption that testator knew the contents of will may be dis- placed by evidence .-.--. 10. Clause introduced into a will by fraud or mistake does not become part of the will ------- 11. But if the will has been read over to the testator, an error in it can- not be corrected ------ 1 2. Recent case of Harter v. HaHcr. Opinion of the Court as to its power to correct a will under the new statute - - 254- n. (a) This case an authority upon "The Wills Act, 1873." Judg- ment of the Court as to its power to correct a will - 254- 2o 251 251 252 252 253 253 253 25.3 25f> 250 CHAPTER VI. OP CONDITIONAL OR CONTINGENT WILLS. 1. A will may be made to take effect only on a contingency. 257, 258 2. Such a will cannot take effect until the contingency happens. - 258 3. A power may be given to a legatee to disallow a testamentary pro- vision. -....-. 258 4. Instance of will held not to be conditional. - - 258, 259 5. Further example. -...-- 25{> 0. The Court is strongly disinclined to hold a will to be conditional. 259 7. Parol evidence cannot, since the new Statute, be admitted to show that the testator adopted a contingent will after the time had passed within which the contingency was to happen. - 259, 260 8. Case of Roberts v. Roberts decided under 1 Vict. c. 20. It is an authority upon our new Act. .... 260 9. A will of personalty, dependent on a contingency which never ANALYSIS OF CONTENTS. happens, may bo adopted and recognized by the testator as his will. - 200, 261 1(1. A codicil, contingent on an event which does not happen, is still a ro-execiition of a will therein referred to, and is entitled to probate. .-..--. 261 CHAPTER VII. OF WHAT MAY BE DEVISED OR BEQUEATHED 1. General power of devising freehold b'uds created by 32 H. 8, c. 1. 2G3 2. The power of disposing of personalty was of gradual growth. 263, 204 3. Provisions of "The Wills Act, 1873." The Statutes of Henry re- pealed by that Act. Enabling provisions of s. 5 of the new Act. 264 4. Construction of real and personal estate given by the interpretation clause of the new Act. .... 204, 265 5. Under the present law all interests are devisable, which, on decease, if not disposed of, would go to the real or personal representative. 20.5 0. The interest of a joint tenant cannot be devised unless he survives his co-tenant. The interest of a tenant in common may be de- vised. --.-..- 205, 260 7. A devise of real estate regarded as a conveyance. - - 266 8. Consequently a testator could not, under the old law, devise real estate of which he was not seized when he made his will. - 266 9. Rule in Equity as to equitable estates. - - 266, 267 10. Provisions of 4 W. 4 c. 1, s. 49. - - - - - 267 11. Construction of this section in Whately \. Whately. - 267, 268 1 2. Opinion of the present Chancellor. .... 268 (a) Results of the old doctrine. - - ' - 268, 269 (b) Remedy applied by the Legislature by 4 W. 4. c. 1, s. 49. 269 (c) Difl'erence between our Statutes and 1 "Vict. c. 26. - - 269' {(l) Conclusion to be drawn from the difference in wording of the two Statutes, ...... 269 (e) Opinion of Afoioa^, V.-C, remarked upon. - - 269, 270 (/) DiflFerence between a will of real and personal estate as to con- struction of bequest. Peculiar language of our Statute. - 270 (g) Testator in the will under consideration joins real and personal estate in one devise. This considered immaterial. - - 270 13. Statute 32 Vict. c. 8, s. 1. - - - - 270, 271 14. That Statute repealed by the new Act as to wills made after the 31st December, 1873. - - - - - - 271 ,'T ■■ II- 1 in XXXll ANALYSIS OF CONTENTS. PAOB. 16. Wills of roal and personal estate placed by the new Act on the same footing. ....... 271 16. In order that 4 W. 4, c. 1, may apply the testator's death must occur after 6th March, 1834. .... 271, 272 17. Consideration of the words " contrary intention " in the 21st section of the new Act. Case of Cole v. Scott. - - - 272 18. CuRQ oi Wagstaffv. Wagstaff conBidered . - - 272, 273 19. V.-C. Wood's opinion in Ooodlm. v. Bennett. - - - 273 20. Case of Castle v. Fox. 273—277 n. (c) Judgment of Malim V.-C, in that case ; review of the cases. 273 — 277 21. It ia only as to the property comprised in it that a will is made to speak as if executed immediately before the testator's death. 277 22. The " contrary intention " must, to be effectual, appear in the will, and must have a continuing operation to the death of the testa- tor. ------.. 277 23. Provisions of " The Wills Act, 1873," as to estates ptir autre vie. - 278 24. Provisions of the Statute of Frauds as to such estates. - 278 'f t BOOK THE FOURTH. OF THE REVOCATION OF WILLS. CHAPTER I. OF REVOCATION BY MABBIAOE AND BIRTH OF CHILDREN OR BY MARBIAOE ALONE. 1 Rules laid down by the Court in the case of Marston v. Fox, with regard to the revoking effect of marriage. ... 280 2. Marriage and birth of issue required to eflTect a revocation. Mar- riage alone, or birth of issue alone is insufficient. - 280, 281 3. The will of married man having children may be revoked by birth of other children and circumstances showing an intention to re- voke. ....... 281 4. 1(1. II. i:; IS, 1!' 20 2], ANALYSIS OF CONTENTH. XXXlll I'AllK. .Tud^'inent of Sir J. Nicholl in JohnHfuu v. Johimtdu, Tho groiiiuU on which marriage and birth of issue operate as a revocation ox- plained. 281, 282 Marriage and V)irtli of issue create such a change in condition that the will is presumed to be revoked. - - 282, 283 The will of a widower revoked by marriage and birth of issu.' - 281$ Tho birth of a posthumous child is sufficient to etlect a revocation. The will, having been revoked by the birth, is not revived by the death of the issue. ..... 283 It is only in the event of no provision having been made for children, that the birth of issue revokes a will. - - - 283 .\nd the will nnist devise (»/7 the testator's property. - 283, 284 Tlie birth <>i a child alone does not revoke a will made after marriage. 284 lUit the birth of a child, together with other circumstances, may ef- fect such revocation. . . . . . 284, 28."» The revoking rule will not apply, when the effect of revocation would be to lienetit exclusively a child iti rssi: when the will was made. 28.") Eti'ect of the abolition of primogeniture in this Province. - 280 The marriage of a Jhiu .so/c had always the effect of revoking her will. ......--. 28(J Wills and testaments only in the strict sense revoked. - - 28(i Provisions of 32 Vict. c. 8, as to revocation by marrage and altera- tion of circumstances. -..-.. 28(i Provisions of " The Wills Act, 1873." on same subject. - - 2s7 Kemarks of Jarman on the provisions of the new Act regarding re- vocation by marriage, &c. ..... 287 If testator has made his will before IWth December, 18G8, and has married after that date, and has survived the 31st December, 1868, the will is not revoked by his marriage, - - 287 The marriage of a testator before the Act was passed, and the birth of a child after that time, revoke a will made before the Act was passed. ....... 287 Marriage on the day of, but subseciuent to, the execution of a will. 1 the day o revokes the will. 22. Case of In the goods of WortJmiA^ton . 288 288 5 1 I m m 111 XXXI V ANALYSIS OF CONTENTS. CHAPTER II. (IF REVOCATION BY BURNIHO, «"ANCELLINO, TEARINO, QBLITERATINO, OR OTHERWISE DEMTROYINCt A WILL. PAOR. 1. Provisions of the Statute of Frauds aa to revocation by burnin;;, &c. 290 2. ProviHions of 32 Vict. c. 8, on same subject. - - 290, 291 :{. Provisions of " The Wills Act, 1873," on same subject. - - 291 4. The new Statutes apply to wills of personal .is well as real estate. 291 r>. There must be «>timt« revocaiuli. A tearing or destruction by acci- dent, Ac, will not revoke. ----- 291 »i. The means of revocation must be efl'ectively used. - - 291, 292 7. Example. Case of Bibh . . Thomas ; tearing. - - - 292 5. Tearing of signature sufhcient. . . . . . 292 *■). Rule laid down by V.-C. Wood. The tearing of +hat which the tes- tator has miule a substantial, though by law it is not a necessary part of the will, is suflicient to revoke. ... 292 10. Case of In the goodsof Gr«//o«. - - . . 293 11. The tearing off of a seal and part of a word held sufficient ; or the drawing of lines through the testator's name. - - 293 12. A will taken from the tire before being burnt held unrevoked. - 293 13. If the intended act of revocation is not completed, there is no revo- cation. --..-. 293, 294 1 4. A will torn in four pieces held unrevoked. - - - 294 15. Case of Elms v. Elms to same eflFect. .... 294 10. A will torn under a misapprehension as to its validity considered not revoked. .-..-.. 294 1 7. A will held unrevoked though several lines had been cut oflf. - 295 18. When the revoking act is merely deliberative it will not effect a re- vocation. ---.... 295 19. A will may be partially revoked by obliteration, &c. The whole question considered by Sir J. Dodson in Clarke v. Scripps. 295 — 297 20. The erasure of the name of one of two joir/ devisees is a revocation prvtaidu only. ...... 297 21. Difference between the Statute of Frauds and the new Statutes ; — the words " cancelling " and '' obliterating" omitted from the new Statutes, and the words "otherwise destroying" substi- tuted therefor. - - - - - - 297 22. The words "otherwise destroying" mean a destruction ejusdem, generis with the other modes mentioned in the Act. - 297 ANALYSIS OP CONTENTS. XXXV PAOE 2:3 24 25. 20. 28. 29. Caao oi ShfjIwHs v. Tuprell. The 20th aiul 2lBt sections of the Eng- lish Act consiclored. ---... 29H (a) Kovociition by cancellation good before the Statute 1 Vict. c. 20. 28'.> (6) hujuiry as to the changes effected by the Act. Report of the Keal Property Connniasioiiers. - - - 298, 2ft!) (( I The Lugislaturo did not adopt all their stjggostions. - - 2!)i> ((/) Is cancellation a (lestrndiun within the meaning of the new Act ( It is not. .-..-. 299, 30<) ((•) The 2()th section api)liosto total and not tnpartiid revocation. 300, 301 (/) Comparison of the 20th and 2l8t sections. - - - 301 ((() Application of the foregoing case to the provisions of 32 Vict. c. 8. Question whether the 18th section of " The Wills Act, 1873," prevents unattested alterations from being made after the Ist January, 1874, in wills executed before that date. 301, .302 (Jutting c(iuivalent to tearing. - - . . 302, 303 \ person wliile insane cannot revoke his will. - - . ;j()3 The revocation of a will procured by c(jmpulsion or fraud is in- efl'ectual. ----... 303 The power to revoke a will by burning, »S;c. , cannot be exercised in the testator's absence. - - . • . 303 Parol declaraticjns as to revocation already eflfected inadmissible to prove revocation. - . . . . 3Q3 3Q4 A will is not revoked by mere abandonment. ... 394 After the due execution of a wi 1 is proved, the burden of proving revocation lies on those who assert it. - - - 304 M ■f CHAPTER III. OF REVOCATION BY A SUB.SEQUENT WILL OB CODICIL OR OTHER WRITING. Prior to Statute of Frauds, wills were revocable by parol. The Statute provides that wills should only be revoked by writing, &c. 300 2. Provisions of the Act as to the revocation of wills of personalty. 300, 307 3. Provisions of 32 Vict. c. 8, as to revocation. - . . 307 4. Provisions of " The VVills Act, 1873," on same subject. - 307 0. Statute 32 Vict. c. 8, applies 19th December, 1808. - - 307 0. A man may revoke his will as often as he pleases- - 307 308 7. A will revoking a devise was required by Statute of Frauds to be at- tested as a devise. Distinction between mode of attesting a devise and a revoking will. - - - - . 303 XXXVl ANALYSIS OF CONTENTS. !)i: 8. A letter, declaring an intention to revoke, is sufficient under the 22nd section of the Statute of Fravids. - - 308, 309 9. Instructions may be a good revoking will. - - - . 300 10. Parol evidence may be given, notwithstanding the 22nd section, of a revoking will having been made which is not forthcoming 309 11. A will of personalty may be revoked by a partially unfinished will. Rule laid down in Williams on Executors. - - 309, 310 12. Such partially unfinished will, if it comprises realty and personalty, will scarcely be allowed to operate. - - - 310, 31 1 13. Presiuimption of law is adverse to an untiuished instrument revok- ing a will regular in form and regularly execu,ted - 311 14. Circumstances under which parol evidence will or will not be re- ceived. - - - - - - - - 311 15. If the instrument is incomplete, it will not eftect a revocation. 311, 312 10. The revoking instrument must indicate a. present intention to revoke. 312 17 Effect of a general revocatory clause. .... ;ji2 18. An inconsistent disposition of previovisly devised property will re- voke a will. • - - - - - 312, 313 10. The Court will so construe both instruments as to give both eftect, if possible, or as far as possible. - - - - 313 20. Rules laid down by Sir J. P. Wilde in Lcmage. v. Goodhmi. 313 — 315 21. Case of In the goods of ici'is. ----- 315 22. .A revocatory clause in a subsequent will does not necessarily revoke all prior testamentarj' papers. The 'udention of the testator will be looked at. - - - - - - 315 23. If the provisions of a subsequent will cannot be ascertained, the prior will remains imrevoked. - - - 315, 31 (> 24. Dilficiilty of asserting the relative dates of testamentary papers. Water-mark not a safe guide. - - - - 31(> 25. If no evidence is given to determine the respective dates, both wills are void so far as they confiict. . - . - 310 20. The words " last will " are of no importance. - - - 317 27. A revocation of a trusteeship conferred by a will does not revoke a guardianship or other office conferred by the will. - - 317 28. The provisions of a codicil not permitted to attect a will further than is actually necessary. - - - - - 317 29. <'aseof Faner\. Mt Vatherinc\^ Collerie. - - - 317, 318 30. .\ revf)cation, founded on a wrong assumption, is iiiett'ectual. 318 31 . A codicil may revive the prior of two wills by referring to it as exist- ANALYSIS OF CONTENTS. XXXVll I'AOK. ing. But this cannot be where the prior will has been de- stroyed. ...... 318, 31» 32. The proof of a subsequent revoking will, not forthcoming, must be clear and distinct. ...... 319 33. If the contents of the subsequent revoking will cannot be proved, both are void. 319, 320 34. Distinction between a revoking will and a writing revoking a will. 320 35. Mode of executing a writing containing an intention to revoke. Provisions of 32 Vict. c. 8, and " The Wills Act, 1873," as to such a writing. ... - - - 320, 321 CHAPTER IV. OF THE ALTERATION OF A WILL BY OBLITERATIONS^ INTERLINEATIONS, itc 1. Wills of personal estate may, by the present law, be altered by un- attested interlineations. Otherwise as to wills of real estate 322, 323 2. Obliterations were authorized by the Statute of Frauds as a means oi total or partial revocation ..... 323 3 . Opinion of Baron Parke in Xrocfcf V. James - - - 323, 324 4. The striking out of one devisee's name is a revocation pro tanto only .----.- 324, 325 5. Case of SlioH v. Smith ...... 325 (5. Provisions 1 Vict. c. 2G, as to alterations - - 325, 326 7. Construction to be placed on s. 2 of " The Wills Act, 1873 " 326, 327 8. The cases decided under the English Act, as to wills of personalty, have only a limited application to wills of realty in this Province - - - - - - 327, 328 !). Alterations in a will may be in pencil, but pencil alterations in a will written in ink are considered deliberative - - - 328 10. Alterations are presumed to have been made after the execution of the will ...... 328, 329 11. And where there is a codicil which does not notice them, after the execution of the codicil ---.-- 329 12. Rule as to presumptive date of alterations laid down by Privy Council in Greville v. Tyke .... 329, 330 13. Slight evidence is sufficient to rebut the presumption that altera- tions in a will were mn.de after the execution - - 330, 331 14. Evidence of parol declarations may be admitted to establish inter- lineations as part of a will ...... 331 m H ■^m m 1: m m 1 Ult- II 7F n ■I! XXXVlll ANALYSIS OF CONTENTS. TAOE. 1"). The rule as to the presumptive date of nmtilations the same - 331 HI. The words "otherwise destroying," in the 17th section of "The Wills Act, 1873," explained - . - - 331,332 17. Scientific means may be used to decipher unattested obliterations 332 18. The doctrine of dependent relative revocation is applied to alter- ations in a will ..... 332, 333 1 n. Example of insufficient attestation of alterations in a will - - 333 CHAPTER V. OF THE REVOCATION OR ALTERATION OF WILLS MADE IN DUPLICATE. 1. Wills frequently made in dui^licate, and questions arise as to the eflfect upon one dui^licate of alterations in the other - - 334 2. The revocation by cancellation of one duplicate operates as a revoca- tion of the other, if one is in the testator's custody, and the other not --..-.-- 334 o. And tlie same presumption, though weaker, arises if both are in tlie testator's custody ----- 334, 335 4. Remarks on this presumption - . - - . 335 r». In Roberts v. Round, where one duplicate was destroyed and the other carefully preserved, the latter was held unrevoked - 335 r>. The erasure in one duplicate is an erasiire in the other - - 335 7. If a duplicate, known to have been in testator's custody, cannot be found, presumption arises that the will is revoked - - 3.'»5 CHAPTER VI. OF THE EFFECT ON A CODICIL OF THE REVOCATION OF THE WILL OF WHICH IT FORMS PART. 1. A codicil was, under the old law, prima facie dependent on the will, and was revoked by the revocation of the will unless it could be shown that it was intended to subsist indepen- dently - - . .... 336, 337 2. This fact may be shown in various ways - - - - 337 3. Cases of In the goods of Harris and In the goods of Ellice - - 337 4. Leading case of Black v. Johling. The cases reviewed - 337, 338 (a) Statement of the facts of tliat case - - - . 338 (b) The general rule of the old law stated - - - 338 ANALYSIS OF CONTENTS. XXXI X (c) Case of Barrow v. Barrow .... 333^ 339 (d) Case of Medlycott v. Assheton considered - - - 339 (e) Case oi Tagartv. Bakewell considered - - 339,340 (/) These cases leave in doubt what is meant by ' ' dependent on the will" 340 (17) Remarks on these cases ------ 340 (h) All these cases occurred before the Wills Act - 340, 341 (i) The case of Clogstovm v. Wallcott since the Act reviewed — Case oi Grimvwodv. Cozens ----- 341, 342 {k) The effect of the statute not fully considered in these cases - 342 (/) The statute plainly requires an actual revocation by the m )des mentioned in the Act . - - - . 342 5. The case of Black v. Jobling confirmed by the case of In the goods of Savage - - - ... 342, 343 C. These cases lay down a plain and distinct rule - - 343, 344 CHAPTER VII. OF DEPENDENT RELATIVE REVOCATION. ^'f1 1. Origin and application of the doctrine of dependent relative re- vocation ..--.- 345j 34G 2. Case of Onions v. Tyrer, one of the earliest cases on the subject 346, 347 3. Statement of the doctrine by the Master of the Rolls in Ibbott v. Bell 347 4. Case of Powell v. Powell stated .... - 347 6. Sir J. P. Wilde's judgment in that case - - - 347, 348 6 Cancellation preparatory to the making of a new will, which was never made, ineffectual ..... 349 7. Cancellation, in consequence of a misapprehension as to the effect of a subsequent will, held ineffectual - - - 349 8. Revocation under the impression that the will was invalid, held in- effectual ------- 349, 350 9. The doctrine applies to partial alterations . - - 350 10. Stiatement of the law by Baron Parke in Locke v. James - - 360 11. Case of Dickinson v. Hwaiman . . . . 350, 361 12. Opinion of Sir C. Cresswell in that case - - - 351 13. The case of Dickiiison v. Svjatman, as reported, conflicts with Powell v. Powell ------- 351 WW xl ANALYSIS OF CONTENTS. 14. The intention of the testator to revive an earlier will inust, in order that the later destroyed will may be supported by the doctrine in question, be plainly declared at the time of destruction 351, 352 15. A revocation made under a false impression of fact ineffectual 352, 353 16. And it is immaterial whether the false impression is the result of deceit or mistake ...... ;i.'):; 17. Distinction between cases where testator refers to a fact as having actually happened, and those where the revocation is founded on an expressed doubt ---... srvA 18. Case of Attorney-General y. Ward. Lord Alvanley's opinion on the foregoing distinction ..... 353, :;,"i4 1!». Where the second disposition fails for want of capacity in the grantee, the first is nevertheless effectually revoked - - 354 20. If the testator revokes his will upon the mere general purpose (unfulfilled) of making another, the revocation is efi'ectual 354, 355 21. In order that the doctrine may be applied, there nnist be proof of actual destruction ...... ;3.">;"i CHAPTER VIII. OF THE CONSEQUENCKS RESULTING FROM THE LOSS OR MUTILATION OF A WILL. ■»]\ I it 1. The rule is, that a will traced into testator's custody and not found at his death, is presumed to have been revoked ; but if in custody of another, revocation must be proved - 356, 357 2. Example of this rule ...... 357 3. There must, ho wever, be evidence to satisfy the Court that the will was not in existence at the time of the testator's death 357, 358 4. The rule is not always rigidly adhered to — example - - 358 5. If testator having custody of his will becomes insane, revocation will not be presumed ...... 358 6. After due execution of a will is proved, the burden of proving revo- cation lies on those who assert it - - - - 35!> 7. Mutilations presumed to have been made after execution - 359 8. Declarations of a testator not admissable unless part of the ren gestae ..-..-- 359, 300 0. A will lost or destroyed by accident may be proved in various ways 3t)0 10. The Court regards evidence of the contents of a lost will with great jealousy. The evidence must be clear and satisfactory 360, 3t)l ANALYSIS OF CONTENTf^ xli 11. Example of insuffc lent proof of execution - - . . 12. An entry in the books of a deceased solicitor, in his own hand- writing, held admissible to prove that a will was executed 13. Mode of establ'shing contents of a lost will considered - 3G1, 14. The declarations of a testator when he made his will, as to its con- tents, held admissible t(j prove the contents, if the will be lost 15. It is not necessary to show how the original instrument was lost It). Wills of living persons may be deposited for safe keeping in the Surrogate Court ofti'^e - PAOP, ■Ml •Ml :5t)2 :'.t;j :J(i2 :;»)2 CHAPTER IX. OF REVOCATION BY ALTEBATION OF ESTATE AND BY VOID CONVEYANCE.S. 1 . Nature of this revocation. It is not properly a revijcation - - 3 14. A deed void in equity but not at law was a revocation. Lord Thurlow'a decision in Hawes v. Wyatt more consonant to reason ...... 369, 370 15. Case of Lmujhmd v. Knott in our own Court. Construction of Con. Stat. U. C, c. 82, s. 11 370 16. Judgment of V.-C. Mowat ..... 370 (o) Condemnation of the principle of the doctrine - - - 371 (h) Its abolition by 1 Vict. c. 26, in England - - - 371 m r^— Xlii ANALYSIS OF CONTENTS. (c) Statement of the doctrine .... 371^ (d) C. J. Eyre's statement of the law .... («) Lord Hardwicko's explanation in Parsonn v. Freeman - 372, (f) Some cases go even further - - - . . (f/) C. J. Wilmot's statement of the law .... <^) Rnle applies though there is no change of seisin - 373, 17. Law altered by Stat. Ont. 32 Vict. c. 8, s. 2. Provisions of " The Wills Act, 1873 " IS Construction placed on 1 Vict. c. 26, s. 23, by the English Courts r.>. Ca»e of Ford V. De Pontes - ..... 20. Judgment of the Master of the Rolls in that case - - 376, 21. Construction of the concluding words of the section 22. Case of Gale v. Gale stated ----- 377, I'AOF 372 372 373 373 373 374 374 374 375 -377 377 378 BOOK THF£ FIFTH. OF REPUBLICATION, REVIVAL, ETC. CHAPTER I. OP REPUBLICATION AND REVIVAL. 1. Provisions of 1 Vict. c. 20, as to republication. "The Wills Act, 1873," contains similar provisions. - - - 380, 381 2. 1!, .'publication is of two kinds, express and constructive. - 381 ;i. .\ will of real estate could not under the Statute of Frauds be re- published, excecpt by re-execution in presence of three attest- ing witnesses, or by the regular execution of a codicil. But a will of personalty could be republished by parol. - - 381 4. .\ revoked will of personalty may be revived by recognition as a valid will. 381, 382 5. Mere conservation of a will considered by Sir John Nicholl suflicient to revive it. ------ - 382 ANALYSIS OF CONTENTS. xl'-i 10. il TJ. U. U. 15. Ui. 17. 18. lit. 20. 21. The act done must be animo repttblicMidi. - - 1^82 Declarations are sufficient to revive a will found with an existing re- voking will. Case of Daniel v. Nockolds. - - 383, 384 A will actually cancelled may be revived if recognized animo repub- licandi. ....... 384 Examples — cases of Slad^ v. Friend, and Brotherton v. Hellier. 384, 385 A codicil is a republication of a will. - - - - 385, 386 n. (c) A will containing a devise, but not duly attested, may be re- published by a codicil duly executed. - . - - 385 The question is always whether the particular case is within the general rule. ...... 380 The republication of a will amounts toamakiiigof the will denovo. 386, 387 Difference between wills iind codicils in this respect. - - 387 Case of Upfill v. Marshall. .... 337, 388 The will when republished extends to subjects arising between its date and republication. ..... 388 An infant, on attaining majority, may adopt a will made during in- fancy — so a will made by a testator while iion compos, may be adopted by him when sane. ... 388, Wills made before 1st January, 1874, must be executed in accord- ance with the new statute, in order to duly republish them. Question whether, if a revoking will is cancelled, the former re- voked will is revived, unsettled. The Common Law Courts adopted the affirmative opinion, the Ecclesiastical Courts the negative. ....... Opinions of Lord Mansfield and Chancellor Kent. - 389, Statement of the law by Jamian. .... 390, Opinion of Sir John Nicholl. . . . . . Construction of the words " showing an intention to revive," in the H>th section of "The Wills Act, 1873." - - 391, (a) The cjuestion at issue one of construction and of some difficulty . (b) Propositions established by the cases. (c) Evidence should be received of surrounding circiunstances. (d) There can be no revival of a destroyed will. (e) Remarks upon the cases. .... 393^ (/) The effect of the Statute considered. (g) Meaning of the words " showing an intention t^YSIS OF CON TENTS. p>ir from the language of the dociiniaats themselves, read in the light of the facts of the case. . . . . 39(5, 307 (j) The language of the codicil must bo closely considered. 397, ;J!(8 n. (b) Tudgment of Sir J. P. Wilde In the goods of Steele ; In the goods of May ; In the goods of Wilnon. - - 398, 399 23. The revival of a will by a codicil does not necessarily involve the re- vival of a prior revoked codicil. .... 391( CHAPTER II. SUGGESTION.S TO THOSE EMPLOYED IN DRAWINO WILLS. !l ! ; i 1. The time of making wills, too often deferred till the testator is incom- petent. ...... 4(X\ 401 n. (a) Care should be exercised, not to assist in making a will, which is not the act of disposing mind and memory. - - 400 2. Great care should be taken, that testators effect what they desire or intend. ...... 401, 402 3. Testator's often dependent, to a great extent, upon legal advices as to the form of their wills. ..--.- 402 4. Care is often requisite to translate the testator's language accur- ately. -...-. 402, 403 5. Counsel should be careful to imderstand testators, and be understood by them. ----- ... 403 6. Mr. Jarmin's hints as to description of estates, intermediate pro- fits, and charge for debts. - - - - 403, 404 7. In relation to securing property to wife and children. - 404-406 n . (a) It is always safe to advise testators against embarrassing the transmission of the title to estates. - - -401-4% ANALYSIS OF CONTENTS. xlv APPENDIX 1. The Wills Act, 1873." 407, 410 'i 'M APPENDIX II. \:M I'AOK 420, 42J KOKMS OK WILLS AND FAMILY SETTLEMENTS, ETC., WITH NOTES. No. I. Form showing mode of baginning will. No. II. Common form of will. --•-.. 422 423 No. III. Deed or will in trust. ---... 423 424 No. IV. Will giving to one absolutely all the testator's real and personal estate. - - - - . . - 424, 42r, No. V. Will disposing of real and personal estate in favour of two sons, of whom one is an adult and the other a minor ; giving to the devisees a power of appointment over the real estate. Direction to pur- chase a life annuity - - - . . 425-427 No. VI. Will devising real estate to trustees. - - . . 42(3-430 No. VII. Will of a married man. - - - . . 431-435 No. VIII. Will of a married man. ...... 435-43H ' .1' ' I Jl M if ■i'& 'i ''%i u,f T 7^ •'^■'Irh m xlvi Will of a married man. Will of a farmer. ANALYSIS OF CONTENTS. No. IX. « ■ w ■ No. X. No. XI. PA«I. 439-442 442-445 Will devising estates to the uses of a strict settlement made upon the testator's marriage - - - . . 445 44(} No. XII. Codicil making alterations and additions to the will, and appointing different executors or trustees. . . . . 44(j No. XIII. Nuncupative will. 446, 447 TABLE • OF CASES CITED. A. Ashton, In goods of 191, 196 Ashwell V. Lomi 152 Aaron v. Aaron 385 Astell, In goods of t>42, 244 Abbey, In goods <;t 332 Atkins, In goods of 181 Abbott V. Peters 226 Atter V. Atkinson 251 , 256 Abney v. Miller 382 Attorney-dieneral v. Downing 385 Abraham v, Joseph 293 Fitzgerald 8 Acherly v. Vernon 385 Jones 10, Acton V. White 38 13, 160 Adams, In goods of 159 Lloyd, 318, 353 Adams v. Gamble 38 Parnther, Addy V. Grix 188, 197 68, 69, 86, 107, 108 Agiiilar v. *.guilar 38 Vigor 369 Ainsworth, In goods of 181 Ward 353 Alford V. Alford 388 Attridge, In goods of 204 Alford V. Earle 388 Austen, In goods of 222 Allen, In goods of, 191, 196, 198, 205 " V. Graham 105 AUen V. Maddock 209, 240, 241, Axford, In goods of 49 243, 245, 246 Ayling, In goods of 196 Allen V. Manning 229, 309 Ayrey v. Hill 109, 116 Allen V, McPherson 134, 137, 156, 236, 252, 253, 264, 256 B. Almosnino, In goods of 242 Allnutt, In goods of 243 Bacon, In goods of 158, 244 330 Amiss, In goods of 182, 197 Badely v. Lyte 28 Anderson v. Anderson 214, 241 Bailey, In goods of 50, 184 Andrew v. Motley 304 Bailey v. Frewen 201 Andrews v. Turner 327 Baker v. Batt 147, 150 Anstey v. Dowsing 210 " V. Dening 178, 179 Anstruther v. Chalmer 5 Baldwin, In goods of 244 Antrobns v. Neptan 236 Ball V. Mannin 122 Applebee, In goods of 349 ; Banks v. Goodfellow 83 Arbery v. Ashe 130 " V. Th'trnton 328 .\jcher, In goods of 181 Bannatyne ■ tiannatyne 52 111 Archer v. Hudson 156 Barber, In j,.. ovU of 360 Armstrong v. Armstrong 144 Barnes v. Crowe 3H5 " V. Huddleston 139 Barrett v. VVilkins 317 Arnold V. Earle 22 Barrow v. Barrow 229, 337 338 Arthur, In goods of 182 Wadkin 18 Ash, In goods of 244 Barry v. Butlin 71, 124, 146, Ashley v. Waugh 386 151,261 ,262 Ashmore, In goods of 187, 197 > Barry v. Cnmdall :!17 i H: , iatton, In goods of battorsbee, In goods of Battison v. Bromley Battyll V. LyU-8 Bayldon v. IJayldon Baylo V. Mayne Baylis v. Sayur litiach V . Clarkt' ileatty v, Boatty Heavan, In goodB of 297, Heckott V. Hardin V. HnWl' 188, I'leckford v. Parntcott Uedell V. Constable I'.edford, In goods of !:ell V, Fothorgill Icinpdu V. .loluistone Benson v. Benson Bernard v. Minshall Horthon v. Berthon I'.essey v. Rostwick 357, Beverley's case Hibb V. Thomas Biggev, Bigge Billinghurst v. Vickers 73. Birch V. Birch Bird V. Bird Birks V. Birks 16B, 253, Birt, In goods of Bishop V. Sharpe P'lack V. Joblin<' Blair, In goods of Blake v. Knight Blatchford v. Wooley rUeecker v. Lynch Biewitt V. Blewitt Bone V. Spear Bunsor v. Kinnear I'.nrlase v. Borlase l>iisan(]uet, In goods of Boughey V. Moreton liovey V . Smith Bowes V. Bowes Bowes V. Malpas l/owaman v. Reece 337, 187, 100, 105 3<)0 150, 250 22t) 181 158, 201 229, 231 181 247 212 367 250 230 2(»1, 204 202 223, 227 332, 333 317 189, 190 382 23 333 303 I 304, 359 109 319, 3«R) :iGO, 361 15 292 291 110. 147 158,330 117 250, 316 182 22 342.343 179, 184 1%, 201 203, 204 37 118 234, 311 229 109 112, 303 244 334 386 229 7 Bf)yd V. Eby Boyce, In goods of Boyse V. Rossbormigli 132 140, I Braddyll v. Jehen I Brad8 of Breinor v. Freeman ! Brett V. Brett 212, Brewis, In goods of lirewster, " 295, Bridge v. Ainold Briggs V. Penny Briggs V. Watt Brine v. Ferrier Brining, In g(*ods of lU'oderip, " Brodie v. Barrie Brogdenv. Bicwn 109, 110, 117, Brognivo v. Winder Broiik V. Turner Brooke v. Kent 302, 327, 333, Brooks V. Barrett (\8, 70, I Brotherton v. Hellier : Brounker v. Bronukt , Brown, in goods of ; "v. Brown 309, "v. Bruce i "v. Hallett V. Higgs V. Thompson 281, Brownlce v. Coke Bnint V. Brunt Brydges v. Duchess of Chandos 208, Bullinv. Fletcher Bulhjck V. Bennett 272, " V. Dodds Bullpin V. Clarke Bunny v. Bunny 317, 318, Burdett v. Spilsbury Burgoine v. Fox Burgoyne v. Showier Burls V. Burls Burrows v. Burrows (1 07 Burtenshaw v. Gilbert Burton v. CoUingwood Butler V. Mulvihill Byrd, In goods of 203, 300, 109, 229, 291, 334, 258, 183, 82 17H 13:. 153 28: t 32! I 284 234 382 303 5,0 210 24:; 297 26(i 168 305 3Ht 30U 230 131 210 2S 35(1 10! t 38-1 131 357 30(1 129 230 1()H 28:'. 208 30:j 374 307 277 2!) 3.S 387 20(1 305 328 362 231 34!) 201 lU 1!»7 TAIM.K OK CASKS ( ITIil). xlix Cudgi;, 111 goods of CaJywuld. In ^oods of (')liiii>bell V. ('iimj)b»'ll Caniiibell \. Fiuiich Cainiibell V. Ki'tiliHiti <.'iUl!I V. Ciuiu Tiiroy V. A^kf-w Ciirringtoii v. Payiif • 'lU'twriylit \. t'iirtwuulit sd Carl Wright v. SIu.'IiIu'juhI C'ivsi'Uit'iit V. Fulton Casiiioru. In ','iMidsnf I'.s. Cassoii y. Diidc Castell V. Tajjtu Castle V. F(i\ Castle V. Torrr '2'J\K Catuii V. I'atnn Ciittrall, In uoods of CaVi' \-. Ilciltnlll Cawthroii. Ingnods ul Chadroii v. Ilurria Chadwick v. Palmer Cliaiulierlain \ . Macdonuld < 'hiiiiibt>rs \ (,)ueen's Procti KMt. (.'Iiajilyii. Ill irodds iif Chajmian. Jn goods of Charter, v. Charter Chawortli v. Beecli • 'hester's Vuhv. Lady ' 'huster v. I r wick Ciiristian, In goods of Christmas v. Wliinyates Cliristo])her v. Ohiistopher <'hiirchill V. Dildien Clark, Jn goods of Clarke, In goods of " V. Butler " V, Clarke \. Fisher " V, Lear ■' V. Scripjjs < 'larkson v, Clarkson Clearo v. Cleare Cloohury V- l>ecket Clerk V. Ward Clifford, Li goods of Clingan v. IMitcheltree Clogstown V. Walcott ^.'lough V. Clongli iv :U8. 22H, l<»7, :il7, IfHi. 177. 2;ho. :;♦;■,. I'MJ. ;{o ir 111, I'.t. MSC. :W, •Jilo. 178. 178. o()r, 2'Jl. :ji2, 191, ^41, M31 287 40 :\y.i 114 114 •22'.) :ji7 11(1 :is7 2115 IHl 207 251) 27:< 230 18(» 18:5 .•<72 2.V.» 1(1 2(C) 42 112 1S(I 2;")(i KiO K? 170 107 :{5il 2S() 20 184 170 317 252 123 112 302 340 251 317 208 106 3G8 342 28U j Cock V. Cooke Cockcraft v. Rawles Cockayne, In goods of I Coghlan V, Co'.;hlan j Colliei'g, In go(»ds of Coles, In giMjds of C(»les V. 'rrocttthick I Cole V.Scott I C illier V LingWear CoUingwiiod V. Pays Colnian, In goods of Colvin V. Fraser Conjhe's (."aae I Consett V. Hell Constable v. Tnftnell I Coodc. In goods of I Conk, in goods of "v. Clay worth "v. Laml)ert " V. Parsons ( 'I'oke V. Lainotte Coohilis. In goods of ( 'i">)ier, In goods of V. MiKikett 187 HU, ■il- 20(i, 328, I8(», 273, Mi3 l.M) 348 112 204 Itil •)• :{03, 334, 84, 122, 113, 20J. Cojie. In goiids of ' Co))]>in V. Dillon Coppiu V. Fernyhough Corby, In goods of Cordei', In goods of I t'.iiey V. Corey I Corneby V. (iibbon ' Corrigan v. Corrigaii I Cosnahan, In goods of Cotter V. Layer Cotton, Jn goods of i Cottrell V. Cottrell i Conlthard, In goods of I Coventry v. Williams I Coward, In goods of j Co\v]ier V. Mantill I Ciix V. Bennett ; Co/ens V. Croat I Craigie v. Lewin i Crawford v. Curragh 187, i Cregreen v. Willoughby i Creswell v. Creswell ! Cricket v. Field I Crisp V. Walpole I Crispell v. Dubois Crispin V. Doglioni Croft V. Croft " V. Pawlet 27() 244 19 liOO 335 121 ItiO 124 Kitj 3(J2 114 183 180 162 181 loJ 328, 3: SO. 332 197 230 388 222 177 114 177 144 160 367 182 313 161 160 29 374 275 214 8 1 Oi; 203 215 3U1 225 150 5 202 201 102, . \M 111 n TAULE OF CASES CITEIX Cruker v, Hertford r», 20! » 302 327 Dinmore, In goods of 180 187 ('rnsl)ie V. Macdoiial 11, 209 DivettA. Ware 202 20;j 380 387 Dobson, In goods of 259 t'rosley, In goods of 385 Dobson V. Bowman 277 Cundy v. Mt'dley 230 Dodson, In g7, 301 " V. Evans " V. (Jriltiths 353 200 D. •' V. Hicks " V. Lancashire 283, 31 s 284 Dadds, 111 guilds of 303 " V. Marchant 385 Diilbrac v. l)an>rac 38 " V. Balmei 300 Hallow, In goods of 181. 241, 2!t3 " V. I'erkes 294 Daly's Settlement, H' 5 '• V. Pott 370 Darner v. PeclioU 251) " V. Stajile 286 Daniel v. Nockolds 311, 383 •' V. Walkei 27ti, 277. .385, 386 Darby, In goods of 244 " V. Biddiijili V. Hole 386 Darley a*. Dailey 305, 373 '• Crooks V. Cunnning b 354 " V. Langwortliy 305 " Cross V. Cross 100, 167 Darling v. Loveland 150 Davis V. Davis 197 Darlington. Lord v. Pulteney 13 Eversv. Ward 315 Da Silva, In goods of 201 " Hearle v. Hicks 313 Da vies, In goods of 182, 101 Macdonald v. Clevf land 19 V. Davies 203 IVIarcli v. Marchan, 317 " V. (lOiigh 29 Batorson v. Davis 19 Davis, lit goods of 181 " Heid v. Harris 29.3 Divy V Smith 207 " Kicliardson v. Dick. jon 18 Day, < 1' }>»)ii 170 Hobinson v. Clarke 19 Dc Datho V. Lord King all 200 ShallcroHS V. Palmer 328, 331 Di. Bode, 111 goods of 207. 349 Spencer v. Pedley 313 Dc Boniu'val v. De I!oniic\-i il 5 Strickland v. Strickland 334, Dierly v. IMazarine 29 33f. Dtlalieldv. Parish 140 Tatliuiii V. Cuttamore 328 Di La Saiissaye. In goods rj f 313 Williams v. Evans 209. 386 Dcnisoii V. Deiiisoii 144 Wright v. Manifold 208 Den V. Vancleve 98 Doglioni V. Crispin 6 Denny v. Barton KJO, 315 Dokei V. Gofl' 227 Devereiix v. Bullock 235, 230 Dolphin v. Kobins 5 Dew V. Clark oo. oK. 71 , 86, 90, Donaldson v. Donaldson 146 131 Doni'gal's Case, Li>rd 134 Dewell, In gouds nf 333 D"i:c'', In goods of 178 Dickens, In gools of 244, 217 Douglas v. Cooper 286 Diekensoii v. Mors 140 " V. Douglas 271, 272 Dickinson v. Blissett 48 V. Leake 317 V. Stidolph 243, 31 fi. .385 " V. Smith 235, 311 " V. Swatman 34», 350, 351 Dow v. Dow 12 Dickson, In goods of 202 Downes, In goods of 303 Dillon V. (irace 29 Drake v. Drake 256 " V. Harris 243 Draper v. Hitch 256 Dnnes v. Dimes 110, 117 Drummond, In goods of 243. 244 Dingle v Dingle 230 " V. Drummund 7 Ifli TABLE OF CASES CITED. u Druninioiul v. Parish Orybiitter v. Hodges Duane, In goiuls of 230, 253, Duffield V. DutHeld Duttield V. Elwes Duffy, In goods of Ihifour V. Cr-it " V. Percira iJuggins, 111 goods of Du Hournielin v. Sheldon Dumoncell v. Dunioncell Dundas, In goods of Dunham's Appeal Dunn, In goods of " V. Dunn Duppa V. Mayo 12, Durance, In goods of Durham, In goods of Countess of Durnell v. Cortield 150, 152, Dyce Somhro r. Troui)e Dyer, In goods of 158, 177, 224, K. Kade v. Eade Karl's Tnists, [n /«■ East, V. Twyford Eaton V. Watts Eccleston v. Pet*y Eckersley v. Piatt 203, 352, Edmonds v. Lewer Edwards, In goods of Edwards v. Roginam Eeles, In goods of 294, " V. England Eilbeck v. Wood Elcock, In goods of Elgie V. Campbell Rllice, In goods of Elliott, In goods of Ellis, In goods of " V. Smith 170, Elms V. Elms Elsdon V. Elsdon Emerson v. Bovillo Emmanuel v. Constable Emuss V. Smith English, In goods of Enohin v. VVylie Essex V. Atkins Euston V. Seymour 138, 204, 235, 278, 377 162 G 38 222 221 Evans v. Dallow 203, 357 KiO " V. Evans 11. 317 ,318 250, " V. Knight 10» 112 254 Eynon, In gotxls of 107 317 385 F. 330 151 Fanjuhar, In goods of •-':{ 170 Farrady, In goods of 30 107 Farrar v. Earl of Wint 3rt(jn 377 18 Farrer v. St. Catliarine's College 317 18 Fary, In goods of 2i«7 247 Faulds V. .lackson 190, 205 123 Fawoett v. Jones 254, 250, 280 100 Fen wick. In goods of 107 178 Ferraris v. Hertford 5, 302, 327, .38! » 385 Fettyplaoe v. Gorges •ti 320 Field, In goods of 124, 17H 244 Finch V. Finch 35H 250 Fincham v. Edwards 40 112 Fish V. Klein 18 207 Fisher, in gocjds of 231, 234 Foley, In goods of 331 " V. Parry 108 " V. Vernon 107 Foot V. Stanton 2(t:', 108 For()es V. Gordon 227, 230, 201 385 Ford V. De Pontes 370. 375 150 Forest, In goods of 215 100 Forso and Hambling's case 280 208 Foster V. Banbury 212 357 Foster V. Foster 303, 30O 178 Fountain v. Coke 212 244 Fowler v. Wyatt 152 24 Fowlis V. Davidson 107 340 Fox V. Fox 10'» 108 Francis v. Grover 328 300 Frank, Ka- jxirfi' 20 184 Kraser, In goods of LOO. 32<» 144 Freeman v. Freeman 310 337 Frere v. Peacock 07 30 Friswell v. Moore 224 200 Frith, In goods of 107 103 Froggart v.Wardell 317 357 Fry V. Fry 317 311 FiiUeck V. AUinso.. 74, 228. 2.30 283 Fuller V. Hooper 11 212 Fynn, lie 435 o. Gale V. Gale Gann v. (Jregory Garbett, In goods of 378 328 247 si 'W '^■|,;'» ilif « ^^m ^11 pp 1 Hi TABI-K OK CASKS CITKD. Giinlner, In tjoods of Oiiniot V. Solliirs G.'iskin V. Rogers Gaiisdon, In goods of Gaiisson, In goods of Gai'O V. Gage Geale, In goods of Geaves v. Price Gorrard v. Gorrard Gibhon V. Oaunt " V. Gibbon Gilison, In goods of " V. Lord Montford Giles V. ^^^•lrren Gill, In goods of Gilliat V. Gilliat Gillowv. liourne '2?A. (JIadstone v. Tempest (ilover, In goods r)f (ioblet V. Heechey (ioodacre v. Smith Goodinongh, In goods of Goodlad v. i?urnett L>7I, Goodman v. Goodman Goodright v. (« lazier " V. Harwood Goodtitlc V. Meredith V Otway V. Wood V. Welforil " '/. Cave V. (Hway Gordon v. HoHnian " V. Ueay Gore V. (Jibson G 280 277 273 :i8r) 2!H. 350 243 13 235. 3U KiO. 315 178, 17!> 317 252 i •'8(J 275, 22i> 3!»(» 31(3 385 3(14, 3(15 2t)(i 211. 212 372 317 2(t!>, 385 11:!, 114 ItiO 2(>1 l(i7 317 387 3()4 24 I7!t, 180, 188 38 Hi!) 22!), 231 387 7G { 85, 122 ' 243, 244 158, 183, , 203 204 I 337 I Grosley v. Mousley GrevilJe v, Tvleo I5(», 152, :'.28. (irirtin v. Ferrard " V. Grirtiii •-••JS, GritHtlis, In goods ot' ■' V. (Jrittitlis V. Robins (irimani v. Draper (jlriunv od v. Cozens 3.(7. (rvoniii v. Thomas (>7. OS, Gnardhonsi^ v. lilnckbum 251. Guest V. Willasey (lullon. In goods of V. (ri'ove Gnnning, In goods ot (iinnt^y v. Giirney (iwilliiii V. (Jwillim IS!>, UMI. H. 1 58, 330. 23(1. 341, (;<♦. 23(i. 255, •'0'.», 293, 203, 1!)1. 2n2, HabbertieUl v. Hrowniiiu Habergham v. Vincent Hadibick V. Trotman Haiblnn v. Fladgatc Hakewell, !n goods ^f Hale V. Tokelovc :J4S, Hall, In I'oods of " V. Dench '• V Hall \-. Severiie \. Vv'arren v. W'aterlionsf Halliwell, In goods of Hally. In goods of Hamilton, Mayor A' Co of, V, Haiimiond. In good> ot Haiii[)ton V. (iarhind handley v. Stacey Ilaiilwicke v. Doiiulass Han;, In goods of •• V. Hare * '• v. Nasmyth Harlin, In goods of Harmood v. Oglander Harper. In goods of Harris, In goods of 1(37. 21(3, •• v. Red ford " V. Berrall 73, r[por H.w ItiO, 73, 38, 242, :;8«;, I:i8, 107, ation Isdeii ISI, 201, 305, 333, 227, :m>3, 358. 2t)(i 322, 332 li](; 312 1()7 204 IIS 1('7 342 1('7 • 2;.(; 3,S5 357 .357 I8 244 3!»:! 32S 3(J(i 13!) 11 1(»S .".8 337 244 1X0 401 115 317 202 3 1 7 II;. I 211 372 48 3:}7 231 35!» TAni.K OF CASES ClTKD. Harris v. >rott Harrison, In tioods of 101, V. Elvin " V. Harrison 178, " V. Kowiin 07, Harrod v. Harrod 48, Harter v. Hiutor '2:M'k 24'.), -'(■54, Hartley V. Tril.her Harwood v. l^.ikor '• V. «i(uidright 71, lOU, 12, 2titJ, :{8!>, L'4!>. 1(50. 22. 24, 2.'J5, Kid, Hastilow V. St(il)ie Hastings, In goods of HatHtildv. Tlinrp Hattat V. Hattit Hawos V. Wyatt 3Hti, Hayes, In goods of Hearle v, (ireenbank " V. Hicks Heatley v. Thomas Helyar v. Holyar Henfrey v. Henfrey Heiisnian v. Fryer Hepbiu'ne v. ?^kirving Herbert v. Herbert " V. Lfjwns " V. Turball Heme. In goods of Heylin v. Heylin Hick V. Mors Hicks, In goods of Higginson v. Coleott Hill, In goods 7, 302, :J07, :327, Hobsnn, In goods of " V. HIackbnrn Hobv V. Hoby 67, 100, Hdcker v. Hocker Hodsden v. Lloyd 20, 30, Hoghton V. Htighton Holgate, In goods of Holloway v. Clarke 283. 37 100 107 107 250 122 2r)() 11 122 2(i8, .VM) 253 312 212 234 3(59 222 27 313 38 300 313 278 277 221 122 380 236 380 360 320 140 221 180 170 331 108 333 211 151 106 315 11)8 380 260 170 228 220 2.S0 162 203 285 Holt V. Tyrrell Holyland, Ex inirtf Honierton v. Hewett Honbb^n, In goods of Hopwood V. Hopwood Hoine V. Hoi-no Hoskins, In goods of ;low. In goods of Howard, In goods of " V. Daniiani Huwarth v. Dewell Howell, In goods of Hubbard, In goods of Huckvaie, In goods of 181, Hudson V. Parker Hughes In goods of " V. Husking " V. Jones " V. Turner Hugneniii v. Heasley Hulnie V. Heygate " V. Tenant Fluiiiplireys v. Taylor Hunt, In goods f)f " V. Hunt Hmitinglon, In goods of " V. Huntington Huskisson v. Bridge Hutchinson v. liarron Hyde V. Hyde 22, 202, T. :.;)o, 101, .85, mi •}\2 108 3:.7 3,S() JSO 303 183 30 312 38 169 182 KiO 180, 1!»0 101, 200 20 277, "86 272, 277 386 152 385 38 ;'.-.'3 246 ISl 228 220, 231 100 277 204, 340 244, Iblietson, In goods of 207, ;'>32, o.lO Ibbottv. Hell 347 IKhester, Kxpartr, Earl of 281, 2S;!, 285, 30(5, ;!47, 348 llott V. fienge 185, 188, 101 Ingletield v. Ooglan ;n7 Ingram v. Strong 261, 310 " V. Watts 150 " V. Wyatt 122, 147 Israeli v. Rodon 283 I J. I Jackson v. Hurlock ' James, In goods of i "v. Cohen ! Jatueson v. Cooke j .Fansen v. .lanseii Jenkyns V. (Jaisforel 1 Jepson V. Key 284, 382, .385 203, 332, :{33 301 224, 23«} 310, 38<), 387 170 273 I ^l-\ 'I i> ii r 'jT/flfTIP^ p I liv TABLE OV CASES CITED. .Johnson, In goods of 201 " V. Joluiaon 185 " V. Blane 107 " V. Lyford 360, •,m " V. Wolls 28:5 .Johnston V. .Johnston 235 281, 284 .Jones, In gootis of IGl, 182, 188 " V. (xooclrich 150, 152 " V. lake 103 " V. Nicholay KiO .Jordon V. .lorden 244 Joys, In gotids of 1G7 K. Keatinj,' v. Brooks 182 Koaysv. McDonell 12!) Keigwin v. Keigwin 187, 'S,i\ Kelly V. Keatiiige 190 Kelly V, Thewlos 130 Kenihlo v. tliuiob 107 Kenipton, In goods of 181 Kenebol v. Sorafton 281, 283, 284 ivenncU v. Abhott 352 Keniiot, In goods of 357 Konyon v. Sutton 370 KeiT V. Clinton 315 Kidd V. North 310 Killick, In goods of 208 Kindleside v. Harrison 100, 117, 118 King, In goods of 357 " V. Berry 100 " V. Bryant 114 King, The, v. Holland 18 " V. atubbs 27 King's Proctor v. Daines 101 Kirby, In goods of 177 Kirkcudbright v. Kirkcudbright 3!»1 Kirke v. Kirko 350 Knight, In goods of 100 " V. Boughton 10!) " V. Cook 303, 300 " V. Knight 170 KnoUys v. Alcock 307 Knott V. Cottee 10!) Kramer v. Glass 45 L. Ladd V. Harvey 12 Lamb, In goods of 220 Lambert, In goi>d8 of 184 Lamkin v. Babb Lancaster, In goods of Laiigdiile v. Briggs Langford v. Little L.uigniead v. Lewis Laiigston V. Langston Lanytry, In goods "f Lansdowne, In goods of Larkins v. Larkiiia 295, 297 Lavender v. Adams Law, In goods of Lawrence v. Wallis Lay, In goods of Leach, In goods of Leclunore v. IJrDtheridgi; Lee, In gf)ods of Leech V. Bates " V. Leech Leese, In goods of Leniage v. (loodban Lemayne v. Stanley Leslie V. Leslie Lewis, In goods of 272, 373, 323. 2( 2, 37. 107, 107, 313, 107, l!»7, 31.5, 357, l!;7. " V. Lewis " V. Pead Lett V. The Commercial Bank L'Huille V. Wood Lidvl'inl V. Liddard Lightfoot V. Heron Li I ford. Lord v. Powys Keck Lillie V. Lillie Limerick, Iv oods of Countess of Lincoln's C.je, E.ul of 305, 370, Lister v. Smith Livock, In goods of Lloyd v. Davis " V. Roberts Lock V. Foote Locke V. James Loftus V. Miiw Logan V. Bell Long V. Aldred Longcbamp d. (J. v. j Fish Longford v. Eyre Longstatlv. Uennison Lord V. Colvin Longhead v. Knott Lovegrove, In goods of Lovett V. Lovett Lowe V. Jolitfe LuH'man, In goods uf Luke, In goods of 102, 105, 302, 327, 187, 1!)0, 305. 204. 323. 100, 211, 167, 22.^ 244 275 374 22'.) W.f 30' ' 247 325 32S 171 ■M,'J 222 2(i.'. 38 203 20:; 82 222 313 18(1 317 39!) 22!) 117 44 228 10!) 114 275 229 247 3:3 250 333 277 202 .373 350 171' 280 382 41 > 2(x; 243 8 370 170 123 212 202 243 TAliLi: OF CASHK CITED. It M Maas V. Sheffield Macdonald Doe d v. Cleveland Machon v. Gundon Mackenzie v. Handaside Major V. Knight " V. Williams Majoribanks v. Hovenden Manly \ . Liikin Mann, In goods of " V. Fuller Mansfield, In goods of March v. Marchant Mariot v. Kinsman Marlborongli, Duke of, v. Ciodol- pliin Marnell v. Walter Marsden, In goi)ds of Marsh V Marsh 179, 1(50, 183, 243, 30(i, •• V. Tyrrell Marshall, In goods of Marston v. Fox 27!), Martin, In gotids of 29, 259, " V. Lee " V. Martin, 121, 123, 130, Martins v. Gardiner 323, Mason v. Seney Mastennanv. Maberley 160, IGl, Matthews v. Venables Matson V. McGrath Matthews v. Warner 230, 230, Matthais, In goods of Miixee V. Shute May, In goods of 391, Mayer v. (iowland Mead, In goods of Medlycott, v. Asshetou 337, Mence v. Mence 323, Menzies v. White Mercer, In goods of Meredith, In goods of Merritt, In gnoda of Merton, In goods of Methuen v. Methuen Mecklin v. Franklin Middleton, In goods of Midland Railway Company, Re Miles V. Miles Miller T. Brown 28, 382, 28 19 225 118 150 348 100 100 181 317 190 317 27 27 169 234 312 399 122 184 280 333 159 146 233 328 144 165 228 369 283 312 246 160 398 367 197 ;«9 328 129 244 167 1()7 331 387 256 349 274 275 383 IMilligan, In goods of Mills, In goods of Mitchell. In goods of " V. (Jard " V. Mitchell " V. Thomas " Weir 35, Mitcheson, In goods of Mogg, In goods of Molineux v. Molinenx Moneypenny v. IJristow Montetiore v. Montefiore Montgomery, In goods of Mooers v. White Moor V. Kasbeck Moore V. Barber 14«j, 44, ■MS, 131, 228, 160, 19, " V. Hacket '■ V. Hawkins V. King '' V. Moore " V. Paine " V. Whitehouse Moorhouse v. Lord Moresby, In goods of Morgan, In goods of lOU, 161, " V. Boys Mornan v. Thompson Morritt v. Douglass 1!H». Mort 198 39«» 49 360 312 353 167 105 286 253 160 132 1(M> 357 161 230 8 27 18 160 309 202 249. 13, 121. 160, N. Nagle V. Baylor 112 240 181 12-' 144 23 386 114 'i!»ii ■i ww^ Ivi TABLE OF CASES CITKI). li li rj[ Nelson, In goods of 302, 332, " In re •' V. Oldtield Neville v. Hoddiun Newman, In goods of " V. Liide Newiis, 111 goods of Newsonie v. Jiuwyer Newton V. Cliirk " V. Newton iSicliolls V. ]5iiins " v.Nicholls Nickalls, In goods of Noble V. Phelps Norris, In goods of Norton V. Hazzett N'osworthy, In goods of 162, 34!) , 103, 0. Ugilvic V. Foljanibe Oguell's (Andrew), Case Olding, 111 goods of Olliver. In goods of Olver V. Jolins Onions v. Tyrer 334, Olipenlu'ini, In goods of Orscr V. Orser Osmond v. Fitzroy Olley Railway, In rf O'Toole V. Urown Otway V. Sudlier Oiisley V. Carroll Owen V. NN'illiams Owston, In goods of 333 350 217 133 34!» 20ti 317 107 2!) 200 3!)3 110 105 107 28, 30 221, 244 20(i 164 180 20 183 107 189, 100 340, 370 332 202 122 272 277 288 100 202 48 Panton v. Williams 130 Parfitt V. Lawless 145, 152 Park, I'yx jMirtr 317 Parker, In goods of 100, 222, 339 »" V. Hiscoe 380 Parkin v. Bainbridge 328 Parr, Tn goods of 333 Parsons v. Haker 108 " V. Freeman 363, 372, 374 " V. Lanoe 258, 200 Pascall, 111 goods of 231 Paske V. OUatt 147, 150 Passmoro v. PasBniore 100 Patch V. Shore 102 Patersoii Doe d. v. Davis Patten v. Ponlton Payne v. Troupes Peacock v. Monk Pearse, In goods of Pearson, In goods of " V. Pearson Pecliiill, h\ goods of ■' V. Hilderiuy 5 " V. Jeiikinson 237 Peek V. Cirey 115, 11«. Pemherton v. Peinbertoii 335 Pembroke, Countess of. In goods of 1?» 357. 358, 362 31!». 38(5, 390 38, 100 184 190 19(» 360 242, 244 201 312, 317 30». 388 348, 349 221 244 31t; 212 27.'^ 27s 200, 20S 385 11, 20'.» 317 114 199 190, 313, 337 370 Podmore v. Whatton 303, 358, 300 Pollen V. Hu))aiid 305 Pool, In goods of 105 Popjde V. Cunison 229 Porter, In goods of 258 " V. Smitli 388 Portland, Conntessctf, v. Prodgers 29 Pennant v. King'Cote Peppi.'r V . Pepj)er Perkins v. Walker " V. Mickletliwaite Perrott v. Peirott Pery, In goods of Pewtncr, In goods of Phipps V. Earl of Aiiglusea '■ V. Pitcher Pierce v. Att.-(teiieral " Harrison Piercy, In goods of Pigott V. Waller "" Wil.ler Pilcher v. Holo Pitt V. 8mith Playne v. iScrivcn Plenty v. West Plowdeii V. Hyde Potter V. Potter 385 Potts V. House 82 Powell, In goods of 18] " V. ]\Ionchett 13«; " V. Powell, 347, 351 Powell V. Bailey 38 '• V. Power 305 Piatt V. Pratt 317, 31 s Pivvost V. Clarke 16S Price V. Dewhurst 5, 17<' " V. Parker 29, 31 " V. Powell 293 " V. Price 292 TAIU.K OK CASKS CITf:!). Powell V. Muiichett !:5(; " V. P.nvell ;U7, :m Piivver V Hailey •AH " V. Power 3(i5 Pi'iittv. r»ratt 317, 318 Pri'VDHt V. Clivrko l(i8 I'ricc y. Dowlmrst 5, 170 " V. Parker 2t 1, :{] '• V. Powell 2!»3 " V. Price 2!»'J Pride v. I5u))l) 38 Pryor v. I'ryor 197 Pudiliphatt, In yood.s of 181 Pym V. Caiupbeil 104 Q. Qiiayle V. Davidson li'.'t Quick V. Qnick 3(50 3()1 Q linn v. Butler 34!», 354 R. Raine, In goods of Itainier v. Rainier Ranlield v. llanlield Ravenscroft v. H 45 18 334, 335 :wu 170 122, 179, 20(i 203, 3(i0, «t)l 3(50 18(5, 200 258, 259 335 :iU5 1(51 10, 1(5(5, 234, 23(5, 258 229 19 25(5 107 2(5(5 .W Rogers V. Goodenough 240, 319. :549, 3!>4, 399 •' V. Pittis 385, 38(5, .'J87, 40(5 Rolls, In goods of Rooke V. Langdon Rose, In goods of Ro.ss, V. Kwer House V. Moul.sdale Rowley v. Eyton " V. Merlin Royal Can. Bank v. 328 303 297 217 23(5 385 329, 331 Mitchell 35, 41, 42,44 Kushout, In goods of 332 Kuss V. Chester 124, 231 Riissel V. Marriott 224, 22(5 Rutherford v. Maule 224, 22(5 Hyan v. Devereux 19(5, 204, 210, 212 Ryder, In goods of 215 S. Sabine v. (iroate 1150 S.alnion v. Hays 224, 230 Sandford v. Vaughan 2)50, 313 Saunders, In goods of 222 " v. Saunders 335 Savage, In goods of 342 Savory, In goods of 179 Sawrey v. Rumney 317 Say v. Barwick 1 1 4 Scammell v. Wilkinson 'H) rr 1 • * • Iviu TABLE OF CASES CITED. Schneider v. Norris 158, 177 Scholefiold v, Templer 152 Scott V. Key 169 '• V. RlK.des 227, 228 " V, Scott 348 Scoiiler y. Plowright 136 Scruby v. Fordhani 112, 303, 323 Sufton V. Hopwood 123, 139 Selliirs V. fiamet 309 Selwyn v. Selwyn 26() Serocold v. Hemming 386, 387 Seymour's Case 334 Shadbolt V. VVaugh 234, 256 Shaftesbury's Case, Earl of 23, 435 Sharman, In goods of 204, 215 Shaw, In goods of 303, 357 " V.Neville 191 ' ' V. Thackray 114 " V. Thome 357 Sheath v. York 281, 285 Sheldon V. Sheldon 160, 244, 240, 247 Shepherd v. Shepherd 284 Shererv. Bishop 11 Shield V. Shield 202 Shingler v . Pemberton 160 Shires v. Glasscock 206 Shirley, In goods of 287 Short V. Smith 297, 325, 350 Slun'e V. Pincke 368 Shovelton v. Shovelton 168 Sibthorp, In goods of 247 Sikes V. Snaith 229 Simmonds, In goods of 191,190, 199, 205 Sinnuons v. Kendall 328 Simpson, In goods of 293 ,302 " V.Walker 369 Sims, In goods of 241 Skair, In goods of 242 , 244 Skinner v. Ogle 385 Slack V. Busteed 196 ,205 Slade, In goods of 334 " V. Friend 293 ,384 Sloan V. Maxwell 100 Small V. Allen 136 Smart, In goods of 244 " V. Prujean 240 Smith, In goods of 28,38 ,258 " V. Codron 188 " V. Deamior 386 " V.Evans 179 " V. Harris 184 " V.Smith 181 , 189 Smith V. Tebbitt Soar V. Dolman S(jcket V. Wray Sotheron, In goods of Southall V. Jones Sparrow v. Hardcastle Si)erHng, In goods of Spratt V. Harris Sprigge V. Si)rigge Staines v. Stewart Stanley, In goods of " V. Hemes " V. Stanley Stanton v. Wetherax Steed V. Calley Steele, In goods of Stei)hens, In gtxxls of " V. Taprell Stevens v Bagswell " v. Vancleve Stewart, In goods of " V. Stewart 57, 82, 84, 88 333, 350 26, 38 244 165 365, 367, 374 197 5 358, 359 304, 358, 360 182 f) 256 57 109 391, 398 316 289, 297, 298 29, 30 99 246 227 160, St. Helens, Lord, v. Marchioness of Exeter 256 Stocks V. Hiimmond Stockwell V. llitherdon Stoddart, In goods of " V. Grant Stokes V. Heron " V. Moore ' ' V. Solomons Stone V. Evans Stonehouse v. Evelyn Stracy, In goods of Strathulore v. Bowes Straubenzie v. Monk Strauss v. Schmidt Streaker, In goods of Strevens v. Bayley Stride v. Cooper Strode v. Lady Falkland Struthers v. Stnithers Stuart V. Lord Kirkwall Stulz V. Schaeffle Stump V. Gaby Sturgis V. Corp Summers, In goods of Sunderland, In goods of Sutton V. Sadler " V. Sutton 295, 323, 325 Sweetland v. Sweetland 182 Swete V. Pidsley 244, 329 Swift V. Roberts 265 38(> 214 303 U)() 313 317 180 167 188 170 386 240, 242 258, 261 359 277 382 267 278 38 139 244 38 179, 191 240, 245 67, 251 TABLE OF CASES CITED. llX )i Swinden, In goods of 331 Swinfon V. Swinfen 120, 124,128, 130 Hwinford, In goods of 186, 101 Sykes, In goods of 320, 331 Symes v. Green 73, 110 Tagart v. Hooper Talbot V. Talbot • Tathani v. Wright 'I'aylor, In goods of " V, l)oning ' ' V. Muade " V. Patrick Tempest v. Tempest Terrible, In goods of Theakston v. Marcon Thomas, In goods of 202, " V. Evans " V. Jones 28, 31 " V. Wall Thorncroft v. Lashniar 100, Thompson, In goods of " V. Brown V. Hall " V. Henipenstall Thome, In goods of " V. Rooke T]iornt(m, In goods of Thorold v. Thorold Thynne, Lord, v. Stanhope Tibbetts v. Tibbetts Toker. In goods of Tomkyns v. Ladbrooke Topliam V. Topham Torre, In goods of " V. Castle Townley v. Watson Townshend v. Townshend Travers v. Miller Trevanion, In goods of Trevelyan v. Trevelyan Tribe v. Tribe Trinilestown v . D'Alton Trimmer v. Jackson Trimnell, In goods of Trinder, In goods of " V. Trinder 337,339 I 283 109 IGO, 229 178 37 i 114 i 214 I 399 I 230 203, 300, 301 312 , 33, 272, 277 229, 231 162, 100, I 234 1 187. 222 100 204 319, 380 221. 259 387 291 100 230, 249, 357 168 214 160 182 181 229 332, 333 82 250 199 163, 165 208 73, 146 192 207 191, 196 273 Trott V. Skidmore 181, 201 Troutbeck v. Boiighey 37 Truro, In goods of 239, 240 Tucker v. Inman 27, 30 Tudor V. Tudor 235, 311 Tupper V. Tupper 349, 354 Turner, In goods of 'M'd Tylden, In goods of 201 U. Ullersperger, In goods of 179 Uptill V.Marshall 250, 387 Usticke V. Bawden 337, 390 Utteraon v. Utterson 335 Utterton v. Robins 20!>, 385 V. Van Alst v. Hunter 94, UK), 118 Vawser v. Jeffery 305, 3()7 Vinnicombe v. Butler 191 202, 203 Vynior's Case 10 W. Wade v. Naser 388 Wagstali' v. Smith 38 " V. Wagstaff 272 Walcott V. Ochterlony 309 Walker, In goods of 180 , 181 " V. Armstrong 365 374 " V. Smith 161 " V. Walker 227, 283 , 285 287 Wallace v. Seymour 312 ' Walpole v. Cholmondely 380, 387, 392, 398 " V. Orford 170, 319, 386, 387 j Walsh V Gladstone 100, 310 Warburton v. Burrowes 224, 309 Ward, In goods of 261 " V. Moore 367 " V. Turner 160 Waring v. Waring 58, 72, 82, 83, 84, 80, 88, 89, 107, 112, 130 Warner, In goods of 244 " V. Hawes 367 Warren V. Postlethwaite 186, 196 Waterhouse v. Lee 145 Waters v. Thom 151 Watkins, In goods of 241 Webb, In goods of 160, 162, 196, 205 " V. Bing 276 i, ■" I lljpp 7 Ix TABLE OF CASES <^ITEI>. ') i Wobl) V. WdoIh Wchlier V. Tom I lie \\'fds of Williams, In goods of V. Aslit >n V. Baker " V. Cloodtitle " V. Cioude " V. Jones •' V. Owen v.Tyley ■' V. Williams Willmott, In goods of Wilson, In goods of 204, V. Beddard :!<>(> I(i0 ■JH4 284 391 230 183 188 :54!>, ;5r)2 atio 2()7, 270, 271 24:;, :58(> 100, ll(i 278 5, 15 107, o28 114 i(»7, 10t> 221 uni ISa, 18S, 1!»2 70, 100 :;()() 241 214 136 244 181 328 303 385 112, 130 357 277 202, 354 KiO 244 250,301, 300 124, 170 Wilson V liell 169 " V. Wilson 891 Winch V. Briitton 186 Winchelsea v. Wa\u;ho[)e 208 Winchester's Case, Mar<((iis .f 85, Wingrove, In goods of Winn, In g(jods of Winsor, v. I'ratt WoUastoii, In goods of Wood V. f}f)odlako " V. Medley " V. Wood 7;*.. 121 333 258, 250 170, 325, 340 30 168 234 100, 140, 220, 320, 357 Woodiiouse V. Okill Woodington, In goods of Woodley, In gixxls of W^iodward, In goods of V. Lord D'Amy Worley v. Worley Worthingtoii, In goods of Wrench v. Murray Wright, In goods of V. Atkyns " V. (iarden " V. Lord Cadogan " V. Mills " V. Netherwood " V. Ilogei's " V. Wakeford •' V. Wriglit Wyatt, In goods of Wyc(jtt V. Hartnian Wyndham v. Chetwynd W^ynn v. Heveningham W.Viail V. Hall Yglosias V. Dyke Young V. Hassard " V. Martin 300 371 180 181 295 10 317 288 131, 130, 15(t 181, 183 108 20, 42, 44 20 24 285 201 170 185, 188 320 144 188 328, 357 10 317 108 BOOK THE FIRST. OF THE ORIGIN OF THE LAW OF ONTARIO AND OP THE NATURE AND INCIDENTS OF WILLS. CHAPTER I. OF THE ORIGIN OF THE LAW OF ONTARIO. 1. Law of Ontario derived from law of England. 2. Statute 32 (ieo. 3, c. 1, Con. Stat. U. C, c. 9, a, I. 3. Etfectof 1 Vict.,c. 2(i. 4. State of tho law as to Wills of personal estate in Ont%~" > iin- .satisfactory. 5. Effect of 4 W. 4, c. 1, as. 48, 49, 50, 51. r». Jurisdiction conferred on the Court of Chancery to sot aside wills for fraud and inidue inlluenco. 7. Nuncupative wills limited by 33 Ceo. 3, c. 8. 8. Provisions of 32 Vict., c. 8. 9. A.ssiniilation of our law to the English Law by " The Wills Act, 1873." 1. Tho law of Ontario on the sulijcct of wills is the Bo k i. law of England as it stood on the loth day of October, vhIv. L 1792, except in so far as that law has been altered or modified by Canadian Statutes. 2. By Con. Stat. U. C. c. 9, re-enacting 32 Geo. 3, c. 1, it is provided (a) that in all matters of controvoi'sy relative J \ If' ill '1 !.i («) H. 1. flf.^rr STATUTOKY PROVISIONS aE(}AIlI)IN(i WILLS. Book I. (,(, j,roj)t'i-ty nnd civil rifjhts, rcHort .shall continue to be CuAP. I. hiid to the laws of En<^laiKl,as they stood on the 1.5th day of October, 1792, as the nUe for the decision of the same. 3. The Imperial Act 1 Vict., c. 26, effected a ^neat alter- ation in the law of wills in England, but the lei^Lslative changes in this Province, since the statute 32 Geo. 3, c. 1, have, until recently, occupied but a small space in our statute books. 4. The state of the law regarding the formalities neces- sary to the validity of wills of personal estate, prior to the passing of "The Wills Act, 1873" (a), was by no means satisfactory. There .seems to be no good reason why the testamentary title to personal estate .should be based upon a less secure foundation than the title to real estate, particularly since the former has relatively become of such enormous value. The assimilation of our law of wills to that of England, by the recent statute, may, therefore, be considered the fulfilment of a legislative duty too long neglected. 5. By 4 \V. 4, c. 1 (b), provisions were introduced which afTect the nature of devi.sees' tenure (c), the power of disposing by will of real estate acquired after the making thereof (d), the construction of wills with respect to the quantity of estate devised (e), and the mode of executing wills of real estate (/). 6. By the Chancery Act (g) jurisdiction is conferred upon the Court of Chancery to try the vali> )f wills, both of real and j)ersonal cstat*^ ^ > pronounce such wills void for fraud and undut .lonce or oth' wise, in the same manner and to the .san. t'xtent as the court has jurisdiction to try the validity of deed> md other instru- ments. (rt) Stat. Out. :ir> Vict., c. 2f). (h) t'on. SUt. U. C, c. 82. »s. 10, 11. 12, U (c) 8. 48. (rl) fi. 49. (c) 8. .50. (/) 8. 51. ((/) Con. Stat. U. C, c. 12, s. js. STATUTORY PROVISIONS REQARDINO WILLS. 8 7. By 33 Geo. 3, c. 8 {(i), iiuncuiMitivo wills were placed ^^'>'^ !• iindt r numerous restrictions, and by the Surrogate Courts Ohap. L Act {b) (Con. Stat. U. C, c. IG, s. 83) they were abolished, but an exception is made in favour of .soldiers in jujtual military service, and mariners or seamen being at sea, who are permitted by the Act, as they arc by " The Wills Act, 1873," to dispose of their personal estate in such manner as they then might according to the laws of England (c). 8. By 32 Vict., c. 8, the Legislature of Ontario introduced some important changes affecting the wills of persons dying after the 31st December, 18G8. It is provided by this Act{d) that every will .shall be construed to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention appears by the will. The same stiitute contains impor- tant provisions adopted from the Imperial Act 1 Vict., c. 26, as to the revoking effect of deeds executed by a de- visor after the execution of a will, and as to revocation by marriage, or by presumption from alteration of cir- cumstances ; and by s. 5 the provisions of the English statute regarding revocation by burning, tearing, &c., are made part of the law of this Province. 9. Finally, by "The Wills Act, 1873" (e), which, gen- erally speaking, will apply only to wills made after the 31st December, 1873, the whole law relating to the sub- jects treated of in this work has been placed upon a clear and satisfactory basis. The provisions of this Act have Iteen almost literally adopted from the English Act, IVict., c. 26, a.s amended by late statutes, and the decisions of the English courts upon that A.ct will therefore be applic- ((II s^. 7, 8, 9. 6) t'on. Stat. U. 0., c. Ki, .s. Ki. (■) See {HiHt chai)ttT on niincupa- tivu wills. ((/) S. 1. (() Stat Out. 30 Vict., c. 20. 41 If. VI * 1.1 lj > i rwm r I STATUTOUY PROVISIONS REOARDINQ WILLS. BOOK I. able to our own statute. The advantage of this alteration CHlr.!. in the law cannot be too highly appreciated; anci rei sitw. 6. Difficulty of determining true domicile, and rules laid down by Lord Loughborough and Sir J. Leach upon the subject. 7. Question of domicile treated of fully by St y and other writers. 1. The possession of property in one country, by per- sons domiciled in another, is now so general, that the in- quiry by what local law a testamentary disposition of such proi)erty must be governed, is of the highest import- ance. 2. After much conflict of authority, it has been settled that the law of the testator's domicile, at the time of making his will and of his death, if there is no interme- diiite thangc, must govern the form of the will of per- sonalty, and the solemnities of its execution ; so that, if a testator be domiciled in a foreign country, and own per- sonal estate in Ontario, a will executed according to the law of the country in which he is domiciled at the time of his death would be recognized in Ontario as a valid disposition of such projjcrty («). When the («) Whicker V. Hume, 7 H. L. C. 124 ; J .fur. N. 8. \YX\ ; 28 L. J. Ch. 124. Crispin v. Dw/lioni, ;< S. & 'J'. itfi ; :V2 L. J. r. Kiii ; H L. T. N. S. niH ; !» Jiir. N. S. «5a ; nnm. JJofjH- (Dii V. Crispin, aftinned in Doui.l'roc. L. h. 1 H. i.. C. :«)1; ;« L.J. p. 121» ; i;{ L. T. N. H. 44. Stanlci/ v. BtrniH \\ Tlogg. 'xVJ'A. Hrcmcr v. Free- man, 10 Moo. 1'. C. :m. Anstrtithcr V. Chalmcr, 2 Sim. I. Price \. l>cw- /nirtt. H Him. 21«» ; 4 My. & (Jr. 7ti. Sin-utt V. Harris, 4 Hagjf, 408. Fer- rariii v. Hei'tford, W Curt. AfA; 7 Jur. 2tl2. Crokcr v. Hertford, 4 Moo. V. V. :»;«♦ ; 8 Jur. 8f>.{. lUii- nolds V. Kortwrifihl, 18 Heav. 417. Dolphin V. HMns, 7 H. L. C. Ml l)c Honneval v. Dt Jionncral, 1 (Jtirt. HTA'}. lie I>alifa Settlement, 2.'> Ik-av. 45(i. J'echell v. Hilderlcy, L. K. 1 Prol). (•.7;i; :W L. J. P.Wi; 20 L. T. N. a. 1014. Book I. Chap. II. ?:'^i i m r :- MB 11 i' ■ \i !•!! f ^4 I: ') t 6 BY WHAT LOCAL LAW WILLS ARE REGULATED. Book I. law of the domicile, at the date of the will, difTers from Chap. IL the law of the domicile at tiie testator's death, the lattei law prevails (a). 3. In Enohin v. Wylie (b), Lord Westbury observed, " I hold it to be now put beyond the possibility of (juestion that the administration of the personal estate of a deceased i)erson belongs to the Court of the country where the dccejised was domiciled at his death. All ques- tions of testacy or intestacy belong to the Judge of the domicile. It is the right and duty of that Judge to con- .stitute the pei'sonal representative of the deceased. To the Court of the domicile belong the interpretation and construction of the will of the testator. To determine who are the next of kin or heirs of the personal estate of the testator, is the prerogative of the Judge of the domicile. In short, the Court of the domicile is the forum concursus, to which the legatees under the will of a testator, or the parties entitled to the distribution of the estate of an in- testate, are recjuired to resort." 4. And in Whicker v. Ilmiie, cited above. Lord Chelms- ford said : " There is no doubt that it is the province and duty of the Ecclesiastical Courts to ascertain what was the domicile of the party whose will is offered for probate, in oi'der to ascertain whether that is a valid will, the testa- tor having complied with all the requisites of the law of the country in which he was domiciled. But if probate is gi-anted of a will, then tliat conclusively establishes in all Courts that the will was executed according to the law of the country where the testator was domiciled." " No other Court could go back Ujion the factum and rai.se any question upon the validity of the will." These cases. ((() lircmtr v. Frcemmi, sup. Whicktr i: Hume, huj). (t) H Jur. N. S. H!>7 ; M L. J. Ch. 40'2 ; r, L. T. N. S. 2(;;J; 10 II. L. C I5Y WHAT LOCAL LAW WILLS ARE REGULATED. which are of the hiffhost authority, contain a clear state- ment of the hiw uj)on this siihject. •5. V will of real estate is governed by the law of that country in which the property is situated, the lex loci rei sitte (a). This rule is founded on the prii\cii)lo that it would not comport with the dignity, the independence, or the security of any independent state or nation, that these incidents should be liable to be affected in any manner Vjy the legislation, or the decisions of the courts of any state or nation Ijesides itself {h). If, therefore, a person, domiciled abroad, desires to devise real estate owned by him in this country, his will must be executed with all the formalities prescribed by our law, the law of the domicile Iteing altogether disregarded. 6. It is fre([uently difficult to determine what was the actual domicile ol the testator at the time of his death. " The question of domicile," said Lord Loughborough, in the case of Bempde v. Johnstone (c), "prima facie, is much more a question of fact than of law. The actual place where he (a pers t,-.l J4 ., ii ■n 8 BY WHAT LOCAL LAW WILLS ARE REGULATED. Book I. (.ion, which would be — where does he reside ?" And in f'HAi: IL Munro v. Douglas {a), Sir J. Lench remarked : " Domicile is not lost by mere abandonment ; it is not to be de- feated animo only, but animo et facto; and necessarily remains until a subsequent domicile be acquired, unless the party die in itinere toward an intended domicile (6). 7. It would be beyond the limits and object of this work further to consider the nice distinctions which arc created by the conflict of the laws of different States. For these distinctions, and for a more minute statement of the law, the reader is referred to Stoiy and other writei's on the subject (c). la) 5 Mail. liTX {(i) St'f alHo Crai'ik v. Lcwiii, 'A Curt. 4;{."); 7 .Tur. TiVJ. Attii.-dcn. V. Fitz'Kntlil, '.i Drow, t'ar\i cnse, 8 Co. S'2 a. In the ijinxlg of Rohinmn, \i. li. 1 Prnb. .184 ; M L. J. P. 9:{ ; 17 L. T. N. S. 11). (h) I't. 1, H. ,\, pi. 19. {<•) I u. 1, c. 1, H. 2. (d) Hm iilHo 1 Williams Exnrs. 7. (i) W(V)dii:. 112. DEFINITIONS 11 administrator under the denomination of a " codicil " (a). ^^^^^ i- Swinburne and Godolphin accordingly define a codicil to ^'hai-. ill. be "the just sentence of our will touching that which wo would have done after our death, ivithout the apiiointing of an executor (6) ; and hence a codicil was called " an unsolemn last will " (c). 5. A codicil, from codicillus, a diminutive of codex, is now understood to bo a supplement to a will, or an addi- tion, made by the testator, and annexed to, and to bo taken as part of the testament ; being for its explanation, or alteration, or to make some .addition to, or olse some subtraction from the former dispositions of the testa- tor (d). 6. A codicil is essentially a part of the will itself, all forming one testament (e). This rule is strongly exem- plified by the case of Sherer v. Bisho'p (/). There the testator gave the residue of his personal estate among such of his relations only as were mentioned in that his vjill; he, afterwards, made a codicil, which he directed to be taken as part of his will ; and a second, by which he gave legacies to two of his relations, but gave no such direction : and it was held by Lord Commissioner Eyre {duhitantibus, Ashui-st, J., and Wilson, J.), that as every codicil was a part of the testamentary disposition, though not part of the instrument, the relations named in the second codicil were entitled to a share of the residue (,7). («; 1 WilliamH Exors. 7, and an- thoritit'H there cited. {h) Swinh. Ft. 1, «. 5, pi. 2. Go- (lolph. Pt. 1, c. 0, s. 2. (r) Swinb. Pt. 1, s. .5, pi. 4. Go- (lolph. Pt. 1. c. (5, 8. 2. ('0 2 Black Comm. .500. Swinb. Pt. 1, s. r,, nl. r,. Oodolph. Pt. 1, c. 10. And SL'c Rccrcs v. Ncwtuham, 2 Itidt'w, I. P. C. 43. (/) 4 I5ro. C. C. .5.5. {;)) This decision lia8 been con- 8i(lered as carrying the principle too far. See 1 Williams Exors. 8 n. (.i). Hall V. Scrcriw, » Sim. .51.5—518. Pifjott V. Wilder, 2« Beav. 'JO. Fuller V. Hooper, 2 Ves. sen. 242, and supplement by Belt. 333. See also cases cited in 1 Williams Exors. 9 n. (u). : •"i"^ I'ik m ^ 'mi ' ^ mm -IS ■m / m i'PVi 7 12 DEFINITIONS. Boor I. Chap. III. ! ■1 I ! ' 7. The term " devise " is ai»plied, almost exclusively, to a testamentary disposition of real estate. It is regarded by Blackstone less as a will or testament, than as a con- veyance or ai)i)ointraent of property, and is cljus.sed by hini amongst the modes o{ conveying real property (a). 8. One main difference between a devise of realty and a will of personalty consisted in the fact, that the former could only [)ass real estate of which the testator was seized at the time of making the devise, whereas the latter operates upon whatever personal estate a man dies pos- .sessed of, whether acquired before or since the execution of the instrument (6). y. The term " bequest " is applied to both legacies and devises, and is understood to emb.ace both real ami per- sonal estate (c). In the American Courts, it luus been held that the words " devise," " bequest" and " legacy," ma}' bo ap|)lied indifferently to real and personal estate, if such appears, by the context of the will, to have been the testa- tor's intention (d). 10. The law gives no authority to make a will for the mere purpose of ap[)ointing guardians to children. Such an appointment is of no binding force, except as enforced by the conditions attached to the disj)osition of property (e). In a late case in England, it was held, that an instrument executed as a will, but which contained only an appoint- (a) 2 Black. (lomm. 373. 1 Wil- liams Exorn. (i. Duppa v. Mai/o, 1. Sauiul. 277, c note (4). Pur Lord MatiHtiuld in Harwimd v. (ioodru/ht, Cowp. !K). {b) IP.W. 57.5. 1 WilliamH Exom. «. By 4 W. 4,c. 1, H. 49 (Con. Htat. U- C. e. H2, H. 12), ^)owor waw (,'iven to a testator to Uuvwe real estate ac- quireil by him after the makin),' of his will ; and by 32 Vict., c. 8, «. 1, a will is made to take effect with re- gard to both real and Itersonai estate aH if executed immediately l)efore the death of the testator, unless a contrary intention a|)pear« by the will. " The \yillH Act, 1873 " (30 Vict., c. 20), which anplies to '.nils niadc after the 3l8t Uecember, 1873, jiro- vides (s. .")), that every person may disiKise by will of all such real and persr)ual estate as he shall be enti- tled to at the time of his death . S. 21 of the same Act is a re- enactment of 8. 1 of 32 Vict., c. 8. (c) 1 Jarm. Wills, 702, n. k. (d) Uow V. Dow, 3« Maine, 211. Ladd V. Harvey, 1 Foster, 514. (c) 1 Itodf. WilLj, 4, n. 2. DEFINITIONS. 18 rnent of guardians to the testator'n children, was not enti- tled to probate (a). 11. A will ia in its nature different from a deed, and though executed with the formalities of a deed, it cannot operate a.s such (/>). 12. The attention of the reader is called to the distinc- tion between real and personal estate, in connection with the execution of wills, and the capacity to make them. It will be seen hereafter, that there is a wide difference in the formalities of execution necessary to the validity of wills of real and personal estate respectively ; and there still exists and will continue to exist, until "The Wills Act, 1873," comes into force, a marked distinction between the age at which a will of personal estate may be made, and that fixed by law as the minimum age at which a testator may devise his real estate. 13. Concerning definition.s, Swinburne remarks (c) : " Definiti(msare said to be dangerous in law: the cause may he attributed to the multitude of different cases, the penury of aj)t words, the weakness of our iui(ler«taii(ling, and the contrariety of opinions," and are " subject to the rigorous examination of ;ill sorts of men, and nnist abide the (Inibtful verdict of the sharpest wits, and endure the (lieadful sentence of the deepest judgments. And it is rare if at the last, after long and superstitious revolutie overturned. No marvel then if definitions be reported to be dangerous. " But if contrary to the common course the definition be 80 just, so perfect that it cannot be justly reproved, this definition, besides that it is not perilous, is .so profitable and so necessary, that from thence, as from the root and fountain, every discourse ought to take his beginning." BOOK THE SECOND. I \ OF THE CAPACITY TO MAKK A WILL. CHAPTER I. CLASSIFICATION OF DISABILITIES. 1. All ]icr8onB capable of making a will, oxcupt those who labour under disability. 2. ClasBificatiun of disabilities adopted by Blackstone. 3. Blackstone 's classification not sufRciently ample. 4. Classification of persons of unsound mind, by Lord Coke. 1. The (question of testamentary capacity may lie most easily considered, by premising that all persons, except such as labour under some disability or incapacity, are competent to dispose of their property by will (a). 2. These incapacities or disabilities are stated by Black- stone to be — I. want of sufficient discretion ; 2. want of sufficient liberty and free will ; 3. criminal conduct (h). 3. It may be questioned, however, whether Blackstono's classification is sufficiently ample to include all the par- ticular species of disability ; and, in treating of this sub- ject, the writer wUl adopt that classification which is most convenient. 4. Persons of unsound mind arc thus classified by Lord Coke (c) : 1. An idiot or fool natural ; 2. He who was of Book II. f'HAl'. 1. ((() 1 WilliainM Exon. 11. Swiiib. Pt. 2, H. 1. (i) 2 Black. Comm. 496-497. 1 WillianiH Kxors. 11. (c) Beverly's case, 4 Co. 123. M l"f y the visitntion of ( J;d merely a right to the proceeds of sjde (d). G. As an alien might purchase, subject to the right of the Crown, .so ho might take by devise, which is a pur- chase in the eye of the law (e). But an alien could not, though the Crown had neglected to exercise its preroga- tive, transmit by hereditary descent ; for he had no in- heritable blood, and on his decease [Ids lands escheated to {a) Murray v. Heron, 7 Grant .t7. (h) yee SiiKd. V . 6Sr>. DiK (I. Rich '2 U. (M). .S. '21(2. (h) yee SiiKd. V, A R, c. 20. h. 2, |), 6S.">. JtiKi], RkhariUon \ . Dkkwm , (c) The King v. HoUami, Aleyn U. 1 (loirs Al). IDI, pi. H. />.« d. Rifh- ardioi V. />«**«)«, 2 U. «'.<). 8.21(2. (rf) '-'u Hourmdin v. Shddun, 1 BeBT. 79 ; S. 4 My. & Cr. 525. Diimonrfll V. Dumoncell, 13 Ir. Eq. lU'p. 1»2. Harrow v. Wndkiu, 24 Huftv. \. Fiih V. KItin, 2 iMt-r. 431. Hue tht! obHurvntioiiH of tlie ( 'liaiici'l- lor ill Alurruu v. Heron, 7 (iraiit, 178. (c) Co. Litt. '2, I). I'owfll Dfv. Mli. 10 Mod. 113-125. Dyer, 2, 1 1, u. DISAlULITIh^i — ALIKXAGK. U) the Crown without otticu found ((j). A oonveyaiice by nn I*""'^ ••■ alien was good except as against the Crown (/<), chm'. II. 7. Astlie disahility of alienage dejieinled on feudal and political reasons, winch ati'ected only real estate, it is, and always has b<;en, competent foi' an alien to make and take imdeia will of personal estate in Upper Canada (Ontario) ; unless, indeed, it should happen that he W(;re jin alien enemy, in which case he could not make a valid will of personalty, unless by force of special license from the Crown to reside and transact business within our juris- diction during the continuance of hostilities (/). ((/) Jtof il. Hohinsitn V. t'luvk, 1 V'.V. W.'M. I'er « 'liiiMCfllnr Kfiit, Mnovm V. While, (i JoIiiih. Cli. 'M'M .it'iti. <'iilliiitiii,,i,il V. J'tiiis, 1 Sid. i;«; 1 Vent. 4i:{; J l'!ow. 22'.» k. 'I.iO a. L>ot il. futemoii v. JJuvig, 5 U. ('. O. s. m. {h\ Ih.A. AfiicdoHuldv. Cleveland, or r o. s. 117. (/) Viii. Al). DtiviHe G. 17. Biu;. Ab. WillH, b. ■:m4 J f A% v^. % m\ CHAPTEK III. OF DISAIlILrTY FROM INFANCV, 1. Liiw on tliis siiliji ft, .still the hiiiiiu ivb on ISth October, 17^2. 'J. I'dWi^rs (MdiftMTiMl liy :51* H. H, c. 1. ;{. Kfiect (.f ;{4 .V nn H. H, c. 5. 4. Kffectof ILM'ar.'J, c. 24. 5. Iiifiiiits tlin i.s, that tliey had mt (i. No power to devise lands conferred on infants since !J4 it 3f> H. H, c. 5. 7. I*ower of infants to make wills of personalty. 8. Infants deprived in Knt,'land, by 1 Vict., c 2(», of tho powirt" make a will. 0. Infanta deprived in Ontario, by " The Wills Act, 1873," ot the power to make a will. 10. F'ower of infant to maki! a will dependent on his having si- \,«.*- ent discretion. 11. Effect of ratification on att.-o Mn<,' majority. 12. Cimstruction of 21st section of The Wills Act., 1873." 13. Power of infants to aj)point ^'uartlians to their children by will. 14. ConHef|uences of this power as regards real estate. 15. Infants' power of apiiointiny guardians abolished by "The Wills Act, 1873." U). Mode of computing,' time of attainment of majority. n<0Kll. 1 Tho law th day of C'ctobor, 17!)^. 2. The Statute .'t2 H. S, c I, provided that all persons might di.spo.se by will of tlieir lands held in socage, ami two third parts of thost> held by knights-.service. a. It Vicing found necessary to explain Uiis Act, the Statute 34 & n.5 H. H, o. 5, was passed a few years after- wards, by which it was provided, that all persons, being .seized in fee simple, migiit, by will and testament in la) lnlh7.T DISAUILITIKS — INFANCY. writing leviso to any other person, except to bodies cor- porate, all tlieir huuls, tenen^ents and liereditainents hold in fee simple, and two thirds of those held by knigkts- service ; but it was provided by the 1 4th section of tlio Act, that " wills and testaments made of any manors, lands, tenements or otlier hereditaments, by any woman covert or person within the aj^^e of twenty -one years, idiot or any person de non sane menujry, shall not be taken to be good or effectual in the law." 4. At u .sub.se(juent j)eriod, by 12 Car. 2, c. 24, the ten- ure by knights-service was converted into socage, so that the power of testamentary disposition, crttnteil by the Act, became general. '). The exception contained in the later Act woidd lead to tiie conclusion that, during tl:e .short interval which elapsed between the pa.ssing of the two Statutes of Heiir}', infants pos.se«sed the power of devising their real estat*;. This seems, however, accorvling *'i the best opinions, not to have been the ca.se (a). The (piestion is unimportant, as the later Statute expieasly except(;d itd'ants. 0. No ])ower of devising hinds has since been given to infants by any Kurdish or Camulinn StJitute ; ,so that, now, all j)er.sons luider the ag(! of twenty-one years are abso- lutely incapable of disposing of their leal estate by will (b). 7. The law uj»on the ((uestion of want of sufKcient age to make a will of personalty stands, however, upon a very • litferent footing. T«'stanients of jiersonid estate having t^arly become subject to the jurisdiction of the Kngli.sh Kcclesijuitical Courts, those Courts applied to thmux the ((() 1 .hmn. WillH. 27 -'-'«. iinth-n«t'H <:itt'il in thi^ iiotts. I'dWcll Div. '.Wd K(l. 12ri-12«. {!'] A» to wlu'ther u iiiarrifd wo- man, living an infant, vau (Iuvihu hvi' rt'»l uNtatc niiiUT thf iCth section of Ton. .Stat. \'. ('., c. 7.<, «••• LtitliM U. !• .Stat. 283. Tlic o|.inion of that learned writer iH, that uii infant niarriuil woman Iiom no nuuli |M)w*!r. 21 Book 11. (Jil.O. III. "il ^';ni .11 * ?. il! ^'M.wm J '>•) OF TKSTAMKNTAHY CAPACITY, r.ncK fT. rules and jn-iiiciplcH of tlio Civil law (n). It was lu'jd ciivr III. tlioroforo, and is ru)W law in Ontario, that a male of tli<> nj^'t' of fourteen y<'ars, or a female of tln^ n^c. of tw«lve yi ars, may make a valicl disj)osition of liis or her personal property hy will (h). S. The Knjjjlish Statute, 1 Viet. e. 20, took away from infants the powei- •)f testanuMitary disposition in En^dand It is provided l»y the 7th section of that Act, that "no will njade l>y any person under the a^je of twenty-one yt ars shall Ik; valid." !). ny "The Wills Act, 1873" (r), this section, ado|>tod literally from the Kn^di.sh Statute, has hecni enacted in this Province as to wills made after the .SI st Decemlnsr. ir- sonalty liy a hoy of fourteen or a j^irl of twelve, on the <;;ronnd of want of a<,'e merel}', yet, if such a testator liave not sulUcient di.seretion to make a will, the; testament will he void ((/). Such a case comes within the sccohjI head of disahilities nuuitioned hy Plackstone. 11. It is liiid down hy Kn;^dish writers that tlie ratif'ca- tiiiji (if a will, after tlu? testator arrive.'! at theaj,'e re(|uired to execute a valid will, althouj^di executed hefoie that a<,'e renders it a valid will (»') ; hut, uidess ratified, such a will does not heconie ojierative on the infant's attaining his n;ajority (/). (a) 1 WillianiH Kxore. II. I") Aiinii. Comli. .">0; 1 Salk. M. Il.mlv V. Hfi'lf, rr.r. ('h. .{IC; S. ( '. 'iio/il V. Hard, MS. for. Sii' <;(•(• i,tii', .">tli .liiiH', 17">S, citiMl in I iiuni. K. L. \ii n. (',') liv 'I'yr- whitt; «. ( '. •-' ( 'an. triiiM. l,cf,Y>21) 1 WillianiH Kxoin. H. 2 Black. Coiiim. 4t>7. (<■) S. fi, (. (f) 1 Williiiiii.H Kxnrs. 1(5. Swi'ili. I't. 2, H. 2, 1.1. 7. Hue. Al.r. WiUn. li. 2. (/) Su^;(l. K. 1'. Stat. .TIO. I W 1- liaiim Kxiii-s. )ii. fltrhirt v. Tuvfmi/, 1 Hill. Iti2. Swiiil). J't. 2, 8. 2, j). :.. DISABILITIKS — INFANCY". 12. The 21st section of " The Wills Act, IHT S/" which |in»vi(les that every will shall be constniefl, with reference t< • the real and personal estate coin|)riseil in it, to Hjteak ami take effect iis if it had l)een executed immediately Ije- fore the death of the testator, etc., will not render valid a Avill which wa.s invalid when made by rea-son of the non- a<,'e of the testator, though the tesUitor shouh' survive until he becomes of full age (a). ]'i. Male infants were enabled by the statute 12 Car. 2, c. 24, to appoint guardians to their children under twenty- one years of age. The Statute provided (h) that any father, within the wje of twenty-one, or of full age, who should leave any child under twenty-one and not married, may, hii dred or vjill, executed in the pre.sence of two witnesses, di.s|)ose of the cu.stody of such child or children during such time a.s he or they should continue under twenty-one, or any less time, to any person or persons other than popish recusants; anth real and pei-sonal, and the sam(! ac- tions as guardians in socage. 14. It will be .seen that an infant is thus indirectly ena- bled to control his real estate, though unable directly to devise it, the guardianship drawing after it the custody ol the land (o) : and it is also observable that though the statute does not authorize the appointment of guardian.** to married children, the guardian ihip is not determined by subse(|uent m.miage (d). 15. "The Wills Act, 1873," in providing l)y s. 7 that " no will made by any person under the age of twenty- 28 (>r cit. ;J Atk. (J2r. ;■ 2 I'. W. 102 ; Init -te^ contra iw to r mortmis. A married woman may make a will under a power. A married woman, executrix, may l)e(iueath property to which she is entitled as executrix. Will of married woman not validated by death of hiisband during coverture. 1.'5. 14. Eflect of 1st section of 32 Vict., c. 8, on wills of married wo 15. 16. men considered Case of Noble v. I'hclps considered. (t'.) Deduction from I'rtcc v. Parker. (h.) Case of Thomns v. Jones considered. (c.) State of fac*j m that case. () 1 Williiinm MxorH. .''•l ; Andrew < )K'nill'H taHi', 4 Co. 51 h ; 2 Black. <'i.nini. 4!)K. (c) By s. 14. (d) Sc! H. IH. («) S(K-kH V. .Vmy, 4 Bi-o. C. C. Am. (/) Wrivlit V. aardm, 28 U.C. Q. fi. at p. 023. ii . \ DISAIIIMTIKS — COVKIITUIIK. 27 make a will ol'lirr personalty witli lier husltnnd'M consent, '^'^'^i^ " She eouM also make a will as executrix agairist his con- C'hai'. IV. s.nt ; and she had absolute power to imt ns n feme sole durinj,' the exile or transportation of her husband. Be- fore her marriage she could fill a great variety of otHces (it). The legal fiction was, that her separate existence is not ( niitcmplated : it is mcrgcil hy the coverture in that of h' r husband ; and slie is no more recognized than is the ct'Stui <|ue trust or the mortgagor, the legal estate, which is the only estate the law recognizes, being in oiluirs" (/>). 4-. Tlu! disability of infniK^y, on the other hand, is h'Unded on an assumed want of capacity, and cannot be dispensed witli at the pleasure of the contracting or dis- posing parties, so far, at least, as tho Jns (HspmieiuH is con- ci-rncd (c) ; and any attempt to give a power of disposition t'l an idiot or lunatic would l>e clearly abortive (//). 5. The policy of recent legislation, dictated, to a greai extent, by the liberal spirit of the Courts of Kipiity, luis heen to remove the ilisabilities incident to coverture, and t .Scott N. K. .Si;» ; 4 M. & ;W; 1 Vi-K. Kon. 2'.W. Ur .104'.t, 1070. («/) I Jariii. Wills, .W. m I*-,: *i *, t -^^ ' I I \ -^ OF TKSTAMKNTAUY CAI'ACITY. IJooK II. ulileli tljc law ^nvo him to thu iidiiiinistration of his fiiAc IV. wife's |ior.s(»naIty {!Uti('ular will which is set uj) (/>). And the hushnnds consent, may he implied from eircnmstances ; thou<,'ii, it lie has (tnce expressly consented to a particular will, a re- vocation of such consent must he formal in order to lie etl'ei'tual. As tlu' consent operates merely as a renunciii- t ion of the Imshand's right to administration (c), it was • •onsidered that ho mij^dit revoke the consent either heforc oi- after tlu> decease of the wife and hefore prohate is i^ranted ( rendei- his consent hinding (,7). S. The deatli of the hushand hefore tlic wife extin- guishes whatever support, authority or efficacy Ids wife's will might have derived from his concurrence (/<) ; and, as the hushand'tt consent is confined to the particular will, {«) 2lMnck. Comni. 408. (/() Hijr V. Iktfim-.trlh, 2 Str. Sid. ((•) 1 Ui)|>. liUMh. & wife, 170. Ill the ijimh of Smith, I S. (c T. V27, lier SirC. CroHRWt'U ((/) Swiiil). rt. 2, H. 9, |)1, 10. 1 Kt>|>. liiml). & wifu, 170, liy .liuoh. ' Hnrii, K. L. .>2. Hnxik v. Turner, I Mook\. Turner, 2 Mod. 170. ((/) Hndeljf v. Li/tt, per Sir ('. CrfHHWfll,rrobat«i;t., lODi-c, l«5'.t. (/() NoMt V. Phelps, L. 11. 2 I'rol.. 283 ; 40 L. J. P. 00 ; 25 L, T. N. S. 0.5. 1 WilliaiiiK Kxore. 5;{. MiHer v. Hriiwn, 2 llagg.20i). Thomtu v. Jnnin, 2 J. A H. 475; 1 D.J. &H. 63; s DISAMII.ITIKS — COVKKTUHK. S9 iiftcr aciniiird |irf)|>i'ity will not l»y virtiu' of tlint coiiHcnt, ^'^<^^ " |.a.ss iimk'r it (a). ''"ai-. rv. !J. No coiitrnct enn ciiaMti a tnairii'd woman to paHs tlu' Ic^^al OHtate in Iiit lands at oonnnnn law liy an onlinary will ; Huuii, })v'\u^ t'X('(;jttt'(l out of the StatnU) 'H He, .'{."> II. M, c. '>, slii^ was. as we liavc s»a>n, l»'ft stibject to lier |»n!-t'xistin^' (lisaliilitios. Kvery will of a married woman, passing,' a le;,'al estate, must operate as an appointment ol an uso ; Itut a mero contract, Uefort! marriage, as to speci- lied lands, will In; snlllcient to ^'ive tlic wife an e(mital)le power to devise, and tlie le^^'al esUite nnist he (il>taine(| l»y <'onveyance fnwn the \h',\v (/>). 10. Till! wife of a man, who is v'lmllier woj'/».w^i, heing lianished for life or atUiinted, or a convicted felon, is a feme, hoIv. jih to tlus power of disposing' hy will, at least of property uc(|uircd after her hushand's civil death or conviction («). 11. A married woman may muk(; a will, if a power to that effect he reserved to her in a settlement or other Mulflcient instniment executed hy hnshand and wife he- fore mnrria<,'e (J). The chain of executorshi|t is not con- timied hy the appointment of an executor by a married woman in a will made under a power (c). 12. As the hushand has no heneficial interest in the personal estate whicli the wife takes in tht; character of i I ■■ ' I '''■'j ('«) 1 Williams KxorH. Tv,\. Slnrnn NfirKumt v. Hmrinr, .' 1*. W. ;t7. >■. /tiiiiKirill, l.'i VcH. l.V). J'rke v. Mrr/// v. .Wij.-'iri'/ir, 1 Salk. ttt! ; iiiiil i'lirkri; IC Sim. I'.IS. me per Sir W. !'. Wmicl, m Jhiri,.^ (/<) I .liinii. NVilJH X\. iVri')lit v. v. (IniKih, '1 Kiiy it'll ; mid |n'r Ali l.«r,l r,iiliHi.«/./«, -' \\. k i'lni,rhill\. IHUten, m<>„ V. . 2 Hri>,'ht, liunh. & wife, ;{",). CdiiiiIihii of I'orllanil v. I'riuliKvit, 2 Vurn. 104. Kx p. Fnink, 1 MiMt. & S. 11. Ill the iiooih of Martin, 2 Itob. 405. 15 j'ur. 680. Aid. 275. (./) /lirl, V. Corlerl '.) Vi'». .'t?:.. lloiUilfii w. Lloiiil, 2 Mm. C. V.UM. Tlu- cxfciitioii iif iKiwiTH l)y marric'il wiimaii Im too cxtfiiNivi' a Mul)j«;i:t to Im' truatcd of in thin work, and thf rcadtT Ih, thiTefitr*', rfffrrol to the troatineH on tlin Muhjuct of {wiwei'H, ((') In the oikmIs nf Ifni/ht't, l 8. iV T. 20'J ; 2y L. J. r. I(i5. v>;^ ^». 1^ o^^-^ ^ .1 IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I 1.25 1^ i^ . 1^ Ui 1^ 1^ 1^ liS. !^ Li 1. u m 1.4 1.6 — ^ ^ V] <^ /a v: -> ^'^ > *1^ .v'^ ▼v^ > y >^ Photographic Sciences Corporation 23 WEST MAIN STREE^ WEBSTER, N.Y. 14580 (716) 872-4503 ^. J i . :■ ; n Wsi r,o :: . Book II. Chap. IV. mm p. It 'r OF TESTAMENTARY CAPACITY. executrix, and as the law permits her to take upon herself that office, it has always been competent for her, in excep- tion to the general rule that a married woman could not dispose of property, to make a will in this instance with- out the consent of her husband, restricted, however, to those articles to which she was entitled as executrix. The effect of such an instrument was merely to pass, by a pure right of representation to the testator or prior owner, such of his personal assets as remained outstanding, and no beneficial interest which the wife might have in any part of them (ti). 13. The will of a married woman, made during cover- ture, is not iL . V-ved valid by the death of her husband, unless subsequer.^' "epublished by her (b). When the husband of the t .i*^at»'ix had not been heard of for seven years, probate w< m gi'anted as if she had died a widow (c). 14. It is important to consider the effect upon the will of a married woman, of the 1st section of the recent On- tario Statute, 32 Vict., c. 8. That section, which has been adopted from the 24th section of the English Statute, 1 Vict. c. 26, provides tiiat " Every will shall be construed with reference to the real and personal estate comprised in it, to speak and take effect as if it had been executed immediately befoi-e the death of the testator, unless a con- trary intention shall appear by the will," 15. In Noble v. Phelps (d) the effect of the 24th section of the English Act upon property acquired by a married woman after the date of a will made by her, was fully con- .sidered. Lord Penzance said (e), " Does the will of amar- (a) 1 Williams Exors. 51-.52. Scammell v. Wilkinson, 2 East 552. 1 Rop. husb. & wife, 2ud Ed. 188- 189. Tucker v. Inman, 4 M. & Gr. 1076. Hodsden v. Lloyd, 2 Bro. 0. C. .534-543 ; 2 East, 556-557. •Ucnna V. Bagwell, 15 Ves. 139. (b) In the goods of Wollastoii, 12 W. R. 18; 9 Jur. N. S. 727 ; 32 L. J. P. 171. (c) In the f/oods of How, 1 S. & 'J". 53 ; 4 Jur. N. S. 366. {d) L. R. 2 Prob. 276 ; 40 L. .1. P. 60 ; 25 L. T. N. S. 165. (c) At page 283. DISABILITIES — COVERTURE. ^1 ried woman, made during coverture, speak and take effect with reference to the property comprised in it, as if it hai been executed immediately l)efore her death, in this sense that the will operates upon all property over which the testatrix had a disposing power at the time of her death, though she may not have had that power at the time of making her will ? (a) The case of Price v. Parker (a) is conclusive to show that the statute does not confer on a married woman the power to make a will (h). There the wife had a power of appointment over certain property in case she died before her husband. Whilst her husband was yet living she made her will. At this time the event, upon the occun-ence of which alone a power of appointment was conferred ujjon her, had not happened, and indeed it never didhap])en,fur her husband died first. Consequently the will wa.s inope- rative, and so said the Court. " The efi-ect of the 24th sec- tion of the Wills Act," said the Vice-Chancellor, " is not to make that valid which was invalid in its incejjtion, but to give a rule for the construction of a valid testamentary instrument." (6) The nature and extent of the operation which the 24fth section of the Wills Act has upon the will of a mar- ried woman, appears to me to have been settled and defined ■ by the very able judgments delivered in the case of Thu- mas V. Jones (c), a case which was fully and ably argued^ first before Lord Hatherley as Vice-Chancellor, and again upon appeal in Chancery before Lord Westbury. (c) In that case this was the state of facts : a married woman had made her will during coverture, and died with- Chap. IV. h '^- «. I. • '1 ^ Mm tm (a) 16 Sim. 198. (b) " The Wills Act, 1873" con- fers on married women full testa- mentary powers, 80 that it is con- ceived the question raised in NMe V. Phelpt cannot arise upon any will made on or after the Ist day ©f January, 1874. (c) 2 J. & H. 475 ; 31 L. .J Ch. 732 ; 1 D. J. &. S. 63 ; 32 L. J. Ch. 139;8 Jur. N. S. 1224. mm I" ][ 32 Book II. Chap. IV. OF TESTAMENTARY CAPACITY. out re-executing it. Her husband survived her. At the time of the execution of her will, she was the contingent donee of a power of appointment : that is to say, a power of appointment had been conferred upon the survivor of three persons of whom she was one, and of whom she eventually turned out to be the survivor. Her will con- tained no distinct appointment referring to the power or any specific gift of the property which was the subject of the power. But it did contain a general residuarj^ devise. The testatrix therefore continued under the disabilities of coverture up to the time of her death. On the other hand, before her death, but after the making of her will, she be- came by survivorship the donee of a power of appointment of which the general residuary devise, in her will was, if tlie 27th section of the Wills Act could be resorted to, a sufficient exercise. It seems to have been considered, in- deed, by Lord Westbury, but not by Lord Hatherlej'^, that a will made by the testatrix before she became the survivor would, independently of the Statute, have been a c;ood execution of the power if conceived in apt language for the purpose. But this, he said, it was not necessary to decide, as the language of the residuary devise was too ge- neral so to operate. (d) For the purpose of deciding the case, therefore, both these learned judges were of opinion that the testatrix, at the time when she made her will, had no disposing power over or in relation to the property in question, though she acquired such disposing power before her death. And in this state of things they both held that, by force of s. 24 of the Statute her will must be considered to take effect as if made immediately before her death, that at that time, she had full power of disposition over the pro- perty in dispute, and that her will, in consequence, effectu- ally disposed of it. M l] DISABILITIES — COVERTURE.. 38 (e) Now, I observe that both the learned judges appear, Kook ii. from their observations, to guard themselves from the Chap, IV. conclusion that, by so deciding, it was intended to be as- Sect. i. sorted that what is called the testamentary capacity of a married woman would be increased or enlarged by the Sta- tute. If by testamentary capacity, is meant the right and power to make a valid will, it is a power that admits of no degree — it can neither be enlarged nor narrowed — a person either has it or has it not, and, that it is not confen'ed by the Statute, I have already pointed out. On the other hand, if the words " testamentary capacity" be referred to the property, which, in any individual case, is capable of being disposed of by will, it is obvious that such a capa- city will vary and increase with the extent of property over which the individual may acquire, from time to time, and from any source, a disposing power. (/) Understanding the words in this sense, it is, I think, impossible to affirm that the effect produced by s. 24 as it was applied by the court in the case of Thomas v. Jones (a) was anything short of an enlargement of the testa- mentary capacity of the testatrix, no' indeed by du-ectly conferring an enlarged capacity upon her, but by referring the date of her wiU to a time when she possessed that en- larged capacity from another source. Lord Westbury puts it thus: 'To render, however, the will of Margaretta, made in 1838, a valid appointment by way of devise of the estates in question under the Statute, it is still necessary that Margaretta should have had, at the time of her de- cease, full right and power to make such a testamentary appointment without the aid of the statute. This she un- doubtedly had, and her will, by being made to speak at the time of her death, still depends for its operation on the »« • if) (f ) 2 J. & H. 475 ; 31 L. J. Gh. 732; 1 D. J. & S. 63 ; 32 L. J. Ch. 139 ; C 8 Jur. N. S. 1224. V, f ' i' .'. m 34 OF TESTAMENTARY CAPACITY. Book II. extent of her then existing testamentary authority;' and Chap. IV. Lord Hatherley says, ' The Statute makes a will operate Sect. I. as if executed immediately before the death, and the eflfect of this is, in the case of a married woman, that she must be regarded as a married woman executing the instrument immediately before her death, and passing thereby every- thing of which at the time of her death she had acquired a power of disposing.' (g) The substance, therefore, of what was in this case affirmed I take to be, that ss. 24 and 27 apply to the wills of married women in the same manner as to those of other persons. That, consequently, the will of a married woman ought to be considered to speak and take effect as if exe- cuted immediately before death. That, in so considering it, the disposing powers of the testatrix must be accepted such as they existed at that time. That if the res It of thus regarding the will is to enlarge the extent of property upon which the will operates beyond that upon which it would have operated at the time it was made, this result would not be correctly described as conferring a validity upon the will other than that which it had by law without the Statute, and consequently is not at variance with s. 8. If I were called upon then to apply these principles to this case, I should, as it seems to me, be warranted in holding that the testatrix, having full power over the property ac_ quired from her husband, at the time of her death, and having used language in her will sufficiently large to in- clude it, has effectually disposed of that property." 16. The 27th section of the English Act had not, prior to the passing of "The Wills Act, 1873," been introduced into the law of this Province, though, as before observed we had adopted the provisions of the 24th section. NOTE TO SECTION I. The author has, in the foregoing section, assumed, in the absence of any express authority to the con- trary, that the common law right of DISABILITIES — COVERTURE. 35 Section II. Of a mnrrled woman's 'power to dispose hy 'noill of pro- perty settled to her separate use. 1. Origin of the doctrine of separate use. 2. Extension of the doctrine by late cases. 3. Rights of wife separated from her husband under special agreement. -I r.i a married woman to make a will of her personalty with the assent of ber husband still exists. It is more than doubtful, however, whether such is, in fact, the ase. By Con. Stat. U. C, 0. 73, s. .6, it is provided that from and after the 4th day of May, 1859, aud hereafter, every mar- ried woman may, by devise or be- quest executed in the presence of two or more witnesses, neither of whom is her husband, make any de- vise or bequest of her separate pro- perty, real or personal, or of any rights therein, whether such pro- perty was or be acquired bbfore or after marriage, to or among her child or children, issue of any marriage, and failing there being any issue, then to her husband or as she may see fit, in the same manner as if she were sole and unmarried. The word separate used in this Act is calculated to create much difficulty. For the reasons given in the text at page 42, it seems clear the expression " separate property " nsed in the 16th section, means no more than "pro- perty^' simply. It is not property in the nature ot separate estate; (see The Royal Canadian Bank v. Mitchell, 14 Grant, 412; Chamberlain v. Mc- Donald, 14 Grant, 447 ; and Mitchell v. Weir, 19 Grant, 568); and can therefore only mean property ' ' owned " by a marri'3d woman m the ordinary sense of that term. Indeed in Mitchell v. Weir, V.-C. Strong assumes that the personal estate of the testatrix derived by her imder the will of her father, and held in no special or peculiar manner, was withm the description of property of which a married woman is enabled, by the Act, to dispose by will ; and V.-C. Mowat, in Chamberlain v. Mc- Donald, used language, from which it may be inferred that he considers the words " separate property" in the Act to mean no more than the word "property." He says (at p. 449), "I may observe that I see great difficulty in holding that a married woman has, under the Act, no jus dis- ponendi, except by will, of her per- sonal property." On the other hand, however, the Chancellor, in TJie Royal Canadian Bank v. Mitchell, avoids giving any opinion as to the meaning of the words, "separate property " in the Act. He says (at p. 419V: "What the Legislature meant by teparate property, it is not necessary to inquire." And V.-C. Strong, in Hitchell v. Weir, calls the separate property referred to in the Act, "the creature of the Statute," and speaks of it as " this Parlia' mentary property." The statute does not, it will be observed, expressly abrogate the common law right of a married woman to make a \^ with the assent of her husband ; but if that right I- not abrogated, there must co-exist in the married woman the two powers— one— of disposing by will with the assent of the hus- band, a power which was not limited as to the objects of the testatrix's bounty :— the other— of disposing by will in the limited manner prescribed by the 16th section. Assuming the view taken above of the meaning of the words "separate property," used m the 16th section, to be cor- rect, it seems impossible that the Common Law and the Statutory powers can co-exist. Amongst other reasons, it may be observed that one of the objects of the statute plainly was, to secure the property of a married woman to her children, an object which would clearly be de- feated by permitting her to make a will under the old law. The case of Mitchell v. Weir (sup.), cited fully at p. 44, is conclusive to shew that the property referred to in the 16th ;!,;sii ttjjj ,' |i 1 1 ■ ) ,1 ■ ,t i 1 1 1 1 1 i i 1 i 1^ 36 OF TESTAMENTARY CAPACITY. 4. Right to devise separate property still a valuable privilege. 5. Woman deserted by her husband may bequeath her property acquired under order of protection, n. (b) Circiimstances under which property acquired by a woman, separated from her husband, will be considered separate estate. Book II. 1. The right of married women to the enjoyment of Chap. IV, property settled to their .separate use, having been created Sect. II, section cannot be bequeathed, except in the manner mentioned in that section. V.-C. Strong observes (at p. 44), " I think the construction of this clause leaves no room for doubt that the right to devise or bequeath to the husband or otherwise only arose in default of issue, ' failing such issue,' as the words are. Any other construction would completely si- lence those words just quoted. This being so, it could not be contended that separate property under this Act in the face of the direct enactment con- tained in the clause referred to, could, as at common law, he ai the free dis posal of a married woman by a ivill executed with the assent of her hus- band .... I think it equally clear that a married woman, in re- spect of separate property under this Act, has no authority to deal with her personalty by will as she may with personalty so settled as to be her separate estate in equity." It will be useful, in considering the effect of the statute, to bear in mind the true nature of ivhat is called a married woman's will at Common Law. The fact is, that a married woman had no 'power to make a will. Macnueen obser»res (Macq. Hush, and Wife, 317 n. (6.) "A married woman cannot make a will. But her husband may waive the interest which the law gives him in her per- sonal property to the effect of enabling her to bequeath it." Ajad Eioper thus lays down the law (1 Rop. Husb. and Wife, 1G9), " He (the husband) may also empower her to make a will to disijose of her personal estate. The principle upon which the power of the wife is founded is this, that her husband may waive the interest which the law secures to him in her property by disabling her from dis- posmg of it during the marriage." And it is laid down by Williams, (1 WilUams Exors. .53), that the assent on the part of the husband is no more than a waiver of his rights as his wife's administrator. What these rights were, is explained by WiUiams, in his work on Executors, (at p. 1376). " It has been shown," he says, "that the husband is en- titled to the grant of administration to his wife's effects, and, conse- quently, before the Statute of Dis- tributions, he was entitled, as all administrators were, to the exclusive enjoyment of the residue. Doubts, however, arose \Ynether the hus- band's right was superseded by the force of that Statute, and whether he was not thereby bound to dis- tribute her personal estate among her next of kin ; to remedy which, it is provided by 29 Car. II. c. 3, s. 2.5, that neither the Statute of Distribu- tions, or anything therein contained, shall be construed to extend to the estates of femes covertes that shall die intestate ; but that their husbands may demand and have administra- tion of their rights, credits and other personal estates, and recover and enjoy the same as they might have done before the said Act." At the time, therefore, that the Act 22 Vict. c. 34 (Con. Stat. U. C. c. 73) was passed, the law stood thus : A married woman could not make a will. Her husband '"as entitled on her death to her outstanding personal property for his own use absolutely. This right he might waive, to the effect, as Macqueen expresses it, of enabling her to bequeath it. The wife's chattels personal in possession, became the husband's by virtue of the marriage. By s. 17 of Con. Stat. U. C. c. 73, it is provided that the separate pei ■ DISABILITIES — COVERTURF. by the Court of Chancery, that Court took care to secure to them the incidents of absolute ownership over such property, including the power of testamentary disposition. In the case of Fetiyplace v. Gorges (a), decided nearly a century ago, the right of a married woman to dispose by will of personal property, settled to her separate use, was expressly recogniz'id. In that case, Lord Thurlow re- marked : " I have always thought it settled that, from the moment in which a woman takes personal property to her sole and separate use, from the same moment she has the sole and separate right to dispose of it. Upon the cases, I have always taken this ground, that personal property, the moment it can be enjoyed, must be enjoyed with all its incidents." 2. The same doctrine was, after some hesitation in the earlier cases (6), applied to real estate devised to trustees in trust for the separate use of a married woman, in the recent case of Taylor v. Meade (c). In that case, Lord Westbury, after reviewing the authorities, remarked : " I must hold, therefore, that a feme covert, not restrained from alienation, has, as incident to her separate estate, and without any express power, a complete right of alienation by iniitrument, inter vivos or will " [d). And in the case of sonal property of a married woman, dying intestate, ahall be distributed in the same proportions between her husband and children, as the personal property of a husband dying intes- tate is to be distributed between his wife and children, and if there be no child or children living at the death of the wife so dying intestate, then such property shall pass or be dis- tributed as if this Act had not been passed." This section is a direct in- road upon the husband's rights ; and when a wife dies intestate, leaving children, he no longer is entitled to her personalty absolutely. He has nothing to waive, therefore, in such a case, except the interest which he takes imder the Act ; and this in- terest he acquires, not, as formerly, by virtue of his right to administra- tion, but from the Statute, The foundation, therefore, of the married woman's common law right to dispose of her personalty by will, seems to be taken away by the 17th section of the Act. If she has no children, she is em- powered by the Act to bequeath her property as she pleases. (a) 1 Ves. 46. (6) Harm v. Mott, 14 Beav. 170. Lechmere v. Brotheridge, 32 Beav. 353. Blatchford v. Woolley, 2 Dr. & S. 206, per V. O. Kindersley. (c) 11 Jur. N. S. 166 ; 13 W. . 394 ; 5 N. R. 348 ; 34 L. J. Ch. 203. (d) See also Troutbeck v- Boughey, L. R. 2 Eq. 534. 37 Book II. Chap. IV. Sect. II. i ir f !;i » nil V (-1 nm ti'i 't' li Ij "^1 p 38 Book II. Chap7 IV. Sect. II. '■ ' ■' : 1 ! ' i !■ 1 Ml OF TESTAMENTARY CAPACITY. Hall V. Waterhouae (a), V.-C. Stuart held that a devise of real estate, without the interposition of trustees, to a mar- ried woman and her heirs for her separate use, free from marital control, gave her a right of disposition over the equitable fee in the same manner as if she were discoverte, and that the heir-at-law would be a trustee of the legal estate for her devisee (6). 3. In a case where husband and wife lived separately, having entered into an agreement whereby it was agreed that their furniture and effects should be divided and that the wife should maintain herself, and that her husband should allow her to enjoy her earnings for her separate use, and that neither should interfere with the other, it was held that the property acquired by the wife after the separation became her separate property, and as such might be bequeathed by her (c). These, and a strong array of other cases, have firmly and clearly established the equitable right of a married woman to dispose by will of real and personal property settled to her separate use (d). 4. The right of testamentary disposition given to mar- (a) 5 Giff.64; llJur. N. S. 361. (6) See also In the goods oi Smith, 1 S. & T. 125 ; 4 Jur. N. S. 1193. Braham v. Burchell, 3 Add. 263. See Adams v. Gamble, 12 Ir. Ch. Kep. 102; and Lechmere v. Brother- idge, 32 Beav, 353, as to the power of a married woman to convey by deed, without acknowledgment, real estate settled to her separate use. (c) Haddon v. Fladoate, 1 S. &, T. 48 ; 27 L. J. P. 21. In the goods of Smith, 1 S. & T. 125 ; 4 Jur. N, S. 1193. See also the recent case of Pride v. Bubb, L. R. 7 Ch. Ap. 64, in which it was held by Hatherley, L. C, that when real estate was vested in trustees for the separate use of a married woman, under the provisions of a deed of separation duly executed by her husband and herself, she had a good power of disposition by will or deed unacknowledged. (d) See the following cases on the subject of the powers of married women with respect to property s«'t- tled to their separate use : —Peacock V. Monk, 2 Ves. sen. 191. Rich v. Cockell, 9 Ves. 369. Hulme v. Tenant, 1 Bro. C. C. 16. Wagstaff v. Smith, 9 Ves. 520. Socket v. Wray, 4 Bro, C. C. 487. Sturges v. Carp. 13 Ves. 192. Essex v. Atkins, 14 Ves. 542. Heathy v. Thomas, 15 Ves. 596. Dailyrac v. Dalbrac, 16 Ves. 116. Bullpin V. Clarke, 17 Ves. 365. Power V. Bailey, 1 Ball & Beatty, 49. Greatly v. Noble, 3 Mad. 94. Stuart v. Lord Kirkwall, ibid 389. Aguilar v. Aguilar, 5 Mad. 418. Howard v. Damiani, 2 Jac. & Walk. 458. Acton v. White, 1 Sim. & Stu. 429. Braham v. Burchell, 3 Add. 263. DISABILITIES — COVERTURE. 39 Tied women by Con. Stat. U. C, c. 73, to which we shall Book ii. presently advert, being limited, the jus disponendi created Chap. IV. by the English Courts of Equity was, after the passing of SectTii. that Act, still a valuable privilege. 5. A woman, deserted by her husband, having obtained an order of protection under the provisions of the 6th section of c. 73 of Con. Stat. U. C, would, it is conceived, have had a right to dispose, by will, of her savings ac- quired during such desertion ; and the right would extend to all savings during the desertion, though acquired prior to the date of the order of protection (a). So, also, a mar- ried woman, having a decree for alimony, may dispose by will, as against her husband, of her savings thereout, in the same manner as if she were a feme sole (6). Section. III. Of the 'power to will their property conferred on married women by Con. Stat. U. C, c. 73 ; 35 Vict, c. 16, and 36 Vict, c. 20. 1. Provisions of Con. Stat. U. C, c. 73. 2. Construction of this Act in Royal Canadian Bank v. Mitchell. 3. Particulars of that case. 4. Opinions of V.-C. Mowat and A. Wilson, J., as to e£fect of the Act on wife's personalty. 5. Remarks on judgment in Wright v. Oarden. 6. Conclusion to be derived from the cases on the Act. n. (a) Case of Mitchell v. Weir fully stated. Direct authority on 16th section. 7. Limitation of married woman's power to devise under the 16th section . 8. Provisions of the "Married Woman's Property Act, 1872," (35 Vict., c. 16.) 9. Effect of Ist section of that Act. (a) In the goods of Elliott, L. B. 2 Prob. 2 74 ; 40 L.J. P. 76 ; 25 L.T.N. S. 203. In the goods of Farraday, 7 Jur. N. S. 1252; 2 S. & T. 369; 31 L, J. P. 7. (h) Moore v. Barber, 11 Jur. N. S. 539; 12 L. T. N. S. 664 ; 5 GifF. 43. As to property acquired by a married woman, voluntarily sepa- rated from her husband, and the circumstances under which it will be considered her separate property, see Haddon v. Fladgate. 1 S. & T. 48 ; 27 L. J. P. 21 ; 6 W. R. 456 ; and the cases there cited. I ■ ■ i ■. . i^f • t ir' :| rii 40 OF TESTAMENTARY CAPACITY. 10. Effect of 2nd soction, 11. Disability of married women to dispose of their property by will removed by " The Wills Act, 1873." ;f m Book II. 1. The "Act respecting certain separate rights of pro- Cn\V. IV, psrty in Married Women," (Con, Stat. U. C, c. 73), pro- Sect.~ill. vides by s. 1 that " Every woman, who has married since the fourth day of May, 1859, or who marries after this Act takes effect, without any marriage contract or settlement, shall and may notwithstanding her coverture, have, hold and enjoy all her real and personal property, whether belong- ing to her before marriage, or acquired by her by inheri- tance, devise, bequest or gift, or as next of kin to an in- testate, or in any other way after marriage, free from the debts and obligations of her husband and from his con- trol or disposition without her consent in as full and am- ple a manner as if she continued sole and unmarried, any law, usage, or custom to the contrary notwithstanding ; but this clause shall not extend to any property received by a married woman from her husband during coverture." S. 16 provides that " Froni and after the said fourth day of May, 1859, and hereafter, every married woman may, by devise or bequest executed in the presence of two or more witnesses, neither of whom is her husband, make any de- vise or bequest of her separate property, real or personal, or of any rights therein, whether such property was or be acquired before or after marriage, to or among her child or children issue of any marriage, and failing there being any issue, then to her husband, or as she may see fit, in the same manner as if she were sole and unmarried ; but her husband shall not be deprived by such devise or bequest of any right he may have acquired as tenant by the cur- tesy." 2, The effect of the Married Woman's Act is thus stated DISABILITIES— COVERTURE. by the present learned Chancellor of Ontario (a) : "The general scope and tenor of the Act is to protect and free from liahility the property, real and personal, of married wo- men ; not to subject it to fresh liabilities, except in the case of her torts and of her debts and contracts before marriage. The change made in the 14th section applies with peculiar force to the case before me. It is an unmis- takable manifestation of intention that the separate estate of married women shall be liable only upon debts incuiTed or contracts made before marriage. What the Legislature meant by separate propeiiy it is not necessary to enquire." And he further says (b) : " My construction of the Mar- ried Woman's Act is, that it gives to what Lord Westbury calls the ordinary ' equitable estate of a feme covert' cer- tain qualities for its better protection, which it did not possess before, such qualiti"!'' 1 eing incident to a separate estate, and sufficient, probablj', if found in a private in- strument, to constitute a separate estate ; but that upon a proper construction of the whole Act, certain qualities incident to a separate estate are withheld, and, what is all- important, among them, that quality upon which the de- cisions making the separate property liable for the mar- ried woman's contracts, is founded." The " quality " re- ferred to by the Chancellor was the jus disponendi inde- pendently of the husband. 3. The case of The Royal GaTiadian Bank v. Mitchell was decided upon a bill filed to obtain equitable execution against certain lands held in trust for a married woman, one of the defendants ; and though the language of the Court in that case is general, and applies both to real and personal estate, yet, in subsequent cases, doubts have been expressed whether the personal estate of a married woman (a) Royal Canadian Bank V. Mit- (h) At p. 420. c^ieii, 14 Grant, at p. 419. 41 Book II. Chap IV, Sect. III. ■4 1 m M ' :rJ3 V 42 Book II. Chap. IV. Sect III. I ill ^k \ ^\^ OF TESTAMENTARY CAPACITY. is not, in fact, made by the Act separate estate in the ordi- nary sense. 4. In Chamberlain v. McDonald (a), V.-C. Mowat said, " I may observe r\at I see great difficulty in holding that a maiTied woman has, under the Act, no jus disponendi, except by will, of her personal property." And in Wright V. Garden (b), Adam Wilson, J., thus expressed his opinion as to the effect of the Act upon a married woman's personal estate : " I am of opinion the personal separate estate is at the complete disposal of the wife in this coun- try, as it is at her disposal in the Courts of Equity in Eng- land." In the case of Wright v. Garden, however, Mr. Justice Wilson differed in opinion on the construction of the Act from the majority of the Court, by whom the deci- sion in 2 he Royal Canadian Bank v. Mitchell was ex- pressly approved. 5. It will be observed that the learned judge uses the word "separate." This word has a technical meaning which he explains in his judgment (c). Referring to the provisions of the Act under consideration ho says : " The real estate, which is called her separate property, she can- not sell or lease without the consent and concurrence of her husband. It is not, therefore, properly separate estate at all, as it wants the principal element and characteristic of it, the power of disposition over it without the control or interference of the husband, just as if she were still a single woman." It will be remarked that the committee, whose report is referred to at p. 619, recommend that power be given to married women " to hold separate pro- perty at law as they now may in equity ;" and the argu- ment of the learned judge is directed to prove that such was in fact the effect of the provisions of Con. Stat. U. (a) U Grant, at p. 449. (c) At p. 617. (6) 28U. C. Q.B.,atp. 624. DISABILITIES — COVERTURE. 43 C, c. 73, and that married women had, therefore, at law, Book^ii. power to contract so as to bind such property, and make Chap^iV. it responsible for the fulfilment of their contracts. The Sect. III. word " separate" is improperly used in the Act, and is no doubt used by the learned judge in stating his conclusion merely in the sense in which it is used in the Act. 6. Notwithstanding the opinions expressed by V.-C. Mowat and Mr, Justice A. Wilson, with regard to the effect of the provisions of the Act upon the personal es- tate of a married woman, it must be assumed that the cases referred to establish the argument that the personal property of a married woman is not, by the Act, made separate estate in the sense in which that term is under- stood by Courts of Equity. It is remarkable that no re- ference is made in any of the arguments to the enabling character of the provisions of the 16th section. If it was intended by the Act to make a married woman's property separate estate, it is diflicult to see the necessity for pas- sing an enabling clause creating a less extensive power of disposition than was, before the passing of the Act, at- tached to separate estate by Courts of Equity. There would have been a manifest inconsistency in providing that property, over which the married woman possessed a substantially unlimited power of testamentary dispo- sition, might be willed by her to her children, etc. The enabling provisions of the 16th section, it is conceived, supply, in themselves, a strong argument in favour of the view of the Act taken by the Coxirts. Even assuming, however, that it was the intention of the Legislature, by the Act in question, to make a married woman's property separate estate, it seems clear that it must also have been the intention of the Act to withhold from married women the absolute power of disposition by will which is attached to that estate by Courts of Equity. The terms of the 16th I * (a ii"' m yys JIM hH m itp lii m 44 Book II. ChaT IV. Sect. III. II' 1' If OF TESTAMENTARY CAPACITY. section exclude the idea of a greater power of testamentary disposition having been intended to be conferred, than that given by this section. Whatever, therefore, may be the true general construction of the Act, it is clear that a married woman obtained by it only the limited power of testamentary disposition which is cieated by the 16th section [a). (a) Since the text of this book was written, the case of Mitchell v. Weir, 19 Grant, 568, has established the correctness of the constniction put W the author upon section 16 of Oim. Stat. U. C, c. 73. It waa ar- gued in that caae that the Statute makes a difference between the wife's real and personal estate, and that she is entitled under the Act to dispose of the latter absolutely ; and the cases of Lett v. The Commercial Bank,2i U. C. Q. B., 552; Wright V. Garden, 2811. C. Q. B.,60y; and The Royal Canadian Bank v. Mit- chell, 14 Grant, 412, were cited in support of this argument. The Court however, held otherwise. The judg- ment of V.-C. Strong is very valua- ble, as throwing much light on this obscurely- worded Statute. He says: " This bill is filed to obtain a declara- tion as to tne validity of certain be- quests contained in the will of Eliza- beth Mitchell, who died on the 9th day of June, 1870, liavdng been mar- ried in the year 1869. The bill is filed by the husband and executor of the testatrix, who left surviving her one child, the infant defendant, Mary Georgina Mitchell. The tes- tatriA who was entitled to consider- able personal estate under the ynW of her father, devised and bequeathed all her estate, real and personal, to her husband, the plaintiff (who alone has proved the will), and certain other trustees and executors, who have all renounced, upon trust to convert the same forthwith, and out of the proceeds, after paying in the first place a legacy of ^10,000 to her child, the infant defendant ; she gave $10,000 to her husband, the plaintiff, and certain other legacies to persons named, and then the ultimate resi- due to be divided amongst the de- fendants, her brothers and sisters. The will does not upon its face pur- port to have been authorized by the testatrix's husband, nor is there any evidence that it was so authorized, although the plaintiff has proved it in the Surrogate Court. It has been argued before me on behalf of the infant defendant, that this will, so far as it gives legacies to persons other than this infant daughter of the testatrix, is void, in- asmuch a« the testatrix had no power to bequeath personalty, otherwise than in the manner prescribed by section 16 of Consol. Stats, of U. C. 22 Vict., ch. 73, which authorizes a married woman to make a will leaving her property to her child or children, and in default of issue to her husband, or as she may see fit, as if she was sole and unmarried. I think the construction of this clause leaves no room for drubt that the right to devise or bequeath to the husband or otherwise, only arose in default of issue ; " fai.ing such issue," as the words are. Any other construction would completely si- lence these words just quoted. This being so, it could not be contended that separate property under this Act in tne face of the direct enact- ment contained in the clause referred to, could as at common law, be at the free disposal of a married wo- man by a wul executed with the as- sent of her husband ; and, although the contrary was very properly and ably argued by Mr. Lash for the residuary legatees, I think it ecjually clear that a married woman in re- spect of separate property under this Act, has no authority to deal with her personalty by will, as she may with personalty so settled as to be her separate estate in equity. The property of the wife under this Act IS altogether the creature of the statute ; and the married woman's power of dispdfeition in respect of this parliamentary property must be ascertained from the statute itself, DISABILITIES — COVERTURE. 45 7. The Act did not authorize a married woman, if she had children, issue of any mprriage, to devise or bequeath her property to any other persons ; and it was only in the event of her having no children, that she might leave her property as she pleased (a). It is doubtful whether she bad power imder the Act to give to one child a greater share than to another, as the words " unto and amongst," occuning in a will, have been held to give to devisees a tenancy in common in equal shares (b). Book II. Chap. IV. Se - ct. III. and the common law can in no way apply, except where the statute is silent. Further, there is no analogy between the power of disposition of a woman having separate estate in equity, with no fetter on her power of alienation, for here, as I construe section 16, there is an express re- striction of the power of bequeath- ing, and if a lilce limitation were contained in a declaration of trust to the separate use of a fone covert, it would have a like effect. I find no cases decided bearing on this point, which I confess, although a case of the first impression, seems to me so clear as to require no au- thority. The cases on the other clauses of the Act have not much b^'aring on this question. The prin- ciple to be followed in construing the statute is, however, very clearly put by high authority in the case of Kramer v. Gla^ss, where Draper, C.J., says: — "Every provision for these purposes is a departure from the common law, and so far as it is necessaiy to give these provisions full effect we must hold the common law is superseded by them. But it is against principle and authority to infringe any further than is neces- sary for obtaining the full measure of relief and benefit the Act was in- tended to give." I am of opinion, therefore, that the mil, in so far as it dealt with the residue left, after deducting the 810,000 bequeathed to the infant defendant, is absolutely void, and that this residue therefore falls to be distributed under the provisions of section 17, which provides that it shall be divided between the hus- band and child, in the proportion of one-third to the husband and two- thirds to the child. It is however argued that the hus- band has disentitled himself to insist on his rights under section 17, by reason of his having proved the will. I am also against this contention in support of which Ex parte Fane was cited. I do not regard that case as an authority for the proposi- tion of the residuary legatees. There the husband taking probate was held to have placed himself in the same position as if he had authorized the will a priori, in which case the will would have been good ; but in the E resent case no assent of the hus- and could have authorized this will. So far as it relates to the bequests of residue, it was a disposition which the married woman was positively forbidden to make by Act of Parlia- ment, and being a nullity from the beginning, is not susceptible of con- firmation. Therefore Ex parte Fane does not apply, and there is no pre- tence for saying, and it is not argued, that the husband was bound to elect, or that he has by conduct given the legatees any equity against him. I must, therefore, declare the will void as to all dispositions contained in it, ultra the legacy to the infant, and that the residue is to be distri- buted as on an intestacy. I a) Mitchell \. Weir,a\ip. Seethe observations of Mr. Leith, as to the effect of the 16th section of the Act. Leith's R. P. Stat., 283. 284. (6) Richardson v. Richardson, 14 Sim. 526. These words are very si- milar to the words "to or among" used in the Act. See also 2 'Jarm. Wills, 238. Campbell v. Campbell, 4 Bro. C. C. 15, i I f • ■ t 1 ) 2) 1 > ' I: I) ,¥ " I ^ I 46 Book II. Chap. IV. Sect. III. "iii^i OF TESTAMENTAKY CAPACITY. 8. We have now to consider the effect of the '' Mar- ried Woman's Property Act, 1872," (a), the provisions of which have been mainly adopted from the English Statute, 33 and 34 Vict., c. 93. It is provided by s. 1, that "After the passing of this Act, the real estate of any married woman, which is owned by her at the time of her mar- riage, or acquired in any manner during her coverture, and the rents, issues and profits thereof respectively, shall, without prejudice, and subject to the trusts of any settle- ment affecting the same, be held and enjoyed by her for her separate use, free from any estate or claim of her hus- band during her lifetime, or as tenant by the curtesy, and her receipts alone shall be a discharge for any rents, issues and profits ; and any married woman shall be liable on any contract made by her respecting her real estate, as if she were a feme sole." Section 2 enacts that " All the wages and personal earnings of a married woman, and any acqui- sitions therefrom, and all proceeds and profits from any oc- cupation or trade which she carries on separately from her husband, or derived from any literary, artistic, or scientific skill, and all investments of such wages, earnings, moneys or property shall hereafter be free from the debts or dis- positions of the husband, and shall be held and enjoyed by such married woman and disposed of without her hus- band's consent, as fully as if she were a feme sole : and no order for protection shall hereafter become necessary in respect of any of such earnings or acquisitions, and the possession, whether actual or constructive, of the husband, of any personal property of any married woman, shall not render the same liable for his debts." 9. There seems to exist no room for doubt that the ef- fect of the Ist section of the Act is to give to married (o) 35 Vict., c. 16. DISABILITIES — COVERTURE. 47 women an absolute power of disposing, either by will or Book II. otherwise, of the e(|uitable title to their real estate. Such Chap. iv. real estate is, by the Act, made separate estate in the ful- Sect. III. lest sense ; and, this being so, it is conceived that the mar- ried woman acquires in respect of it, all the privileges at- tached to such estate by Courts of Equity. 10. The same remarks are applicable to the various classes of property mentioned in the 2nd section, but it is to be observed that the general personal property of a married woman is not included in the 2nd section, nor does there occur in the Act any provision (a) making such property separate estate in the ordinary sense. In respect of such property, therefore, it is conceived that a married woman has, at present, no greater statutory power of dispo- sition by will than was conferred by Con. Stat. U. C, c. 73. 11. After the 31st December, 1873, a married woman will, it is conceived, enjoy the same absolute power of testamentary disposition in this Province as a feme sole. S. 5 of " The Wills Act, 1873," enables every person to de- vise, bequeath or dispose of by will all real and personal estate which he shall be entitled to, etc., and s. 4 provides that the terms "person" and " testator," shall include "a married woman." The provisions of the 8th section of the English Act, 1 Vict., c. 26, disenabling married women, are not to be found in our new Act, which may, therefore, be regarded as a complete emancipation of married women from the testamentary disabilities to which they have so long been subjected. (a) See the English Statute, 33- 34 Vict., c. 93, B. 7. m ■K •ri .! PI, m ii' Ill' ' 1.I-' ,;„ ! i i' ! > f 1 j i 1. It is laid down by Blackstone that traitors and fe- lons are intestable from the time of conviction, for the reason simply that they have nothing to dispose of, their goods and chattels being forfeited to the Crown (a). And a similar forfeiture follows the commission of suicide (6). 2. In a recent case Sir C. Cresswell granted probate of the will of a felo-de-se, supporting the contention of coun- sel that the executor had a right to traverse the verdict of the coroner's jury, and that if the felo-de-se was exe- cutrix, her act did not forfeit that office (c). 3. A felo-de-se may bequeath goods and chattels which he has as executor {d). The lands of a felo-de-se are not subject to forfeiture (e). 4. The forfeiture of estate, consequent upon the com- mission of treason or felony, is now regulated by various statutes. (a) 2 Black. Comm., 499. lb) 2 Black. Comm., 499. (c) In the Grooda of Bailey, 2 S. & T. 156 ; 7 Jut. N. S., 712 ; 31 L. J. P., 178. 1 Williams Exors., 62. (d) Godolph. Pt. 1, c. 12, s. 2 ; 4 Bum's, E. L., 61. (e) 3 Inst. 55. 4 Bum's, E. L., 62. CHAPTER VII. UNSOUNDNESS OF MIND. Section I. Idiocy. 1. Idiots absolutely disabled from disposing of their property by will. 2. Idiocy defined. 3. Opinion of Dr. Ray. 4. Idiocy a question of evidence in each particular case. Exam- ple furnished by the case of Bannatyne v. Barvnatyne. »iK 1. Idiots are absolutely disabled from disposing of their Book li. property by will (a). An idiot is described to be a person Chap. vii. who has not any use of reason ; has no understanding to Sect. I. tell his age; who is his father or mother; what shall be for his profit or loss. " A man is not an idiot," says Blackstone, "if he hath any glimmering of reason (6). 2. It is said by another writer that idiots have some- thing of memory and imitation whereby they are able, to a very limited extent, to increase their knowledge of facts. But they are wholly deficient both in the perceptive and reflective faculties. They possess neither observation nor judgment, and the little memory they have is wholly passive. They have no ability to recall at will past trans- actions, and no forecast (c). 3. Late writers on medical j urisprudence regard idiocy as incapable of strict definition. Dr. Ray, an eminent authority, states idiocy to be that condition of the mind in which the reflective, and all or part of the affective* (a) 1 Jarm. Wilis 29. 1 Williams ExoTs. 16. 1 Bedf. Wills, 60-61. b) 1 Black. Comm. 304. c) 1 Bodf. Wills, 64-65. :fiii Ml 'Jli 52 OF TESTAMENTABY CAPACITY. J: , •liti 1|m, n ' If f!»ni".i.ii Book II. powers are either entirely wanting or are manifested to Chap. VII. the least possible extent. In reasoning power, many Sect. I. idiots are below brutes. Unable to compare two ideas together, nothing leads them to act but the faint impres- sions of the moment ; and these are often insufficient to lead them to giat'.fy even their instinctive wants (a). 4. The question of idiot or not is one of evidence and must be decided upon the circumstances of each particular case. In a late case (6), Dr. Lushington makes the fol- lowing instructive remarks upon the subject of idiocy: " Before entering upon this branch of the case, I must bear in mind what the nature of the case set up in opposition to the will is, I must repeat that it is not lunacy — it is not monomania — it is not any species of mental disorder, the symptoms of which it may, at periods, be difficult to detect; but the case presented is that of idiocy or im- becility, the characteristic of which is permanence, with little or no variation, though often, in the case of idiots, it does sometimes happen that there will be a greater degree of excitement demonstrated than at other periods. How is such a case to be met ? I apprehend, to meet it, and to show that such a state of things did not exist at any given period, proofs of acts of business are most im- portant evidence. Many acts of business could possibly be done by a lunatic, and the lunacy not detected; but it is scarcely possible to predicate the same of an idiot or an imbecile person. I shall look, therefore, in the first in- stance, to the acts of business. It is proved by Mr. F. that the deceased kept an account with Messrs. T., at Bath, for four years from 1818 to 1821, and during all that period occasionally drew draft?, and all those drafts (a) Ray Med. Jur. Insanity as. 54 et seq. Taylor Med. Jur. 633, ed. 1861, 634. Wharton Stille, Med. Jur. 8. 222. (b) Bannatyne v. Bannatyne, 2 Rob. 472. If . DISABILITIES — IDIOCY. n were paid to himself over the counter According Book H- to the evidence, the deceased came himself to the counter, Chap. Vli. and there is no proof of anyone accompanying him on Sect l- such occasions ; he asked for the sum he wanted ; the clerk filled it in, he signed it, and took the money. Surely no idiot could have done this, for he must have exercised thought to go to the bank, memory and judgment as to the sum required ; and, moreover, his conduct and de- meanour could not at such times have been as described by the witnesses against the will, or, from the glarir*^ colours in which his imbecility is depicted, it must have been discovered, and the business never could have been transacted at all. I consider these transactions, then, of first rate importance towards solving all the difficulties of this case. I will simply repeat what I have already in- deed said, that those who are afflicted with lunacy some- times have the management of, and can manage, their pecuniary affairs — an idiot never." Section II. Insanity. 1. Meaning of term " lunatic." 2. Meaning of term " insanity." 3. Main test of insanity said to be " delusion." 4. Definition of " delusion." 5. Opinion of the Court in Stanton v. Wetherax. 6. Case of Smith v. Tebbitt considered in connection with delu- sion, (o) Dr. Willis' definition of delusion. (b) No fault to be found with the language of definitions referred to. (c) Question of "insanity" and question of " delusion" one and the same. (d) In simple cases, proof of the delusion proof of insanity. (e) More complicated cases. What is to be said of th 3m ? (/) What are to be the tests of insanity ? (g) No tests furnished by the decided cases. (h) The test of comparison with one's own mind. (i) Insanity may be suspected without being proved. In other cases, patients' ideas, conduct, and demeanour, contrast with those of their fellow-men. I I ' ' i ^r4 ill m i'.sj I i':Mi rll ■j 5*1 J, a Mi wm H m I Iti ;l* I ' OF TESTAMENTARY CAPACITY. 7 Of the test of sanity. Opinion of Dr. Ray. ia) Comparison with himself as a test of a man's sanity. b) Comparison with persons resumbling the alleged patient in temperament and character. (c) Individual character endless in its varieties, (a) Conclusions to be drawn from same acts committed by di£ferent personr (e) Comparison with the insane. Opinion of Dr. Prichard. (/) Examples given by Esquirol. (q) Another example by the same writer. 8. Mode of testing a person's sanity considered. 9. Difficulty of laying down any general rule. 10. Insane person cannot make a will of lands or goods. 11. Proof of insanity lies on the person who alleges it. Sanity is presumed till the contrary is shown. 12. The burden of proof shifted if party who suppoi-ts the will gives evidence of competency. Judgment in Sutton v. iSdd- Ter on question of presumptions. (a) Reference to the cases cited on presumptions. (b) Opinion of Lord Chancellor in Attorney. Oe^ieral v. Pam- ther. (c) Opinion of Professor Greenleaf. d) Opinion of Mr. Starkie in his work on Evidence. e) Case of Barry v. Bxitlhi referred to. f) Opinion of Lord Brougham in Waring v. Waring. g) Conclusion to be drawn from the authorities, ] 3. Burden of proof in the case of a will found mutilated after death of testator, who became insane. 14. Will may be good as to one part and bad as to another. 15. Instructions for a will may be supported as a will, if insanity supervenes before regular will prepared. I 1 '' ■' Book II. Chap. VII. Sect. II. ■ »• ■(It ^ 1. The term " lunatic" in its more extended import in- cludes all persons of unsound mind who are not idiots or imbeciles (a). Lunatics were formerly supposed to be under the peculiar influence of the moon, from which the term is derived. This idea resulted from the occurrence of lucid intervals, which are common in the first stages of all cases of insanity, and occur sometimes at intervals of irre- gular duration and frequency, sometimes periodically, and with some appearance of regularity {h). 2. The term " insanity" though, strictly speaking, it comprehends all degrees of unsoundness of mind, is most (a) lRedf.Willb, 62-63. (6) 1 Pveuf. WiUfl, 61-62. DISABILITIES — INSANITY. 55 commonly used in the same sense as lunacy, as defined Book H- above, and in that sense it is proposed to use it in the Chap. VII. present chapter. Sect. II, 3. The main test of insanity, in a legal point of view, is said to be the existence of delusion (a). In Dew v. Clark (b) Sir John NichoU said, "The true criterion, the true test of the absence or presence of insanity, I take to be, the absence or presence of what, used in a certain sense of it, is comprisable in a single term, namely ' delusion.' Whenever the patient once conceives something extrava- gant to exist which has still no existence whatever but in his own heated imagination; and whenever, at the same time, having once so conceived it, he is incapable of being, or at least of being permanently, reasoned out of that conception, such a patient is said to be under a delu- sion, in a peculiar half-technical sense of the tern ; and the absence or presence of delusion, so understood, forms, in my judgment, the true and only test or criterion of ab- sent or present insanity. In short I look upon delusion in this sense* of it, and insanity to be almost if not altogether convertible terms, so that a patient under a delusion, so understood, on any subject or subjects in any degree, is, for that reason, essentially mad or insane on such subject or subjects in that degree. On the contrary, in the ab- sence of any such delusion, with whatever extravagances a supposed lunatic may be justly chargeable, and how like soever to a real madman he may either speak or act on some or on all subjects, still, in the absence, I repeat, of anything in the nature of delusion so understood as above, the supposed lanatic is, in my judgment, not properly or essentially insane." 4. Assuming the test of insanity stated by Sir John 629. o) Taylor Med. Jur. ed. 1861, (6) 1 Add. 279 S. C. 3 Add. 72; . G. 5 Bubs., 163. '% ' !i mf\ ffffl^ !!:^^ II'* j'iit I' I 56 OF TESTAMENTARY CAPACITY. Book II. Nicholl to be the true one, we are at once called to the Chap. VII. considerationof the word "delusion." What does it mean ? Sect. II. The same learned judge in Wheeler v. Alderson (a) sup- plies a definition of delusion. "Delusion," he saya, "is defined to be, when a patient conceives something extra- vagant to exist which has no existence but in his own heated imagination, and, having so conceived it, is inca- pable of being reasoned out of the conception (6) ; as, the fancying things to exist which can have no existence and are impossible according to the nature of things, as that trees walk (c) ; the magnifying slight circumstances be- yond all reasonable bounds, as, if the parent of a child, really blamable to a certain extent in some particulars, takes occasion to fancy her a fiend, a monster, an incar- nate devil (d). We can comprehend the delusion of a man who fancied he was Jesus Christ, and kindly extended his forgiveness when asked, saying, ' I am the Christ ;' also his, who imagined he corresponded with a princess in cherry juice, and his, who dreamed dreams and heard voi- ces directing him to burn York Minster Church. But we cannot comprehend a delusion upon a point of belief as to the nature of future rewards and punishments, and the principles of justice upon which they will be distributed. This is a subject bejcnd the ken of mortal man, and, in one sense of the word, perhaps, every individual is labour- ing under a delusion who attempts to solve it. Yet there is no subject we are more disponed to theorize about, and about which there is a greater conflict of opinion. The fool hath said in his heart there is no God, and, of course, no future rewards and punishments ; a dreadful error, yet no one apprehends that it amounts to insanity, and that he has not a disposing mind. The Turk looks to his hea- (a) 3 Hagg, 598-599. (I) Shelford Lunacy, 40. (c) Shelford, 293. (d) Shelford, 41. DISABILITIES — IN SANITY. 57 ven of sensual enjoyment, the Christian to his intellectual Book II. points of faith, differing as widely as the sources of their Chap. Vll. religion. Delusion, in its legal sense, cannot be predicated Sect. lit of either ; and, indeed, of no creed upon the subject, be- cause there is no test, by which it can be tried. The tes- tator's impressions are innocent and harmless at least, and,, for aught we can say, may be true. Charity, in all its ramifications, is a theme upon which our Saviour, while on earth, dwelt again and again with marked emphasis, and enforced with the strongest promises of rewards and pvnisshments. Upon this point there is no error." 5. And, in an American case (a) it is laid down that,, wherever the person conceives something extravagant to exist, which has in fact no existence whatever, and he is incapable of being reasoned out of this false belief, it con- stitutes insanity, and, if this delusion regard his property, he is incapable of making his r/ill, " It is only the belief of facts which no sane person would believe, which is in- sane delusion" (6). 6. In the recent case of Smith v. Tehhitt (c). Sir J. P. Wilde seemed unwilling to accept the definition of insane delusion laid down by Sir John Nicholl and the other authorities to which we have referred. Speaking of the test of delusion, he says (d) : " Thus far all is clear, but beyond it I search the decided cases in in for a guide. What is to be the proof of disease? What is to be the test, if there be a test, of morbid mental action ? The existence of mental ' delusions,' it would perhaps be an- (a) Stanton v. Wetherax, 16 Barb., 259 (b) Taylor's Med. Jur., 626, 6th edition. In a review of the flrst edi- tion of the Medical Jurisprudence of Insanity, Dr. Ray, in questioning the f.i.iner definitions of insane de- lusions, says : " If we may be al- lowed to tiy our hand at a definition of delusion, we should call it a belief in something impossible in the na- ture of things by the circumstances of the case. — Journal of Insanity, April, 1865, 515. (c) L. R. 1 Prob. 398 ; 36 L. J. 97 ; 16 L. T. N. S. 841. {d} At p. 401. m 1 111 '.ml M Is' li 'It I I if ri'wr 58 OF TESTAMENTARY CAPACITY. ^^ If 1 . '. 1 , f ■ !:■ r LI. -11: ■| !l. n Itt if B l|il 1 1. 1 1 i i. 1 i Book II. swered. But this only postpones the question in place of €hap. VII. answering it. For what is a mental ' delusion'? How is Sect. II. it to be defined so as to constitute a test, universally ap- plicable, of mental disorder or disease ? The word is not a very fortunate one. In common parlance, a man may be said to be under a ' delusion ' when he only labours under a mistake. The ' delusion ' intended is, of course, something very different. To say that a ' morbid ' or an ' insane delusion ' is meant, is to beg the question, for the 'delusion' to be sought is to be the test of insanity ; and to say that an insane or morbid delusion is the test of insanity or disease, does not advance the inquiry." "A belief of facts which no rational person would have be- lieved," says Sir John NichoU (a). "No ra^wwaZ person." This, too, appears open to a like objection, for what are the limits of a rational man's belief ? And to say that a belief exceeds them, is only to say that it is irrational or insane. " The belief of things as realities which exist only in the imagination of the patient," says Lord Brougham, in Waring v. Waring (6). But surely sane people often imagine things to exist which have no exist- ence in reality, both in the physical and moral world. What else gives rise to unfounded fears, unjust suspicions, baseless hopes, or romantic dreams ? ♦ (a) "I turn to another definition. It is by Dr. Willis, a man of great eminence, and is quoted by Sir John Nicholl in Dew v. Clark. ' A pertinacious adherence to some delusive idea, in opposition to plain evidence of its falsity.' This seems to offer a surer ground ; but then the ' evi- dence ' of the falsity is to be ' plain,' and who shall say if it be so or not ? In many or most cases it would be easy enough. Those who have entertained the ' delusive (a) In Deio v. Clark, reported by Dr. Haggard at p, 7> (6) 6 Moo. P. C. at p. 354. ii J DISABILITIES — INSANITY. m idea ' that their bodies were made of glass, or their legs Book II. of butter (as it may be found in medical works that some Chap. Vll, have done), certainly have 'plain evidence' at hand — Sect. II. the evidence of their senses — of its falsity. But what if the ' delusive idea ' concern a subject in which the senses play no part, and the ' plain evidence ' by which it is to be discharged is matter of reasoning, and addressed to the intellectual faculty ? Will all sane men agree whether the evidence is plain or not ? And, if not, shall one man in all cases pronounce another a monomaniac when the evidence is plain, to his reason, of the falsity of the other's ideas ? (6) " I find no fault with the language of these definitions as fairly and properly describing the mental phenomena they are used to depict. I only asnert that the existence of mental delusions thus defined is not capable of being erected into a universal test of mental disease. (c) " It is, no doubt, true that mental disease is always accompanied by the exhibition of thoughts and ideas that are false and unfounded, and may therefore be properly called ' delusive.' But what I mean to convey on this head is this, that the question of insanity and the ques- tion of ' delusions ' is really one and the same — that the only delusions which prove insanity are insane delusions — and that the broad inquiry into mental health or dis- ease cannot in all cases be either narrowed or determined by any previous or substituted inquiry into the existence of what are called ' delusions.' {d) "I say in all cases; for in some such as those to which 1 have already alluded, where the delusive idea ought to receive its condemnation and expulsion at once from the simple action of the senses, the contrary is the case ; and the same may be said of delusions obviously opposed to the simple ordinary and universal action of reason in '\K - ':'■ h''> . ml :1.^ Ml m m m i'l ffff'T^ 60 OF TESTAMENTARY CAPACITY. ^1 f. m Book II. healthy minds. These are the simple cases, about which Chap. VII. no one would doubt, and in them the proof of the ' delu- Sect II. sions ' is also the proof of insanity without more. (e) "But what is to be said of the more complicated cases ? What if the diseased action of the mind does not exhibit itself on the surface, as it were, opposing its hallucinations to the common senses or reason of all mankind, but can be tracked only in the recesses of abstract thought or re- ligious speculation — regions in which the mental action of the sane produces no common result — ^and all is ques- tion and conflict ? In what form of words coixld a 'delusion' be defined, which would be a positive test of insanity, in such cases as these ? In none, I conceive, but ' insane delusions,' or words of the like import, which carry with them the whole breadth of the general in- quiry. (/) " How, then, is this question of insanity to be ap- proached by a legal tribunal? What tests are to be applied for disease ? What limits assigned within which extravagance of thought is to be pronounced compatible with mental health ? (jg) "The decided cases offer no light on these heads. I nowhere find any attempt to devise such tests or assign such limits. Nor do I conceive that any tests, however elaborate, beyond the common and ordinary method of judging in such matters, would be competent to bear the strain of individual cases in the course of experience. It is perhaps worth while, then, to step aside for a moment to inquire what that common and ordinary method of judging is, and upon what it is founded. (h) " No man knows aught of the condition of another's mind except by comparison with his own ; and, in insti- tuting this comparison, we recognise the general fact that all mankind are endowed vnth the same senses, moved by DISABILITIES — INSANITY. e^i the like emotions, governed by the same restraints, and Book ii. guided by the same faculties. All these vary in their Chap. vii. force and action in different individuals, or the same indi- Hect. ll. vidual at diflPerent times. But they vary within certain limits, and certain limits only. It is when the words or deeds of others, referred to our own standard and that which, by experience, is found to be the common standard of the human race, appear to transgress those limits, that we suspect these common senses, emotions, and faculties, which we know to exist, to be the subjects of disorder or disease. If the divergence be very marked, and exhibit itself either on many subjects or with uniform constancy in the behaviour of the individual, we pronounce disease without hesitation. In proportion as the divergence is either casual or trifling, or open to some other probable solution, the inquiry is difficult, and the j._^gment hesi- tates. Here, then, I think, is the simple rule by which mankind in general pronounce upon mental disease. But to those who have studied the subject of insanity another and alternative method is open. (i) "There may be, and no doubt are, many whose insanity is suspected but not proved ; but in the large majority of the insane, mental disease admits of no doubt whatever. Their ideas, their conduct and demeanour, contrast at al- most every point of comparison with those of their fellow- men. And it is the especial business of those who devote themselves to the mitigation or cure of this fearful malady, to study the ways and forms of thought and expression which attend upon it ; the sort of things that the insane .say and do ; their bearing and demeanour ; the occasions they choose or decline for the exhibition of their ruling ideas. All these become familiar to the medical attendant. Hence he is furnished with another road by which to ap- proach the determination of insanity in a doubtful case. U, ¥. . 'f-l.f! ' ■< 62 OP TESTAMENTAEY CAPACITY. ,*vl 1 ' i r \, '^m Book II. He can reason from the certainly to the probably diseased Chap. VII. mind, and is enabled to trace in the latter, liiieaments Sect. II. which are clearly marked in the former. Thus, while the world at large can only contrast the doubtful case with the sane, the physician has at hand the alternative con- trast with the insane. It is a consequence of these alter- nate methods of judgment that the question of insanity, though it falls to the lot of a legal tribunal, is properly a mixed one — partly within the range of common observa- tion, and in so far fit to be considered by a jury ; partly within the range of special experience, and in so far the proper subject of medical enquiry. It is the office of the Court, then, to inform itself, as far as opportunity permits, of the general results of medical observation, and to ap- proach the subject of this case on the two opposite sides thus indicated — searching for a fit conclusion by alter- nately presenting the parallel of sanity and insanity to the sayings and doings of the deceased." 7. The same learned judge, in the same case (a), made the following remarks upon the subject of comparison with others as a test of the sanity of an individual. He says : " Some thoughtful remarks on this head will be found in Dr. Ray's work on the ' Medical Jurisprudence of Insan- ity.' He says : " To lay down any particular definition of mania founded on symptoms, and to consider every person mad who may happen to come within the range of its application, would induce the ridiculous consequence of making a large portion of mankind of unsound mind. Some men's ordinary habits so closely resemble the beha- viour of the mad, that a stranger would be easily deceived ; as in the opposite case, where the confirmed monomaniac, by carefully abstaining from the mention of his halluci- xc) At p. 421. DISABILITIES — INSANITY. 63 nations, has the semblance of a perfectly rational man. Book II. Hence, when the sanity of an individual is in question, Chap. vii. instead of comparing him with a fancied standard of men- SectTii. tal soundness, as is too commonly the custom, his natural character should be diligently investigated, in order to determine whether the apparent indication of madness is not merely the result of the ordinary and healthy consti- tution of the faculties. In a word, he is to be compared with himself, not with others, and if there have been no departure from his ordinary manifestations, he is to be judged sane ; although it cannot be denied that striking peculiarities of character, such as amount to eccentricity, furnish strong ground of suspicion of predisposition to madness." (a) " ' Compare a man with himself,' says Dr. Ray ; ' his acts and thoughts now with his acts and thoughts at some previous period, when his mind was in undoubted health. You will the better detect what is morbid, than if you set up a general comparison with the thoughts and acts of mankind.' It is a variation of this reflection to say, compare a man's acts and thoughts with those of mankind whom in general temperament and character he most re- sembles. (J) "It may be that there is no period of undoubted health in the previous life of the patient to which you can refer, or the details of it may be wanting : and, in the absence of these, the best standard of comparison will present it- self in persons whose general temperament and character have some resemblance, — ^the closer the better, — to those of the individual whose sanity is in question. It is upon no other method of reasoning that mankind habitually form their judgment in such matters. (c) "Individual character, like the human face, though made up of features common to all, is endless in its va- ''■U ,ii" ''' i 1 ^^' t if-. :•■ '.W':^ ' 1 ■■ ■''■! ; ; :■■: ^ '64 OF TESTAMENTARY CAPACITY. Book II. rieties. But experience teaches ua that there are general •Chap. VII. attributes which serve to divide the bulk of mankind into Sect. II. many classes of character, and these classes present marked contrasts. The hilarious contrast with the dejected ; the nervous and sensitive with the coarse and bluff; the vi- vacious with the habitually silent and reserved ; the bold and confident with the timid and weak ; the open and lavish with the crafty and mean ; and lastly, the highly wrought and enthusiastic with the tame, colourless and commonplace. And these general characteristics are never practically omitted from the materials of judgment when in common life we pass an opinion upon the conduct of others. We habitually make allowance for them, whether we scrutinize their conduct for praise or blame, or whether we rely upon it for our own guidance, and not the less when we have to ask ourselves whether the conduct of an individual can be reconciled with soundness of mind. Things said and done by one sort of person would hardly surprise us ; the same words and deeds emanating from another of an opposite character we should esteem so un- accountable as to argue disease. {d) " In the former we perceive excesses beyond the ordinary standard to be in harmony with their general character, and we recognize them as features of it. In the latter we perceive extravagances as much at variance with their own ordinary character and deportment as with that of the rest of the world, and we pronounce them to be the offspring of morbid influence. It is, therefore, to mislead the judgment, not to guide it, to avert the true conclusion, not to induce it, that a parallel should be set up between such a person. ii3 Mrs. Thwaytes and those whose religious fervour has rendered them famous. And yet, if this argument fails, what warrant is there for affirm- ing that Mrs. Thwaytes' ideas were (within the range ot DISABILITIES — INSANITY". experience) such as sane people have been known to en- tertain ? (e) " I turn now to the comparison with the insane. Dr. Prichard, in his well-known work on ' Insanity in Relation to Legal Questions/ speaks of the following peculiarities attending monomania : ' The illusions or false impressions of the monomaniac have always, as I have said, reference to himself; they relate sometimes to his fortune, rank, or personal identity ; at others, to his health of body and his sensations. In the former class of cases, the patient, feeling himself unhappy, fancies himself in debt, ruined, betrayed; or, being disposed to an opposite state of feelings, possessed of great wealth and affluence, and superior to all mankind. The diflPerence of these impressions seems to depend upon the different state of spirits ; the persons affected by the former kind of impressions are those whose minds are predisposed to gloom and forebodings of ill ; the latter kind affect the sanguine and excitable. Many fancy themselves kings or emperors, prophets, or the pope. I have seen a French lunatic who exclaimed, with great appearance of dignity : " Je suis le pape, le saint-p^re del'Eglise."' (/) " 'Among monomaniacs,' says Esquirol, 'some believe themselves to be divine beings, and pretend to hold com- munication with heaven, declare that they have a com- mission from above, and set up for prophets or for divines ; they fancy themselves supematurally enlightened, and possessed of supernatural power.' {g) " And again : ' We have at the SalpStriSre,' continues the same writer, ' a young woman who had received some instruction in science, and who fancies that she directs the sun, the moon, and clouds ; when she is impatient of her abode in the hospital, she sometimes threatens us with rain, sometimes with drought. I have seen in the £ 65 Book II. Chap. VII. Sect. II. £ .3. . ' II ■ ■■ =' > ! if I; '•; m OG OF TESTAMENTARY CAPACITY. Book II. same hospital many females who fancied themselves em- Chap. VII. presses. Many think themselves kings and potentates, Sect II. ^^^ issue commands to their subjects ; some believe them- selves to be men of fame and distinguished philosophers ; others are celebrated poets or orators, and it is necessary to listen to their compositions in order to avoid giving them severe offence ; others, loaded with riches, distribute their benetits, and disperse their fortune on all who come to them in want.' " 8. It has been laid down that, where a person is labouring under an insane delusion, the proper mode of testing his sanity is to direct his attention to the subject matter of such delusion ; but, where a person is afflicted with habi- tual insanity, unaccompanied with delusions, his sanit} is to be tested by his answere to questions, his apparent re- collection of past transactions, and his reasoning justly with regard to them, and with regard to the conduct of individuals (a). 9. The opinions which have been given by various judges, as to the mode of testing insanity, shew that it is impos- sible to lay down any general rule which will meet every case. The consideration of insanity generally is closely involved in that of partial insanity or monomania, which forms the subject of the next section. 10. A person, while insane, cannot make a testament of either lands or goods (6). And a testament made during the continuance of the insanity cannot stand, even though the madness pass away (c). 11. If a person impeach the validity of awill onaccountof a supposed incapacity of mind in the testator, it will be incumbent on such party to establish such incapacity by (a) Nicholtv. Binnt, 1 S. &T. 239. (6) Swinb. Pt. 2, s. 3, Godolph. Ft. 1, c. 8, s. 2. 1 WilUama Exors. 18. (c) Swinb. Pt. 2, s. 3, pi. 2. Go- dolph. Pt. 1, c. 8, s. 2. 1 Williams Exors. 18. ^I^i DISABILITIES — INSANITY. the clearest and most satisfactory proofs (a). The bur- then of proof rests upon the person attempting to invali- date what, on its face, purports to be a legal act (6). San- ity must be presumed until the contrary is shown (c). Hence, if there is no evidence of insanity at the time of giving the instructions for a will, the commission of sui- cide three days after will not invalidate the instrument by raising an inference of previous derangement {d). 12. Should, however, the party who supports the will, in- stead of resting upon the presumption raised by law in favour of the sanity of the testator, give evidence of the competency of the testator, the onus of proof then remains on him to shew competency ; and, where there is evidence given impeaching such competency, the jury must decide upon the whole of the evidence given on both sides, and, if it does not satisfy them that the will is valid, they ought to pronounce against it (e). Some very valu- able observations on the doctrine of presumptions are contained in the judgment of the Court in the case last referred to. Cresswell, J., delivering the judg- ment of the Court of Common Pleas, said, "This was an ejectment tried before Bramwell, B., at the last Chester assizes. The defendant admitted that the plaintiff was heir-at-law of the person last seised, and claimed as devi- see, and insisted upon the right to begin, which was granted. His counsel then produced a will, and, after proving the execution of it, as required by the stat. 7 W. IV., and 1 Vict., c. 26, called witnesses to prove the com- petency of the testator. The plaintiff then gave evidence (a) The law seems unsettled as to how far in cases of alleged unsound- ness of mind hereditary constitutional insanity may be pleaded. Frere v. Peacock, 3 Curt. 664. (6) 2 PhilL Er. 293, 7th Ed. (c) Groom v. Tkomat, 2 Hagg. 434. (d) Burrows v. Burrows, 1 Hagg. 109. See also H(^ t. Hobp, 1 Hagg. 146. 1 Williams Exors. 18, 19. (e) Sutton V. SavUer, 3 C.B.N.S. 87; 3 Jut. N-S. 1150; 26 L.J.C.P. 284. 67 Book II. Chap, VII. Sect. II. i ■I r p? M\ m OF TESTAMENTARY CAPACITY. I I i (' Book II. to impeach his competency, and endeavoured to show tliat Chap. VII, he had been incompetent a nativitate. The learned judge, Sect II. i^ summing up, told the jury that the heir-at-law was en- titled to recover unless a will was proved ; but that, when a will was produced, and the execution of it proved, the law presumed sanity, and therefore the burthen of proof was shifted ; and that the devisee must prevail unless the heir-at-law established the incompetency of the testator ; and that if the evidence was such as to make it a measur- ing cast, and leave them in doubt, they ought to find for the defendant. A verdict having been found for th^ de- fendant, a rule nisi for a new' trial was granted in Easter Term, it being alleged that the learned judge misdirected the jury. (a) " The question was argued before us after last term, and some cases were cited in which it has been said that sanity is presumed, and that the onus of proof is on him who disputes it. The cases principally relied on were, The Attorney-General v. Parnther (a). Groom y Thomas (6), and Brooks v. Barrett (c) ; and a passage in Greenleaf s Treatise on Evidence was also relied on. (6) " The case of The Attorney-General v. Parnther was cited for the following passage in the judgment of the Lord Chancellor : ' If derangement be alleged, it is clearly incumbent on the party alleging it to prove such derange- ment ; if such derangement be proved, or be admitted to have existed at any particular period, but a lucid interval be alleged to have prevailed at the period particularly re- ferred to, then the burthen of proof a\itache8 on the party alleging such lucid interval, who must shew competence at the period when the act was done, and to which the lucid interval refers.' If that is correct, — and we see no (a) 3 Bro. C C, 441. (fr) 2 Hagg. 434. (c) 7 Pick. U. S. Rep. 94. DISABILITIES — INSANII Y Of) reason to dispute it, — the converse also is true, and he who Book II. alleges incompetency must prove it. Now, he who relies on Chap. VII. a will in opposition to the title of the heir-at-liiw, must Sect II. allege that it is the will of a person of sound and dispos- ing mind ; he must therefore prove it. The case of Oroom V. Thomas (a) was, in circumstances, very similar. The testator was admitted to have been once sane, and after- wards insane ; and there the Court held, that the party propounding a will, executed after the period when the testator was a. 76 OF TESTAMENTARY CAPACITY. Book II. any matters of business out of the range of his peculiar Chap. VII. infirmity ; and he often manifests considerable sagacity aect.~Tii. and forecast in keeping the particular subject of his de- lusions from the knowledge of others. But, more com- monly, he is not conscious of entertaining opinions differ- ent from the mass of men, even upon the particular sub- jects of his delusion ; and refuses to be cominced of labouring, in any degree, under mental unsoundness, (a) 2. Such being the definition of monomania, it is evi- dent that a will may be made by a monomaniac which may be entirely unconnected with and uninfluenced by the testator's infirmity ; whilst other wills may be the direct result cf, or .3 intimately connected with, the disorder existing oesta tor's mind. Cases of both kinds have engaged the attention of the Courts. 3. GreenivoocC a cas' furii''' s a remarkable instance of a will, in making which tLf-. Ic'^tutor was directly in- fluenced by delusion. Of this case Lord Eldon gives the following account, {b) He (Mr. Greenwood) was bred to the bar, and acted as chairman at the quarter sessions ; but, becoming diseased, and receiving in a fever a draught from the hands of his brother, the delirium taking its ground then, connected itself with that idea ; and he con- sidered his brother as having given him a potion with a view to destroy him. He recovered in all other respects, but that morbid image never departed ; and that idea ap- peared connected with the will, by which he disinherited his brother ; nevertheless, it was considered so necessary to have some precise rule, that, though a verdict was ob- tained in the Common Pleas against the will, the judge strongly advised the jury, on a second trial, to find the other way, and they did accordingly find in favour of the will. (a) 1. Kedf. Wills, 70-71, 71-72 (6) White V. Wilton, 13 Ves. 89. I .Ifipi ii.i^ui DISABILITIES — MONOMANIA. 77 4. The case of Dew v. Clark (a) is a leading authority Book II. on the subject of monomania, as connected with the Chap. II power of testamentary disposition. In that case the tes- Sect. III. tator's daughter pleaded, in opposition to the will of her father, that, besides labouring under mental perversion in some other particulars, especially on religious subjects, the deceased had an insane aversion to her (the daughter), and was actuated solely by that illusion to dispose of his property in the manner in which it was purported to be conveyed by the contested will. This plea was re- sisted by those supporting the will, as being inadmissible, but was allowed by Sir John Nicholl, by whom the whole subject is ably reviewed. The learned judge remarked : " She (the daughter) must be apprised however as well that the burden of proof rests with her, as that this bur- den, in my judgment, is, from the very nature of the case, a pretty heavy one. The present, indeed, may be less difficult to make out than Greenwood's case in one re- spect, as the delusion under which this deceased is charged to have laboured towards the complainant, is alleged to have been coupled with something of an insane feeling in other particulars, especially on the subject of religion ; although here, as in Greenwood's case, the general capa- city is, in substance, unimpeached. (a) " But she must understand that no course of harsh treatment — no sudden bursts of violence — no display of unkind or even unnatural feeling merely, can avail in proof of her allegation ; she can only prove it by making out a clear case of antipathy, clearly resolvable into men- tal perversion, and plainly evincing that the deceased was insane as to her, notwithstanding his general sanity. (6) " It was said that 'partial insanity' was unknown to the law. The observation could only have arisen from (a) 1 Add; 279. S.C. 3 Add. 79. t it f f tii:*!l M >„ ;.:«'^ -s|<| !"« ■ ^ U i,'i ■'Ti! r^^ 1: ' '"i I? f" < i '•■ ' |lii!-i- *; j I '] 1 ■■ : 7« Book II. Chap. VII. Sect. III. m OF TESTAMENTARY CAPACITY. mistaking the sense in which the Court used that term. It was not meant that a person could be partially insane and sane at the same moment of time. To be sane, the mind must be perfectly sound ; otherwise it is unsound. All that was meant was, that the delusion may exist only on one or more particular subjects. In that sense the very same term is used in no less an authority than Lord Hale, who says, ' There is a partial insanity of mind and a total insanity. The former is either in respect to things quoad hoc vel illud insanire. Some persons that have a competent use of reason in respect of some subjects, are yet under a particular aementia in respect of some parti- cular discourses, subjects, or applications. Or else it is partial in respect of degrees ; and this is the condition of very many, especially melancholy persons, who, for the most part, discover their defect in excessive fears and griefs, and yet are not wholly destitute of the use of rea- son ; and this partial insanity seems not to excuse them in the committing of any offence for its matter capital ; for doubtless, most persons that are felons of themselves, and others, are under a degree of partial insanity when they commit these offences.' It is verj'- difficult to define the invisible line that divides perfect and partial insanity ; but it must rest upon circumstances duly to be weighed and considered both by judge and jury, lest on the one side there be a kind of inhumanity towards' the defects of human nature ; or, on the other side, too great an indulg- ence given to great crimes. (c)" The first point for consideration, and which should be distinctly ascertained, as far as can be fixed, is what is the test and criterion of unsound mind, and where eccentricity and caprice ends, and derangement commences. Derange- ment assumes a thousand diflferent shapes, as various as the shades of human character. It shows itself in forms DISABILITIES — MONOMANIA. 79 very dissimilar both in character and degree. It exists in all imaginable varieties, from the frantic maniac chained down to the floor, to the person apparently ra- tional on all subjects and in all transactions save one ; and whose disorder, though latently perverting the mind, yet will not be called forth except under particular cir- cumstances, and will show itself only occasionally. We have heard of persons at large in Bedlam, acting as ser- vants in the institution, showing other maniacs and de- scribing their cases, yet being themselves essentially mad. We have heard of the person who fancied himself Duke of Hexham, yet acted as agent and steward to his own committee. It is further observable that persons under disorder of mind have yet the power of restriction from respect and awe. Both toward their keepers and toward others in different relations they will control themselves. There have been instances of extraordinary cunning in this respect, so much as even to deceive the medical and other attendants, by persons who, on effecting their pur- pose, have immediately shown that their disorder existed undiminished. (d.) " It has probably happened to most persons who have made a consideiable advance in life, to have had personal opportunities of seeing some of these varieties, and these intermediate cases between eccentricity and absolute frenzy — maniacs, who, though they could talk rationally, and conduct themselves correctly and reason rightly, nay, with force and ability, on ordinary sub- jects, yet, on others, were in a complete state of delu- sion — which delusion no arguments or proofs could remove. In common parlance, it is true, some say a per- son is mad, when he does any strange or absurd act ; others do not conceive the term ' madness' to be properly applied unless the person is frantic. Book II. Chap. VII. Sect. III. iH > I i w^ liii' h E ■• i ' 80 ■ OF TESTAMENTARY CAPACITY, Book II. (e) " As far as my own observation and experience cjin Chap. VII. direct me, aided by opinions and statements I have heard Sect. III. expressed in society, guided also by what has occun-ed in these and in other courts of justice, or has been laid down by medical and legal writers, the true criterion is, ivhen' there is delusion of mind there ia insanity : that is, when persons believe things to exist which exist only, or at lea.st in that degree exist only, in their own imagination, and of the non-existence of which neither argument nor proof can convince them, they are of unsound mind ; or, as one of the counsel accurately expressed it, * It is only the belief of facts which no rational person would have believed, that is insane delusion.' This delusion may, sometimes, exist on one or more particular subjects, though generally, there are other concomitant circumstances — such as eccentricity, irritability, violence, suspicion, exaggeration, inconsis- tency, and other marks and symptoms which may tend to confirm the existence of delusion, and to establish its insane character. (f) " Medical writers have laid down the same criterion by which insanity may be known. Dr. Battie, in his cele- brated treatise ' On Madness,' thus expresses it. After stating what is not properly madness, though often ac- companying it, namely, either too lively or too languid a perceptioK of things, he proceeds : ' But qui species alias veris capiet commotus hahehitur ; " and this by all man- kind as well as the physician, no one ever doubting whether the perception of objects not really existing, or not really corresponding to the senses, be a certain sign of madness. Therefore deluded imagination is not only an indisputable, but an essential characteristic of madness. (g) "■ Deluded imagination, then, is insanity. Mi*. Locke, who practised for a short time as a physician, though DISABILITIES — MONOMANIA. more distinguished as a philosopher, thus expresses him- self in his highly esteemed work on the ' Human Under- standing' : ' Madmen, having joined together some ideas very wrongly, mistake them for truths. By the violence of their imaginations, having taken their fancies for reali- ties, they make right deductions from them. Hence it comes to pass that a man who is of a right understanding in all other things, may, in one particular, be as frantic as any in Bedlam. Madmen put wrong ideas together* and so make wrong propositions, but argue and reason rightly from them." (h) " Here, again, the putting wrong ideas together, mis- taking them for truths, and mistaking fancies for realities, is Mr, Locke's definition of madness ; and he states that insane persons will reason rightly at times, and yet still are essentially mad, and that they may be mad on one particular subject only. (i) " I shall refer to only one othei medical authority ; but he is a person of great name as connected with men- tal disorder — I mean Dr. Francis Willis. In a recent publication by this gentleman, there occur passages not undeserving of my attention. The work is entitled, ' A Treatise on Mental Derangement,' being the substance of the Gulstonian lecture delivered before the College of Phy- sicians in the year 1822, and published in the month ^of March, 1823. Preceding his work, he gives a list of authors whom he has consulted, and he seems to have referred to almost every writer on the subject, ancient and modern. He has also personally had great practice in the particular disorder, as well as the advantage of acquiring much knowledge from the distinguished experience of his family. I will first refer to a passage where he points out the difference between an unsound mind and a weak mind, r {k) " A sound mind is one wholly free from delusion. F > . 81 Boor II. (^HAP. VII. Sect III. 1 'i I ;M fmm yMi 82 OF TESTAMENTARY CAPACITY. It}' ' #!. IH^: ! i I: ii. it i^ ■ f I Book II. Weak minds only differ from strong ones in the extent Chap. VII. and power of their faculties ; but unless they betray .sym- Sect.~lII. toms of delusion, their soundness cannot be questioned. An unsound mind is marked, on the contrary, by delu- sion, by an apparent insensibility to, or perversion of, those feelings which are peculiarly characteristic of our nature. Some lunatics, for instance, are callous to a just sense of affection, decency or honour ; they hate those without a cause, who were formerly most dear to them ; others take delight in cruelty ; many are more or less of- fended at not receiving that attention to which their de- lusions persuade them they are entitled. Retention of memory, display of talents, enjoyment of amusing games, and an appearance of rationality on various sujects, are not inconsistent with unsoundness of mind ; hence, some- times, arises the difficulty of distinguishing between san- ity and insanity." 5. The cases referred to, and numerous other cases, both in the English and American Courts, have clearly estab- lished the proposition, that, whenever it appears that the Vvill is the direct offspring of the partial insanity or mo- nomania, uiider which the testator was labouring, it should be regarded as invalid, though his general capacity be un- impoached (a). 6. It was reserved for Lord Brougham, in the case of Waring v. Waring (b) to give weighty authority to the doctrine, that any person, labouring under delusion or mo- nomania, to any extent, or upon any subject, is not to be regarded as competent to execute a valid will. 7. This docti'ine seems to have been accepted as law by Sir J. P. Wilde, in the recent case of, Smith v. Tebhitt (a) 1 Redf. Wills 78-79. Potts V. Houte, 6 Ga. 324. Townshend v- Toionshend, 7 Gill 10. Boi/d v. £by, 8 Watts, 71. Leech v. Leech, 11 Penn. Law J., 17». (6) 6 Moo. P. C. 349 ; S. C, 12 Jut. 947. DISABILITIES — MONOHANIA. 83 («), a case whicii on other points, deserves careful conside- Book II. ration. The learned jud^e remarks (h), " A person who chap. vii. is affected by monomania, although sensible and j)rudent Sect. III. on subjects and occasions other than those upon which his infirmity is commonly displayed, is not in law capable of ma' '•^n' a will. This has been clearly decided in the seven .es quoted at the bar, of which it is only neces- sary to name that of Wariivj v. Waring {c). It is need- less to travel over the paths by which this conclusion has been reached. It is properly the starting point in sudian enijuiry as the present. For I conceive the decided cases to have established this proi)Osition : that, if di-sease he once shewn to exist in the mind of the testator, it matters not that the disease be discoverable only when the mind is addressed to a certain subject, to the exclusion of all others, the testator must be pronounced incapable. Fur- ther, that the same result follows, though the particular .subjec* oon which the disease is manifested have no con- nectif xtever with the testamentary disposition be- fore the Court." 8. It is satisfactory however to be able to state that the doctrine in question which was never accepted by the ju'ofession as sound law, has been completely overturned by the recent case of Banks v. Goodfelhiv (d) The judg- ment in this case delivered by Chief Justice Cockburn contains a complete review of the authorities on the sub- ject of insanity. The learned Chief Justice, after stating the facts of the case, proceeds as follows (e). (a) " The question whether partial unsoundness, not affecting the general faculties, and not operating on the (a) L. R. 1 Prob. 398. 36 L. J. P. 97. 16 L. T. N. S. 841. (5) At p. 401, L. R. (c) 6 Moo. P. C. 341, (d) L. R. 5 Q. B. 549. 39 L. J. Q. B. 237. 22 L. T. N. S. 813. (c) The great importance and the instructive character of this remark- able judgment are the author's apo- logy for its insertion in the text. 1 i^ H I villi 1 : ■ *: 'li"ai*i! II m M fi 1;, !' ■< !■• 84 OF TESTAMENTARY CAPACITY. Book II. mind of a testator in regard to the particular testamen- Chap. vil tary disposition, will be sufficient to deprive a person of Sect. III. the power of disposing of his property, presents itself here for judicial decision, so fai as we are aware, for the first time. It is true that, in the case of Wamng v. Wamng (a), the Judicial Committee of the Privy Council, and, in the more recent case of Smith v. Tehhitt (6), Lord Penzance, in the Court of Probate, have laid down a doctrine, according to which any degree of mental un- soundness, however slight, and however unconnected with the testamentary disposition in question, must be held fatal to the capacity of a testator. But in both these cases, as we shall presently .shew, the wide doctrine embraced in the judgment was wholly unnecessary to the decision, and we therefore feel ourselves warranted, and indeed bound, to consider the question as one not concluded by authority, and on which we are called upon to form our own judgment. The question is one of equal importance and difficulty, and we have given it our best consideration. (6) " The text-writers throw no light upon the poJnt. They content themselves with stating in general terms that to be capable of making a will a man roust be of sound disposing mind and memory, and that persons non compotes cannot make a will ; but they are silent as to tlioi degree of mental disturbance which will amount to a want of disposing mind and memory. The cases prior to Waring v. Waring (a), in which the law on the subject of mental unsoundness, as affecting the capacity to make a will, has come into question, are by no means numerous. It may be as well to pass them in review. (c) " In Comhe's Case (c) it is said to have been agreed a) 6 Moo. P. C. 341. b) L. R. 1 Prob. 398. (c) Moore, 759 ; S. C. 8 Vin. Ab.43, No. 22. DISABILITIES — MONOMANIA. by the judges, ' that sane memory for the making of a Book li. will is not always where the party can in some things Chap. VII, answer with sense, but he ought to have judgment to Sect. III. discern and to be of perfect memory, otherwise the will is void.' So, again, in the Marquis of WincJieater's Case (a), ' By the law, it is not sufficient that the testator be of memory, when ho makes the will, to answer familiar and usual questions, but he ought to have a disposing memory, so as to be able to make a disposition of his estate with understanding and reason.' In the case of Greenwood v. Greenwood (b), an action brought to recover estates under a will, the validity of which was disputed, the principal indication of insanity relied on being a strange avereion on the part of the testator towards his only brother, his heir at law, and a gioundle.ss suspicion of the latter hav- ing attempted to poison him, Lord Kenyon, in charging the jury, oaid : ' I take it a mind and memory competent to dispose of property, when it is a little explained, per- haps may stand thus : — having that degree of recollection about him that would enable him to look about the pro- perty he had to dispose of, and the jiersons to whom he wished to dispose of it. If he had a power of summoning up his mind, so as to know what his property was, and who those persons were that then were the objects of his bounty, then he was competent to make his will.' In other cases, such as the well-known case of Deiu v. Clark (c), the insane delusion had a direct bearing on the pro- provisions of the will. In such cases, the delusion being once proved, and its connection with the wall being manifest, there could be no difficulty in setting aside the will. Cases of this description aflbrd little or no assist- ance towards the solution of the question before us. la) 6 Rep. 23 3 Curt. App. XXX. (c) 3 Add. 79; Haggard's Report of Judgment, p. 19. '':!; < .: i :i.l< ■i ' i ■ ' P K i ! 1 1,. 86 OF TESTAMENTARY CAPACITY. Book II. Again, other cases occurring prior to the case of Wariny Chap. VII. V. Waring (a), such as The Attorney-General v. Parnther Sect. III. (&) and CartwHght v. Cartwright (c), had reference to the effect to be given to a lucid interval at the time of making the will, rather than to the degree of mental unsoundness which would constitute testamentary incapacity. The judgment in the latter case id, however, not unworth}^ of attention. The case was a remarkable one, from the fact that the will had been made by a person actually confined in a lunatic asylum, and who was undoubtedly insane both before and after the making of the will ; neverthe- less it was upheld. Sir William Wynne, the then Judge of the Prerogative Court of Canterbury, in giving judg- ment, uses language tending strongly to shew that, in his opinion, the rationality of the act done affords an effectual test of the mental capacity of the party doing it. He says (d): 'I think the strongest and best proof that can arise as to a lucid interval is that which arises from the act itself : that I look upon as the thing to be first ex- amined, and if it can be proved and established that it is a rational act rationally done, the whole case is proved. What can you do more to establish the act « Because, suppose you are able to shew that the party did that which appears to be a rational act, and it is his own act entirely, nothing is left to presumption in order to prove a lucid interval. Here is a rational act rationally done. In my apprehension, where you are able com- pletely to establish that, the law does not require you to go further, and the citation from Swinburne states it to be so. The manner he has laid down is (it is in the part (e) in which he treats of what persons may make a will) : (a) 6 Moo. P. C. 341. (6) 3 Bro. O. C. 441. (c) 1 Phillim. 90, 100. (d) 1 Phil, at p. 100. (e) Swinb. Ft. 2, b. 3, •i ti DISABILITIES — MONOMANIA. 87 ' If a lunatic person, or one that is beside himself at some Book II. times, but not continually, make his testament, and it is Chap. Vll. not known whether the same were made while he was of sect. III. sound mind and memory or no, then, in case the testa- ment be 80 conceived as thereby no argument of phrensy or folly can be gathered, it is to be presumed that the same was made during the time of his calm and clear intermissions; and so the testament shall be adjudged good, yea, although it cannot be proved that the testator useth to have any clear and quiet intermissions at all, yet, nevertheless, I suppose that if the testament be wisely and orderly framed, the same ought to be accepted for a lawful testament.' ' Unquestionably,' Sir William Wynne continues, ' there must be a complete and absolute proof the party who had so framed it did it without any assistance. If the fact be so that he has done as rational an act a* can be, without any assistance from another person, what there is more to be proved I don't know, unless the gentleman could prove by any authority, or law, what the length of the lucid interval is to be, whether &i hour, a day, or a month. I know no such law as that All that is wanting is, that it should be of sufficient length to do the rational act intended. I look upon it, if jou are able to establish the fact that the act done is perfectly proper, and that the party who is alleged to have 6om it was free from the disorder at the time, that is completely sufficient.* (d) " Without going to the length of adopting to its full extent what is here said as to the effect of the rational character of the will, or at all saying that effect can be given to the rationality of the disposition beyond that which is due to it as evidence of the sanity of the tes- tator, we ad»rert to this case and the judgment of Sir William Wyme as shewing that a more indulgent view iH iKl i i ii 1 Ii i ,-\ lli^ B 1 M I ' t- 88 OF TESTAMENTARY CAPACITY. Book II. of the effect of insanity, as affecting testamentary inca- Chap. VII. pacJty, was then taken than has latterly prevailed. Sect. III. (e) " We come now to the case of Waring v. Waring {a) (since followed by that of Smith v. Tebhitt (6) in which the doctrine now contended for on behalf of the plaintiff was for the first time laid down. It may be shortly stated thus : To constitute testamentary capacity, soundness of mind is indispensably necessary. But the mind, though it has various faculties, is one and indi- visible. If it is disordered in any one of these faculties, if it labours under any delusion arising from such disorder, though its other faculties and functions may reniain un- disturbed, it cannot be said to be sound. Such a mind is unsound, and testamentary incapacity is the iiecessar}' consequence. (f) "As has already been observed, neither ii Waring V. Waring (a) nor in Smith v. Tebhitt (6), was the doc- trine thus laid down in any degree necessiry to the decision. Both these were cases of general, net of partial, insanity ; in both the delusions were multifaiious, and of the wildest and most inational character, abundantly indicating that the mind was diseased thrcughout. In both there was an insane suspicion or dislile of persons who should have been objects of affection ; and, what is still more important, in both it was palpfble that the delusions must have influenced the testameitary disposi- tion impugned. In both these cases, tlwrefore, there existed ample grounds for setting aside tht will without resorting to the doctrine in question. Unajle to concur in it, we have felt at liberty to consider forourselves tlie principle properly applicable to such a case ffl the present. We do not think it necessary to consider the position (a) 6 Moo. p. C. 341. (6) L.R. IProb. 398. 1 i! t ■* DISABILITIES— MONOMANIA. 89 assumed in Waring v. Waring (a), that the mind is one Book ii. and indivisible, or to discuss the subject as matter of Chap. vil. metaphysical or psychological inquiry. It is not given Sect. Ill, to man to fathom the mystery of the human intelligence, or to ascertain the constitution of our sentient and intel- lectual being. But whatever may be its essence, every one must be conscious that the faculties and functions of the mind are various and distinct, as are the powers and functions of our physical organization. The senses, the instincts, the affections, the passions, the moral qualities, the will, perception, thought, reason, imagination, memory, are so many distinct fa^^Mlties or functions of the mind. The pathology of mental disease and the experience of insanity in its various forms teach us that while, on the one hand, all the faculties, moral and intellectual, may be involved in one common ruin, as in the case of the raving maniac, in other instances one or more only of these faculties or functions may be disordered, while the rest are left unim- paired and undisturbed ; — that while the mind may be overpowered by delusions which utterly demoralize it and unfit it for the perception of the true nature of sur- rounding things, or for the discharge of the common obligations of life, there often are, on the other hand, •elusions, which, though the offspring of mental disease and so far constituting insanity, yet leave the individual in all other respects rational, and capable of transacting the ordinary affairs and fulfilling the duties and obliga- tions incidental to the various relations of life. No doubt when delusions exist which have no foundation in reality, and spring only from a diseased and morbid condition of tlie mind, to that extent the mind must necessarily be taken to be unsound ; just as the body, if any of its parts (a) 6 Moo. P. C. 341. }m i>\ ! i^ %\\i ¥\ ■! i lli' I ! 90 OF TESTAMENTARY CAPACITY. Book II. or functions is affected by local disease, may be said to be Chap. VII. unsound, though all its other members may be healthy, Sect. III. and their powers or functions unimpaired. But the ques- tion still remains, whether such partial unsoundness of the mind, if it leaves the aiTections, the moral sense, and the general power of the understanding unaffected, and is wholly uwconnected with the testamentary disposition, should have the effect of taking away the testamentary capacity. (g) " We readily concede that where a delusion has had, as in the case of Dew v. Clark (a), or is calculated to have had, an influence on the testamentary disposition, it must be held to be fatal to its validity. Thus if, as occurs in a common form of monomania, a man is under a delusion that he is the object of persecution or attack, and makes a will in which he excludes a child for whom he ought to hiive provided ; though he may not have adverted to that child as one of his supposed enemies, it would be but reason- able to infer that the insane condition had influenced him in the disposal of his property. But, in the case we are dealing with, the delu.sion must be taken neither to have had any influence on the provisions of the will, nor to have been capable of having any ; and the question is, whether a delusion, thus wholly innocuous in its results as regards the disposition of the will, is to be held to have the effect of destroying the capacity to make one. (h) " The state of our own authorities being such as we have shown, we have turned to the jurisprudence of other countries, as on a matter of common juridical interest, to see whether we could there find any assistance towards the solution of the question. We have, however, derived tut little advantage from the inquirj'. The Roman law, the (a) 3 Add. 79, and HagRard's Re- port. of the Judgment. great eral on and th are dec what si lill DISABILITIES — MONOMANIA. 91 gieat storehouse of juridical science, is as vague and gen- Book II. eral on the subject as our own. The madman (furiosus), Chap. Vll. and the person of defective intelligence (mente captus), Sect. III. are declared incapable of making a testament ; but as to what shall constitute madness or defectiveness of intelli- gence, suflBcient to prevent the exercise of the testamen- tary right, the authorities are silent. The continental codes are equally general in their terms, simply providing, either that persons must be of sound mind to make a will, or that persons of unsound mind shall be disabled from doing so. The older writers appear not to have been alive to the distinction between total and partial unsoundness as affecting testamentary capacity. In recent times, however, the question has been mooted by eminent and distinguished jurists, but unfortunately with a marked discordance of opinion. M. Troplong, in his well known work, ' Le Droit Civil Expliqu^ ' (a), and M. Sacase, in a treatise entitled ' La Folic consid^r^e dans ses rapports avec la Capacity Civile ' (6), have adopted the doctrine of the unity and indivisibility of the mind, and the conse- quent unsoundness of the whole if insane delusion any- where exist. Writers equally entitled to respect have main- tained the contrary view. Legrand du Saule, in a very able work, entitled ' La Folic devant les tribunaux * (c), contends that ' hallucinations are not a sufficient obstacle to the power of making a will, if they have exercised no influence on the conduct of the testator, have not altered his natural affections, or prevented the fulfilment of his social and domestic duties ; while, on the other hand, the will of a person affected by insane delusion ought not to be admitted if he has disinherited his family without cause, or (a) Commentaire sur les donatioiw (6) P. 16 t-ntre vifa et testamenta, torn. iL §§ (c) P. 146. 451-7. ■u-K f' " •ject which he may possibly have often thought of, (») 4 Wuhing^AD, at p. 267 11 ,3q fe i 1 m ! I :• I ' , '•1 i f I, 1 m I * r f 1 i r ! I 100 OF TESTAMENTARY CAPACITY. Book. II. and there is probably no person who has not arranged Chap. VII. such a disposition in his mind before he committed it to Sect. III. writing. The question is not so much whit was the de- gree of memory possessed by the testator ? as this : Had he a disposing memory ? was he capable of recollecting the property he was about to bequeath ; the manner of distributing it ; and the objects of his bounty ? To sum up the whole in the moat simple and intelligible form, were his mind and memory sufficiently sound to enable him to know and to understand the business in which he was engaged at the time he executed his will ?" (s) This view of the law is fully adopted by the Court in the case of Sloan v. Maxwell (b), and is there stated to have been approved by Chancellor Vroom in a case as to the will of Tace Wallace, which, however, is not re- ported. It appears to have had the sanction of Cliancel- lor Kent, in the case of Van Aht v. Hunter (c), already referred to. {t) In a case of Hai'u'ood v. Baker {d), before the Ju- dicial Committee of the Privy Council, in which case a will had been executed by a testator on his deathbed, in favour of a second wife, to the exclusion of the other members of his family, he being in a state of weakened and impaired capacity from disease producing torpor of the brain, amd rendering his mind incapable of exertion unless roused, Erskine, J., delivered the judgment of the Court in these terms : {a) ' Their lordships are of opinion that, in order to constitute a sound disposing mind, a tes- tator must not only be able to understand that he is by his will giving the whole of his property to one object of his regard, but he must also have capacity to comprehend •^ i (a) 2 H.W. Green (N.J. Chan. R.) ."563. '6) 5 J ohm. N. Y. Cb. Rep. at p. 169. (r) .'< M(>o P. C. 282. {U) 3 Moo. P. C. 291. DISABILITI ES— MONOMANIA. m the extent of his property, and the nature of the claims of others, whom by his will he is excluding from all partici- pation in that property ; and that the protection of the law is in no cases more needed thar. it is in those where the mind has been too much enfeebled to comprehend more objects than one ; and more especially, when that one object may l^e so forced upon the attention of the invalid as to shut out all others *'\'it might require consideration. And, therefore, the que »i} which their Lordships pro- pose to decide in this case is, not whether Mr. Baker knew, when he executed this will, that he was giving all his property to his wife, and excluding all his other rela- tions from any share in it, but wliether he was at that time ca])able of recollecting who those relations were, of understanding their respective claims upon his regard and bounty, and of deliljerately forming an intelligent pur- pose of excluding them from any share of his property. If he had not the aipacity required, the pro])riety of the disposition made by the will is a matter of no importance. If he had it, the injustice of the exclusion would not affect the validity of the disposition, though the justice or injustice of the disj)osition might cast down some light upon the question as to his capacity.' (u) " From this language it is to be inferred that the standard of capacity in cases of impaired mental power is, to use the words of the judgment, the f; pacity on the part of the testator to comprehend the extent of the property to be disposed of, and the nature of the claims of those he is excluding. Why should not this standard be also applicable to mental unsoundness produced by mental disease ? (v) " It may be said that the analogy lietween the two cases is imi)erfect; that there is an essential difference between unsoundness of mind arising from congenital Book II. c'HAprvii. 8«ct. III. i:|i!| ' n4 ,f ,i ' I'i I' 1 \ iN 102 OP TESTAMENTARY CAPACITY. ']■ W I" I I ,11 i« rrij r Book II. defect, or supervening infirmity, and the perversion of Chap. VII. thought and feeling produced by mental disea.se, the Sect. III. latter being far more likely to give rise to an inofficious will than the mere deficiency of mental power. This is, no do\ibt, true, but it becomes immaterial on the hypo- thesis that the disorder of the mind has left the faculties, on which the proper exercise of the testamentary' power depends, unaffected, and that a rational will, uninfluenced by the mental disorder, has been the result. (w) " It is said, indeed, by those who insist that any degree of unsoundness should suffice to take away testa- mentary capacity, that where insane delusion had shewn itself, it is always possible, and indeed may be assumed to be probable, that a greater degree of mental unsound- ness exists than has actually become manifest. But this view, which is by no means universally admitted, is unsupported by proof, and must be looked upon as matter of speculative opinion. It seems unreasonable to deny testamentary capacity on the speculative possibility of unsoundness which has failed to display itself, and which, if existing in a latent and undiscovered form, would be little likely to have any influence on the disposition of the will. No doubt, where the fact that the testator has been subject to any insane delusion is established, a will should be regarded with great distrust, and every pre- sumption should in the first instance be made against it. Where insane delusion has once been shewn to have existed, it may be difficult to say whether the mental disorder may not possibly have extended beyond the particular form or instance in which it has manifested itself It may be etiually difficult to say how far the delusion may not have influenced the testator in the particular disposal of his pro[)erty. And the presump- tion against a will made under such circumstancoa be- DISABILITIES — MONOMANIA. 103 comes additionally strong where the will is, to use the ^°^^ '^• term of the civilians, an inofficious one, that is to say, Chap^vii, one in which natural affection and the claims of near Sect Hi- relationship have been disregarded. But where in the result a jury are satisfieu that the delusion has not affected the general faculties of the mind, and can have had no effect upon the will, we see no sufficient reason why the testator should be held to have lost his right to make a will, or why a will made under such circum- stances should not be upheld. Such an enquiry may involve, it is true, considerable difficulty, and require much nicety of discrimination, but we see no reason to think that it is beyond the power of judicial investiga- tion and decision, or may not be disposed of by a jury directed and guided by a judge. In the case before us two delusions disturbed the mind of the testator, the one that he was pursued by spirits, the other that a man long since dead came personally to molest him. Neither of these delusions — the dead man not having been in any way connected with him — had, or could have had any influence upon him in disposing of his property. The will, though in one sense an idle one, inasmuch as the object of his bounty was his heir-at-law, and therefore would have taken the property without its being de- vised to her, was yet rational in this, that it was made in favour of a niece, who lived with him, and who was ihe object of his affection and regard. And we must take it on the finding of the jury that irrespectively of the question of these dormant delusions, the testator was in possession of his faculties when the will was executed. (x) "Under these circumstances, we see no ground for holding the will to be invalid. If, indeed, it had been lx)S8ible to connect the dispositions of the will with the delusions of the testator, the form in which the case was I • ' {• ■■* ^1 m I; •' m ''(i'r!lj ^' ii 1 ! ! \l 104' OF TESTAMENTARY CAPACITY. I- * ' 1^ SI Book II. left to the jury might have been open to exception. It Chap^vii. may be, a.s waw contended on the part of the plaintiff, Sect III. that in a case of unsoundness, founded on delusion, but which delusion was not manifested at the time of making the will, it is a question for the jury whether the delusion was not latent in the mind of the testator. But, then, for the reasons we have given in the coui^se of this judgment, we are of opinion that a jury should be told, in such a case, that the existence of a delusion, compatible with the retention of the general powei-s and faculties of the mind, will not be sufficient to overthrow the will, unle.'^s it were such as was calculated to iuiiuence the testator in making it." 9. This able and elaborate judgment completely ex- hausts the subject of monomania, and will, no doubt, long continue to be a leading authority on the subject of in- sanity in its various forms. 10. Monomania must be carefully distinguished from mere eccentricity. No case lias yet gone the length of avoiding a will on the mere grounrl of eccentricity in the testator. The distinction between monomania and eccen- tricity is said to consist in the fact that the eccentric man is aware of his peculiarity, and persists in his courae from choice, and in defiance of the popular sentiment, while the monomaniac verily believes he is acting in confonnity to the most wise and judicious counsels, and often seems tu have lost all control over his voluntary powers, and to be the dupe and victim of some demon (a). 11. The will of an eccentric man, however strange ami unaccountable it may seem upon the ordinary grounds of human judgment and exi)erience, is, nevertheless, such an instrument as those acquainted with the character and (a) 1 Redf. WiUs, 71-72. DISABILITIES — MONOMANIA. 105 conduct of the testator in former years, would be prepared Book XL in some sense to expect ; while, on the other hand, the Chap. vn. will of an insane man, especially where it is tinged with Beet. III. the peculiar colouring of the testator's fancies or delusions, is often strangely at variance with all the leading charac- teristics of the testator in his formerly healthy and sound condition. Eccentric habits, suddenly acquired, are pro- perly regarded as evidence of insanity (a). 12. The case oi Morgan v. Boy a (6) is an illustration of eccentricity carried into the testamentary act. The tes- tii tor devised his property to a stranger, thus wholly dis- inheriting the heir, or next of kin, and directed that his executors should " cause some parts of his bowels to be converted into fiddle strings, that others should be sub- limed into smelling-salts, and that the remainder of his body should be vitrified into lenses for optical purposes." In a letter attached to the will, the testator said : " The world may think this to be done in a spirit of singularity or whim, but I have a mortal avereion to funeral pomp, and I wish my body to be converted into purposes useful to mankind." The testator was shown to have conducted ills atiaii-s with great shrewdness and ability, and, so far from being imbecile, he had always been regarded by his associates through life as a person of indisputable capacity. Sir Herbert Jenuer Fust regarded the proof as not suffici- ent to establish insanity ; it amounted to nothing more than eccentricity in his judgment (c). 13. In another remarkable case (d), the difference be- tween insanity and eccentricity was considered by the Courts. The testator was a native of England, but had lived in the East, and was familiar with Eastern habits !' S: ¥ '•%n .11. u ■'H y n (a) Taylor Med. Jur. 632, 656, 6th E>1. 1 Redf. Wills, 84-85. (b) Taylor Med. Jur. 657 1838. Ic) 1 Redf. Willa, 82-83. (tf) Auttm V. Oraham, 8 Moo. P. C. 493. J 106 OF TESTAMENTARY CAPACITY. Book II. and superstitions, and professed his belief in the Mahom- Chap. VII. metan religion. He died in England, leaving a will, which, Sectrill. *^fter vario',8 legacies, gave the residue to the poor of Con- stantinople, and also toward erecting a cenotaph in that city, inscribed with his name, and bearing a light con- tinually burning therein. The Prerogative Court pro- nounced the testator to be of unsound mind, principally upon the ground of this extraordinary bequest, which sounded to folly, together with the wild and extravagant language of the testator, proved by parol. But, on appeal, it was held that, as the insanity attributed to the testator was not monomania, but general insanity or mental de- rangement, the proper mode of testing its existence waste review the life, habits, and opinions of the testator, anO, on such a review, there was nothing absurd or unnatural in the bequest, or anything in his conduct, at the date of the will, indicating derangement, and it was therefore admitted to probate (a). Section IV. Of Lucid Intervals. 1. During lucid intervals testamentary capacity is restored. 2. If a lucid interval is established, the order of proof and pre- sumption is inverted. 3. Lord Thurlow's definition of a lucid interval. 4. Lord Eldon's remarks upon this opinion. 6. Lord Thurlow's definition misunderstood by Lord Eldon. 6. Insanity being once proved, the presumption is that it con- tinues to exist. 7. No particular measure of proof required to establish a lucid interval. 8. Great caution should be used in examining such proof. 9. Suicide not conclusive evidence of insanity. 10. Presumption of lucid interval stronger in case of delirium than in case of insanity. (a) See also 1 Redf. Willfl, 83-84 ; see aino Mudtcai/ v. Croft, 3 Curt. 678, 1 L. T. 479. Taylor Ev. 668. YgU- Has v. Dyke, Prerog. Court, May, 1862. DISABILITIES — LUCID INTERVALS. 107 11. Presumption in favour of a rational Will regularly executed. 12. A rational Will strong evidence of a lucid interval. 13. Case of Cartwright v. Cartioright. 14. Opinion of Sir John NichoU as to effect of rationality of Will, lb. Persons labouring under delusions frequently instructed to conceal them. Caution to be exercised in such cases. 1. During the existence of what is technically called a book II. " lucid interval," a person who has been afflicted with CHAprvil. insanity is restored to his testamentary capacity. If a sectTiv. lunatic person have clear or calm intermissions, usually called " lucid intervals," then, during the time of such quietness and freedom of mind, he may make his testa- ment, appointing executors, and disposing of his goods at pleasure (a). 2. " If you can establish," said Sir William Wynne, in the case of Cartwright v. CaHivright (b), " that the party attticted habitually by a malady of the mind has inter- missions, and if there was an intermission of the disorder at the time of the act, that being proved is sufficient, and the general habitual insanity will not affect it ; but the effect of it is this, it inverts the order of j)roof and of pre- sumption ; for until proof of an habitual insanity is made^ the presumption is that the party agent, like all human creatures, was rational ; but where an habitual insanity, in the mind of the person who does the act, is established, there the party who would take advantage of an interval of reason must prove it" (c). , (a) Swinb. Pt. 2, s. 3, pi. 3; Gmlolph, Pt I.e. 8, 8, 2; Wentw. c l.jp. 33, 14th Ed.; Hall v. Warren, y Ves. 610 ; Bodd v. Lewis, 2 Cas. temp. Lee 176. fb) 1 Phillim. 100. (cj See also the doctrine laid down by Lord Thurlow in Att.-Gen. v. Pamther, 3 Pro. C. C. 443, and Sir W. Grwit in Hall v. Warren, 9 Ves. 611. See ako Swinb. Pt. 2, s. 3, pi. 7, where it is said, that if it oe proved that the testator was once mad, the law presumeth him to con- tinue still in that case, unlew the contrary be proved. See also Go- dolph. Pt. 1, c. 8, 8. 2 ; White v. Driver, 1 Phillim. 88 ; Oroom, v. Thomas, 2 Hagg. 4;i4; Waring v. Warinfj, 6 Moo. P. C. 341 ; S. C. 5 No. ('as. 2%; 6 No. Cas. 388; Ori- viani V. Draper, Ibid. 418 ; Johnton Blane, Ibid. 422 ; Fowlit v. David- ton, Ibid. 461, 474; Kemble v. Church, 3 Hagg. 273. id' it I i^ i iT ■f \ I ." 1 I' ' ! ' ' i i 1 ^1.. i r 1 ;i. 1 ■! ! 'm !' : , 1 i EB hiiiJi^... 108 OF TESTAMENTARY CAPACITY. Book II. 3. Lord Thurlow, in defining a lucid interval, sayg Chap. VII " By a perfect interval, I do not mean a cooler moment, Sect. IV. an abatement of pain or violence, or of a higher state of torture, a mind relieved from excessive pressure ; but an interval in which the mind, having thrown off the disease, had recovered its general habit" (a). 4. Regarding the opinion expressed by Lord Thurlow, Lord Eldon, in ex parte IIolyland{b), remarks : "Lord Thur- low said that where lunacy is once established by clear evidence, the party ought to be restored to as perfect a state of mind as he had before ; and that should be proved by evidence as clear and satisfactory. I cannot agree to that proposition, either as to property or with reference to such a case as this ; for suppose the strongest mind, re- duced by the delirium of a fever or any other cause to a very inferior degree of capacity, admitting of making a will of personal estate, (to which a boy of the age of four- teen is competent,) the conclusion is not just that, as that })erson is not what he had been, he should not be allowed to make a will of personal estate." 5. It must be observed that Sir W. Grant, in Ball v. Wai'ven (c), does not appear to have understood Lord Thurlow in the .same sense as Lord Eldon did in the pre- ceding remarks, nor indeed does the report in Brown of the Attorney-General v.Parnther bear any such construction. " If general lunacy," said Sir W. Grant, " is established, they will be under the necessity of show^ing, according to the Aftorney-Geiieral v. Paimiher, that there was not merely a cessation of the violent symptoms of the disorder, but a restoration of the faculties of the mind sufficient to enable the party soundly to judge of the act" (d). (aj Att.-Otn. V. Pamther, 3 Bro. C. C 444. (bi uvea. IL (e) 9 Vm. 611. (d) 1 WUliamB Ezon. 21, 22. DISABILITIES— LUCID INTERVALS. 109 6. If insanity other than mere delirium is shewn to Book IL exist, the presumption is that it continues to exist (a). The Chap. vn. proof of a lucid interval, under such circumstances, lies seot IV. upon those who set it up (b). 7. No particular measure of proof is required for the es- tablishment of a lucid interval. It must however be sufM- cient to encounter and overcome the presumption which naturally arises in the mind, after the person is once shown to have been in a confirmed state of mental unsoundness, that such state will continue (c). 8. It is said that great caution should be observed in examining the proof of a lucid interval {d), and such proof is a matter of great difficulty, because frequently the pa- tient is, to outward appearance, rational whilst still insane (e). On the other hand, the Court must be on its guard against the impressions created in the minds of witnesses who have seen the testator whilst insane, and have ac- quired a strong opinion of his pennanent incapacity, and disregarding mere opinions base its judgment upon the facts proved, and the acts of the testator (/). 9. Suicide is not conclusive evidence of insanity, even at the time of the act (g). 10. The probabilities, a pHori, in favour of a lucid in- terval, are infinitely stronger in a case of delirium than in one of permanent proper insanity ; and the difficulty of (a) 1 Redf. Wills 112, 113. (bj WhiU V. Wilim, 13 Vesey, 87. (c) 1 Redf. Wills 113, 116- (d) Per8irJohnNichoU,inIF*it« V. Driver, 1 Phillim. 88. (e) By Sir John Nicholl, in Brog- den V. Brown, 2 Add. 446, and in .4y- rty V. Hill, 2 Add. 210. JJi See observations of Sir John Nicholl in KindHtside v. Harriion, 2 Phillim. 469 ; and in Evant v. Knifiht, 1 Add. 2.30. See alHo Wood V. Wood, I PhilUm. 363 ; Wheeler v. Alderton, 3 Hagg. 005 ; Tftham v. Wriyht, 2 Russ. and M. 21, i,"2 ; SUed V. Callej/, 1 Keen, 020. iff) Taylor's Med. Jur. 680, 681 ; Burrowt v. Burrows, 1 Ilatg. 109 ; Brooktv. Barrett, 7 Pick. 94 ; Cham- berg V. Queen's Proctor, 2 Curt. 41A ; Moby V. Hobp, 1 Hagg. 146 ; 1 WU- liains Exors. 19. 11 I;* I I-! i>^<' i: pi 'i n 1 I II I i ^'l 110 OF TESTAMENTARY CAPACITY. Book II. proving a lucid interval is \em in the Hame exact pio- y Sir H. Jenner Fust in Chambert V The Queen's Proctor In Ban- natijne v Bannatyne, 2 Rob., 472, 501. Dr. Lushington, referring t<) the above passage in the judg- ment of Sir W. Wynne, said : "lliough I cannot say I altogether agree to that dictum, still it i.s en- titled to great weight, and, to a cer- tain extent, a rational act done in a rational manner.though not, I think, the strongest and best proof of a lucid interval, does contribute to the estal^liHhment of it." (a) Swinb. Tt 2, s. 3, pL 14. I*' '■■fM ;l i-; 'i;; ^ rrT n ( • ■ II ! ':| fft 111 "ill I .. 112 OP TESTAMENTARY CAPACITY. Book 71. act (lone is perfectly proper, and that the party who is Chap. VII. alleged to have done it wa.s free from the disorder at the Sect. IV. time, that is completely sufficient." 14. In Scruby v. Fordham (a), Sir Joii.. NichoU stnted the rule to be, that where a will i.s traced into the liancls of a testator whose sanity is fairly im[)eached, but of whose sanity or insanity at the time of doing or performing some act with relation to the will there is no direct evidence, the agent is to be inferred rational, or the contrary, from the character, broadly taken, of his act (fc). 15. As persons labouring under delusions are frecjuently instructed to conceal them, should it appear in evidence that a testator, afflicted with insane delusions, has been thus instructed, and should the evidence to prove perfect recovery of capacity be doubtful, a will made by such a person, though rational in form and substance, should not be admitted to probate (c). Section V. Efect of Drunkenness or Delirium on Testamentary Capacity. 1. Intoxicaljon to the extent of pioducing oblivion incapacitates a person from making a will. Swinburne's rule on the sub- ject. 2. General rule of the Courts of Law and Equity an to the effect of intoxication. 3. Case of tShc.w v. Thuckray considered. 4. The (jueation to be decided by the jury laid down in Uandlti) V. Stncey. (a) 1 Add. 90. (b) S»H! aUo Chainhers v. Queen'i Proctor, 2 Curt. 115, 41)1; McAda-a v. Walker, 1 Dow 178; 1 Willittms KxorH. 'iT. But Hee altto aii to the pre- H'jiiiption whert) the dispoHit'on made by the will is unreabimablti, tb'>iii77 ; tor- late V. Borlatt, 4 No. ("as. IW! ; Lurd lirougham's observations in Waring V. Wariny, 4 Moo. P. C. 351. (r) Dpce Sombre V, Troupe, Deanf. Ecc. liep, 22. it i DISABILITIES — DRUNKENNESS — DELIRIUM. 118 5. Intoxication short of producing oblivion will not incapacitate. 6. The dispositionB of the will may bo considered ; but to defeat the will they must be extravagant and unreasonable. 7 . Intoxication usually more temporary than delirium. 8. Insanity may be latent — Ebriety never. 9. Delirium from disease resembles insanity, but presumption of continued incapacity does not arise in fonuer. 1. Persons may be afflicted with dolirium from inflam- Book II. ination or stimulus, and while this state continues to such chap. vii. a degree as to overwhelm the reason and judgment, it Sect. V. produces a total incapacity to execute a will («). It is a well-understood rule that intoxication, to the extent of producing mental oblivion, while that state continues, deprives the p&rty of the ability to make a will. " He that is overcome by drink, during the time of his drunkenness is compared to a madman, and therefore, if he make his testament at that time, it is void in law ; which is to be untkrstood, when he is so excessively drunk that he is ut- terly deprived of the use of rejison and unilei-standing ; ('therwise, if he be not clean spent, albeit his understand- ing is obscured and his memory troubled, yet ho may make his testament being in that cjise" (b). z. In cases of intoxication or habitual drunkenness, the rulf adopted by the Courts of Lj\w as well as those of K(|uity is, that a party is not to be held incompetent to do a binding act reciuiring consent, unless he is so ''imjUetely under the dominion of delirium as not to und tand the nature of the businets in which he is engaged, and so be rendered incapable of giving his consent, or else so much v'oakened in his capacity and pur[)ose 8C; Butler v. Mulvikill, 1 Hligl., 137 ; Sai/ v. BarwU-k, 1 V. & B. 185 ; Pitt V. Smith, 3 C'ai.ipb. 331 ; M'JJiarmid v. tf'Z>iarmiU, 3 Bligh, N. 8. 374 ; Oore v. Oihton, 13 M. A. W. «'23 ; Cann v. Cann, 1 F. W 724. 8ee alno the foUowinK Aiii»ri can ciiB*B oil name Hulijeot A'ln// \ Bryant,'! Hayw. .m ; CanifMI \ Ketrham, 1 Bibb. 40« ; White v. Cox, 3 Hayw. 82 ; Tai/lor v, J'atrickf 1 Bibb. 1C8. I. :.t DISABILITIES — DRUNKENNESS — DELIRK^M. 115 4. In a recent case (a) tried before the late Lord Canip- Bo"'' 'I- bell at nisi prius, the will being iinpeacl d on the ground Chai-^VII. that the testjiU)r's mind was impaired by drinking, and S«J*-t- ^ was under undue influence on the ])art of the devisee or his family, it appearing that the testator had been addict- ed to drinking, and had had delirium tremens a few days before the will was executed, and that the will wjis drawn up by the son of the devisee, and at his house, he being an old friend of the testator ; it was held that the (pies- tion wa.^ .hcther the testator was sane and sensible, and ()!>' ♦' luderstanU the nature and contents of the will at the time it was executed ; and that if the testator had really requested the son of the devisee to draw up the will, an) Peck V. Carey, 27 N. Y. R. 9. 116 OF TESTAMENTARY CAPACITY. -I lili n It Book II. tator had dnink several times during the da}', at the time Chap. VII. of executing it, was, in the ca.se referred to, confirmed (l) Sect V. 7. The incapacity produced by drink is more temjwrarj' than the delirium of disease, and v/hen the fit is off, the patient is at once rcntored to perfect rea.son ; and no pre- sumption arises in regard to the continuation of the deli- rium of drunkennass, since it ceases almost at once uule.ss the exciting cause in renewed. 8. In a case where it appeared that the testator was a l^erson not properly iasano or deranged, but habitually addicted to the use of spiritu(^us li(|Uor.s, under the ac- tual excitement of which ho talked and acted in most rcs[)ccts like a madman, it wa.s held that, as the te-stator was not under the excitement of liquor, he was not to be considered as instme at the time of making his will ; and the will itself was accordingly cstublished (m), and the Court pointed out the difference 1 itween thepresentca.se and one of actual insanity, ina-fmnuch cvs insanity 7iia>f often be latent, whereas thx^re can scarcely be such a thing as latent ebriety ; and, eon.sequently, in a ca-se like the one under consideration, all that ref[uire8 to Ik; shown is the absence of the excitement at the time of the act done, or, at least, the absence of excitement in any such degree as would vitiate the act done (n). 9. Delirium from disease re^.embles insanity, but the same presumption of continued incapacity . vil. excitement, in the absence of which, to be ascertained by Soct. V. the appcpranco of the patient, the patient is most com- monly really sane. Hence, as also indeed from their gi'eater presumed frequency in most instances in cases of delirium, the probabilities, k priori, in favour of a lucid in- terval, are infinitely stronger in a case of delirium than in (»ne of permanent proper insanity ; and the difficulty of |>roving a lucid interval is less in the .same exact propor. tion in the formor than it is in the latter cjuse, and has always been so held by the Court (6). ^fWf ;raR i 1 I Section VI. Old Age. 1. No pnrticular nge fixed hy law nt which testamoiitiury capacity sfkuU bo deoiuud to have cuiujud. 2. Old ii{;e uf itaulf not an incapacity. 3. Extreme old agu raises a do^ibt of capacity^ 4. Remarks of (.'hancellor Kent in K<(h AUt v. Hunter. n ( e). liemarks of Judge Bradford in lileecker v. Lymh. 5. Consideration of the capacity of an aged person to make a will involved in conaidunition of mental capacity. Case of Hwinfcn v. Sinnfea ci-nsidered. 1. Whilst the law has fixed the age which must be reached before a pci^son is deemed capable of making a will, no certain period in a man's life has over been deter- mined at which that capability shoil, in conse(iuence of the decay of the facultie.., bo deemed to have ceivsed. 2. Old age does not of itself de[>rive a man of the capa- city of making a te.vtament (o) ; for a man may freely {a) 2 Add. -Hft. (b) Stte also the olmervatiunM of r>r. LuHhington in Diintt v. iJiiatt, 10 Moo. P. C. 422-420. (c) Swiiib. Pt. 2, H. 6, pi. 1 ; Go- (lolph Pt. 1, c. 8, H. 4 ; liird v. Bird, 2 IlaK«. 142 ; LewU v. Prnd, I Vbh. VA ; kindlttidt v. Harrison, 2 Phil- Urn. 401-4G2. HrMi*;; !«■' i 118 OF TEHTAMENTIRY CAPACITY. m 1 I! Book II. make liis testament how old soever 'le be : since it is not CHApr VII. ^''c integrity of the body, but of the mind, that is requisite Sect. VI. "* te.staments. Yet, if a man in his old age becomes a very child again in his understanding, or rather in the want thereof, or by reason of extreme old age, or other infinnity, is become so forgetful that he knows not his own name, he is then no more fit to make his testament than a natural fool, or a child, or lunatic person (a). 3. Extreme old age raises some doubt of capacity, but only so far as to excite the vigilance of the Court (b) ; and no just inference could l)e made up(m the (|uestion of am- pacity from uge nioroly, short of some extreme j)eriod (c). 4. The remarks of the learned Chancellor Kent, in an American case (d), are worthy of careful consideration : — "A man," .said he, " may freely make his tosUiment how old soever he may be. It is one »)f the painful conse- (juences of extreme old age that it ceases to excite inter- est, and is apt to be left solitary and neglected. Tlu' control which the law still gives to a man over the dis- jtosal of his ))roperty, is one of the most efficient means which he ha.s, in protracted life, to command the attention duf to his infirmities. The will of such an aged man ought to be regarded with great tenderness, when it ap- ])eai*s not to have l)een procured by fraudulent arts, but contains those very dispositions which the circumstanivs of his situation and the course of the natural attectiou.>* dictated" {e). {a) Svvinl". uhi tuitra ; GfM\iA\>h. uhi iiuf>ra . 1 WilliantH KxorM. .'i7. {t>) Khi'Uttide V. Hitrritoii 2 Phil- lira. 4«51-l«»2. (.) Sft- (/nffithi V. HMia, A Mad. lyi; Marknuic v. HaiiJ ; itM loiwiir tone ami iM)wer Im comuHJuent u|M>n tlu> ravogen of tiiuu and diiteaae ui>on th mi DISABILITIES— OLD AGE. IIJ) 5. It will bo seen that the question of the caiMvcity of Book II. a very old person to make a will, is involved in the con- Chaf. Vli. sideration of the mental capacity necessary to execute a Soct VI. valid will, a subject which is considered in a subsequent section (a). In a recent ai.se, on an issue " devisavit vel non," it appeared that at the time the will was made, the testator was in extreme old age, and in the last stage of bodily infirmity, bedridden, utterly helpless, and depen- dent (»n the care of the plaintiff, sole devisee of the realty, a muse, the only legatee, and a physician, an attesting witness and an intimate friend of the devisee. The will was prepared by the dovis'se's own attorney, upon instruc- tidus elicited l)y him.self from the testator by interroga- tories. The parties interested had, a few days befr e, npresented the testator jus " (juite incapable of nmnaging his own affairs, or taking care of his j)erson ;" and it was admitted at the trial that, two or three days before the will was made, the testator was not competent to make n will. The learned judge who tried the wi.se (Byle.s) Ixxly, aiie(;inlly tho brain, upon which the undointandinK in tlepun- (It'nt for nianifi-Htiitinn. It U said tlmt not more than Ht'vunty-eijflit u Dill' thouHand <1it' of ohl agu ; and it in Hcarnely ixmHiljIf to define the na- tiuiil iMjrKKj of life, ()- itH more fre- •iucnt and re^odar limit, in.leiiendent iif itiNeaite and accident, ulmnen- liach ohserveH that, liy an accurate examination of ntimeroux liilU of iiinrtalitv, lie had ancertained tho rt iiiarka^ne fact, ' that a prettv lart(e ]ii'(i|Kirtiou of KuroiieanH reach their •■iK'htyfourth year. Haller gave a lint of two hundred ami iweiity one ixTHonH who lived from i ne hundrein<>d a (tiitury and upwardN. The condi- tidii uteii on ' the pruifreSH uf old a^^e in new studicH, there are the namea of many men vhoxe h'eniuH Hhone in full Hj)lendour to the cUme of an lulvanced life. I do not mean to {^au^'e all caseH by bucIi remarkable ii-atanceH, but a • 1 ': I n t. !' h' I ' : ..(> 122 MENTAL CAPACITY REQUISITE Book II. and that is such a memory whicli the law calls sane and Chap. VII. |terfoct memory (a,). Sect VII. •*>. On tlie other hand, it must bo observed tlmt mere iveakncsH of understanding is no objection to a n)an's dis- jjosing of his estate by will ; for Courts cannot measure the size of people's understandings and capacities ; nor examine into the wisdom or prudence of men in disposing of their estates (b). 6. " If a man," says Swinburne (c), " be of a mean un- derstanding (neither of the wise sort nor the foolish), but indifferent, as it were, betwixt a wise man and a fool ; yea, though he rather incline to the fooli.sh sort, so that for his dull capacity he might worthily be termed gros- sum caput — a dull pate, or a dunce — such a one is not prohibited fn)ni making his testament" (d). 7. Lord Kenyon, in Greenwood v. Greenwood (e), thu.s e found. For an instance where weakness of mind and forgetfulness 'vill not con- stitute inca|)acity, see Conttnble v. Tufncll, 4 Hogg. 405 ; afiinned on ai>iieal 3 Knapp. 122; 1 Williams Kxors. 38 and notes. (/>) 1 Williams Kxors. 39 and notes ; Otmond V. Fitzroi/, 3 P. W. 12y. (e) Pt. 2, s. 4,pl. 3. (d) See also Jiarrod v. Hatrod, 1 K^y & J. 4 [e) 3 Curt. Aj>p. 2, 30. (/) 3 Moo. P. C. 282. -J TO MAKE A VALID WILL. lis his will, he is excluding from all participation in that Book II. property" («). Chap. VII. 9. In a late American case (b) it was held that although Sect. VI l. the te.stator was subject to insane delusions, yet if ho ha)ve«v./ioi'C«, (r) 1 Paige, 171. 1 F. & F. 581. {d) 12 Grant, 600. ; r 1 1 vi< 'i.l IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I Ui 2.0 1.8 1-25 1.4 1.6 6" ► Photographic Sciences Corporation d L17 4^ :\ \ 'f-^ % ^ 4 !■ /it? "it <•' I'lT •i 126 Book II. Chai. VII. Sect. VII. i; . 1 ■1 I- im,i I! m MENTAL CAPACITY REQUISITE testator for the disposition of his property — not all that Mr. Thornton believed was in the mind of the testator, but ' to a considerable^ extent ' what was so. This ex- pression was beyond doubt obtained with difficulty — under the impediment presented by weakened faculties of mind, as well as weakened physical powers, caused, as to both, by a disease of some continuance, and by the near approach of death. The expression was far from contin- uous ; not one act, the result of unbroken ' continuity and concentration of thought ' (as the medical attendant expressed it) first deliberately conceived, and then delib- erately dictated; but uttered at intervals, when the mind, which was wearied and exhausted by the pi'evious effort, had been recalled to the point at which he had broken off ; and thus, by slov/ degrees, the writer was enabled to gather and to put into writing the disposition of his pro- perty by the dying man. (6) " No suspicion is cast, or attempted to be cast, as I have already incidentally remarked, on the character or conduct of Mr. Thornton in the transaction. It does not appear that he had any preconceived notions of what the testator desired or intended. He seems to have anxiously endeavoured to understand his wishes, and to have done his best to express the intention of the testator as he gathered and understood it. (r, and whether he give such a thing to such a person, answereth ' Yea,' or ' I do so,' in which case it is a question of some difficulty whether the testament be good or not. For if he which doth ask the question of the testator be a suspected person, or be importunate to have the testator to speak, or make request to his own commodity ; as if he say, ' Do you make me your exe- cutor V 'Do you give this or that ? ' and, therefore, the testator answer ' Yea ;' it is t j be presumed that the testa- tor answered ' Yea' rather to deliver himself of the im- portunity of the demandant, *ihan upon devotion or in- tent to make his will." The writer adds, that persons in such extremity, finding it painful to be disturbed, will give any answer to be quiet ; and that some crafty per- sons take advantage of this painful extremity to obtain wills in their own favour ; and that if such questions are put by suspected persons, the answer is not to be received as the free expression of the will of the testator. Swin- burne illustrates his text with the case of a monk who came to a gentleman, then in extremis, to make his will. I't) See also th« observations of Vankouybnet, C, in Menzks v. White, 9 Urant, 574 ; Brown v. Bruce, 19 U. C. Q. B. 35. A will cannot be admitted to probate in a contested case, unless the strength or degree of proof offered ia such as to satisfy the Court, without rea- sonable doubt, that the testator was, at the time of execution, of sound mind, memory, and understanding. Keays v. M'Doiiell, 6 Ir. Eq. Hep., Gil, P. (6) Swinb Pt, 2, s. 25, pL 5. * . Kl' A?* ^ll i il'Ul in V'lr 130 MENTAL CAPACITY REQ^TISITE i 1:1 ' ': I n ! i! ! • ,. Ill ■ ''1 ikLJi Book II. " The monk asked the gjntleman if he would give s^ch a Chap. VII. manor and lordship to his monastery. The gentleman 8ect."vil. answered ' Yea.' Then, if he would give such and such estates to such and such pious uses. The gentleman answered * Yea' to them all. The heir-at-law, observing the covetousness of the monk, and that all the estate would be given from him, asked the testator if the ' monk was not a very knave,' who answered * Yea.' And upon the trial, for the reasons above said, it was adjudged no will." Swinburne adds, however, that if the person making such inquiries be sent for, as the friend of the tes- tator, for the purpose of making the will, and have no interest in the matter, " the testament is good, albeit it were in prejudice of another testament made before" (a). 16. It was a standing rule of the Ecclesiastical Courts to treat all wills as prima facie invalid which were ab- surd in themselves, or as it was expressed, " if there be one word sounding to folly" (6). But an examination of the cases referred to in the preceding sections, particularly those on the subject of monomania, will show that this rule cannot be maintained in the absolute form in which it was formerly laid down (c). 16. In Martin v. Martin (d), Mowat, V.-C, adopced and acted upon the observations of the Master of the Rolls in Swinfen v. Swi/nfen (e). In that case it was said that "the contents of a will are a very dangerous ground to rest upon, even in connection with other testimony ; but in cases where there is no unsoundness of mind (in the pro- per sense of that term), but rather an absence of intellect, and the only question is whether the deceased person (a) See 1 Redf. WUIb, 130-131, 131-132. (6) Swinb. Pt. 2, s. 3, pL 15 : 1 WilliamB Exora., 35; per Lord Brougham in Waring v. Waring, 6Moo. P. 0. 349. (c) See Arbery v. A$he, 1 Hagg. 214. (d) 12 Grant, 500. (e) 27 Beav. 155. TO MAKE A VALID WILL. knew what he was doing, the contents of the will can rarely be brought to throw light on that subject." 17. It was a rule of the Roman law that, if the testa- tor by his will omitted to provide for his children, without assigning a good and tine reason for so doing, the will might be set aside as being " inofficious ; " but if any provision was made for the children, however small it might be, the will was not open to the objection of being '^inofficious" (a). 18. But this rule has no place in our law ; for, if it be shown that the testator knew and approved of the con- tents of the instrument, the meie fact that its provisions are not consistent with the geneially received opinions as to natural duty will not invalidate the will (6). The Court would probably, however, in such a case, require strict proof of knowledge and approval on the part of the testator (c). 19. In a case where the deceased made a will contain- ing a proper disposition of his property, and three days afterwards executed a codicil, the effect of which was to leave the eldest son destitute, the codicil was rejected and the will held valid on the ground that the deceased was not of a sound and disposing mind when the codicil was executed (d). (a) 2 Black, Comm. 503 ; Wrench V. Murray, 3 Curt. 623. (6) 1 WiUiamB Exors. 36 (c) Brogden v. Brown, 2 Add. 49 ; Mont^flore v. Montejlore, 2 Add. .361, 362; Dew \. CTarA, 3 Add; 207, 208. (d) Brounker v. Brounktr, 2 Phil- lim. 57. 131 Boor II. Chap. VIL Sect.~VIL ' m * ' • Mi ifi'J ,r ■' i 1) B. I- ;s .V v: .^)' t:t\r¥^ It- '■• >1^ «;. ^i t:^i^ lii ' 1 * ■! ■' Mi"'M Hi f'l:l 'lit *■' ' : 1. 2. 3. 4. CHAPTER VIII. OF WANT OF LIBERTY AND FREE WILL. Prisoners, captives, &c., considered intestable in former times. The rule is now different, the question in each case being whether or not the testator had liberum animum. A will procured by force or fear may be set aside. Nature and extent of the fear which will vitiate a will consi- dered. sM' :' Book II. 1. In the early treatiseB on Wills may be found a long Chap. VIII. Hst of persons disqualified from making wills : — Prisoners, captives, slaves, villeins and the like, were formerly con- sidered intestable (a.) 2. But by our law such persons are not considered in- testable. The question in each case simply is, whether the testator had liherum animum testandi, or whether the testament is the result of constraint (6). 3. A will procured by the use of force may be set aside, though duly executed by the testator (c); and if the tes- tator is constrained by fear to make a will, the will can- not stand {d). 4. But it is not every fear, or a vain fear, that will have the effect of annulling the will ; but a just fear ; that is, such as that, indeed, without it the testator had not made his testament at all, at least not in that manner (e). A vain fear is not enough to make a testament void ; but it must be such a fear as the law intends, when it ex- presses it by a fear that may cadere in con^tantem viimm 1 : l.j A H'J" (o) Swinb. Pt. 2, 8. 8 ; Godolph. Pt. 1, c. 9. (6) 2£lack. Comm.497. (c) Mountain v. Bennet, 1 Cox, 355, by Eyre, C. B ; Boyie v. Eot»- borough, 3Jur. N.S. 373; 6 H.L. C. 2, per Lord Cranworth. (d) Godolph. Pt. 3, c. 25, b. 8 ; Swinb. Pt. 7, s. 2, pi. 1. (e) Godolph. Pt. 3, c. 25, s. 8. m WANT OF LIBERTY OR FREE WILL. 133 (re), as the fear of death, or of bodily hurt, or of unprison- Book XL ment, or of loss of all or most part of one's goods or the Chap. VIIL like (6/ whereof no certain rule can be delivered, but it is left to the discretion of the judge, who ought not only to consider the quality of the threaten] ngs, but also the persons as well threatening as threatened ; in the person threatening, his power and disposition ; in the person threatened, the sex, age, courage, pusillanimity and the like (c). (a) Godolph. Pt. 3, c. 25, s. 8 ; Swinb. Pt. 7, s. 2, pi. 7. (6) Swinb. Pt. 7, a. 2, pi. 7. (c) Swinb. Pt. 7, s. 2, pi. 7. NeUon v. Oldfidd, 2 Vera. 76. See m mi M'-'A 'tia m *.3K m! CM^ :!i i ^ 5 ! fti. 1 '' Oi '^ ' til ''m ■ I'M W7^ ' I ! I ir li «; I li CHAPTER IX. OP FRAUD OR UNDUE INFLUENCE USED IN PROCURING A WILL TO BE MADE. Section I. Of Fraud. 1. All transactions tainted by fraud are voidable. 2. Degree of fraud necessary to vitiate a will considered, 3. Opinion of Lord Cranworth in Boyse v. Rosaborough, 4. Modes of fraud exceedingly various — Case of Wilkiiison v. Jonghin. 5. Strong and clear evidence of fraud required. 6. Fraud, to vitiate a will, must be contemporaneous with the making of the will. 7. Clause introduced into a will by fraud does not become part of the will. Book II. 1. It is a well-understood principle of law, that a trans- Chap. IX. action procured by fraud cannot stand. Fraud is no less Sect T. detestable than open force : wherefore, when the testator is circumvented by fraud, the testament is of no more force than if he were constrained by fear (a). 2. With regard to what deceit shall annul a testament on the ground of fraud, as in the case of a will made un- der fear, it is left to the discretion of the judge, compar- ing the deceit with the capacity or understanding of the person deceived, to discern whether it be such as may overthrow the testament or not (6). 3. The light in which the Court regards wills procured by fraud or improper influence is clearly stated by Lord i 1 \- I': I > f ' 1 i [inj M • i ' 1 '^^ i ■ \ i (a) Swinb. Pt. 7, s. 3, pi. 1 ; per Lord Hardwicke in Lord Done- gaVt case, 2 Ves. Senr. 408. (6) 1 Williams Exors. 43 ; Swinb. Pt. 7, 8. 3, pi 3. See also cases cited by Lord L^mdhurst in Allen v. McPhergon, (1 H. L. C. 207, 208) of wills obtained by false represen- tations. OF FRAUD, 186 Cran worth in tho ciise of Boyse v. Rosshormigh {a). Re- Book II. t'erring to the will which was the subject of the appeal, he Uhap. IX. says (6), " But though a good will so far as relates to its Seot. i. execution and attestation, it yet might not be an instru- ment having any legal validity; for if the person by whom it was made was not at the time of making it of sufficient mental capacity to enable him to dispose of his property, or if, having sufficient disposing mind, he exe- cuted it under coercion, or under the influence of fear, or in consequence of impressions created in his mind by fraudu- lent misrepresentations — in none of these cases can the instrument be properly described as being his will. In the first case, the maker is, by the hypothesis, incapable of having a will. In the other cases supposed, though there is a power of willing, yet the instrument will not be '; ti contemplation of law, a true expression of that W'll. I say in contemplation of law ; for, perhap?", speaking with strict met- (physical accuracy, the instrument, in these latter cases, does truly express the testator's will, and the more correct mode of expression would be, that the law will not give effect to the will of a testator when that will has been thus unduly brought about. If I meet a man in the street, and he puts a pistol to my breast, and threatens to shoot me if I do not give him my purse, and to save my life I yield to his demand ; or if a neigh- bour, meaning to steal my horse, asks for the loan of it, stating that he wants it in order to go to market, and trusting to this representation I deliver it to him, and then he rides off and sells it — in both these cases, it was my will to hand over the purse and the horse, but the law deals with the case as if they had been obtained against my will, my will having been the result in one •llli (a) 6 H. L. C. 2 ; 3 Jur, N. S, m. (6) At p. 376 of Jur. VI 'A t If . n. \i :M v\\ ■I i h > 'A : i •1 i I i j I 1 1 ^'^ ,1 I 136 OF TESTAMENTAKY CAPACITY. Book II. case of fear, and in the other of fraud. The same prin- Chai'. IX. ciple must guide us in determining whether an instru- Sect I. ment, duly executed in point of form, so far as legal so- lemnities are concerned, is or is not a valid will. The in- quiries trust be — First, was the alleged testator at the time of its execution a person of sound mind ? And if he was, then, secondly, was the instrument in question the expression of his genuine will, or was it the expression of a will created in his mind by coercion or fraud (a) ?" 4. The modes of fraud are so various that a full con- sideration of them would be impossible. The recent case of Wilkinson v. Jonghin (6) is an illustration of the doc- trine that fraud invalidates all transactions with which it is even remotely connected. In that case, a man having married a woman who represented herself lo be a widow, a representation which proved to be untrue, as she had a husband living, made a will containing bequests in her favour. On bill filed, the Court set aside the bequests, as having been procured by the previous fraudulent misrepresentation. 5. The Courts usually require strong evidence to show that a duly executed will is not the act of the testator, and that he was not aware of its provisions (c). 6. Fraud, to vitiate a will, must be contemporaneous with the making of the will, and must be discovered in and be part of the res gestae (d). The fact of a testator retaining his mental capacity, and for a considerable term surviving the date of, without altering or throwing doubts upon, his will, is an important circumstance in favour of its validity (e). (") See also Small v. Allen, 8 T, R. 497 ; Powell v. Mouchett, 8 Mad. 216. (6) L. R. 2 Eq. 319. (c ) Wrench v. Murray, 3 Curt. 623 ; Panton v. Williama, 2 Curt. 530. See also Scouler v. Plowright, 10 Moo. P. C. 440, in which the will was set aside. (d) Kelly v. Thewlea, 2 Ir. E(|. Rep. 510. (c) Kelly V. Thewlea, aup. OF UNDUE INFLUENCE. 137 7. A clause introduced into a will by fraud, and without Book II. the testator's knowledge, does not become part of the cilvp. IX. will (A;). Sect. I. Section II. Of Undue Influence. 1 Will procured by undue influence cannot stand. 2 Influence merely may be legitimately used to induce a tes- tator to make certain provisions. 3. The relative positions of the parties must be regarded in de- termining what is undue influence. The relations of hus- band and wife considered. 4. Case of Hall v. Hall. Persuasive appeals to the aflfections permitted ; pressure of whatever character interdicted. 5. Leading case of Boyse v, Rossboroiigh — Lord Cranworth's Judgment. («) Difliculty of defining undue influence. (b) Difliculty of this question increased where relation that of husband and wife. (c) Influence, to be undue, must be an iniluence exercised by coercion or fraud. (rf) Consideration of coercion. (e) Consideration of fraud. If) Difficulty of stating what acts will constitute undue in- fluence. (g) Burden of pro^^ng undue influence lies on those who allege it. (A) Undue influence cannot be presumed. (i) Consideration of course which should have been taken by testator. {k) That the course which he in fact took. (l) To set aside the will of a person of suund mind, it is not sufficient to show that the circumstances of its execution are consistent with hypothesis of undue influence. The undue influence must be in relation to the will itself. 6. Cases of undue influence numerous in our own Courts — Case of Donaldson v. Donaldson. 7. Case of Waterhouse v. Lee. 8. A will may be void as to one person and good as to another. 9. The fact that a will is drawn by the person most benefited by it, does not render it invalid. 10. The Parish WUl case. 11. Case of Barry v. Butlin — Judgment of the Privy Council in that case. 12. By the rule of the civil law, a will written by a person in his own favour was rendered void. !^ ' I ^■. i?.j Uv ■; t ¥ ..r-^t (*) Alien V. McPh^-son, 1 H. L. C. 191. I .;i: ' ' I If;' 1 1 !U 1 •■ 138 OF TESTAMENTARY CAPACITY. 13. If person who drew the will and was benefited by it, stands in a fiduciary relation to the testator, the proof of the lat- ter's knowledge and approval of the contents must be clear. 14. A will in favour of the solicitor who drew it may be good. 16. So may a will in favour of a medical attendant. 16. Distinction between gifts inter vivos and by will as connect- ed with the subject of undue influence — Case of Parfitt v, Lav)less stated . (a) Statement of the rule as to gifts inter vivos. (bS The law regarding wills very diff"erent . (c) Influence necessary to set aside a will considered. (d) Conclusion that the rule as to wills not the same as to gifts inter vivos. n. (d) Court of Probate alone can in England try validity of will on ground of fraud or undue influence ; in this Province the Court of Chancery has jurisdiction. Book II. 1. Undue influence is a species of fraud, and a will Chap. IX. procured by such means will not be allowed to stand. SectTll. 2. It is well established that influence merely may be legitimately exercised over the testator ; and it is only where such influence becomes undue or improper, that the law avoids a will procured by its means. A person may solicit another to make a will in his favour, and he - may use all right and lawful means to forward that end; but the law will not permit him to attain his object by threats, or by influencing the mind of the testator by working on his fears, and those other passions to which mankind are often slaves {a). 3. A great many considerations enter into the question what, in any particular case, may constitute undue influ- ence. The relative positions of the parties must be looked at. Thus, in a late English case, in which a will made in favour of the testator's wife was sought to be set aside, Dr. Lushington remarks : " What law can decide what is the degree of influence which a wife can exercise over a husband sufficient to invalidate acts done under it? (a) Hall V. Hall, L.E. 1 Prob. 482 ; 37L.J.P. 40; 17 L.T.N.S. 152. OF UNDUE INFLUENCE. What may be the motives upon the mind of the testator ? Put the case in the strongest point of view — fear of dis- pleasing — ^fear of future solicitation — love of peace — or, it may be, deference to superior judgment — or affection and regard — who is to dive into these motives ? What evidence can any tribunal have ? Coercion may, indeed, be capable of proof, and in such case no act would be valid." And it appearing that the testator, though enfeebled in mind, had the power of resistance, and that there was not the slightest evidence of importunity, the Court pronounced for the will (a). 4. The general law upon the subject of undue influence in the procuring of wills is stated with great clearness in the recent case of Hall v. Hall (6). In this case the will was attacked on the ground that it had been procured by the violence and threats of the testator's wife. In leaving the case to the jury, the learned judge remarked : " To make a good will, a man must be a free agent. But all influences are not unlawful. Persuasion — appeals to the affections, or ties of kindred — to a sentiment of grati- tude for past services, or pity for future destitution, or the like — these are all legitimate, and may be fairly pressed on a testator (c). On the other hand, pressure, of whatever character, whether acting on the fears or the hopes, if so exerted as to overpower the volition, without convincing the judgment, is a species of re- straint un(?er which no valid will can be made. Importunity, or threats such as the testator has not the courage to resist — moral command asserted and yielded to for the sake of peace and quiet, or of escaping (a) Stuh V. Schaeffle, 16 Jur. 909. See also Williama v. Ooude, 1 Hagg. 577; Armst/rong v. Huddleatone, 1 Moo. P. C. 474. (6) L. R. 1 Prob. 482; 37 L. J. P. 40 ; 17 L. T. N. S. 152. (c) See the remarks of Cresswell, J., in Sf^ton v. Hopwood, 1 F. & F. 578. 139 Book II. Chap. IX. Sect 11. 1 '! % {jf !■ Ml, (i .1 \ I ' M ■■\%M. il ' il! 140 OF TESTAMENTARY CAPACITY. H m J il;: i :rl'1 ill Book II. from distress of mind or social discomfort — these, if Chap IX. carried to a degree in which the free play of the testator's Sect. II. judgment, discretion or wish is overborne, will constitute undue influence, though no force is either used or threatened. In a word, a testator may be led, but not driven ; and his will must be the offspring of his own volition, and not the record of some one else's." 5. In another case (a) which came before the House of Lords, and in which the question at issue was whether or not a will had been procured by fraud and undue in- fluence exercised by the testator's wife, Lord Cranworth distinguishes between undue influence in the ordinary and popular sense of the term, and that undue influence which is held by the Courts to invalidate a benefit procured by its means. 6. After referring to the mental capacity of Mr. Col- cleugh, the testator, the learned judge says : " I shall there- fore assume that Mr. Colcleugh had suflicient mind to enable him to make a will, if left to exercise his judg- ment freely ; and I will consider the other, which is the real point of the case, namely, whether the verdict is satis- factory, supposing it to have proceeded on the ground, that though Mr. Colcleugh had a disposing mind, yet the document in question cannot be considered to be his will, by reason of its having been obtained from him by the undue influence of his wife. (a) "The difllculty of deciding such a question arises from the difficulty of defining with distinctness what is undue influence. In a popular sense, we often speak of a person exercising undue influence over another, when the influ- ence certainly is not of a nature which would invalidate & will. A young man is often led into dissipation by fol- ml (a) Bopse v. Rosaborough, 6 H. L. C. 2 ; 3 Jur. N. S. 173. OF UNDUE INFLUENCE. lowing the example of a friend of riper years, to whom he looks up, and who lead's him to consider habits of dis- sipation as venial, and perhaps even creditable ; the friend is then correctly said to exercise an undue influence. But if in these circumstances the young man, influenced by his regard for the friend who has thus led him astray, were to make a will and leave to him everything he pos- sessed, such a will could not be impeached on the ground of undue influence, nor would the case be altered merely because the friend had urged, or even importuned tlie young man so to dispose of his property — provided only that in making such a will the young man were really carrying into effect his own intention, formed without either coercion or fraud. (6) "I must further remark, that all the diflSculties of defining the point at which influence exerted over the mind of a testator becomes so pressing as to be properly described as coercion, are greatly enhanced when the ques- tion is one between husband and wife. The relation con- stituted by marriage is of a nature which makes it as difficult to inquire, as it would be impolitic to permit in- quiry, into all which may have passed in the intimate union of affections and interests which it is the paramount purpose of that connection to cherish. (c) " In order, therefore, to have something to guide us in our inquiries on this very difficult subject, I am pre- pared to say that injiuence in order to he undue within the meaning of any rule of laiu which would make it su^- cient to vitiate a will, must be an influence exercised either by coercion or by Jraud. (d) " In the interpretation, indeed, of these words, some latitude must be allowed. In order to come to the con- clusion that a will has been obtained by coercion, it is not necessary to establish that actual violence has been 141 Book II. Chap. IX. Sect. II. vj: ■'i '«S! 'r^ff., ^id Mi 'm m t !! I '11 ^1/ I i!- i I i r 'vH i 1 I 1 • 1 i : k '^ "^ ,' . P' \[ ,, ;. J 1 ■ '' 1 1 ■ I : 142 OF TESTAMENTARY CAPACITY. Book II. used or even threatened. The conduct of persons in vigor- Chap. IX. ous health towards one feeble in body, even though not Sect II. unsound in mind, may be such as to excite terror, and make him execute as his will an instrument which, if he had been free from such influence, he would not have executed. Imaginary terrors may have been created suffi- cient to deprive him of free agency. A will thus made may possibly be described as obtained by coercion. (e) " So as to fraud. If a wife, by falsehood, raises pre- judices in the mind of her husband against those who would be the natural Objects of his bounty, and by con- trivance keeps him from intercourse with his relatives, to the end that these impressions, which she knows he had thus formed to their disadvantage, may never be removed, such contrivance may perhaps be equivalent to positive fraud, and may render any will invalid executed undrr false impressions thus kept alive. (f) "It is, however, extremely difficult to state in the ab- stract what acts will constitute undue influence in questions of this nature. It is sufficient to say, that, allowing a fair latitude of construction, they must range themselves under one or other of these heads, coercion or fraud. (g) "One point, however, is beyond dispute, and that is, that where once it has been proved that a will has been executed with due solemnities by a person of competent understanding, and apparently a free agent, the burthen of proving that it was executed under undue influence is on the party who alleges it. [h) " Undue influence cannot hepresv/med ; and looki n^ to the evidence in the present case, I am unable to dii* cover evidence warranting the conclusion at which the jury arrived, supposing them to have proceeded on the ground of undue influence. That Mr. Colcleugh might, without any undue influence operating on his mind, de- Pa* W on*' ?ii the 'tt the ight, de- OF UNDUE INFLUENCE. sire to make a will giving everything to his wife, is a proposition which cannot be controverted. She had been the partner of his life for twenty-four years. He had no children. His nearest relative was a first cousin of his father, with whom, from whatever cause, he had never had more than slight and casual intercourse. His heir presumptive was a second cousin, of who.se very existence he does not appear to have been aware, being the daugh- ter of another and elder first cousin of his father, who had died many years previously. That he should in these circumstances wish to give everything to his wife could surely afford no ground for surprise; and one mode, therefore, of looking at this subject is to consider whether, supposing him, without the exercise of any sinister influ- ence, to have entertained such a wish, his conduct would have been that which, according to the evidence, he in fact pursued. (i)" Supposing, then, that Mr. Colcleugh, on the 6th Aug- ust, 1842, being, as I assume he was, sound in mind, though very infirm in body, entertained the wish to give every- thing to his wife, what is the course which, as a reason- able man, he would be likely to pursue ? He would surely send for his solicitor, and, in the absence of his wife, give him necessary instructions, and when the will was pre- pared he would execute it in the presence only of his solicitor and some other disinterested witness, for which purpose no one would be more fit than his medical at- tenda .ut. 143 Boor II. Chap. IX. Sect. II. (,fc) "Now, this is precisely the course which he did take ; and the burthen of proof at the trial was, therefore, on the respondent to show that though what was done bore the semblance of being the voluntary act of Mr. Colcleugh, yet it was an act which he was induced to perform under the influence of terror or fraud. Now, my Lords, I look .■ ■I*' Hi' nJ.i ^t:'':>i|: m '.14 111 !Tli If: ; hi I '. : ■ i. ill liiH !■ U^ 1 '■ H ■'■:! r'-i 144 OF TESTAMENTARY CAPACITY. Book II. in vain for any such evidence. The most I can find, il Chap. IX. indeed that can be found, is evidence to show that the act Sect. II. done was consistent with the hypothesis of undue influ- ence ; that the instrument, though apparently the expres- sion of his genuine will, might in truth have been executed only in compliance with the threats or commands of his wife ; or that he had been led to execute it by unfounded prejudices artfully instilled into or cherished in his mind by his wife against those who would otherwise have been the probable objects of his bounty. (1) " But in order to set aside the will of a person of sound mind, it is not sufficient to show that the circumstances attending its execution are consistent with the hypothesis of its having been obtained by indue influence ; it muni be shown that they are inconsistent with a contrary hy- pothesis. Can it be truly said that there is any such in- consistency here ? The undue influence must be an in- fluence oxercised in relation to the will itself, not an in- fluence in relation to other matters or transactions. But this principle must not be carried too far. Where a jury sees, that at and near «he time when the will sought to be impeached was executed, the alleged testator was in other important transactions so under the influence of the per- .son benefited by the will, that, as to them, he was not a free agent, but was acting under undue control, the cir- cumstances may be such asfaii'ly to warrant the conclusion,, even in the absence of evidence bearing directly on the execution of the will, that, in regard to that also, the same undue influence was exercised." 6. The cases upon the subject of undue influence in our own Courts are very numerous (a). They relate chiefly, (a)McGonigal v. St<: f* 'J ti >? f I i 4 ■ ' f ) 1 V f 1 :(-!,,» 1 1 r'^'iiiL I ! ■' I Ml' in !' , si," I » 14G Book II. Chap. IX. Sect. ir. OF TESTAMENTARY CAPACITY. pronounce against the will." Per.suasion,which would Ix" powerless when the testator is in sound health, may amount to an impi'oper influence if used when he is incap- able from disease of resisting it (a). 8. .Although, where an undue influence is exercised ovei the miiiu of a testator in making bis will, the provisions of the will in favour of the person exercising that influence are void, yet the will may be good as far as respects other parties ; so that a will may be valid as to some parts, and invalid as to others ; may be good as to one party, and bad as to another (6). 9. The mere fact that a will is drawn by the person most benefited by its provisions, does not render the will in- valid. If the person benefited propounds the will, he must bring forward such evidence as will entirely sat'rfy the mind of the Court that the testator knew and approved of the contents of the instrument (c). 10, In the celebrated Parish Will Ccise {d), the law was laid down by the Court as follows : — " In regard to the effect of a will being written or procured by one interested in its provisions, the maxim, qui se scripsit hceredem, has imposed, by law, an additional burden on those claiming to establish a will under circumstances which call for the application of that rule ; and the Court, in such a case, justly requires proof of a more clear and satisfactory character," 11, And in Barry v, Butlin (e), Baron Parke, delivering the judgment of the Judicial Committee of the Privy Council, thus stated the law : "The rules of law, accord- (a) Per Sir Wm, Wynne in Dicken- son V, Mors, Prerog. T. 1790 ; Hig- f/inson v. Colcot, 1 Cas, temp, Lee, "138, (ft) Lord Trimlestown v, D" Alton, 1 Dow, N. S. 85 ; Wood v. Wood, 1 PhiUim, 357 ; per Mowat, V,-C,, in Martin v, Martin, 12 Grant, 514. (c) Mitchell v. Thomas, 12 Jur. 967 ; 6 Moo, P, C. 137 ; per Draper. C. J. in Martin v Martin, 15 Grant, at p. 588. (d) Ddafield v. Parish, 25 N, Y, R. 9. (e) 1 Curt, 637 ; S. C. 2 Moo. P. C. 480. !i OF UNDUE INFLUEN'CE, nag to which cases of this nature are to Ije decided, do not admit of any dispute, so far as they are necessary to the determination of the present appeal, and have been ac- quiesced in on both sides. These rules are two : the first is, that the onus probandi lies upon the party propound- ing a will, who must satisfy the conscience of the Court that the instrument propounded is the last will of a free and capable testator ; the second is, that if a pirty writes or prepares a will under which he takes a ben'^at, that is a circumstance which ought generally to excite the suspi- cion of the Court, and calls upon it to be vigilant and jealous in examining the evidence in support of the in- strument, in favour of which it ought not to pronounce unless the suspicion is removed, and it is judicially satis- tied that the paper does express the true will of the de- ceased. These principles, to the extent that I have stated, are well established. The former is undisputed ; the latter is laid down by Sir John Nicholl in substance in Paske v. Ollat ; Ingram v. Wyatt ; and Billinghurst V. Vickers, and is stated by that very learned and experi- enced judge to have been handed down to him by his predecessors, and this tribunal has sanctioned and acted upon it in a recent case, that of Baker v. Batt (a). " Their Lordships are fully sensible of the wisdom of this rule, and of the importance of its practical application on all occasions. At the same time, they think it fit to observe, especially as there has been some discussion upon this point towards the close of this inquiry, that some of the expressions reported to have been used ly Sir John Nicholl, in laying down this doctrine, appear to them to be somewhat equivocal, and capable of leading into error in the investigation and decision of questions of this na- (a) 2 Moo. P. C. 317. See also HUchingt v. Wood, Ibid 355, 436. 147 Book II. Chap. IX. Sect. II. M I' 1 ihij rli i ' f * ,f'- 148 OF TESTAMENTARY CAPACITY. Book II. ture. It is said that where the party benefited prepnres- Chap. IX. tho will, the presumption and onus jn'obandi is against Sect. II. the instrument, and the proof must go not merely to the act of signing, but to the knowledge of the contents of the paper ; and tha*. Adhere the capacity is doubtful, there must be proof of instructions or reading over. If by these ex- pressions the learned judge meant merely to say that there are cases of wills prepared by a legatee so pregnant with suspicion, that they ought to be pronounced against in the absence of evidence in support of them extending to clear proof of actual knowledge of the contents by the supposed testator, and that the instructions proceeding from him or the reading over the instrument by or to him, are the most satisfactory evidence of such knowledge, we fully concur in the proposition so understood. In all probability, the learned judge intended no more than this. But if the words used are to be construed strictly ; if it is intended to be stated, as a rule of law, that in every case in which the part}' preparing the will derives a benefit under it, the onus prohandi is shifted, and that not only a certain measure, l)ut a particular species of proof if* thereupon required from the party propounding the will, we feel bound to say that we conceive the doctrine to be incorrect. The strict meaning of the term onus prohandi is this, that if no evidence is given by the party on whom the burthen is cast, the issue must be found against him. In all cases this onus is imposed on the party propounding a will ; it is, in general, discharged by proof of capacity, and the fact of execution, from which the knowledge of and assent to the contents of the instrument are presumed ; and it cannot be that the simple fact of the party who prepared the will being himself a legatee is, in every case and under all circumstances, to create a contrary presump- :un OF UNDUE INFLUENCE. tion, and to call upon the Court to pronounce against the will, unless additional evidence is produced to prove knowledge of its contents Ijy the deceased. A single instance, of not unfrec^uent occurrence, will test the truth of this proposition : — A man of acknowledged competence and habits of business, worth 100,000^., leaves the bulk of that property to his family, and a legacy of 10/. or 50/, to his confidential attorney, who prepared his will ; would this fact throw the burden of proof of actual cognizance by the testator of the contents of the will on the party propounding it ; so that, if such proof were not sup- plied, the will would be pronounced against ? The answer is obvious — it would not. All that can be truly said is, that if a person, whether attorney or not, pre- pares a will with a legacy to himself, it is at most a sus- picious circumstance, of more or less weight according to the facts of each particular case ; in some of no weight at all, as in the case suggested ; varying according to the cir- cumstances — for instance, the quantum of the legacy, and the proportion it bears to the property disposed of, and nu- merous other contingencies ; but in no case amounting to more than a circumstance of suspicion, demanding the vi- gilant care and circumspection of the Court in investigating the case, and calling upon it not to grant probate without full and entire satisfaction that the instrument did express the real intentions of the deceased. Nor can it be neces- sary that in all such cases, even if the testator's capacity is doubtful, the precise species of evidence of the deceased's knowledge of the will is to be in the shape of instructions for or reading over the instrument ; they form, no doubt, the most satisfactory, but they are not the only satisfactory description of proof by which the cognizance of the con- tents of the will may be brought home to the deceased. The Court would naturally look for such evidence ; in some 149 Book II. Chap. IX. Si«t. II. i't'l % Hi :| f,! m i I m i ' i:: |: ', t * Mi' 150 OF TESTAMENTARY CAPACITY. Book II. dases it might be impossible to establish a will without it ; Chap. IX. but it has no right in every case to require it. I have said Sect. II. thus much upon the rules,,of law applicable to this case, with the concurrence of all their Lordships who heard the argument, not particularly with a view to the decision of this case, but in order to prevent any misconception upon a subject of so great practical importjince. At the same time their Lordships wish it to be distinctlj'^ understood, that, entirely acquiescing in the propriety of the rule so (|ualified and explained, they should be extremely sorry ii anything which has fallen from them should have the effect of impeding its full operation." 12. By the civil law, a will written by a pei'son in his own favour was rendered void (a) ; and in Crispell v. Diibois {b), the Court, after stating the rule of the civil law, remarked that " though this rule of the civil law has not been adopted in on .- Courts, they do demand satis- factory proof in such cases that the party executing the will clearly understood, and freely intended to make the disposition of his property which the ' instrument ' pur- ports to direct " (c). 13. If the person who drew the will and who benefits by it stands in a fiduciary position towards the testator, the proof of the latter's knowledge of the contents of the instrument and his freedom from undue influence must be clear (cl). 14. The circumstance of a solicitor preparing for his til (o) Dig. lib. 48, t. 10, s. 15 ; and lib. 34, 8. 8. (b) 4 Barb. 398. (c) Ste further on this subject, Jkece V. Pressei/, 2 Jur. N. S. 380 j Durndly. CorHehi, lHoh. 51;3L. T. 323 ; Baker v. Batt, 2 Moo. P. C. 317; Grevillc v. Tulee, 7 Moo. P. C. 320 ; Patke V. OUatt, 2 Phillim. 323; Darling v. Lweland, 2 Curt. 225; Wrench v. Murray, 3 Curt. 623 ; Jones V. Omdrich, 5 Moo. P. C. Hi ; Major V. Knight, 4 No. Cas. G(il ; Gockcraft v. Rawles, ib. 237. (rf) Paskc V. OUatt, sup. ; lugntm V. Watts, 1 Hagg. 391 ; Barton v. Robins, 3 Phillim. 456, note. In the goods of Edwards, 3 S. & T. 10. But direct evidence is not required ; cir- cumstantial evidence is sufficient : Raxoorth v. Marriott, 1 M. & K. 643 ; 1 Williams Exors. 107 n. (s.) 1 . i . !'■ n i 'lA OF UNDUE INFLUENCE. 151 client a will containing dis])ositions in his own favo\u-, Book II. iloes not, however, prevent him from taking the benetit, chap. IX. if no undue influenct; is used. In Hindson v. Weather'ill {a) sectTlI. 11 gift by will by a client to his solicitor, in gratitude foi- services rendered by the latter, of certain real estate and the s!'- of 1,000^., the will having been drawn by the solicitor, was supported b^' the Court. The will had in this ca.se, before execution, been shown to a disinterested person, to whom the testator expressed his approval of the gift made to the solicitor. Lord Justice Knight Bruce says (l)), " As to the authorities cited, they seem to me all consistent with a conclusion in Mr, Weatherill's (the solicitorV') favour — it being impossible that a testamen- tary gift by a client to a solicitor can against the latter be liable to all the same considerations as a gift to him inter vivos would have been, though it may be open to some of them." And in the subse(^uent case of Walker v. Smith (o), the Master of the Rolls supported a will drawn by a solicitor, containing gifts of considerable amount to the solicitor, his wife and children (d). 15. Wills drawn by medical attendants in their own favour during illness are regarded with peculiar jealousy. Though there is no rule of law which forbids a man to bequeath his property to his medical attendant, yet it is not a favourable circumstance for one in such a confi- :■■!:: I M H '; I' ^'^Mii (a) 1 Sm. & G. 009 ; 5 D. M. & CI. .501. (M At p. 311 of rep. in 1 D. M. ((•)' 29 Beav. 394. ((/) See also Barry v. Bittlin, 2 Moo. P. C. 480. For cases in which a will made by a aolicitor in his own favour was set aside, see Diifour v. <7rnft, 3 Moo. P. C. 136; Waters v. Thorn, 22 Beav. .547. See alco Had- d(>ck V. Trotinaii, 1 F. & V. 31, where the will contained a devise in favour of the mother of the attorney who drew the will, and was executed by the testatrix on her deathbed, and whilst slie was in a state of (preat debility. 1^ wim I; 152 OF TESTAMENTARY CAPACITY. Book II. secrecy ; and the whole tivi nsaction assumes the character Chap. IX. «)f a clandestine proceeding. In such a case the onus will Sect. II. lie very heavily on the party benefited to maintain the validity of the will (a). IG. In a remarkable case (b) which lately came before the English Court of Probate, the Court had occasion to consider how far the principles by which Courts of Equity are guided in cases of undue influence in transaction.s taking effect inter vivos are applicable to gifts by will. A Roman Catholic lady left by will the bulk of her pei- sonalty to her priest absolutely, and free from trusts, and appointed him executor. Upon her death, he propounded the will as executor, the validity of which, after being opposed by the next of kin on the ground of undue in- fluence exercised by the priest over the mind of the testa- trix, was, by the direction of the judge, pronounced for by the verdict of a special jury. At the trial, the execu- tor, the defendant, was called as a witness by the next of kin, the plaintiff, and cross-examined, but nothing was elicited from him to prove undue influence, beyond the fact that he was the spiritual adviser of the testatrix. A new trial was moved for, before Lord Penzance, Pigott, 13., and Brett, J., on the ground that the judge had directed the jury to find for the defendant unless the plaintifl" proved coercion ; the plaintiff" contending that, according to the well-established rule of the Courts of Equity in cases of undue influence, the onus should have been cast upon the defendant of proving that no undue influence was used (e). The application for a new trial was, how- (a) Ashwcll V. Lomi, L.R. 2Prob. Beav, 477. See also Greidlle v. Tyke, 7 Jur. Moo. P. C. 320 ; Jones v. Goodrich, L. R. .5 Moo. P. C. 16; Eeece v. Pressey, (h) 2 Jur. N. S. 380 ; Durnell v. Corjield, 462 ; 1 Rob. 51. See further on the sub- 215. ject of undue influence, the notes to (c) Huguenin v. Beasley, 2 Tud. L. C. 4 Ed Eq. 462 to 503 ; Foioler v. Wyatl, 24 299 ; 237 ; Scohl^led v. Templer,^ N. S. 619 ; Lyon v. Home, 6 Eq. 655. Parfitt V. Lawless, L.R. 2 Prolj. 41 L. .J. P. 68; 27 L. T. N. S. See White & Tudor's L. C. 556 , ; Hoghtonv. Hoghton, 15 Be&v. Cooke V. Lamotte, ib. 2M. OF UNDUE INFLUENCE. ever, refused. Lord Penzance, in the course of an elabo- rate judgment, distinguishes between deeds and wills- After stating that the rule had been granted in order to consider a suggestion, strongly pressed, that the rules adopted in the Courts of Equity in relation to gifts inter vivos ought to be applied to the making of wills, he con- tinues (a) : (a) "Inequity, persons standing in certain relations to one another — such as parent and child, man and wife, doctor and patient, attorney and client, confessor and penitent, guardian and ward — are subject to certain pre- sumptions when transactions between them are brought in question ; and if a gift or contract made in favour of him who holds the position of influence is impeached by him who is subject to that influence, the Courts of Equity cast upon the former the burthen of proving that the transaction was fairly conducted as if between strangers ; that the weaker was not unduly impressed by the natural influence of the stronger, or the inexperienced overreached by him of more mature intelligence. Applying this view of the subject to the making of a will, it was contended in this case that it was enough to show that a legatee fell within the class enumerated, and that having done so, the onus was cast upon him of proving that his legacy M-^as not obtained by undue influence. It would be an answer to this argument to say that this has never been, and is not, the law in this or any other Court regarding wills; and that, if this Court should presume to make a new law on the subject, it would establish one rule in regard t*^* personalty, while another would remain the existing rule in regard t6 realty. ' One point, however, is beyond dis- pute,' said Lord Cranworth in Boyse v. Rossborough (b)> [a) At p. 468. (6) 1 H. L. C. p. 49. 153 Book II. Chap. IX. Sect. II. i ; ^ i! ■i':i m 'li ■ • if- ■: -J. 154 OF TESTAMENTARY CAPACITY. Book II. Chap. IX. Sect. II. nil ' and that is, that where once it has been proved that a will has been executed with due solemnities by a person of competent understanding, and apparently a free agent, the burthen of proving that it was executed under undue influence is on the party who alleges it. Undue influence cannot be presumed.' But in truth the cases in equity apply to a wholly different state of things. In the first place, in those cases of gifts or contracts inter vivos there is a transaction in which the person benefited at least takes part, whether he unduly urges his influence or not ; and in calling upon him to explain the part he took, and the circumstances that brought about the gift or obliga- tion, the Court is plainly requiring of him an explanation within his knowledge. But in the case of a legacy under a will, the legatee may have, and in point of fact gene- rally has, no part in or even knowledge of the act ; and to east upon him, on the bare proof of the legacy and his relation to the testator, the burthen of showing how the thing came about, and under what influence or with what motives the legacy was made, or what advice the testator had, professional or otherwise, would be to cast a duty on him which in many, if not in most cases, he could not possibly discharge. A more material distinction is this : the influence which is undue in the cases of gifts inter vivos, is very diflferent from that which is required to set aside a will. In the case of gifts or other transactions inter vivos, it is considered by the Courts of Equity that the natural influence which such relations as those in ([uestion involve, exerted by those who possess it to ob- tain a benefit for themselves, is an undue influence. Gifts or contracts brought about by it are, therefore, set aside unless the party benefited by it can shew affirmatively that the other party to the transaction was placed ' in ■n 1 OF UNDUE INFLUENCE. 155 such a position as would enable him to form an absolutely free and unfettered judgment' (a). (b) " The law regarding wills is very different from this. The natural influence of the parent or guardian over the child, or the husband over the wife, or the attorney over the client, may lawfully be exerted to obtain a will or legacy, so long as the testator thoroughly understands what he is doing, and is a free agent. There is nothing illegal in the parent or husband pressing his claims on a child or wife, and obtaining a recognition of those claims in a legacy, provided that that persuasion stop short of coercion, and that the volition of the testator, though biassed and impressed by the relation in which he stands to the legatee, is not overborne and subjected to the do- mination of another. (c) '• ' The influence which . 1!1 set aside a will,' says Mr. Justice Williams, ' must amount to force and coercion destroying free agency ; it must not be the influence of affection or attachment ; it must not be the mere desire of gratifying the wishes of another, for that would be a very strong ground in support of a testamentary act; further, there must be proof that the act was obtained by this coercion ; by importunity which could not be re- sisted ; that it was done merely for the sake of peace, so that the motive was tantamount to force and fear' (h). This difference, then, between the influence which is held to be undue in the case of transactions inter vivos, and that which is called undue in relation to a will or legacy, is all-important when a question arises of making pre- sumptions or adjusting the burthen of proof For it may be reasonable enough to presume that a person who had obtained a gift or contract to his own advantage and the (a) Archer v. Hudson, 7 Beav. 551. (6) 1 Williams Exors. Ft. 1, bk. 2, ch. 1, 8. 2. Book II. Chap. IX. Sect. II. ^M y ■{'[■■$' 1 ■ ' i '' '■', , ■ ■ MM |! I I 14- liii' i ! ^' i ^ ! <-.\ : i i J ! I* i 13 n t< i 15C Book II. Chap. IX. Sect. II. OF TESTAMENTARY CAPACITY. detriment of another, by way of personal advice or per- suasion, has availed himself of the natural influence which his position gave him. And in casting upon him the burthen of exculpation, the law is only assuming that he has done so. But it is a very different thing to presume, without a particle of proof, that a person so situated has abused his position by the exercise of dominion or the assertion of adverse control. (d) " For these reasons, it seems to me that it would be improper and unjust to throw upon a man in the position of the plaintiff, without any proof that he had any hand whatever in the making of this will, the onus of proving negatively that he did not coerce the testatrix into devis- ing the residue of her land to him. I say coerce, for thi.s is the only matter involved in a plea to undue influence. Lord Cranworth appears, in the case above cited, to have regarded fraud as a species of undue influence. It is a mere question of terms ; but, by the rules of pleading es- tablished in this Court since December, 18G5, fraud, which includes misrepresentation, is the subject of a separate plea, and undue influence as a term used in a plea in this <;ourt, raises the question of coercion, and that only " (a). (a) In England it is not compe- tent to the Court of Chancery, on the ground that legacies given by a codicil were obtained by undue influence, to declare the legatee a trustee for the person who would otherwise have taken— the objection on the ground of fraud must be taken in the Probate Court : Allen v. McPherson, 1 H. L. C. 191 ; 1 Jarm. Wills, 23. But in this Province the Court is authorized by statute to try the validity of wills impeached on the ground of fraud or undue influence ; Con. Stat. U. C. c. 12, s. 28. \ : :; i i iL . k^i ' xn BOOK THE THIRD. OF THE MAKING AND EXECUTION OF WILLS. CHAPTER I. n 'I it ^i fl OF THE MODE OF WRITING AND FORM OF A WILL. 1. Statute of Frauds required that will of real estate should be in writing. Wills of personal estate must also generally be in writing. 2. Printing, lithographing, &c. , equivalent to writing. 3. Will may be written on any material or in any mode. 4. Pencil writings considered deliberative. 5. Will may be written in any language. Contractions may be used. G. A paper propounded as a will must have a testamentary cha- racter. Form of a paper immaterial. Examples. 7. A document making a "free gift" held testamentary on parol evidence. 8. Examples of papers held to be testamentary. n. (f) Mistake in a codicil as to date or place of deposit of will im- material. !). A paper may be a will, though not taking effect until some time after the testator's death. 10. Parol evidence admitted to prove or disprove testamentary character of a paper. 11. Example furnished by Luter v. Smith. Parol evidence must be cogent and conclusive. 12. Case of " In the goods of Poole," 13. Not necessary that testator should intend to perform a testa- mentary act. 14. Rule laid down by Sir E. V. Williams. n. (e) Court will give effect to an instrument as a will if it cannot operate in the way in which testator intended it should operate. 15. Paper not a will if it takes effect immediately. 16. A will must be a disposition of property to take effect after death. 17. Will may consist of several different papers or instruments. Examples. "iHt 1 }! M' ■ 1 r,l ■ ? ' 1 ' 1 •it i ij :'!; ^|. 1' s [' ■'i ■ ) i •J 1 ' ^ I • '■ H- \i ' : il' 1 ^ji i ■. Tj |i i ' Ik !■ ... . _. 158 OF THE EXECUTION OF WILLS. n. (b) When|probate granted of several papers, the grant is to all the executors therein named. 18. Instructions may, in certain cases, be incorporated into the will. 19. No precise form of words necessary to a will. Examples of words creating trusts. 20. Courts indisposed to extend the rule creating trusts. Ex- ample. 21. General rule laid down by Lord Cranworth as to the creation of trusts by precatory words. 22. Rule laid down by Lord Langdale on same subject. 23. Will by two persons jointly. 24. Conjoint or mutual wills. 25. Agreement to leave property by will may be enforced. 26. Error in description of codicil immaterial. Book III. 1- The Statute of Frauds required that a will of real Chap I. estate should be in writing ; and, as will appear in a fu- ture chapter, wills of personal estate must also generally be in writing (a). 2. It has been held that printing, lithographing, or en- graving is equivalent to writing under the statute (6) ; and that pencil writing is sufficient (4. cited by the judge in 2 Hagg. 247. (h) Sabine v, Goate, 1782, cited by the judge in 2 Hagg. 247. (») Chaworth v. Beech, 4 Ves. .565. {j) Jones V. Nicholay, 2 Rob. 29:! ; l4 Jur. 675 ; In the goods of Marsdt,\ IS. & T. 542; 6 Jur. N.S. 405; 2 L.T.N.S. 87 ; Gounh v. Findm, 7 Exch. 48 ; 21. L.J. Exch. 58 ; Maxit V. Shute, H. T. 1799, cited by the judge in 2 Hagg. 247 ; Longstaf v. Rennison, 1 Drew, 28. SeegeneraJly 1 Williams Exors. 99, 100. (/t) Doe A. Cross v. Cro««, 8 Q.B. 714; 10 Jur. 564; 15 L.J. Q.B. 217. il) As to papers which have been held not lo be testamentary, see Thorncroft v. Lashmar,2 S. &T. 479; 8 Jur. N. S. 595; 31 L.J.P. 150 ; 6 L.T.N.S. 476. i ■: MODE OF WRITING AND FORM OF A WILL. 7. In a recent case, a paper executed by the testator, beginning, " I hereby make a free gift to," &c., was al- lowed as a codicil to the will of the deceased, the Court admitting parol evidence to explain the intention of the deceased, and being satisfied that he intended the oper- ation of the instrument to be dependent on his death (a). And, upon similar evidence, a paper in the following words : " I give mym sister, Louisa Cook, 104 York Road, Lambeth, to have my Schering (Charing) Cross bank-book for her own use," signed by the testatrix and attested by two witnesses, was held to be testamentary ib). 8. In the goods of Morgan (c), the deceased having in his lifetime executed three deeds of gift, conveying all his jnoperty to trustees for the benefit of his children, but containing a proviso that they should not operate until his death, the Court granted pi-obate of the three deeds as constituting his will {d). And in the goods of Coult- hard (e), a paper described by the testator as a codicil, was admitted to probate, though no trace of a will could be found (/). 9. A testamentary paper duly executed is entitled to probate, although not intended to operate, and not be- .'«) liobertson v. Smith, Ij.H.2 Prob. «; 39 L. J. P. 41; 22 L. T. N. S. 417. See, alRO, In the goods of Coles, L. R. 2 Prob. 362 ; 41 L. J. P. 21 ; 25 L. T. N. S. 852, where the paper began in these words : "I have iven all that I have to B." It was in other respects informal, but it was admitted to probate, evidence being given that It was executed as a will. (b) Cock V. Cooke, L. R. 1 Prob. 241 ; 36 L. J. P.« ; 15 W. R. 89, 296. See also In the goods of Coles, L. R. 2 Prob. .362 ; Kind's Proctor V. Dairies, 3 Hagg. 218. (c) L. R. 1 Prob. 214; 35 L. J. P. 98; 15L. T. N. S. 894. ((f) See Maatemian v. Maherly, 2 Hagg. at p. 247 ; In the goods of Jones, 1 S. & T. 155 ; 31 L. J. P. 199 (e) 11 Jur. N. S. 184. {/) See also in the goods of Mun- dy, 7 Jur. N. S. 52 ; 30 L. J. P. 85 ; 3 L. T. N. S. 380 ; 2 S. & T. 119. A mieitake in the codicil as to the date of the will to which the codicil is intended to be added, is inuna- terial, if the intention can be clearly shewn : In the gocds of Honhlon, 11 Jur.N.S.549. See also In the goods of Cooper, 8 Jur. N. S. 31M ; in which an erroneous description in the co- dicil of the place in which the will was deposited, was held immaterial. See fdso In the goods of What- man, 10 Jur. N. S. 1242 ; 34 L. J. P. 17. IGl Book III. Chap. 1. ■II :i .i,:'|' .r;i '■'^u:^;' « . Ml •• ' I if I -' MMI t't If M II ;'f 162 OF THE EXECUTION OF WILLS. Book III. coming operaitve until some time after the testator's Chap. I. death (a). 10. The testator's intention that a paper not testamen- tary in form, should o[)erate as a will, may be proved by parol evidence (6). But where a person claims probate of a paper, not on the face of it clearly testamentary, the burthen of proof is on that person to satisfy the Court that it was executed animo testandi (c), and it is only to give effect to he intention, that a paper, not testamentary in form, will be held to bear that character {d). 11. The rule regarding the animus testandi, and the extent to which parol evidence may be admitted to show or rebut such aniTnus, was fully considered by the Court in a remarkable case which came up recently for adjudi- cation (e). The facts are stated in the judgment of Sir J. P. Wilde, who said : " This is a most remarkable case, and one which, since the trial, has given me some anxiety. The question raised is, whether a certain codicil is or is not entitled to be admitted to probate. It is regularly exe- cuted by the testator, but evidence was given at the trial that the testator never intended it seriously to operate as a testamentary document. It was proved before the jury that the testator wished one of his family to give up a house which she then occupied, and that to force her to do so, he made pretence of revoking by codicil a bequest which he had made by will in favour of the daughter-in- law of this woman, and that the paper in question was made with that sole object ; that the testator sent his at- (a) In the goods of Newm, 7 Jur. N. S. 688. (6) In the goods of Wehh, 3 S.& T. 482 ; 10 Jut. N. S. 709 ; 33 L. J. P. 182; 11 L. T. N. S. 277 ; In the foods of English, 3 S. & T. 586 ; 4 L. J. P. 5 ; 11 L. T. N. S. 612 ; Cock V. Cooke, L. R. 1 Prob. 241 ; 36 L. J. P. 5 ; .15 W. R. 89, 296. (c) Thomcroft v, Lathmar, 2. S. & T. 479 ; 8 Jur. N. S. 595 ; 31 L. J. P. 150; 6 L. t, N. S. 476. (d) Patch V. Shwe, 9 Jur. N.S.63 ; 32 L. J. Chan. 185 ; 7 L. T. N. S. 554 ; 2 Drew.& S. 689; and cases cit- ed 1 Jarm. Wills. (e) Litter v. SmUh, 3 S. & T, 282 ; 10 Jur. N. S. 107 ; 33 L. J. P. 29; 9 L. T. N. S. 578. MODE OF WRITING AND FORM OF A WILL. 163 tomey instructions to prepare it with that intention, and informed him before it was drawn that lie never wished it to operate at all ; further, that the attorney pointed out the folly of executing such an instrument, and would have nothing to do with its execution. It was, however, exe- cuted in the presence of the testat'-r's brother, to whom it was then given by the testator, with express directions that he was not to part with it, and that it was in no event to operate or to revoke the bequest made in the will, but to be used only in the manner above described. Similar declarations were made by the testator at the moment of its execution. A codicil, thus duly executed in point of form and attested by two witnesses, has been directly im- peached by parol evidence. It bears all the appearance on the face of it of a regular testamentary act, but, on the evidence, it has been found by the jury not to have been intended as such by the testator. The momentous conse- quences of permitting parol evidence thus to outweigh the sanction of a solemn act are obvious. It has a tendency to place all wills at the mercy of a parol story that the testator did not mean what he said. On the other hand, if the fact is plainly and conclusively made out, that the paper, which appears to be the record of a testamentary act, was, in reality, the offspring of a jest, or the result of a contrivance, to effect some collateral object, and never seriously intended as a disposition of property, it is not reasonable that the Court should turn it into an effective instrument. And such, no doubt, is the law. There must be the animus teatandi. In Nickolla v. Nicholla (a) the Court refused probate of a will regularly executed, which was proved to he ve been intended only as a specimen of the brevity of expression of which a will was capable '^ and in Trevelyan v. Trevelyan (6) the Court admitted evi- (a) 2 Phillim. 180. (b) 1 Phillim. 149. Book III. Chap. I. *: )''.f i' *,"( '"im , ... ..il :''-'m i^.i; Ma m V' t i: ! I ' ■iij * i I i ! h I 1 r 1 > i i 164 OF THE EXECUTION OF WILLS. Book III. dence, and entertained the question whether the document Chap. I. was seriously intended or not. In both cases, the Court held that evidence was admissible of the animus testandi. And to the same effect is the authority of Swinburne (a), and Shep. Touch. (6). The analogies of the common law point the same way. A deed delivered as an escrow, though regularly executed, is not binding, and in Pym, v. Camp- bell (c) the Queen's Bench held, that a regular agreement signed by the party might be avoided by parol evidence that, at the time of its signature, it was understood thai it should not operate unless a certain event happened. There can therefore be no doubt of the result, in point of law, if the fact is once established. But here I must remark, that the Court ought not, I think, to permit the fact to be taken as established, unless the evidence is very cogent and conclusive. It is a misfortune attending the determi- nation of fact by a jury, that their verdict recognizes and expresses no degree of clearness in proof They are sworn to find one way or the other, and they do so sometimes on proof amounting almost to demonstration, at others on a mere balance (d)." 12. In a late case, a will was drawn up with several blank spaces for the names of legatees, trustees, and exe- cutors, and for the amounts of legacies. The testator, shortly before his death, signed the will at the solicitation of his friends, expressing doubts however as to its validity, in consequence of the blanks not being filled up. These were not filled up, because the testator did not possess the information necessary to enable him to do so correctly, and he frequently expressed an intention of having a valuation (a) Ft. 1, 8. 3, pi. 23 (6) P. 404. -H .>»t '14 ' \h !,. ) i i' H ili; 168 Book III. Chap. I. OF THE EXECUTION OF WILLS. ting the erased clause, and the copy was made, but the person who made it by mistake omitted several other clauses, and the new will, which did not contain an ex- press clause of revocation, was duly executed, but the omissions were not discovered until after the testator's death, probate was granted of both documents upon parol evidence of the circumstances under which they were drawn, as together forming one will (a). 18. Though instructions for a will which, standing alone, would constitute a good will, are prima facie su- perseded or revoked by a will subsequently executed (b), yet, where the subsequent will is operative only by refer- ence to the instructions, the will and instructions may both be admitted to probate, as together constituting the last will of the testator (c). 19. No precise form of words is necessary to the valid- ity of a disposition in a will ; and language which would be held sufficient to create a trust, will also usually con- stitute a good devise or bequest. The following expres- sions have been held to be imperative, and to amount to a trust, "will and desire" (d), " request" (e), "wish and request" (/), " recommend" (g), " entreat" (/i), "not doubt- ing" (i), "in the fullest confidence" (y), " authorize and empower" {k), " well know" [l), "earnestly conjured" (m), " most earnestly wish" {n), " recommend" (o). 20. The late decisions indicate a reluctance on the part (a) Birks v. Birks, 4 S. & T. 23 ; 34 L. J. P. 90; 13 L. T. N. S. 193. (t) Wood V. Goodlake, 2 Curt. 129. (c) Hitchinysv. Wood, 2 Moo. P. C. 355. id) Eeles v. England, 2 Vera. 466. (e) Eade v. Eade, 5 Mad. 118, if) Foley V. Parry, 5 Sim. 138. iff) TibbeU v. Tibbets, 19 Vea. 6.56. Ih) Prevost v. Clarke, 2 Mad. 4.58. (i) Parsons v. Baker, 18 Ves. 476. (j) Wrujht V. Atkyns, 17 Vea. 255 ; Shoccltonv. Shovelton, 32 Beav. 143. (k) Brown v. Higys, 4 Ves. 708. (I) Briygs v. Penny, 3 M'N. & G. 546. (m) Winch v. Brutton, 8 Jur. 108(3. (n) Youny v. Martin, 2 Y. & Coll. C. C. 582. (o) Cunliffe v. Cunliffe, Prec. in Ch. 201. See also 2 Story's Ei\. Jur. ss. 1069, 1070; 1 WiUiams Exors. 103. MODE OF WRITING AND FORM OF A WILL. 169 of the Courts to carry the doctrine beyond the limits assigned to it by the earlier cases (a). In a late case a testatrix made a bequest of " all my property to my hus- band, hoping he will leave it after his death to my son if he is worthy of it," accompanied by the following expla- nations : " My reason for leaving all I have to dispose of to my husband, and in his entiit' power, is, that my son is already certain of a fortune, and that I cannot now feel any certainty what sort of character he may become. I therefore leave it to my husband, in whose honour, justice, and parental aflFection I have the fullest confidence. Tf my son dies before my husband, though I leave all with- out reservation to my dear husband to dispose of as he thinks fit, yet, should my son leave any children, I do not doubt it will go to them from him, knowing his steady principles and clear judgment of right and wrong, and his sense of justice." The words used were held not to create a trust (6). 21. The general rule, as stated by Lord Cran worth in Williams v. Williams (c), is as follows : — " The real question in all these cases always is, whether the wish or desire or recommendation that is expressed by the testa- tor is meant to govern the conduct of the party to whom it is addressed, or whether it is merely an indication of that which he thinks would be a reasonable exercise of the discretion of the party, leaving it, however, to the party to exercise his own discretion" (d). 22. The requisites that precatory words may create a Book IIL Chap. I. (a) Knott V. Cottee, 2 Ph. 192 ; Knight V. Boughton, 11 C. & F. 513; Webb v. Wooli, 2 Sim. N. S. 267 ; Orcen v. Marsden, 1 Drew, 046 , Langston v. Langston, 21 Beav. 552; Huakitaon v. Bridge, 4 De G. & S. 245 ; Fox v. Fox, 27 Beav. 301 ; Qtiayle v. Davidson, 12 Moo. P. C. 2(58; Scott v. Keu, :» Beav. 291 • Wilson v. Bell, L. R. 4 Ch. Ap. 581. (6) Eaton v. Watts, L. R. 4 Eq. 151 ; 16 L. T. N. S. 311. (f) 1 Sim. N. S. 358. (d) This rule has been followed in late cases. Bernard v. Minshall, Johns. 276 ; Bonsor v, Kinnear, 6 Jur. N. S. 882 ; Liddard v. Liddard, 6 Jur. N. S. 439 ; Hoioarth v. Dewell, 6 Jur. N. S. 1360. iM fi, $ - • 'fill' .1 i I f Vi ( I: 1 1 I ■ i ' 1 1 .1 i . 170 OF THE EXECUTION OF WILLS. Book III. trust have been said by Lord Langdale, M. R ., to be — Chap. I. first, if the words are so used that, upon the whole, they ought to be construed as imperative ; secondly, if the subject of the recommendation or wish be certain ; thirdly, if the objects or persons intended to have the benefit of the recommendation or wish be also certain (a) ; and these three requisites must co-exist. 23. A will may be made by two persons jointly. Such a will, in effect, constitutes two distinct wills, of which separate probates will be granted (h). But if the will so provides, probate mast be delayed till the death of both (c). 24. Oo'v!oint or mutual wills, duly executed, become irrcvoc" Equity, after the death of either party {d). Durir^g u.c 1. uptime of either party, however, such a will may bo revoked (e). 25. An ag. ^em^. „ i,o loave property by will may be en- forced (/). Thus, where in consideration of B. and C. agi-eeing to execute a conveyance of property, part of their ftither's estate, to a purchaser, A. verbally promised to leave them as much as they would get under their father's will : it was held that A.'s estate was bound to make good the promise, and that the case did not come within the 4th section of the Statute of Frauds (g). (a) Knight v. Knight, 3 Beav. 173. {b) In the goods of Straceu, Deane, Ec. Rep. 6 ; 1 Jur. N. S. 1177. (c) In the goods of Baine, 1 S- & T. 144 ; In the goods of Love- grove, 8 Jur. N. S. 442 ; 31 L. J. P. 87; 6 L.T.N. S. 131- ; 2 S. & T. 453 ; Ex parte Day, 1 Bradf. Sur. Rep. 476. (d) Lord Walpole v. Lord Orford, 3 Ves. 402 ; S. C. 7 T. R. 138 ; Hinckley v. Simmons, 4 Ves. 160. See as to the view taken of " mutual wills" by the Courts, Hobion v. Blackburn, 1 Add. 277; Deane, Wills, 21; Dufour v. Pereira, 1 Dick. 419 ; Price v. Dewhurst, 8 Sim. 279 ; 4 M. & C. 76 ; Cheater v. Urwick, 23 Beav. 107. (e) 1 Williams Exors. 10. (/) Loftus V. Maw, 3 Giff. 592. See 8 Jur. N.S. Pt. 2, p. 281, where the cases are reviewed. ig) Ridley v. Ridley, 11 Jur. N. S. 475 ; 34 Beav. 478 ; 34 L. J. Ch. 462 ; 12 L. T. N. S. 481. m ■ 1 m * ;^ \ I., .A. MODE OF WRITING AND FORM OF A WILL. 171 26. When a codicil to a will was incorrectly described Book III. as being a codicil to a will which had previously been re- Ch !-■ ,| CHAPTER II. OF THE EXECUTION AND ATTESTATION OF WILLS OF REAL ESTATE. « Section I. Of the Statutes relating to the formalities of Execucion. 1. Difference in tlie forms necessary to execiition of wills of realty and personalty respectively, significant of relative estimation in which they were formerly held. 2. Execution of wills of real estate governed by the Statute of Fraud- —Provisions of that Statute. 3. Clauses of Statute of Frauds relating to wills repeal? in Eng- land by 1 Vict. c. 20, and in this Province by ' The Wills Act, 1873." Effect of Con. Stat. U. C. c. 82, s. 13. 4. Provisions of " The Wills Act, 1873," s. 7, as to the mode of executing wills. 6. Section 8 of same Act, as to powers of appointment. 6. Section 10 of same Act dispenses with publication. 7. Section 2 of same Act limits the application of the Act to wills made after 31st December, 1873. n. (o) Meaning of word " republished " considered. 8. The 7th section of "The Wills Act, 1873," adopted from the 9th section of 1 Vict. c. 26. 1. The wide difference which at present exists in On- tario between the forms required by law for the due exe- cution of wills of real estate, and those required for the making of wills of personalty, is significant of the relative estimation in which realty and personalty were formerly held by the law of England. On the one hand, we find that a devise of real estate must be signed by the testator, and such signature attested by competent witnesses ; on the other, we find that unsigned and unwitnessed scraps of writing may be admitted to probate as good wills of personalty. 2. The forms 'lecessary to the due execution of wills |i i I STATUTES RELATING TO FORMALITIES OF EXECUTION. of real estate were prescribed by the Statute of Frauds (a). By the 5th section of that statute it was enacted, " That all devises or bequests of any lands, or tenements, devisable either by force of the Statute of Wills, or by this statute, or by force of the custom of Kent, or the custom of any borough, or any other particular custom, shall be in writ- ing, and signed by the party so devising the same, or by some other person in his presence and by his express directions, and shall be attested and subscribed in the presence of the said devisor by three or four credible wit- nesses, or else they shall be utterly void and of none effect." 3. The provisions of the Statute of Frauds winch relate to the execution of wills of real estate have been repealed in England by the new Wills Act, 1 Vict. c. 26 ; but they remain as yet unrepealed in Ontario (6), though they have been slightly modified by our Statute, 4 W. 4, c. 1, s. 51 (c), by which it is provided, that " Any will affecting land, executed after the sixth day of March, one thousand eight Imndred and thirty-four, in the presence of, and attested by, two or more witnesses, shall have the same validity and effect as if executed in the presence of, and attested by, three witnesses ; and it shall be sufficient if such wit- nesses subscribe their names in presence of each other, although their names may not be subscribed in presence of the testator." 4. " The Wills Act, 1873" (d), repeals those sections of the Statute of Frauds (e) relating to wills, which had not been theretofore repealed in this Province. By s. 7 of the new Act, it is provided that " No will shall be valid un- (o) 29 Car. 2, c. 3. (b) " The Wills Act, 1873," repeals the provisions of the Statute of Frauds which relate to the execution of wills— as to all wills made on or after the 1st January, 1874. (c) Con. Stat. U. C. c. 82, s. 13. (d) Stat. Ont. 36 Vict. c. 20. (e) Sa. 5, 6, 12, 19, 20, 21 & 23. 173 Book III. Chap. II. Sect. I ^ ill 1 '1 V .'^ iiW ' 'M im\ ■■'■ \ i: fj< i m i\*K% '■^J ^ ' •! i 1 .:\in ■>i \ ■ I 'I I 174 OF THE EXECUTION OF WILLS OF REAL ESTATE. i'i ' I Book III. less it shall be in writing, and executed in manner here- Chap. II inafter mentioned ; that is to say, it shall be signed at Sect" I. the foot or end thereof by the testator, or by some other person in his presence, and by his direction ; and such sig- nature shall be made or acknowledged by the testator, in the presence of two or more witnesses, present at the same time, and such witnesses shall attest and shall subscribe the will in the presence of the testator ; but no form of attestation shall be necessary : Provided always, that every will, so far only as regards the position of the sig- nature of the testator, or of the person signing for him as aforesaid, shall be deemed to be valid, within the mean- ing of this Act, if the signature shall be so placed at, or after, or following, or under, or beside, or opposite to the end of the will, that it shall be apparent on the face of the will that the testator intended to give effect by such signature to the writing signed as his will ; and that no such will shall be affected by the circumstance that the signature shall not follow, or be immediately after the foot or end of the will, or by the circumstance that a blank space shall intervene between the concluding word of the will and the signature, or by the circumstance that the signature shall be placed among the words of the testi- monium clause, or the clause of attestation, or shall follow or be after or under the clause of attestation, either with or without a blank space intervening, or shall follow or be after, or under, or beside the names or one of the names of the subscribing witnesses, or by the circumstance that the signature shall be on a side, or page, or other portion of the paper or papers containing the will, whereon no clause, or paragraph, or disposing part of the will shall l^e written above the signature, or by the circumstance that there shall appear to be sufficient space on or at the bot- tom of, the preceding side or page or other portion of the STATUTES RELATING TO FORMALITIES OF EXECUTION. same paper on which the will is written to contain the signature ; and the enumeration of the above circum- stances shall not restrict the generality of the proviso ; but no signature under this A.ct shall be operative to give effect to any disposition or direction which is under- neath, or which follows it, nor shall it give effect to any disposition or direction inserted after the signature shall be made. 5. S. 8 provides that "No appointment made by will, in exercise of any power, shall be valid, unless the same shall be executed in manner hereinbefore required ; and every will executed in manner hereinbef o required shall, so far as respects the execution and attestation thereof, be a valid execution of a power of appointment by will, notwithstanding it shall have been expressly required that a will made in exercise of such power should be ex- ecuted with some additional or other foim of execution or solemnity." 6. S. 10 provides that every will executed in manner hereinbefore required, shall be valid without any other publication thereof 7. S. 2 of the same Act provides, however, that, unless therein otherwise expressly provided, the Act shall not extend to any will made before the first day of January one thousand eight hundred and seventy -four, but every will re-executed or republished (a) or revived by any co- dicil, shall, for the purposes of the Act, be deemed to have been made at the time at which the same shall be so re- executed, republished, or revived. 8. The 7th section of " The Wills Act, 1873," has been 175 (o) The word "republished" in this Bectdon, though contained in the English Statute, has no meaning. The section contemplates a re-exe- cution of a will after ibe Act comes into forte. Such re-execution must be with the formalities prescribed by the Act, of which publication forms no part. (See s. 10. ) With- out such re-execution publication is of no avail. Hayes & Jarm. Wills^ 58 n (t). Book TIL Chap. II. Sect. I. ' 1 :i ■"' l\ii ■'''4! iftdi 176 OF THE EXECUTION OF WILLS OF REAL ESTATE. Book TTT. almost literally adopted from the 9th section of the Im-. Ghap. II. perial Act, 1 Vict, c.26, as amended by 15 and 16 Vict, c.24, SectT I. 'J'l'e provisions of the Statute of Frauds, and of Con. Stat. U. C. c. 82, relating to the execution of wills, will not apply to such as are made after the 31st December, 1873 ; but as all wills made before that date must be gov- erned, as to the mode of execution, by the present law, it is necessary to refer to the decisions upon the old statute ; and as the new English Act contains many words which occuned in the Statute of Frauds, and which occur in " The Wills Act, 1873," such as " signed," " presence," " di- rection," " other person," " attested," " subscribed," the de- cisions of the English Courts upon the construction of these words will be useful guides for us. Bequests of personal estate were, by the English Act, and are, by our own statute, assimilated veiy nearly to devises of real es- tate ; and therefore many of the decisions of the eccle- siastical courts, since the English Act came into force in regard to personal estate bequeathed, become of consider- able importance to be considered, although of no direct authority in regard to real estate. The various material points will be considered in the order which they are pre- sented by the Statutes. Section II. Of the mode in which a Will of Meal Estate must be written. 1. Will must be in writing. Construction of the word " writing." 2. Will may contain blank spaces. I. The Statutes prescribe that the will shall be in vjnting (a). A wide and reasonable construction has been (a) The remarks contained in the preceding chapter as to the mode in which a will may be written, apply to wills of real as well as personal estate. It is not thought necessary' to repeat these remarks in tlu» place. SIGNATURE HY THK TESTATOR. given to tho word" writinf^." It has been held that printing', lithographing, or engraving is ecpiivalent to writing un- der the statute (a). The writing need not be with any particular substance ; a will written in pencil has been held sufficient (6). 2. It is no objection to a will, either under the old sta- tutes or "The Wills Act, 1873," that it contains blank spaces ; it is not rec^uired to be written continuously (c). Section III. Reqidvements in regard to siyiiiwj Will, 1 . The will must bo signed by tho testator. 2. If a will is signed by a mark, testator should bo identified, 3. Modes in which signature may bo made. 4. Sealing without signing insufHcient. ■ 5. One siynat\u'o to tho will sufficient, provided it was intended as a complete signature. 0. Not necessary under the Statute of Frauds that signature should be in any particular part of an instrument. 7. Examples of sufficient signature. 8. Provisions of " The V/ills Act, 1873," as to the position of testator's signature. 9. Signature of testator in attestation or testimonium clause hold sufficient under the English Act 15 & 10 Vict. c. 24. 10. Provisions of " The Wills Act, 1873," as to dispositions fol- lowing the signature. 11. Instance of sentence excluded from probate. 12. Testator must, under new statutes, sign before the wit- nesses. 13. Will written on several sheets, or in several parts, considered. 14. Case where signature insufficient, being written on separate paper. 15. Testator may authorize some other person to sign for him. 16. Who may sign for the testator. 17. Practice of sealing wills unnecessary. 18. Express publication of a will was not necessary, and is ex- pressly dispensed with by " The Wills Act, 1873." (a) In the goods of Casmore, L.R. 1 Prob. 653 ; 38 L. J. P. 54 ; 20 L. T. N. S. 497 ; 2 Black. Comm. .376, Chitty's notes ; Schneider v. Norris, 2 M. & S. 286. (6) In the goods of Dyer, 1 Hagg. 219. It is of course desirable that wills, more especially when they affect real estate, should be written in ink, on some durable substance, such as parchment or strong paper, (c) Gornebyv. Gibbon, 6 No. Cas. 679 ; 1 Rob. 705 ; In the goods of Cn, 2 Rol). 339; 14 .Tur. 10.52; In" the goods oftilorcr, 11 Jur. 1022. (c) In the goods of Clarke, 1 S. k T. 22 ; 4 Jur. N.S- 24 ; 27 L. J. P. 18 ; In the goods of Douce, 2 S. & T. 593 ; 8 Jur. N. S. 723 : 31 L. J. P. 172 ; 6 L. T.N.S. 789. (/) Edmonds v. Lewer, 11 Jur. N. S. 911. SIGNATURE BY THE TESTATOR. 179 person authorized by the testator to sign for him, has iBooK III. been allowed as a good signature by the testator (a) ; and Chap. II. a signature by the testator's initials has also been allowed Sect. III. as sufficient (6). And where a testator, who was so crippled as to be unable to write, signed his will by means of a stamp engraved with his name, which he habitually used, the stamp being applied to the will by a person act- ing under his direction, it was held that the will was validly signed, the Court remarking that it is immaterial whether a mark be made with a pen or any other instru- ment (c). The signature to her will by a married woman in the name of her deceased first husband is good (d) ; and the signature by an assumed name is sufficient, being con- sidered by the Court equivalent to a mark (e). If the testator is too weak to write, his hand may he guided (/). 4. The sealing (without signing) of a will by the testa- tor is not a due execution (^). 5. One signature to the will is of course sufficient, though the will should extend over several sheets of paper (Ji). It must appear, however, that the signature made was intended as a complete signaHjre ; for, if it ap- ■^.juTS that the testator intended a further signature which he never made, the will must be considered as un- signed (i). 6. It may be laid down as a general rule, that it is not («) In thegootla of Ullergpererjer, 6 ■lur. 15C; In the goals of Clark, 1 S. & T. 22 ; 4 Jur. N.S. 24 ; 27 L. •hl\ Irt; In the goods of Btair, »' No. Cm. .V28. ('<) In the gocnU of Sarori/, 15 .Tur. 1042 ; In the goods of Hindu, 10 Jur. 1101, (f) Jenhini v. OaUford, '.i S. i, T. 93; !Mur. N.S. OW; 32 L.J. P. 122 ; 8 L.T.N.S. .'517. ('/) In the goods of Glover, 5 No. Cas. .5.')3 : 11 Jur. 1022. (e) In the goods of Redding, 2 Rob. 33!); 14 Jur. 1052. " (/ ) Wilson V. Beddard, 12 Sun. 28. (;/) In the goods of Summei's, 7 No. Civs. ;"))j2 ; Smith v. Kvait», 1 Wils. 3i;> ; llraiiaon v. Atkinson, 2 Ves. Hen. 453. ib) Lemaync v. Stanley, 3 Lev. 1 ; ^reem. 538 ; 1 Eq. Caa. Ab. 403, pi. 9 : Cook V. Parsons, Pre. Ch. 181 ; gee also In the goodfl of Walker, 2 S. & T. MA J 8 .fur. N. S. 314 ; 31 L. J. P. 62 ; 5 L. T. N. S, 766 ; Htlton V. Kinrj, 3Tiev. 86; Orayson v. Atkin- son, 2 Vea. Sen. 454 ; Coles v. Trcco- thick, 9 "Ve«. 249. (f) In the koihIs of Gunninri, 1 Ri>l>. 459; 5 No. Cos. 75; In thegoods of Woo4 ; 8 Jur. N. S. 314 ; 31 L. J. P. (i2; 5 L. T. N. S. 7m. See also In the goods of Torre, 8 Jur. N. S. 4W ; Smith v. Smith, L. R. 1 Prob. 143; 12 Jur. N. S. ds of Atkins, 4 No. Cas. 564 ; In the goods of Baskett, 6 No. Cas. .597 ; In the goods of Mc- Culliim, 7 No. Cas. 125 ; In the goods of Batten, 7 No. Cas. 228. And as to what is a sufficient execution un- der "The Wills Act, 1873," see the following cases decided under the English Act : In the goods of Poifcll, 4 S. & T. 34 ; M L. J. P. 107 ; 13 L. T. N. S. 195 ; In the goods of Wri;,ht, 4 S. & T. ;« ; 34 L. J. P. m ; 13 L. T. N. S. 195 ; In the goods of Willianm, L. K. 1 Prob. 5 ; 11 Jur. N. S. 982; M L. J. P. 2; 13 L. T. N. S. .304 ; In the goods of Wmilei,, 3 S. & T. 429 ; h L. J. !'• 154. In a late English case, when the will of the deceased had an im- perfect attestation clause, and the name of the testator appeared writ- ten beneath the signatures of the at- testing witnesses, and the witnesses were both deatl, and no evidence could be given as tt) the order in which the signatures had been made, the Court gave effect to a presump- tion that tlie will was duly exe- cuted and allowed probate : In the goods of Puddiphatt, L. R. 2 Prob. 97 ; 39 L. J. P. 84. As to the effect, under the provisions of " The Wills Act, 1873," of irregularities in tht position of the testator's and wit- nesses' signatures, see the following cases decided upon the English Sta- tute 15 & 1(5 Vict. c. 24 : In the goods of Archer, L. R. 2 Prob. 2.52 ; 40 L. J. P. 80 ; In the goods of Ham- mond, 3 S. & T. 90; 9 Jur. N. S. 581; 32 L. J. P. 200; In the goods of Casmore, L. R. 1 Prob. 053 ; JW L. J. P. 54 ; 20 L. T. N. S. 497 ; In the goods of Rice, 5 Ir. Rep. Eq. i7G ; Hunt v. Hunt, L. R. 1 Prob. 209 ; .35 L. J. P. 135 ; 14 L. T. N. S. 8.59 ; In the goods of Coombs, L. R. 1 Prob. ;}02; .3(5 L. J. P. 25; 15 L. T. N. S. 3(53 ; In the goods of Hiickmle, Ja. R. 1 Prob. .375 ; 30 L. J. P. 84 ; 1(5 I.. T. N. S. 4M ; In the goods of Dal- low, L. R. 1 Prob. 189; In the goods of Kempton, 3 S. & T. 427 ; :« L. J. P. 153 ; Inthegoodsof /liH»iiw t ■ ■ ti «' W' I .;^ • I I 182 OF THE EXECUTION OF WILLS OF REAL ESTATE, Book III. effect to any disposition or direction which is underneath, Chap. II. or which follows it ; nor to any disposition or direction Sect.~III. inserted after the signature shall be made. Numerous cases have been decided involving the construction of this section. In a late case, the deceased, in his will, which was written by himself on the first side of a half sheet of paper, gave his property to his wife for life, and then, in- tending to dispose of certain freehold cottages on the death of his wife, commenced a sentence, which he left incom- plete. After the incomplete sentence was an asterisk, with the words " See over." The will, which covered the whole of the first side, was executed at the bottom of that side ; and at the top of the second side was another aster- isk, and a devise of the cottages to his daughter : the de- vise was written before the will was executed. The Court held that the words on the second side should be included in the will. Lord Penzance said : " By 15 Vict, c. 24, s. 1, it is enacted that no signature under the Acts shall be operative to give effect to any disposition which is underneath, or which follows it ; but I think that these words, although, as written, they follow the signature, mu.st be read in the place in which the testator intended they should be read, and, therefore, preceding the signature " (a). 11. In the (foods of Art fair (6), the Court excluded from probate a sentence in the will which was written after the testator had signed, but before the witnesses had affixed their signatures, though part of the sentence was wi-itten above the signature of the testator (o). (rt) In the goods of liirt, L. R. 2 Prob. 214 ; 40 L. J. P. 20 ; 24 1^. T. X. a. 142. {!>) I,. 11. 2Prob. 27.); 25L.T.N.S. 274 ; 19 W. K. lOKi. (r) See also upon this subject : In the goods of Iloirelf, 2 Curt. 421 ; In the gorxls of Diiriex, H Curt. 748. Kcntiiifi V. linxiks, 4 No. Vim. 2.5.), 260 ; In the goods of Jones, 4 S. & T. 1; llJur. N. S. 118; ;« L.J. P. 41; i:) L. T. N. S. 210 ; In the goods of Cotton, 6 No. Cas. ;)07 ; 1 Rob. (i;W. Tophnm v. Tiwham, 2 Rob. 18!t ; 7 No. I'uH. 272 ; In the goods of Stanltii, 7 No. Cas. ; In the goods of Summers, 2 Kob. 295 ; 7 No. Cas. 562 ; In the goods of Allen, 2 Curt. 331 ; In the goods of Clifford, 16 L. T. 266 ; In the goods of Harriton, 2 Curt. 863 ; 5 Jur. 1017 ; In the goods of Raw- liwjs, 2 Curt. 326 ; In tlie goods of Simmonds, 3 Curt. 7!) ; In the goods of Trinder, 3 No. Cas. 275. See Sugd. R. P. Stat. .'WO. (c) 1 Williams Exors. 84. (d) In the goods of Swinford, L. R. 1 Prob. 6.10 ; 38 L. J. P. 38 ; 20 L. T. N. S. 87. (e) See Gwillim v. Owillim, 3 S. & T. 200; Vinnicombe v. Butler, 3 S. &T. 580. '11 ■i: •: ii ii ' ! I I \l I if! I i! h.'' ! 1-1 ' '» 1 . 1 i.^ 1 ir ,' i wlj ' IL' h ^AM 192 Book III. Chap. II. Sect*" IV. 1 1 , i 1 ( ! -1- ' ! i i OF THE EXECUTION OF WILLS OF REAL ESTATE. nesses the nature of the instrument, stating it to be a deed, and not a will, the misrepreseMtation will not afi'ect the validity of the execution (a). 14. In the case of Crawford v. Currcif/h (6), the changes in the old law which were efi'ected by Con. Stat. U. C, c. 82, s. 13, were fully discussed. The circumstances of this case, as detailed by Gibson, one of the witnesses to the will, were as follows : " One morning when I called on the testator (Joseph Boyd), old Mrs. Boyd, the mother, .said that Joseph wsis wavsting away fast, and had settled his affairs. Mary, one of the deceased's sisters, went out, and she saw Pollard, who was since dead, come in, and they went into the room where Joseph was. Pollard had the will in his hand. He .said (to witness), ' Will you witness tho will of Jo.seph Boyd ? ' Joseph was sitting in an arm- chair within four or five feet, and he heard what was said. He (Pollard) sjiid he had witnessed it before, and he said he understood it required jinother witness. He then opened it, and showed it to Joseph Boyd, and said, ' T'.is is your will, Mr. Boyd ;' and Boyd nodded assent that it was. I then signed my name as witness in presence of Joseph Boyd. I think Pollard folded it up and took charge of it. I did not see Samuel Pollard sign his name to it. I did not see Joseph Boyd sign his name. 1 did not hear him spenk about it : he only nodded his head in .issent to what Pollard said. I don't know w^'^n the will was signed by Joseph, or when Pollard sigr.ou his name there." 15. This case presented for the consideration of the Court many of the points on the question of attestation and subscription which we have already considered, and some points also which were raised by the new Statute. In tLe fii-st place, the testator did not sign in the pro- (rt) Trimmer v. Jackson, 4 Rum. Fi. , 130 ; White v. TnuUe* Brit. Mu- seum, 3 M. & P. G80 ; C Bing. 310. (6) 16 U. C. C. P. 56. SUBSCRIPTION AND ATTESTATION BY WITNESSES. 198 sence of the witnesses, but only acknowledged that the Book III. instrument was his will. In the second place, the wit- chap!^ II. ne.sses did not subscribe in the presence of each other. In Sect.iv. the third place, it could not be directly shown that Pollard .subscribed in presence of the testator. The judg- ment of the Court was delivered by Adam Wilson, J., who. after stating the provisions of the fifth section of the Statute of Frauds, already referred to, observes: ((t) " Under this state of the law, it was not necessary' the testjitor should actually sign his name in the presence of the witnesses ; an acknowledgment by him of his signa- ture in their presence wtis suthcient. The case in G Eing. 310, quoted in the argument, and many other cases, esta- lilished thi.s. So, also, it was long since held, and conti- uued to be the law in England until the Wills ^ct of 1837 was passed, and it is still the law here, that the acknowledgment so made need not be by the testator to all the witnesses at the one time or in the presence of each othe) , but that this may be done at different times, iind that the witnesses may sul)scribe their names at differ- ent times, and not in the presence of each other («.) The witnesses were, however, according to the plain words of the Statute, always re([uired to subscribe in the presence (if the devisor. (6) " By our present law, it is provided that ' Any will affecting land, executed af„er the 0th March, 1834, in the j)rosence of and attested !>y two or more witnesses, shall have the same validity and effect as if executed in the presence of and attested by three witnesses; and it .shall he sulHcient if such witnes.ses su. .scribe their names in presence of each other, although their names may not be subscribed in presence of the testator.' [a) Jona v. Lakt, 2 Atk. 17«, Note; Ellitv. rSmtiA, 1 Ves. 11. Vi •! ^ i1 W: e-J'-' ^ H. {. I "i: 1 i 1 .41 h M *i 1 :j 1 s 1 i.,. J. 194 OP THE EXECUTION OF WILLS OF REAL ESTATE. Book III. (c) " One part of the controversy here is, whether tlie c;hap. II. last clause of this section, ' and it shall be suflScient,' (S:c., Sect^IV. is an enactment that the witnesses shall subscribe theii- names in the presence of ea'^h other, or is a men leclara- tion that if the witnesses do not subscribe their names in presence of the testiitor, as under the prior law, the will shall not nevertheless be void, but that it shall be sutti- cient if the witnesses do subscribe in the presence of one another ? (d) " The Statute of Charles has not, in express terms, been repealed as to wills ; and, so far as it has not been repealed by enactments inconsistent with its maintenanci- in part or in whole, there is no reason why it may not be considered as still an active law here. Now, under that Statute, it was a positive direction that the witnesses should subscribe and attest the will in the iiresence ofth> devisor, otherwise the will should be utterly void and of none ett'ect. (e) " There is nothing inconsistent in our amended law and this provision subsisting together ; on the contrary, it rather seems that the Legislature intended that this part of the old law should yet continue to be the law ; leavinu it, however, to the deviso'* to pursue either the new law or the old law, according to circumstances or his own con- venience — that is, either to see the witnesses subscribe the will, or if he did not, they should see each other subscri lie it. And, tlierefore, we are of opinion that under the prn- vision ' it shall be fmfficlent if such witnesses subscriln' their names in presence of each other, although their niirni." may not he mibscribed in presence of the testatoi',' the law of this Province does not prevent a will being still sub- scribed l)y the witnesses in the presence of the devisor, «> it might have been before the passing of the late Act, under the Statute of Charles ; and that the new provision •1, Hi fTH SUBSCRIPTION AND ATTESTATION BY WITNESSES. 195 m has extended the old law, by making it sufficient if the Book III. witnesses see each other subscril>e the will, although the Chap. II. devisor may not have seen them. . SectTlV. (/) " There may, perhaps, be other reasons for treating the Act of Charles Jis not wiiolly rescinded as to wills in this Province. The primary oViject of the amended Act was to substitute two witnesses in the place of three. The new Act says nothing of the will being in ivriting, although that w M be implied from the context. Nor does it say that • will shall be executed ' l)y the party devising,' although that may also, perhaps, be inferred. Nor does it say thfit the will may l)e executed ' V)y some other person in his ))resence, and by his express direction,' which, perliaps, cannot bo implied. The Act, therefore, is not a complete law in itself, and does not profess to be so, but assumes all these provisions to be still subsisting ; otherwise the Legislature, in professing to rem()ve unne- cessary difiiculties in the way (»f such instruments, would hfive taken care not needlessly, in these respects, to have lidded to them." (y) The learned judge then adverted to the other dis- puted or doubtful point in the case — namely, whether Pollard did or did not sub.scribe his name in the pr'j.sence of the testntor ; and, after weighing the facts, he considered that he would be justified in presuming the affirmative "ifthat question. He then says (a), "We are of opinion, then, that, although the will was iiot sul).scribed by the witnesses in the presence of each other, it was not, never- theless, void for that cause, but that a sub.scripti(m by them in the j)resenco of the devisor wtis, if it be estab- (a) At p. 61. ,.l| "'■ I 1 , ..r! 196 OF THE EXECUTION OF WILLS OF REAL ESTATE. Book III. lished, a sufficient .sub.scription jiscording to our law. Chap. II. And the will wa.s sustained (a). SectriV. IG. " The Wills Act, 1873," requires that both the wit- nesses must be present together when the will is signeil by or by the direction of the testator, or when the signa- ture is acknowledged by him (6). The witnesses uiustalso sign in i)resence of the testator ; but they need not si^n in presence of each other (c). 17. We have next to cunsider((^)what is a sufficient sub- scription by the witnesses. It maybe laid down as ageneral I'ulo, subject to the exception hereinaftfr noticed, that a witness may subscribe in any manner in which the testji- tor may sign. A mark will therefore be a sufficient sub- (rt) Chief ilustici' I)rai)i'r, in Uiiaii w iJcrtrtiix {'Hi VA'.q.ii. 107), u«t;s liUiKtiaK'- frinii whicli it iiiin)it \»t iiifurreil that he ilmihtH the siiuml- iifSH iif tlio judi^'iauiit in (.'ntirfurd V. Ciin'tifih. He says, " I mlvistilly almtiiin fnini t'Xj)rosBinh' an opinion of conc\uTi'nce m or ilissi'nt from that decision. I liavc not arrived at any positive conehision tipon it." Hee onservations in Li-itli's U. P. Stat. 'Jyi. I'usitive atfiruiative evi- dence liy the sulisi'riliinK witne.sses aM to the fact of tlie sit^ninu "r ac- knoudeilKnient of the will l)y the testator in their presence is not ab- solutely e.ssential ; and the I'oTirt may, in the alwenoe of any sisi>i- cions circumstances, presume a iluu execution. I'er Adam Wilson, J., in Cmirfiintw Cnvrwih, 15 U.l'.vM'. r.(), «li ; lilakc V. Kiiiiiht, W ( "urt. 'A~ ; 7 .Fur. m:\ ; Hitch v. WcUn, lOlieav. 84; (Iwilliin v. No. ("as. 548 ; In tlie L'oods of t'/iffi>f'l, Ifi L. T. 2Cm; In the (,oods of Httrri») In the K'xxli* "f .V(iii.\n'i/il, 1 No. Cas. .'{. 1 ; Chiulivick v. I'dlmir, citeil 1). it Sw. 2 ; In the goods of H'lW, I). &Sw. 1 ; 1 Jur. N.S. KKMl; In tlie goods of Allen, 2 Curt. ;i,'ll ; In tht! goods of Si:nmon Mo >. P.C. l.'U), in whicli the same Court hehl, without adverting to their pn vious decision, that the witnesse.s must attest in the jtresence of each other, on the ground that the word " such" in the statute must emIiriMi- what has heen said ahove of tlieii j)resence, and must mean " the wit- nes.ses&c. present at the same time." See the remarks u|«in tliis (^ose in 1 Williams Kxors. S(J n. (/) ; see al.*' Slitck V. liuHterd, ti Ir. CJi. Kej). 1 ; Sugd. U. p. Stat. ;M2. (»/) As lo the meaning of the word "attest," hw J)ot v Hnnhtt, t a sufficient subscription (g). It is now settled that a subscription by an attesting witness, unable to write, by holding the top of the pen, while his name is written by another for him, is sufficient, inasmuch as he takes part in the signing {h). And the hand of the wit- ness may, in writing his signature, be guided (i). 18. The attesting witness may direct another person to sign his name for him as attesting the will ; though he must him.sclf take .some part in the .signing which will be apparent on the will (j). What is done by the witness nuist be done clearly with the object of attesting the will. It will not be .sutHcient if the proposed witness superin- tends the execution of the will, and makes a mark for the other witness, if, through inadvertence, he neglects to sign his own name (/.;). 19. As the StJitute requires the witnesses to subscribe the will in the presence of the devisor, care must be taken that this requirement is strictly complied with. A mere acknowledgment of a signature previously made is («) Dof d.Dnris v.Davi»,9 Q.B.f)48; U .Tur. 182; Hi L. J. O. B. 97; Harrinoii v. Harrison, 8 Ves. 180 ; AiUlu V. (irijr, \h. .504 ; In the goodH iif Anhinorc, li (!urt. 7'tG. ('<) In the k<)()(1h of Amiss, 2 Rob. 110 ; 7 No. Cas. 274. (r) In the tfoods of Christian, 2 Uoh. 110 ; 7 N<>. Cm. 205. {<{) In tlie k'*>. II. Statute 1 Vict. c. 20, which requires, as does "The Wills Sect. IV. Act, 1873," that tiie execution or acknowledgment by the testator should be in presence of two witaessea present ot the same time, it was shown that the deceased productMl his will, with his signature attached, to one witness, win. subscribed his name ; and subsequently the deceased a( - knowledged his .>,ignature in the presence of the first wit- ness and of another person, and the latter then added hi> signature, but the first witness merely wrote t}ie day ol the month, and supplied a clerical defect in his signature previousl}^ made ; it was held on ai)i)eal to the House (jf Lords that, although the deceased acknowledged his sig- nature in the presence of two witnesses present at the .same time, such witnesses did not, within the meaning of the Statute, attest and subscribe the will in the presence of the testator (a). And in the case oi Moore v. K'lnn (6 , a testator signed a codicil in the presence of a witness (his sister), who, at his desire, attested and subscribed it. On a subsequent day, when his sister and another person were pres»u»t, he desired her to bring him the codicil, an Book III. Chap. II. Sect. IV. 'i 1 ' : OF THE EXECUTION OF WILLS OF REAL ESTATE. all the statutory requirements were complied with. For it is fair to presume, that the witnesses were m.ide aware of what they did certify ; and, if so, that they would at the time have informed themselves of the facts tlius attested by them. It is upon these grounds that the Courts have been so .strongly inclined to sustain wills which, upon the facts stated therein, seemed to have been executed with due formality. 22. In the celebrated case of Roberts v. Phillips (a), tlie whole question of attestation and subscription was brought before the Court. Lord Campbell, C. J., said : " The first objection taken to the attestation of William Bevan was, that nothing appears on the face of the will to designate him as a witness. But we think that this objection can- not bo supported, if the will can be considered as suli- scribed by him within the meaning of the fifth section ot the Statute of Frauds. It never has been held that a testimonium clause is nece.s.sary under this statute, or that the witnesses should be described as witnesses on tlie face of the will. Nothing more is required than that the will should be attested by the witnes.ses, namely, that they should be present as witnesses, and see it signed by the testator, and that it should be subscribed by the wit- nesses in the presence of the testator ; namely, that they should subscribe their names upon the will in his [nesence. Even where a will is to be executed and attested undei* a power, in similar terms, the House of Lords, in Burdett v. Spilsbui'y (b), expressed a clear opinion that if, in point of fact, the will was executed in the presence of witnesses, as the power required, and the witnesses were proved sim- ply to have subscribed their names on the will, the will would be valid." (rt) 4 E. & B. 450 : 3 C. L. K. 513 ; 1 Jut N. S. 444 ; 24 L. J. Q. B. 171. (t) 6 M. & Gr. 386; 7 Scott, N.R- 66 ; 10 CI. & Fin. MO. SUBSCRIPTION AND ATTESTATION BY WITNESSES. SOI 23. The learned Cliief Justice then discu.ssed tlie mean- Book III. ing of the word " .siib.scribe," and held that, in the stjitute Chap. II it meant no more than the word "sign;" and did not SectTlV. imply a signing beneath the testator's signature ; and he sUvtes the effect of the absence of a testimonium clause to be, that it would merely make a difference in the extrinsic evidence which would be recjuired to [irove that the witnesses had seen the testator execute the will, and that they signed it with the intention of attesting it, at his request, and in his presence. Clear and satisfactory proof must be given on these points; but, such ]»roof being pMven, the will ought to be held ^alid, although the sig- nature of 'he witnesses is not under the signature of the testator (a). 24'. It seems to be well settled that, in the absence of all proof, the witnesses being deceased, or not in condition to give testimony, the presumption, omnia nte acUi, will ari.se, as in ordinary cases, to support the due execution of a will (6). 25. So also, where the attestation is general, not enu- merating the particulars, it will be presumed the will was duly executed, unless it appear to the contrary ; and where the attestation clause contains all the particulars (if a good execution, it will always be 'prima facie evi- ilence of due execution, and will often [)revail over the testimony of the witnesses, who givo evidence tending to show that .some of the requisites were omitted (c). (a)SeealHoS»ig(l. Pow.229, 240, 241. [h) Trott V. Skidmore, (5 Jur. N. S. 760 : Croft v. Pawlet, 2 Str. 110<> ; 1 Jarm. Wills, 7U ; In the gocnls of Johiiion, 2 Curt. Ml. ITie contrary tfvidence of one witneHH is not suffi- cient to rebut this pre8uini)tion where the will iippears to have been duly attested, and the Hurrounding circumstances favour the presump- tion that such was the case. Wrujht V. lioi/ern, I.. R. 1 Prob. 078 ; 21 L. T. N. S. 150 ; ;W L. J. V. 07. See alw) Hailci) \ Freweii, 19 W. H. .511 I'ri'b., where the evidence of the wit- nesses was doubtful. ((•) Jiaylis v. Sayer, 'A No. C'as. 22. See also Ooie v. Oawen, 3 Curt. 151 ; Jilake v. Kniyht, ib. 547 ; Pennant v. Kinijieote, ib. 042 ; In the gcjods of Hart, ib. 54 ; Cooper v. Jimkett, ib. 048 ; 1 Jarm Wills, 79. But it T ( .1 ■ , ' ' f. ilKlkK '1 1'/ . •* ■< . "isW t , ! .-i HI ^ ' ! i I M 202 OF THE EXFXUTION OF WILLS OF REAL ESTATE. ='' 'll Book III. 2G. And where it appeared on the face of the will, " In Chap. II. witness whereof, I place my signature in the presence of Sect. IV. two witnesses," and the two witnesses, whose names ap- it \i !■■! I! l-'i^ BeeniH the effect of the certificate of atteHtation by a ile ceased witiiefw will not he reganleil an of the s.-^me force aH hiw evidence if he were living, but is evidence of an inferior nature- If HUpiMirted by circuniHtanceH,althou),'h opiKwed by the teHtiniony of another subscribing witnens, it may be wiiHi- cient to MUi)|Mirt a \ erdict establish- ing the will ; but, without any ex- traneous Hupjiort, such a verdict against the jMisitive teHtiniony of a living witness could not l)e main- tained u]>on that evidence alone. (frscr V. Oisei; 24 N. Y. K. .51. It was said, in a late cane, Vhinirnmlic V. HiitUr, :\ S. & T. 580 ; 10 .Fur. N. S. llOit ;.}1 L. J. 1'. 18. that the presuni])tion omniii rite wtu ix\)\>\ie>i to the execution of a will where there is a perfect attestation claTise, and this presuni])tlon is not over- come l»y tlie defective memorj'of the witness ; and that wiiere that clatise is incomplete, the j)resinnption i.lso applies, Init with less force ; and where the attestation clause was de- fective, and the memory of the wit- ness also, it lieing proved that the will WiiH signed by tlie testator, and that the witness haronouncud for the will.— II). See also, In the goods of Luff- man, 11 .hir. 211 ; In the goods of IiickmmJ) "So. Cas. 278 ; In the goods of Lmch, 12 .fnr. 381 ; Diir.tt v. Ware, :10 li. T. 17'» ; In the goods of Thomas, 1 S. & T. 255 ; (Jrci/orii v. Qnven's Proctor, 4 No. Cas. (120 ; Shield V. Shield, 4 No. Cas. (547 ; In the goods of Hare, 3 I'urt. 54 ; lieeres v. Lindsaij, 3 Ir. Kep. Kq. 509 Prob. ; In the gootls of Kecg, 'M L. J. P. 5n the mere force of the presumption arisim.' from the attestation clause, in o)i|)ii- sition to the express te.stininny of both the witnesses that no sufficient execution did take pliu:e, there lieini- no other testimony in the case ; aii'l esjtecially as the attestation clau>'- " wius not written at the time, "t read by the witnesses." 'i"he leame*! Judge, Sir J. P. Wilde, here cit maintain it. See also Hearh v. Clarke, 7 No. Cas. 120 ; and Croft v. Croft, 4 S. & T. 10. Where the witnesses (lo not deix^ise IMwitively against the due execution, the presumption arising from the fact of the instrument appearing, earetl regu- lar upon the face of the will, and the attesting witnesses deiwsed that SUBSCRIPTION AND ATTESTATION BY WITNESSES. 203 jieured on the face of the will, contradicted each other as Book III. to the fact of the will having,' been executed in their joint Ch.vp. II. |iresence, it waH held the will was entitletl to probate, St«ct. IV. thieriy upon the ground that thi.s fact wius declared by the testator upon the face of the will (a). And the mere forgetfulness of the witnesses of the facts certihed in the attestation clause is not regarded as any obstruction to granting probate of the will (6). But all presumption of the due execution of the will is rebutted by proof that the witnesses are fictitious per- .suns, and their names in the handwriting of the tes- tator (c). 27. There seems never to have been any serious ques- tion in practice in regard to allowing a will to l)e i)roved bv other evidence than that of the witnesses, where the fact or the mode of execution had escaped the recollec- tion of the witnesses, or where one or more of them de- nied that the instrument wfw executed in their presence, 1. 4 ■■, k 'r ,;j- ,. . h ' tht-y dill not recollect having seen the testator's si|,'nature when they sulwcrilied their names. Thi; Court con.iiilereil that they were at HlRrrty to juilge, from the ciruum.it!incert of the case, whether it was {trohnble the testator's name was on the will or not at the time of attestation, and ))ein),' of opinion that it was, jironounced for the will- id) Creijrcen v. WiUowjhhy, (iJur. X. S. .590. (6) In the goixls of Huhjate, 5 .Tur. X. S. -2.11 : 1 S. & T. 2til ; 29 L. J. P. I«l ; Foot V. Stanton, D. & Sw. 19 ; Owillim v. Gwillim, 3 S. & 'V. '200 ; 29 L. J. P. .31 ; In the g(K)d8 of Leach, 12 Jur. 381; Divettv. Ware, 30 L. T. 17.5 ; In the gixKls of Tho- iium, 1 S. & T. 2.5.5 ; .5 Jur. N.S. 104 ; 28 L. J. P. 3;i ; 7 W.ll. 270 ; (ire;,ory V Queen't Proctor, 4 No. Cas. (120 ; Bunjoyne v. Slutwler, 1 Rob. 10 ; Bluke V Kniijht, 3 Curt. 547 ; Vinni- coinhe y Butler, 3S.&T. .580. The Ecclesiastical Courts have granted probate of a will where both of the witnesses deix)8ef such a character as to convince the Court that the witne».ses were mis- taken : I^rrh v. Bates, <> No. Cas. i\W. Hut where the will wa.s de- stroyed, and the only jwrson present when the will was made swore that it was not duly executed, though there was reason to su8i>ect that this evidence was untrue, and that the will was duly executed, the Court refused to grant probate : Eekertley V. Piatt, L. R. 1 Prob. '281. The presumption omnia rite acta, it has fjeen hel'', will only be made where the will, ui>on its face, api>ears to have l)een iluly executed, or, being lost, pro|».T evidence is adduced of such ha: ing l)een the fact : In the goA7 ; (rrtijorti V Qiiten^sl'rortor, 4 Nd. (!ii8. t;2() ; Tliompsim v. Halt, 2 Hnb. 42(i ; Hnylits v. S'.t8 ; 13 Jur. 88. See 1 lUdf. Wills, 237 ft He(|. an to the ntteHtntion of wiUh. The caaeu will there be found collected. (6) In the gowlH of Wilsmn, L. R. 1 Trob. 209 ; M L. J. P. 1 ; l.j L. T. N. S. I'Jl ; Ryan v. Devereux, 2(1 U. V. ii B. 100. («•) Oriffiths V. (Mffltht, L. R. 2 Prob. :m ; 2.5 L. T. N. S. .'574 ; 41 L J. P. 14. See also In the goods of Sharmaii, L. K. 1 Prob. (Mil ; ;W L. J. P. 47 ; 20 L. T. N. S. mi. (U) Locke V. Jamu, 11 M. & W. •JOl. PRESENCE OF TESTATOn AT ATTESTATION. Section V. i^reeence of the Testatot' at tke Attestntioii by tlie 205 3. \. 5. <■>. I ■ 8. !». 10. 11. 12. 13, 14, 15. 10. Provisions uf tho Stntiitoa ii8 to tho prosuncc of tliu testator. Tho tt'stiitor iiiust l)u in a conscious statu ; niuro bodily pron- uncu iiiHulliciuiit. Testator shoulil hu iiwari; that his will is being subscribed. The subscription must l)u in a place where the testator can see. Examples of tho rule, Shirt:n v. (ihiancock. Furtlier example, I>aeij v. Smlik. Further example, ' (ishdu v. Ihtdv. Case of In the gootls of Trinunll. Cases in wliich execution insullicient, Due lyriijht v. ManlfnUI. Case of EirUnton v. I'ctty. Rule where testator unable to move witiu)ut assistance. Fresiuiiption of ilue attestation. Rule where testator is blind. Mode of attestiuL' will of married wonmn under IGth section of Con. Stit. IJ. C. c. 7:i, n ((»)• <>i>inion of Mr. Leith on the construction of this section. Attestation of a codicil. A duly executed codicil republishes and confirms a defective will. * % *<■ I U,' ' '■'r'ti 1. Tlio Statute of Fmud.s rc(|uire(i that tho witnes.ses 15,,,. k ill. should .sub.scribo in the y>rtw//xc of the testator; and the ,'„^|. n. Statute 4 W. 4, e. 1, s. 51 (ft), allows the alternative of a ^^^, y sub.scription by the witne.s.ses in 'pramncc of each other. " The Wills Act, 1873," also requires that the witnesses shall attest an). Tho construction of tho word " prcffence" ill our Acts, would, it is conceived, be tho same Jis that given by the authorities to the .same word in the Statute of Frauds. mm, ' ■■■■ i ! * H'- i!i («) Con. Stat. U. C. c. 82, s. 13. (M They need not, however, sign in presence of each other, Fauld« V. Jackton, 6 No. Cas. Supi). 1 ; Chmlwkk V. Palmet', cited 1). k Sw. i ; In the goods uf Wd>b, D. & Sw. 1 ; 1 Jur. N. S. low; ; In the goods of Alien, 2 Curt. ;W1 ; In the goods of Simnumdt, 3 Curt. 71). But see Case- mcnl V. Fulton, .5 Moo. 1'. C. VM) ; Slack V. BuiUed, (J Ir. Eq. lien. 1 ; Sugd. It. P. Stet. 342. •i'i Hi' ■ I «i i' '.I 20G OF THE EXFX'UTION OF WILLS OF REAL ESTATE. Book IIL 2. It ii* first to be noticed that the testntor must he in a Chap. IL con.sciou.s .state when the witne.sses .suhscrilx", and tlmthi> Sect. V, mere bodily presence is not sufficient (a). In one enso, the testator, having signed his ,.uiuc whilst conscious, be- came in.sensible before the will was subscrilied by tlu- witnes.ses ; and it waa held that the will waH not dulv executed (b). 3. It is necessary also that the testator shf)uld be aware that his will is V)eing subscribed by the witne.sses. A clan- destine sub.scription by them would not l)e sufficient (f). 4. The rule dcee them sign, for, at that rate, if a man sliall turn his back, or look oti, it .shall vitiate the will" {(•). G. Again, tb>> witnesses, after seeing the testator sign, took the will into another room, across a small pa.ssnge, and, at a table in the middle of the r<»om, .set their nann •> to it. Both rooms openet' into the pa.s.sage by doors oppo- site each other. The doors were open when the witnesses 1: i. i i ■■I \ to in thu tfxt, t\\v foHciwin^' : Jn thf i((xK\n of ^rii'mini, 1 Curt, 'M4 ; In (o. 1 HayeB tV.nv. 'MV), 'Mui, ;<71 ; 'I'aj'lor EvkU'IK-.-, ".KM); Ifuilson v. J'lirker, 1 Hoi). 24 ; Hayt'8 A .Jarin. tlu- if(;* ; (^) Ri; Lon;iford the kooiIm of A;//i«, 2 Curt. ;Wft. V. Kyn, 1 V. W . 740. (f) Shire* v. Uluttemk, 2Salk,«88. ((/) See, besi leH the caBts referred H^ie Aiteton v. Clarke, 2 Curt. 320. PRESENCE OF TESTATOR AT ATTESTATION. 207 signed, and the table was so placed that the testator could Book III. see the signing from the place where ho lay. Though proof ch.w. II. that he did .see the witnesses subscribe was wanting, the Sect V. Court held the will to be well executed, on the gi'ound that he might have seen them («). 7. Again, a married woman, having power to execute a will, directed her attorney to prepare one, and then went to the attorney's office, but executed the will in her cai*- ringo in the presence of the witnesses, who then retired into the otKce and subscribed their naujos, the carriage meanwhile being so placed that the testatrix might, through the office window, see the witnesses subscribe. The Court considered the will to be well executed {b). H. Again, the deceased executed his will by signing it in the presence of two witnesses, one of whom at once sub.scrlbed it ir. the same room. The will was then taken to an adjoining room and was there signed by tha .second \vitnes.s. There was eviilem-e that the doors of the two rooms were o[)en at the time, and that the deceased, while in bed, might have seen that juutof the table in the ad- joining room on which the will was lying when the wit- ness signed his name. The Court held the execution va- lid, Sir J. P. Wilde remarking, " The test in this ca.se is v/hether the testa t. On the other hand, when t' attesting v.itresses re- tired from the room where the u -.tator had .-:gned, and sub.scriled their names in an adjoining roonj, it appeare,"?' Nlli i r, ♦ 208 OF THE EXECUTION OF WILLS OF REAL ESTATE. -In i iil Book III. but as the tcsbitor was not in that part of tho room, it Chap II. vvas liekl that tho will was not validly oxocutcd (n). Stct V. 10. And in EcclcHi'on v. Petty (h), where tho witnesses proved that the testatrix signed the will in her hed-chniii- l»er, and they suhseriliod it in the hall; and it 'vas not |>OMsihle from her chamlter to sec what was hat th ■ Statute does not require tho witnesses to subsenne their names ; l»ut it is con(X>ived that the word "d«'viue," which occurs in the Statute, would mean a devise exeeated witli all legal formalities. The words ' in the same n anno," as if she were solo a'.d unmarried,' which occur near tlio end .) JMh . 775) 13 Jur. 793. lu the K«.(m1h (.f Killiik, ;{ S. & T. .^7« ; lo .fur. N. S. Um : M L. J. I'. 2. (<) 1 Junii Willd, S'_> ; H'liiihelito V. Wanchofit, '.iUwuM. J44. (/) In tne>,'(>(i(lMo crudililo iit limu uf uxuuution of will, or iittiiao of judiciiil in.|nii*y, 4. Por»ou8 iuturuatod iu the will ducidod not to bo credible. (y thf autlimity of Mr Lfith. Tho -icuntnuHN of \.\w provi Hions (if the Kith Koctiou in a Htmni.' arijunu'iit in favour of the conclii- «ion, that dcvlHcM )ty ni.irried wonitm muBt Ih? K( oxintinif law ait to tliu niiHlf of exocution. (6) "Thi' WillH Act, IS7;«." pro- vidfH (h. •») that 'he tvnn " Will," in thu A(.'t, hIuiU I'x >'n(KrIoo. t>; .< nin«. tin. d) Uttn-um V. H»lini», 1 Ad. ft Kll. 41.M ; VJN'fv. A M. H21 ; '.iot-ilm V. Rfitfi, 5 8in>. 274. Hcu alHo Cnm (lit V, Sldi'iiomtl, 4 V««ii. tilO ; lUi/ult V. iViMir, 2<( IWav. !H) ; Crnkrrw MertJoM, i .M.hl i'. C ;«:«•: H .r.ir. 8tl3; Allen v. Mudd^Kk, U Moo. 1'. c. 4in.-, % I ^•s,'|r^ ii 1 [ ?.,! 210 OF THE EXECUTION OF WILLS OF REAL ESTATE. 5. Statute 25 Goo. 2, c. 0, passod to obviate the inconvonionco of tliin rulo. WitneBSos deprived by that Btatuto of all benefit under will. 6. Statute extends only to persons taki) ,k beneficial interest. 7. Provisions of "The Wills Act, 1873,'^ see. 11. 8. Section 1 2 of same Act. 0. Se« cnnli- blu witnttHHoH. See obHoivatious in l,.-ith'8U. P. Stat. 2H:». (I>) I Ke.lf. WillH, '2.V2 ; nmn v. Ik ra-eiu, 20 U.fM^H. 100, {(•) 1 .Farm. Willn, ti.5 ; Unvimvf v, Winder, S V«h. (IIW ; '2 (Jn'onloaf Kv. S. <>".tl ; Anitey v. Dowiimj, i Str. 12531255. |. i ' T^ II OF THE COMi'ETKNCY OP THE WITNESSES. 211 the case of HimUon v. Kersey {a), " must the witnesses be Book III. emhiod with ' the (jualificntion' (oi' credibility) ? I say that Chap. II. they must be clothed with it at the time of attestation. Sect. V i * * * A will is often executed suddenly in a last sickness, and sometimes in the article of death, and a g'eat ques- tion to bo asked in such oases is, whether the testator were in his senses when he made tiie will, and eonae- quently the time of the execution ia the critical moment which required (juard and 'protection. What is the eni- ploymont of the witnesses? — It is to attest and to judge of the testator's sanity when they attest ; and if he is not capable, they ought to refuse to attest. In .some cases the v/itnesses are passive; here they are active, and, in truth, the principal parties to the transaction; the testa- tor is entrusted to their care" {h). 4. It was uarly decided that, in analogy to the rule laid down by the Courts of Justice in civil matters, any j)erson who derive,f>7; Lotee v.JoHiffc, 1 W. \n. mr, -, Fountain v. (M'e, 1 M.xl. 107 ; 'iooiUitle v. Wrlford, !'ouj{. l.'0 ; I'hippn v. PUcher, . S. 13 provides that •' In case by any will any real or pcrsonjil estate shall be charged with any debt or debts, and any creditor, or the wife or husband of any creditor who.se debt is so charged, shall attest the execution of such will, such creditor, notwithstanding such charge, shall Ik) admitte;' u witness to prove the execution of such will, orto prove the validity or invalidity thereof" 10. S. 1+ prt)vides that " No peiMon shall, on account of his IxMug an executor of a will, be incompetent to be iid- 4 if' •I M' "1^1 .«!' • t th 'b "! i , > , ■ i 1 1 . 1 ! 1 { 214 OF THE EXECUTION OF WILLS OF REAL ESTATE. Book III. mittccl a witness to prove the execution of such will, or ii Chap. II. witness to prove the validity or invalidity thereof." Sect. VL 11- The new Act ap|)lie8 to wills of pei*sonal as well as of real estate ; and it extends the |)rovi8ions of 25 Geo. 2, c. 6, to the wives and husbands of attesting witnesses, who, we have seen, were not within that Statute, and were not therefore mlinissible witnesses, 12. A gift to the wife of one of the witnesses will fail, though there should be two other competent witncs.ses who have attested (a). In a late case, liowever, when a testtitrix, by her will, gave a share of her residuary real and personal estate to B., and one of the attesting wit- nesses to the will was B.'s wife, and by a codicil which was attested V)y other witnes.sea, the testatrix confirmed her will with some slight variation, it was held that the duly attested codicil had the effect of rcpubli.shing and incorporating the will, so as to render the gift to B. valid, notwithstanding the attestation of the will by B.'s wife {b), 13. A gift in a will is not affected by the fact that the legatee is a witness to a codicil to the will, even though the effect of the codicil is to increase the interest which the legatee takes under the will (c). The representatives of a legatee who attested the cancellation of a clause in a will and died before the period of distribution, will bo excluded from participation under the will in any beneHt resulting from such cancellation (<)dB of Havlin, ib. 831*. See aUo tlie recent cane of Cozent v. Cront, li. 11. Weekly Notea, 28th June, 1873, p. 144. (b) Anderton v. Andmton, L. II. 1.3, Eq. .381 ; 20 W. R. 313 ; 41 L. J. Ch. 247. (<•) (htrney v. Ourne//, 3 Dnw. 208 ; 1 Jur. N.S. 298 ; 24 L. J. I'll. (5B<'» ; Tempest v. Tempat, 2 K. * J. 035 ; Slm-ks v. Hammond, 2 N. 11. im. (J) (hukin. V. Rogen, L. R. 2 E(). 2«4 ; 14 W. R. 707. OF THE COMPETENCY OF THE WITNESSES. 215 to him for his own benefit, but merely as a trustee for others, it will not be void under the Statute (a). 15. Where n will has been witnessed by two witnesses, and, in addition to their signatures, the signature of a third person who is also residuary legatee, appears at the foot of the will, the Court will receive evidence to explain why such signature was written ; and, if satisfied that it wjvs not written with the intention to attest the signature of the deceased, it will order it to be omitted from the [)robate (b). Book III. Chap. II. Sect. VI. {a) In the go<»cr or memo- .s«ot. 1- randum in ink or in pencil, mentioning an intended disposition of his property, was admitted a.s a will, and would be valid, although written by another ]K?rson, and not read over to the testator, or even seen l)y him, if proved to have been made in his lifetime, according to his instructions. If a will was imperfect, and it appeared upon the face of it that something more wa.s intended to be done before it was finished, yet it was valid so far as it appeared to bo complete, if it was proved that the testator's intention was arrested by sickness or death." 3. By the English Statute 1 Vict. c. Hi, wills of per- sonal estate were, nn regards the formalities of execution, placed on the same footing as wills of renl est^ite ; and by " The Wills Act, 1873," a sinnlar change as to wills made after the Slat December, 1 ;> y >^ Photographic Sciences Corporation 2-^ WEST MAIN STREET WEBSTER, NY. 14580 (716) 872-4503 ^ "%> /^ \ ^ i\ n\: ri»i 218 OF THE EXECUTION OF WILLS OF PERSONAL ESTATE. BooK^III. uary, 1874, will be governed as to tlie formalities of Chap. III. execution, by the present law ; the new Act being limited Sect. I. in its application to wills made on and after that date. Section II. Of Nuncupative Wills. 1. Definition of Nuncupative Will, 2. Restrictions placed on such wills by the Statute of Frauds. 3. Provisions of Canadian Statute 33 Geo. 3, c. 8. 4. Provisions of the Statute of Frauds as to nuncupative wills condemned by the Real Property Commissioners. 6. Nuncupative wills abolished in England by 1 Vict. c. 26 ; and in Ontario by Con. Stat. U. C. c. 16, s. 83, except as to soldiers on active service and mariners or seamen at sea . Provisions of "The Wills Act, 1873," regarding nuncupative wills . "Actual military service " means service on an expedition. Wills of soldiers considered. Wills of seamen considered. Will of soldier not revoked by return from expedition. 6 1. The law of England formerly permitted Vue making of wills of personal estate by word of mouth merely. Such wills were called " Nuncupative Wills." The definition of Nuncupative Wills, as given in Bacon's Abridgment, is: " Such as are made by word or without writing, which is, when a man is sick, and for fear that death or want of memory or speech should surprise him, that he should be prevented if he staid the writing of his testament, desires his neighbours and friends to bear witness of his last will, and then declares the same presently by word before them : and this being after his death proved by witnesses, and put in writing by the ordinary, is of as great force for any other thing but land, as when at the first in the life of the testator it is put in writing" {a). {a) Vol. 7, tit. Wills and Testaments, D. p. 305 ; I. Inst. 3. 1: . i 'e good, where the estate bequeathed exceeded the value of thirty pounds, that was not proved by the oaths of three witnesses that were pre- sent at the making thereof; nor unless it were proved that the testator, at the time of pronouncing the same, did hid the persons present, or some of them, bear witness that such was his will, or to that effect ; nor unless such nun- cupative will were made in the last sickness of the deceased ; and in the house of his or her habitation or dwelling, or where he or she had been resident for ten days, or more, next before the making of such will, except where such person was surprised or taken sick, being from his own home, and died before he returned to the place of his or her dwelling. It was also enacted by s. 20, that after six months passed after the speaking of the pre- tended testamentary words, no testimony should be re- ceived to prove any will nuncupative, except the said testimony, or the substance thereof, were committed to writing within six days after the making of the said will ; and by s. 22 it was enacted, that no will in writing con- cerning any goods or chattels or personal estate should be repealed, nor should any clause, devise or bequest therein, be altered or Ranged by any words or will by word of mouth only, except the same were in the life of the testa- tor committed to writing, and after the writing thereof read unto the testator, and allowed by him and proved to be so done by three witnesses at the least. It was never- theless provided, that any soldier being in actual military service, or any mariner or tieaman being at sea (which was held to apply to seamen on board merchants' vessels), (a) S. 19. Book III. Chap. IIL Sect. II. r'tl ■■^.r- 'fW. i 1' <, I! 220 OF THE EXECUTION OP WILLS OF PERSONAL ESTATE. Hook III. might dispose of his moveables, wages, and personal es- <;hap. III. tate, as before the Act. Sect. II. 3- ^y Statute of Upper Canada 33 Geo. 3, c. 8, nuncu- pative wills were subjected to further restrictions which must have practically abolished them in this Province. The provisions of this Statute are at present of no import- ance. 4. Kespecting nuncupative wills, the Real Property Commissioners, in their report, made the following obser- vations : " We do not approve of the provisions of the Statute of Frauds respecting nuncupative wills. If it be proper in any case to allow a nuncupative will to be made in a practical manner, the case ought not to depend on the value or nature of the property. It appears to us that the only cases in which there is a good reason for dispens- ing with the forms generally required for the due execu- tion of a will, are those where a person in his last sick- ness has not sufficient time and opportunity to make a written will, and to have it duly attested, and where the death of the testator happens unexpectedly from accident, or sudden illness in a place where he cannot obtain suffici- ent assistance to enable him to make a regular will. We admit that, in many of these cases, the impossibility of making a will must be attended with injury to the fam- ily of the testa'tor ; but, in establishing any general rule, it is impossible to prevent all cases of individual hard- ship : and, if nuncupative or irregular wills were allowed in such cases, the property of every person who died away from his family would be liable to be fraudulently taken from them by the perjury of persons who were, or might pretend to have been, near him at the time of his death. The temptation to crime, and the loss and litiga- tion which might be produced by allowing any such ex- Kieption from the general rule, would probably be found to OF NUNCUPATIVE WILLS. 221 be greater evils than the disappointment occasioned, in Book hi. some cases, by the want of means to make a rt;gular Chap. hi. will." Sect. II. 5. Nuncupative wills were accordingly rendered in- valid in England by the 9th section of the Statute 1 Vict, c. 26, with the exception of the willo of soldiers and mar- iners ; and by Con. Stat. U. C. c. 16, s. 83, it is provided that " No nuncupative will made after this Act comes in force shall be good, — provided that any boldier being in actual military service, or any mariner or seaman being at sea, may dispose of his personal estate in such manner as he may now do according to the laws of England." 6. " The Wills Act, 1873," provides (a) that no will shall be valid, unless it shall be in writing ; but it is pro- vided by s. 9 that " any soldier being in actual military service, or any mariner or seaman being at sea, may dis- pose of his personal estate as he might have done before the making of the Act." This Act does not, it will be seen, effect any change in the pre-existing law regarding nun- cupative wills. 7. Nuncupative wills are of rare occurrence in this Province. T^ ^nay, however, be profitable to notice a few points which have been decided respecting the exceptions contained in the Act. The words " actual military ser- vice " mean service on an expedition ; and an officer or soldier in barracks with his regiment cannot dispose of his property by a nuncupative will (6). But a soldier passing from one regiment to another, both being in ac- tive service, may make a nuncupative will (c). » . 'Iff ill (a) S. 7. {b) Drummond v. Parish, 3 Curt. 522 ; 7 Jur. 538 ; White v. Repton, 3 Curt. 818 ; 8 Jur. 562 ; In the goods of Pery, 2 L. T. 335 ; In the goods of Hill, 1 Rob. 276 ; In the goods of Norris, 3 No. Cas. 197 ; In the goods of Thorne, 4 S. & T. 36. (c) Herbert v. Herbert, D. & Sw. 10 ; 4 W. R. 182. '^ $]■ TT" tf 11 m '. 'V ■ 1 i '> 1 1 !iil 1^' I '] 1 '^ : ; ! 1 II * 1 ) i i ' i 1 1" 1'.- 1 ' ' 1 / i ^ i ■ • i '• , 'i 'I t 1 i ■.i 222 OF THE EXECUTION OF WILLS OF PERSONAL ESTATE. Book III. 8. A purser (a), or a surgeon in the navy (6), is a " sea- Chap. til man " within the meaning of the A.ct. And a will made Sect. II. in a river (not at sea) whilst engaged in an expedition against an enemy, is within the Act (c) ; as is also the will of a seaman temporarily on shore, whilst his vessel is in harbour (d). But the will of an admiral of a naval station, who lived on shore at the official residence, was held not to be within the Act, the will having been made on shore (e). 9. The will of a soldier, made during actual military service, and not expressly revoked, remains operative though the testator remains at home several years after date of the will (/). This privilege is more ample than that conceded by the Roman law (g). Section III. Of the mode of making a ] , .11 of iiersonal estate, and of the requisites to the validity of such a Will. 1. Wills of personal estate, except nuncupative wills, must be in Wilting, but need not be signed or sealed. 2. Any writing of a testamentary character, which is finished and complete, may be allowed as a good will of personalty. 3. Instrument without date or signature, and in handwriting of a stranger, has been allowed as a good will of person- alty. 4. A will written in pencil is good. 5. There must be animiis testamli ; and therefore if there is no such animus, the paper will be rejected, though complete in form. 6. Wills made^in extremis, without due formality, regarded with suspicion. (a). In the goods of Hayes, 2 Curt. 338. {b) In the goods of Saunders, L.R. 1 Prob, 16. (c) In the goods of Austen, 2 Rob. 613 ; 17 Jur. ^84. (d) In the goods of Lay, 2 Curt. 375. (e) Button v. Seymour, cit. 2 Curt. 329 : 3 Curt. 530. See further, as to the wills of seamen, In the goods otMilligan, 2 Rob. 108; 13 Jur. 1011 ; In the cosds of Parker, 2 S. & T. 375 ; o Jur. N. S. 553 ; In the goods of Thompson, 5 No. Cas. 5% ; in the goods of Corby, 18 .Jur. 634. (/ ) In the goods of Leese, 17 Jur. 216. (g) Inst. II. tit. XI. See also Code Nap. s. 984 ; Hayes & Jann. WiUs, 27, n.(m.) m ;i! if.' ' i MODE OF MAKING A WILL OF PERSONAL ESTATE. 223 7. The Courts inquire into the history and nature of the pro- duced paper. 8. The burden of proving an informal or unsigned instrument to be a will, lies upon those who allege it. 9. Jarman's commentary upon such instruments. 10. Principle that the testamentary intention is the guide, estab- lished by the cases. 11 . Eifect of a memorandum of attestation without the signatures of the witnesses. 12. Opinion of Sir J. Nicholl in Beatty v. Beatty. 13. If the completion of the will was prevented by accident, it may be supported. 14. The result the same, if the completion is prevented by vio- lence or supervening insanity. 15. But, if the incompleteness affects the substance of the paper, it will not be supported as a will. IG. If proper excuse is given for delay in completing the instru- ment, it may be held good. 17. Instructions for a will may be a good will. 18. Exemplification of this rule. 19. Exception to this rule. 20. Importance of taking instructions in proper form, for wills of personal estate, n. (6) Continued importance under " The Wills Act, 1873." 21. Not necessary that instructions should be seen by the de- ceased ; but he should be shown to have been acquainted Avith their contents. 22. Will dictated in answer to interrogations valid. Case of Oreen V. Skipworth. 23. Judgment of Sir J. Nicholl in that case. 24. Remarks made in preceding chapter regarding 1 Vict. c. 26, and its bearing on wills of realty, applicable to wills of per- sonalty, executed under " The Wills Act, 1873." 25. An entry ia an account-book, duly signed and attested, held testamentary. 26. Orders on savings banks, duly signed and attested, held tes- tamentary. 27. Presumption is against an unfinished paper. 28. Presumption is against an unsigned paper dealing with both real and personal estate. 29. Rule laid down by Sir E. V. Williams. 30. The introduction into a will of a provision, without instruc- tions, does not make it part of the will. 31. But if the will was read over to the testator, such a provision should not be excluded, if he did not object to it. 32. Mode of executing the will of a married woman, under Con. Stat. U. C. c. 73. 33. Will, well executed according to present law must, after "The Wills Act, 1873," comes into force, be presumed to have been made before 1 st January, 1874. This presumption will diminish with the lapse of time. 34. Rule of Surrogate Court as to the mode of proving a will. ^ .J iii,^ 224 OF THE EXECUTION OF WILLS OF PERSONAL ESTATE. Book IIL Chap. III. Sect. III. 1. Subject to the exception treated of in the foregoinw section, a will of personal estate in Ontario must be in xoriting. The signature or seal of ' he testator is not ne- cessary for its validity (a), whether the instrument be in the handwriting of the testator, or in another man's hand (6). 2. Any writing of a testamentary character which is finished and complete in itself, and which can be proved to contain the wishes of a testator with regard to the dis- position of his personal estate after his death, may be ad- mitted to probate. Thus, a testamentary paper disposing of personal estate in the handwriting of a deceased per- son, though unsigned by him, may be proved as his will, provided it come out of the proper custody, and provided also that the presumption raised in its favour by the handwriting be not rebutted by other suspicious circum- stances which would tend to cast doubt on its authen- ticity (c). 3. An instrument without date and without signature, and in the handwriting of a stranger, has been admitted upon evidence proving beyond doubt that volition accom- panied the act, and that there was testamentary intention and sufficient capacity on the part of the deceased {d). 4. A will written in pencil entirely in the handwriting of the deceased, and dated upwards of four years before the death of the testatrix, has been admitted to probate on affidavits of facts showing that she recognized, a short time before her death, such paper as her will (e). (a) 1 Williams Exors.66;Godolph, Pt. 1, c, 1, s, 7 ; Salmon v. Hays, 4 Hagg, 382. (6) 1 Williams Exors. 66. (c) 1 Williams Exore, 66, and cases in note( i) ; Rutherford v. Maule, 4 Hagg- 213 ; Busael v. Marriott, 1 Curt. 9. (d) Frimell v. Moore, 3 Phillim. 135 ; Warhurton v Burroives, 1 Add, 383 ; Jameson v, Cooke, 1 Hagg. 82 (c) In the goods of Dyer, 1 Hagg. 219, INFORMAL AND INCOMPLETE INSTRUMENTS. 225 k.l'i '|:'f 5. The animus tesfxuidi being the point most anxious- ly inquired into by the Courts, the}'^ were not bound to admit to probate an instrument merely because it was re- gularly signed and attested, and was unaccompanied by fraud or collusion ; but where requisite, inquiry was en- tertained into every attendant circumstance calculated to explain the intention of the deceased with regard to such instrument ; and if the conscience of the Court was satis- fied, on the production of sufficient evidence, that there really existed no intention to make a testamentary dispo- sition of property by such paper, it was rejected. 6. The Ecclesiastical Courts very properly viewed with the greatest jealou.sy and circumspection all testamentary acts in the last stage of life unaccompanied with the pe- culiar forms and observances established by custom and practice. The settled principle of the Courts was, not to l^ronounce for a disputed paper on proof of handwTiting alone, but to require some corroborating circumstances (a). 7. In deciding upon the question of will or no will in a doubtful case, it was their custom to inquire strictly into the history of the produced paper, and the circumstances attending its creation or discovery ; to examine whether the disposition made by the i)aper was a reasonable and proper one, and consi.sted with the testator's declarations (if he made any) as to his intended disposition of his pro- perty,- and with the moral obligations imposed upon him (6). 8. And as to any informal or unsigned instrument of this nature, suspicion must necessarily attach, the burden of clearly establishing the instrument or paper to be a will was cast upon him who advanced it as such. A (a) Machon v. Oundon, 2 Cas. temp. Lee, 406 ; Ctisp v. Walpole, 2 Hagg. 531, and other cases cited ; 4 Hagg. 224. (6) 1 Jam. Wills, 93. Book III. Chap. III. Sect. III. •.tr •V'i-'ii V *i Mr' ■ ■ • (. •m 't i \. :?•■ ; IP*'' ; > . , ; pS.i. i) . ; i ■/■ 1 m. ^ V: ^ 226 OF THE EXECUTIOX OP WILLS OF PERSONAL ESTATE. Book IIL strong presumption in favour of its validity would arise Chap. III. from the fact that it was found among the testator's Hect. IIT. papers, or in his usual place of keeping them ; or from its being produced by some confidential and disinterested friend, to whom the testator had handed it in his life- time ; and, on the other hand, should the paper come out of the hands of an unknown and interested person, the Court would be strongly inclined to reject it (a). 9. " Nothing," Mr. Jannan remarks (?>), " it is obvious, could be more dangerous than to assume and recognise the validity of a document, thus stamped with every mark of suspicion, on the mere strength of evidence as to the genuineness of the signature of the deceased, seeing witli how much skill and success handwriting is frequently imitated ; and this danger, though diminished, is not ex- cluded where the entire will (not the signature only) pur- ports to be in the handwriting of the deceased (c). 10. The principle that the testamentary intention was the chief guide to the Court, was constantly operative in all the decisions. Thus, it was required that the paper submitted as a will should be apparently finished and complete ; for, if it contained in itself evidence of the in- tention of the testator to do some further act before in- tending it to oi>erate as a will, it would be insufficient. Thus, if it appears that the testator intended to subscribe the instrument, and he has not done so, it will not operate as a will, a presumption in such a case arising that the deceased had not fuUj and definitively resolved on adopt- ing the paper as his wiU (c/). 11. So also if a memorandum of attestation be added, and no witnesses have subscribed their names to the (o) 1 Jarm. Wills, 93 ; BmiktTfard V. MauU, 4 Hagg, 213 ; Bm^d t. Marriott, 1 Curt. 9. (6) 1 Jarm, Wilk, 93. (c) Rutherford v. Maule, 4 Hagg. (d) Abbott V. Peters, 4 Hagg. 380, ^1 INFORMAL OR INCOMPLETE INSTRUMENTS. memorandum, and it bo proved that the testator had abundant opportunity of making use of the memorandum, the Court will reject the instrurnent {(i). 12. In the case of Beatty v. Beatty (b), Sir J. Nicholl said, " As the natural inference to be drawn from an attestation clause at the foot of a testjimentary paper is, that the writer meant to execute it in the presence of witnesses, and that it was incomplete, in his apprehension of it, till that operation was performed, the presumption of law is against a testamentary paper with an attesta- tion clause not subscribed by witnesses." The learned Judge jjroceeded to observe that " the |)resumption against an instrument so circumstanced was a slight one, where the instrument, like that before the Court, was perfect in all other respects (c). Slight as it was, however, it must be rebutted by some extrinsic evidence of the testator in- tending the instrument to operate in its subsisting state before it could be admitted to probate " (d). 13. But if it should appear that the formal completion of any unfinished testamentary })aper was prevented by accident ; if the testator were sui'prised by sudden weak- ness, insanity, or debility, or were stricken by the hand of death before he could formally complete the instrument, then the will would be good. Thus, when an attorney had taken down from the deceased's own mouth a statement of his intentions respecting his property, which was read over to and approved by him, and a fair copy directed to be made and brought to him the next morning to be exe- cuted as a will, but the testator died in the course of the (a) Beatty V. Beatty, 1 Add. 154 ; Walker v. Walker, 1 Mer. 503 ; Harris v. Bedford, 2 Phillim. 177 ; Scott V. Rhodes, 1 Phillim. 12 ; Stewart v. Stewart, 2 Moo. P. C. 193 (b) 1 Add. 154. (c) Doker v. Goff, 2 Add. 42. (d) See also Montefiore v. Monte- fiore, 2 Add. 357, 358 ; Broffg v. Dyer, 3 Hagg. 207 ; Forbes v. Gordon, 3 Phillim. 628 ; Coles v . Trecothick, 9 Ves. 249. 227 Book III. (HAF. Ill, Sect. III. IQ ■V- •I T^. :j : • I ..^ inji i ■-::^k '4 "V' .-M ;>■■ ■ '/■ •% ^ f 1 'HI 1 i y W '!■ 228 OF THE EXECUTION OF WILLS OF PERSONAL ESTATE. ►r V '■ Boo.; III. niglit, Sir J. Niuholl held this circumstance of tlie direc- Chap. Ill tion to the attorney to make a fair copy and to bring it Sectriii. the next morning for execution, to be conclusive of the testator having fully made up his mind on the subject of his will, and accordingly pronounced in favour of the testa- mentary paper (ri). 14. So where the execution of the will is prevented by the violent interference of those interested in defeating its provisions, or by supervening insanity, it will, neverthe- less, be admitted to probate as though it had been exe- cuted (h). 15. But the incompleteness must not affect the sub- stance of the will ; for if it appeared that the testator had only expressed a part of his scheme for the distribution of his property after his death, the Court would not assist in carrying out the expressed part, but would reject the in- strument altogether (c). 16. Nor is the indulgence of the Court towards incom- plete or unfinished wills limited to those cases in which the defect has arisen from some purely physical obstacle ; for if it appears that the testator intended to finish the instrument, and a sufficient excuse is given for delay in its completion, and nothing is shown to induce the belief that the testator had changed his mind with respect to the proposed will, the Court will support it. Thus where a man gave instructions for his will on the 10th Decem- ber, promising to call at his solicitor's office to execute it when prepared, which he never did though he lived until the loth ; but it appeared that the deceased did notafter- (a) 1 Jarm. Wills, 96 ; In the goods of Huntington, 2Phillim. 213- See also Carei/ v. Askeic, 1 Cox, 241 ; Srott V. Rhodes, 1 Phillim. 20 ; Masterman v. Maherlp, 2 Hagg. 247- (6) L'Hnille v. Wood, 2 Cas. temp. Lee, 22 ; Lamkin v. Bahb, 1 Cas. temp. Lee, 1 ; Hohy v. Holy, 1 Hagg. 146; Fulleck v. AHimon, 3 Hagg. 527. (c) 1 Jarm. Wills, 96 ; Montefiore V. Montefiorc, 2 Add. 354 ; Chiffin v. Griffin, 4 Ves. 197 n. ,). Although if a p^per be superscribed " Heads uf H Will," or " Plan of a Will," the inference would be from this that it was intended that a uiore fornuil will should be drawn out (o) ; yet, in a case where sucli an instrument was dated and signed and endorsed "Ini uded Will," and alterations in it afterwards made in a form; it manner, and the deceased declared upon being taken ill " that he liad written over the heads of his will a:id signed it ; that it U"uld do very well;" the paper was eslvblished as a will {d). 18. And in another case (e) the question was whether instructions for a will could be held a valid will ofper^.on- alty. The paper was in the handwriting of the deceased, and was subscribed by him, and dated 11th of October, 1834. At the commencement it was described to be (a) Allen v. Manning, 2 Add. 490. See also Read \. Phillips, 2 Philliin. 122; Thomas v. Wall, 3 PhilUim. 23 ; In the goods of Lamb, 4 No. Cas. 561 (b) Haberfield v. Browning, 4 Ves. 200 in n. ; 1 Williams Exors. 68, 69 ; Camj V. Askew, 2 B'o. C. C .58 ; 1 Cox, 231 ; Goodman v. Goodman, 2 Cas. temp. Lee, 109 ; Robinson v. Chamberlayne, 2 Cas. temp. Lee, 129; Boices V. Malpas, ibid. 358 ; Green v. Skipivorth,! Phillim. 59; Woofi v. Wood, 1 Phillim. 370 ; Huntington V. Huntington, 2 Phillim. 213; Lang- mead v. Lexois, 2 Phillim. 326 ; Silts V. Snaith, 2 Fhillim. 355 ; Lewis v. Lewis, 3 Phillim. 112 ; Allen v. Man- ning, 2 Add. 490 ; In the goods of Bathgate, 1 Hagg. 67 ; Burroios v. Burrows, 1 Hagg. 109 ; In the goods of Taylor, 1 Hagg. 641; Castle v. Torre, 2 Moo. P. 0. 133 ; Barrow v. Barrow, 2 Cas. temp. Lee, 3;i5 (c) 1 Phillim. 3.50 ; see Hocker v. Hockcr, 4 Gratt. 277. {d) Bone v. Spear, 1 Phillim. 34.5 ; See Popple v. Cunison, 1 Add. 377 ; Barwiek v. Mailings, 2 Hagg. 225 ; Lillie V. Lillie, 3 Hagg. 184; 1 Redf. WiUs, 167, n. 12 ; 1 WiUiams Exors. 103, 104. (e) Ton-e v. Castle, 1 Curt. 303. i r I i 230 OF THE EXECUTION OF WILLS OF PERSONAL ESTATE. ( * hiM r\ \ '. n\ Book III. " Head of instructions to my Solicitor, J. Lee, to add to Chap. Ill my will the codicil following." It went on to state what Sect. III. the contents of the codicil were to be. There were initials for several of the legatees, with the words, &c., &c., in many parts of it, but it concluded in these words : " This is my last will and testament; Scarborough," and was in- dorsed "Mem. to J. Lee— Will— Oct. 11, 1834." Sir H. Jennev Fust pronounced for the validity of this paper and decreed probate thereof, being satisfied by parol evidence and the circumstances of the case, that the deceased in- tended the paper to have full operation in case anything should happen to him before he had an opportunity of going or befoie it was convenient for him to go to Mr. Lee for the purpose of having a more formal instrument pi'epared. And on appeal to the Privy Council the Judi- cial Committee affirmed this decision (rt). 19. But a mere paper of instructions, even though holo- graph, and signed, cannot be sustained as testamentary, if there was no sudden death or other act of God to prevent the regular execution of the will or codicil by the deceased (h). In cases such as the foregoing, the Court admits parol evidence of the testator's intention as to whether he meant the instrument as memoranda for a future disposition, or to execute it (c). 20, A consideration of the authorities will impress upon the practitioner who is required to make the will of a per- son labouring under a dangerous illness, the necessity of taking instructions for the will in a careful though con- cise form. The omission of such a precaution can seldom be justified. By means of such instructions the wishes of (a) Castk v. Tm-re, 2 Moo. P. C. 13.1 ; 1 Redf. Wills, 1()7, n. 12. (h) 1 Williams Exors. 70 ; Munro v. CoHtts, 1 Dow. Pari. Cas. 437. See also Dingle v. Dim/le, 4 Hagg. 388 ; Castle V. Tmrc, 2 Moo. P. C. 154,155. (c) Mathews v. Warner, 4 Ves. 186; 5 Ves 23 ; Mitchell v. Mitchell, 2 Hagg. 74 ; Coppin v. Dillon, i Hagg. 301 ; Salmon v. Haps, 4 Ha^'g. 382 ; Castle v. Torre, 2 Moo. P. 0. 154. INFORMAL OR INCOMPLETE INSTRUMENTS. the testator may be carried into effect, should his death occur before a regular will can be drawn and executed. These instructions should be signed by the testator, in order to facilitate the obtainment of probate (a) ; for though unsigned instructions may be admitted to probate as constituting a perfect will of personalty, yet the Court, in such cases, requires strict proof of the intention of the deceased, and to that end will scrupulously sift and ex- amine the evidence by which the paper is supported, and will weigh every adventitious circumstance indicative of testamentary intention, (h) 21. It does not appear to be absolutely necessarj'^ that the instructions should be seen by the deceased or ac- tually read over to him ; but when they are not written by himself it must be shown beyond question that he was well acquainted with their contents ; that he had dic- tated ttem, and that they accorded in every jiarticular with his wishes and intentions. 22. Inttructions communicated in answer to interroga- tories put by the attorney were in the case of Green v. Ski'pivorth ic) admitted to probate. The evidence in this case shewBd that the deceased, having been taken sud- denly ill, cesired the immediate attendance of Mr. Evans, an attorney, to make his will. Evans, immediately on re- ceiving the message, went to the deceased and found him extremely 11, and although of perfect mind, yet imable. («) These suigestions were writ- ten before th' passing of " The Wills Act, 183." They may be acted upon afte the new Act comes into operation, Tst January, 1874 ; care being takei, however, to have the instructions executed with all the formalities squired by the Act. In a late case tb Court granted pro- bate of a testamntary paper dravra up in the form r instructions for a will which had een duly executed : In the gooUs of Kts/jcr, 20 L. T. N. 2S1 Book III. Chap. IIL Sect. III. S. 684. But see In the goods of Pas- call, L. 11. 1 Prob. 606 ; 38 L. J. P. 3 ; 19 J-. T. N. S. 366, as to the suffi- ciency of the instructions. {h) Huiitiiii/ton v. Huntinr/ton, 2 Phillim. 213 ; Harris v. Bedford. 2 Phillim, 177 ; Thomas v. Wall, 3 Phillim. 23 ; Burrows v. Burroivs, 1 Hagg. 109 ; In the goods of Bath- gate, 1 Hagg. 67 ; Russ v. Cheater, 1 Hagg. 227. (c) 1 Phillim. 59. I •4 / rff' 1l 1 ^R )^i 1 1 \ 1 Pi T . 1 1 ^\\ ii «■ i II I 232 OF THE EXECUTION OF WILLS OF PERSONAL ESTATE. i I ■: i w{ •'■' I *,: Book III, from bodily pain, to hold much conversation. The tes- Chap. III. tator himself addressed Evans, saying that he found him- Sect. III. self scarcely able to talk. After a short interval Evans, observing that he was again preparing to speak, said that it might save the testator unnecessary exertion, and would probably be the best means of carrying his pur- pose into effect, if he would allow him to ask a question or two ; to which the deceased signified his assent. The medical attendant was in the room, and Evans, in his presence, proceeded by asking the testator whether it was his wish to give any instructions for his will? To which he immediately i-eplied, " I shall leave Mrs Green all the stocks, effects and improvements ; but as to any- thing else I will speak to j'ou again." Whereupon Evans wrote down the reply with a pencil ; and the ssme hav- ing been read over to the testator he signified lis appro- bation of it, and Evans and the medical atteidant sub- scribed their names in pencil. Mr. W., a relation, being in the house, was called into the room, and the clause was again read over to the deceased, and he was asked by Evans if that was what he wished, to which ae distinctly answered, "Yes." He was then also asked if he wished to give any furtJier instructions as to farms ir otherwise ; but appearing to suffer an increase of pain aid bodily ill- ness, he replied, " Not at present." This question and reply were written down by Evans, and atiested by him and the medical attendant. The several persons then left the room ; but shortly afterwards th^ returned at the desire of the testator, who had somewhat revived. The following question was then put, tie same having been first written down with a pencil ly Evans — " In case of anything happening to you, who lo you wish to have your farms ? the Skipworths, Mr. Wlson, or who ?" To which he replied, " Mrs. Green ;" anl the question WILLS MADE BY INTERROGATION. being again read over to him, he repeated the same an- swer. Mrs. Green being requested to withdraw, the ques- tion was again put to him in her absence, and he replied in the same manner ; whereupon Evans wrote down the reply, and he, together with two other witnesses, sub- scribed it. Immediately afterwards, his bodily pain much increasing, the deceased was rendered incapable of proceeding in giving further instructions or of executing a more formal will ; and he died the following day, 23. Sir J. Nicholl in delivering judgment made the following observations : " A will made by interrogatories is valid ; but undoubtedly whenever a will is so made, the Court must be more upon its guard against impor- tunity, more jealous of capacity, and more strict in re- quiring proof of volition, than it would be in an ordinary case. But if there is clear capacity, if there is the ani- mus testandi, and if the intention is or may be reduced into writing, the Court must pronounce for it. It has been observed that the act was rather that of the persons by whom the deceased was surrounded than of the de- ceased himself But, under the circumstances, the pre- cautions used were very proper ; the exertion of speaking might have been fatal and have prevented him from pro- ceeding to express what his intentions were. The resort, therefore, to question and answer was highly judicious ; it was the best practical mode of collecting his wishes and intentions as far as he was capable of expressing them ; and was adopted with the consent of the persons present as well as of the testator himself " (a). 24. It has been observed that " The Wills Act, 1873," rc([uires the same formalities of execution, whether the will be a will of realty or of personalty. The remarks upon («) See also Martin v. Martin, Grant, 58G. 12 Grant, 500 ; S.C. on appeal, 15 233 Book III. Chap. III. Sect. III. i'l :m mvti i ■',H ' ^-imim 1 234 OF THE EXECUTION OF WILLS OF PERSONAL ESTATE. i ; ( 1' J ■■:, is i . • i Book III. the English Statute 1 Vict. c. 26, contained in the pre- Chap. III. ceding chapter, and the cases decided upon that Statute, Sectlll. '^i^l therefore be applicable to wills of personal estate made after the new Act comes into force. No particular form is prescribed by the new Act for the making of a will. In a late case under the English Statute an entry in an account book, containing a full disposition of her property and the appointment of an executor, dated eight months before the death of the testatrix, which was sud- den, and subscribed and carefully preserved, was declared testamentary and probate granted, notwithstanding it contained clear words indicating that it was merely pre- liminary to a final disposition of her estate by will, name- ly, " I intend this as a sketch of my will which I intend making on my return home " (a). 26. And where a testator, being informed that he could not recover from his present illness, signed orders upon two savings banks in favour of his wife, in presence of two witnesses, expressing at the same time a wish that she should, after his death, receive the money in such banks, and he died on the following day, the Court granted ad- ministration to the widow, with the orders annexed, as containing the will of the deceased (6). 27. The presumption is always against a paper which bears self-evident marks of being unfinished ; and the onus of clearly proving that the deceased intended the paper in its actual condition to operate as his will, or that he was prevented by involuntary accident from completing it, is cast upon those who seek to establish it as a will (c'y (a) Hattat v. Hattat, 4 Hagg. 211. S .' also In the goods of Fisher, 20 L.T.N.S. 684. (6) In the goods of Marsden, 1 S. & T. 542 ; 6 Jur. N.S. 406 ; 2 L. T. N. S. 87. (c) 1 Jarm. Wills, 98 : Thorn- croft V. Lashmar, 8 Jur. N.S.^SQS ; 2 S. & T. 479 ; Reay v. Coucher, 1 Hagg. 75 ; 2 ib. 249 •,Wood\. Medkii, 1 ib. 6G1 ; In the goods of Bohi})soii, ib. 643 ; Braqge v. Dyer, 3 Hagg. 207 ; Oillow V. Bourne, 4 Hagg, 192. As to the contrary presumption in favour of a regularly executed and apparently complete will, Shadbolt v, Wmtgh, 3 Hagg. 570 ; Ble^vitt v. Bkivitt, 4 Hagg. 410. LALi i III II ^ INFORMAL OR UNFINISHED INSTRUMENTS. 28. As a will of real estate requires attestation and sub- scription, the Courts are strongly disinclined to gi'ant probate of unfinished instruments, which profess to dispose of both real and personal estate. The pi"esumption that the testator intended to adopt an unsigned or unwitnessed paper, which deals with realty, is necessarily weak, and if the dispositions of the two species of estate are so blended as to be clearly dependent on each other, the Courts inva- riably refuse probate. Should the disposition of the per- :sonalty be independent of the realty, probate might be granted (a). 29. The rule deducible from the authorities with respect to presumptions concerning imperfect instruments pro- pounded as wills is thus stated by Sir Edward Vaughan Williams (6). " When there is a mere want of execution in a paper which is complete in other respects, the Court will presume the testator's intention to be expressed in such a paper, on its being satisfactorily shown that the non-execution did not arise from abandonment of these intentions so expressed (c). But where a paper is incom- plete in the body of it, the Court must be completely satisfied by proof — 1st, That the deceased had finally decided to make the disposition of his property expressed in the imperfect paper ; 2ndly, that he never abandoned that intention, and was only prevented by the act of God from proceeding to the completion of his will " {d). " It is now clearly settled," said Sir John Nicholl, in Johnston v. Johnston {e), "that in respect to an unfinished paper, though followed by sudden death, the interval must be accounted for; and it must be shown that the testator (i) 1 Williams Exors. 68 ; In the fe'oods of Heme, 1 Hagg. 226 ; Doug- lass V. Smith, 3 Knapp, 1 ; Elsdon v. EMon, 4 Hagg. 183; Gillow v. Buumt, 4 Hagg. 291; Tudor v. Tudor, 4 Hagg. 199, note (a). 73. (6) 1 Williams Exors. 71,72. (c) 2 Add. 358. ((/) Devereux v. Bullock, 1 Phillim. 235 Book III. Chap III. Sect. III. 4\ (e) 1 Phillim. 495. %\\ 230 OF THE EXECUTION OF WILLS OF PERSONAL ESTATE, i i li 'Mi Book III. adhered to the intention, but was prevented from finishing Chap. III.5 it (a). Sect. III. 30. The introduction, whether accidental or not (&), into a will of any provision without instructions from the testator and without his knowledge does not make it n part of the will, even though he should execute the will : and probate will be granted omitting such provisions (c), 81. But if the will were read over to the testator be- fore execution, a clause cannot be excluded from probate even though inserted by inadvertence (d). In a very re- cent case (e) an important word was through en'or intro- duced by a solicitor's clerk into a residuary bequest, the effect of which was to limit the bequest, which was in- tended to be general, to real estate only. The Couit, whilst admitting that the evidence of the error was clear, stated that since " The Wills Act," 1 Vict. c. 26, the Court had no power to supply words accidentally omitted froni a will ; and, on the other hand, it r uld only omit word^ from the probate which had been inserted by fraud or mis- take, without the knowledge of the testator. That the remedy asked for in the case before the Court was not to reject words of which the testator was ignorant, but to modify the language used by the draftsman and adopted (a) Castle v. Torre, 2 Moo. P. C. 156 ; per Bosan((uet, J. . Accord. See Fulleck v. AUinson, 3 Hagg. 527, as to the validity of a will as an un- executed paper in a case where in- sanity supervenes between the pre- paration and the execution. See further on this suWect, Brown v. Hallett, 2 Caa. temp. Lee, 418 ; Ch-iff.n V. Griffin, 4 Ves. 197 ; note to Ma- thcwsv. Warner; Sandfoi'dv. Vaughan, 1 Phillim. 48 ; Dcvereux v. Bullock, 1 Phillim. 60 ; Sfusto v. Sutcliffe, 3 Phillim. 104; Bayle v. Mayne, 3 Phillim. 504 ; Forbes v. Gordon, 3 Phillim. 614 ; Rouse v. Moulsdale, 1 Add. 129 ; Lord Thi/nne v. Stanhope, 1 Add. 52 ; Antrobus v. Nepean, 1 Add. 399 ; Montefiore v. Montefiore, 2 Add. 354 ; Jameson v. Cooke, 1 Hagg. 82 ; Candy v. Medley, 1 Hagg. 140 ; Ibid. 661 ; Ibid. 671 ; In the goods of Heme, 1 Hagg, 222 , In the goods of Broderip, ] Hagg. 385 ; In the goods of Wcnlock, 1 Hagg- 551 ; In the goods of Robinson, 1 Hagg. G43 ; Reay v. Coucher, 2 Hagg. 249 ; Theakston v. Marson, 4 Hagg. 298; Castle V. Torre, 2 Moo. P. C 133. (b) Alhu V, M'-Hiermn-, 1 H. I-. C. 191. (c) I>' ■ T. 590 ; . J. P i -v In the gl)^^ 474. {d) Ouardlioasev. Blackl'Mrn,Jj,T\- 1 Prob. 109. (e) Harter v. Harter, L. R. 3 Prob. 11. ■^■;. of Duane, 2 S, & N. S. 752 ; 31 L. L. T. N. S. 788; McCahe, 2 S. & T. U ^ 1 ■1 1 ERRORS IN WILLS. 237 by the testator, so as to make it express the supposed in- 'Book hi. tention of the testator. The opinion of the Court was Chap. hi. that the error which had undoubtedly crept into the will, sect. HI. whether it were one of omission or insertion, was equally beyond the jurisdiction of the Court to correct. 32. The will of a married woman, made under the pro- visions of s. 16 of Con. Stat. U. C. c. 73, must be executed in the presence of two or more witnesses, neither of whom is her husband. The question arises under the statute must the witnesses subscribe a will of personalty ? The reasons which have been assigned for holding that they must subscribe a will of realty made under the Act, do not apply to wills of personalty, inasmuch as the latter do not ordinarily require attestation. It is conceived that it is not absolutely necessary under the Act that the witnesses should subscribe. 33. Cases will no doubt occur after " The Wills Act, 1873," becomes operative, in which, from the absence of a date and all other informa on, it will be impossible to as- certain when a will was made ; whether before or after the new Act came into operation. The same difficulty occurred in England after the passing of the Statute 1 Vict. c. 26. It was there held that, as every one is pre- sumed to know the law, a will without any date, well ex- ecuted according to the old law, but not executed pursuant to the new Act, should be presumed to have been executed before the new Act came into operation ; but that the strength of this presumption should diminish, as the pe- riod increases during which the new Act has been in force (a). 34. It is provided by Rule 7 of our Surrogate Court (o) Pechell v. Jenkinson, 2 Curt. 273. It might be as well to limit a period, by legislative enactment, beyond which this presumption should not operate. 1 .]. :<' 'li "' i ' '■' 1 ''"'fiM "" 1 238 OF THE EXECUTION OF WILLS OF PERSONAL ESTATE. Ml Book tti. Rules, that where there are one or more subscribing wit- Chai-. hi. nesses to a will or codicil, the due execution of such will Sectriii. ^r codicil shall be sworn to by any one of such witnesses, or the absence of such witnesses accounted for ; in which last case, such will or codicil must be established by other proof to the satisfaction of the judge. This rule will, of course, if allowed to remain in force, apply to wills exe- cuted under the provisions of " The Wills Act, 1873." "l i'l I ■J ( CHAPTER IV. OF THE INCORPORATION INTO A WILL BY REFERENCE OF UNEXECUTED PAPERS. 1. The law permits the incorporation in^o a will of papers therein referred to, subject to certain conditions. 2. The doctrine laid down in Habergham v. Vincent. 3. Limitation of the doctrine. The paper must be referred to as being in existence. 4. Statement of the law by Sir C. Cresswell in Strauhenzie, v. Monk. 5. And by Sir J. P. Wilde In the goods of Sunderland. 0. Case where reference insufficient. n. Recent case of Anderson v. Anderson. 7. Reference to a paper as not in existence, or "to be made" in- sufficient. 8. Paper must be so referred to as to be capable of being clearly identifi- i. 9. Case of Straubenzie v. Monk. 10. Case of In the goods of Gill. n. Case of Dickinson v. Stidolph. 11. Case of In the goods of Mercer. n. Various cases remarked upon. 12. Paper to be incorporated should be described in the will. 13. Question how far parol evidence is admissible to assist in identification considered. Case of In the goods of Sunder- land. 14. Paper written after the will may be incorporated where the will is republished by a codicil. 15. Case of In the goods of Truro considered. 16. Question when papers referred to should be included in probate considered. Dr. Lushington's opinion. 17. Deposit of a deed of settlement may be dispensed with. A no- tarial copy should be deposited. 18. A testator cannot create a power to dispose by a future unat- tested codicil. 1. It frequently happens that a testator in his will re- fers to anotheiwpaper or document, in such a manner as to render it impossible, without a reference to such paper or document, to ascertain the testator's intention. Subject to certain restrictions, the law permits of the incorporation '1 1 ITi' *S •'■>■ ! Book III. Chap. IV. 1ii -1. :, '-tn ;' » .1 ; i ^^WP p ■^ ji \' 1. ■^^tl '\ :;i|f:^ 240 INCORPORATION OF Book III. into the will of the |>aper referred to, so as to make it Chap. IV. part of the will («). 2. The doctrine in question is thus laid down by Mr. Justice Wilsc»n in an im|)ortant case (6) : " I believe it i.s true, and I have found no case to the contrary, that if a testator in his will refers to any paper already written, and has so described it that there can be no doubt of the identity, and the will i.s executed in the presence of three witnesses, that paper, whether executed or not, makes jiart of the will ; and such reference is the same as if he had incorporated it. But the difference between that case and a relation to a future intention is striking. In the former there is a precise intention mentioned at the time of making the will, as the paper makes out the intention at the time " (c). 3. The authorities show that the doctrine in question is subject to certain limitation. It is, in the first place, necessary that the i>a|)er referred to should not only be in existence when the will is made, but should be referr'ed to by the will as being in existence. 4. In Sirauhenziex.Monk (f?),SirC.Cresswellsaid: "The judgment in Alien v. Maddock (e) points out the conclu- sion at which I ought to arrive. It adopts the opinion of Lord Eldon in Smart \. Piiijean (/), that a testamen- tar}' pa})er duly executed, in order to incorporate another, must refer to it as a written document then existing in such terms that it may be ascertained." 5. And Sir J. P. Wilde, h\ the goods of Sunderland (fj), (a) Rogers V. Goodtnowik, 2 S.& T. 342 ; 31 L. J. P. 49; 8 Jar. N. S. 391 ; 5 L. T. N. S. 719 ; In the goods of McCabe, 2 S. T. 474 ; 31 L. J. P. 190; 6 L. T. X. & 474. (h) Habergham v. Vimcnt, 2 Ves. 204, 228. ((•■) See also Molineux x.Molimeux, Cro. Jac. 144. (d) 3 S. & T. at p. 12 ; 8 Jur. N. S. 1159; 32L. J. P. 21. (e) 11 Moo. P. C. at p. 454. (/) 6 Ves. 565.* (g) L. R. 1 Prob. at p. 199 ; 35 L. J. P. 82; 14 L. T.N. S. 741. !l UNEXECUTED PAPERS. after quoting the languiige of Sir C. Cresswell, says, " On the authority of these cnses I hold, that in order to let in parol evidence to ascertain the truth, as far as it can be ascertained by such evidence, with regard to an unex- ecuted testamentary document, the j)assage in the will by which refereiice is made to it must describe it as a docu- ment then existing." G. Where the will contained a reference to executors " hereinafter named," but did not appoint executors, and a clause appointing executors w is written underneath the testator's signature, it was lie'-^' that the reference in the will was not such a reference to the clause appointing ex- ecutors as a document in existence at the time of the ex- ecution, as to incorporate it, or to justify the Court in receiving parol evidence that it was written before the will was signed (a). 7. In a case where the will referred to a paper as not then existing, the Court refused to incorpoi.ae the paper with the will, although the paper and the will were written on the same day (6). The circumstance that the paper is described in the will as " made or to be made," is a strong ground for considering that it was not then in 241 BlH)K III. Chw. IV. m I, / ,. I' ;ii, ■'it' ']. si* "■ I. '\^i\ (a) In the goods of Dallow, li. R. 1 Prob. 189 ; 31 L. J. P. 128. (The same rule has been acted upon in a number of reported cases. See Allen V. Maddock, 11 Moo. P. C. 427, in which the earlier cases are re- newed. In the goods of Watkins, L. R. 1 Prob. 19 ; 12 Jur. N. S. 12 ; 35 L. J. P. 14 ; 13 L T. N. S. 445. In the goods of Reid, 19 L. T. N. S. 2G5 ; 38 L. J. P. 1. In the recent case of Anderson v Anderson, L. It. 13 Eq. 381, where the question was, whether a duly executed codicil was a republication and incorpwra- tion of a will, so as to validate a be- quest contained in the will in favour of the husband of one of the wit- nesses, it was argued that inasmuch as the codicil referred to the instni- ment previously executed as a will, when, so far os the bequest in ques- tion was concerned, it was not a \\\\\, there was no sufficient reference in the codicil to the will to incorporate it, and render valid the void be- quest. The Court, however, on the authority of Allen \.Maddock{m.m.), held otherwise, and considered that the Request was made good by the codiv-il. See In the goods oiWiddrinn- ton, 35 L. J. P. 66 ; 14 L. T. N. S. 369. (b) In the goods of Sims, 16 W. R. 407 ; 17 L. T. N. S. 619. Ill 242 INCORPORATION OF 1. I h ii Book III. existence ; ami, therefore, that it is not duly ineorpo Chap. IV, ratedfa). 8. It i.s also a contlition of incorporation, that the paper to be incorporated should be so referred to by the will n *, with the aid of parol evidence when necessary and pnv perly admissible, to leave no doubt of its identity. 9. Thus, in a late case (6), a testatrix enclosed and seal^l upin an envelope two sheetsof paper on which she had writ- ten an expression of her wishes in regard to the disposition of her estate. The papers were not duly executed, but the testatrix wrote on the inside of the envelope, " It is my wish for my husband to administer the moneys, and foi the smaller bequests, B. will attend to them," which nio morandum was signed by her and attested by two wit- nesses. The only surviving witness deposed that, after the execution of this memorandum, two sheets of paper, similar to those found in the envelope, were placed therein, and sealed up by the testatrix ; but she could not further identify them, the envelope having been opened after the execution. It was held that, as the words in the memo- randum did not refer to any papers as then existing, oi', if so, not in such terms as to enable the Court to identify them ; and as the evidence did not show that the papers found in the envelope were the same as were placed therein at the time of the execution of the memorandum, the papers were not so far identified as those referred to in the memorandum, and as being in existence when the me- morandum was made, as to be entitled to probate, and that, without them, the memorandum was not testamentarv. ff! (a) In the goods of Skair, .5 No. Cas. 57; In the goods of Astell, ib. 489 n ; In the goods of Hakewell, 1 Deane, 14 ; 2 Jur. N. S. 168 ; In the goods of Countess of Pembroke, 1 S. & T. 250 ; 1 Deane, 182; 2 Jur. N. S. 526. (6^ Stranhenzie v. Monk, 8 Jur. N. S. 1159 ; 32 L. J. P. 21 ; :{ S. & T. 6. But see In the goods of Almoanino, IS. & T. .508 ; 6 Jur. N. 3 302 ; 29 L. J. P. 46. -.' ! T^ UNRXECUTRD PAPERS. 10. So where the doceiisoil, in lS(jfJ, e.\ecuteM- ^. ,.i I 1 •1 ! M I'M 1 ! .!' ■ ■|. I ' I': I [ ■ : ; i ■■■ ji: i ': i' .> i liillll: 1 1! 244 INCORPORATION OF * : ! Book III. it was held that the copy so produced was incorporated Chap. IV. into the codicil (a). 12. It is commonly required for the purpose of identiti- r-ation, that the substance of the paper to be incorporated should be so far described in the will as to make it intel- ligible, without relying upon the paper for any material matter of substance (b), or that the paper should have been shown to some one before the execution of the will ; or else a memorandum be endorsed by the testator upon the paper as " this is the paper referred to in my will," or some similar memorandum ; and this shovld ut shown to have been made before the execution of the will (c). (a) In the goods of Mercer, li. R. 2 Prob. !)1 ; 3!) L. J. P. 4:^ ; 23 L. T. N. S. I'Jo. The words " ratify and confirm," Uf23 ; and it is unimportant that the incorporated document is voidable {Stump V. (fahii, sup. ) or invalid : In the yoods of Smart, 4 No. C'as. 3!) ; Swete V. Bidskii, (J No. Cas. 18'.» ; In '.he goods of Willcsford, 3 Curt. 77 ; In the goods of Hunt, 2 Rob. (522 ; 17 Jur. 720. In the goods of Jiosaii- tjiict (14 Jur. JH>4), an unattested do- cument, purporting to exercise a t)ower of appointment, Wiis held to )e incorjiorated with a will ; and in the case, In the goods of Gountcus of Durham (3 Curt. .57), the revoked will of another person, and In the goods of Halhj, 5. No. Cas. 510, a letter, were respectively held to be well incorporated with, and to form part of the will in which they were referred to. See also In the goods of WiUmott, 1 S. k T. 3(5. But a deed referred to as " made" by the testa- t No. Cas. 189 ; In the goods of Bacon, 3 No. Cas. 645, a schedule of books, and In the goods of AkIi. D. & Sw. 181, a list of plate, written on the same sheets as the will. were respectively held io be well in- corporated. But see In the goods cif Warner, 10 W. R. .5(56. See the fol- lowing cases, in which the identity was held to be insulHciently shown, and the instruments intended to hr referre(1 to, were noo made parts of the respective wills : — Collier v. Lan;iebear, 1 No. (Ja-s. 36!> ; In the goods of Astell, 5 No. Cas. 48» n. ; In the goods of Baldwin, 5 No. ('as. 2!)3 ; In the goods of Skair, 5 Nc. Cas. 57 ; In the goods of Hakcmll, D. k Sw. 14 ; 4 VV.R. 304 ; In the goods of Sotheron, 2 Curt. 831 ; In the goods of The Countess of Put,- broke, D. & Sw. 182 ; In the goods of Lancaster, 29 L. J. P. 155 ; In the goods of Dritmmond, 2 S. & T. 8 ; 8 W. R. •176. {b) See in the goods of Greves, 1 S. & T. 250 ; 28 L. J. P. 18. (c) 1 Jarm. Wills, 84 ; 1 Redf, Wills, 261-262 ; In the goods of Tin Countess of Durham, 3 Curt. 57 ; 6 Jur. 176 ; In the goods of Pcwt- nei', 4 No. Cas. 479 ; In the goods of Dickens, 3 Curt. 60 ; In the goods of Willciford, 3 Curt. 77 ; In the goods of Norri^, 14 W. R. 34S ; In Ihe goods of Darby, 4 No. Ca.*. 427 ; 10 Jur. 164 ; Jorden v. Jordcn 2 No. Vaa. .388; Jn the goods of Bacon, 3 No. Cos 644. UNEXECUTED PAPERS. 246 13. In tlie goods of Sunderland (a), the Court had oc- Book hi. casion to consider the question, how far parol evidence Chap. IV. could be admitted to assist in the identification of the j)aper referred to in the will. The testatrix had, by her will, bequeathed the residue of her property " save and except such articles of furniture as shall be ticketed or described in a paper in my own handwriting, to show my intention regarding the same." When she instructed her attorney to draw the will, she produced to him two li.sts which she said was the paper she intended to refer to. At the time when the will was executed, they were not shown to the attesting witnesses ; but at a time when a second codicil to the will was executed, they were seen by the witnesses ; but the testatrix did not make any verbal reference to them. Sir J. P. Wilde in his judg- ment remarked, " If the Court were at liberty to turn to independent sources of information, and investigate the ((uestion whether she intended those papers to form part of her will, independently of the language in which she is supposed to have referred to them, there is abundant parol evidence to satisfy the Court that the testatrix did intend these lists to form part of her will. But after consideration, I am of opinion that the Court is not at liberty to enter into that question, and to receive that parol _ evidence. T^'i Court cannot properly go further in that direction than the limit fixed by the Judicial Committee f)f the Privy Council in Allen v. Maddock (b). That limit seems to be fixed by one .sentence in the judgment. A reference in a will may be in such terms as to exclude parol testimony, as, where it is to papers not yet written, or where the description is so vague as to be incapable of being applied to any instrument in particular ; but the (a) L. R. 1 Prob. 198 ; 3.5 L. J. P. 82: 14 L. T. N. S. 741.5 (i) 11 Moo. P.C. at p. 454. "nh t I ill 246 INCORPORATION OF ■i: » k ii'':;r ' ( Book III. a,uthoritie.s seem clearly to establish, that where there is Chap. IV. a refeience to any written document described as then existing in such terms that it is capable of being ascer- tained, ])arol evidence is admissible to ascertain it. "There must be a reference to a written document described as then existing." 1 4. A paper, written after the will, may be regarded as incorporated into it, where the will is republished by a codicil, executed after the execution of the paper (a). 15. In a late case (h), Sir J. P. Wilde, after carefully reviewing the casf s, stated the rule to be : " That where the will, if tre-.ited as executed at the date of the codicil, and as speaking at that date, contains language which, within the principle of Allen v. Maddock (c), would oper- ate as an incorporation of the document to which it refers, testamentary effect may be given to such document ; but when this is not the case, the mere fact of unexecuted papers having been written or signed between the date of the will and that of the codicil will not suffice to add such papers to the will by force of republication, or to make that testamentary which would nqt have been so if the will had been originally executed at the later date. IG. The question when incorporated papers are to be included in the probate was considered by Dr. Lush- ington in the case of Sheldon v. Sheldon (d). He dis- tinguishes between a necessity and a title or option in such cases. " The title to probate," he remarks, " depends upon the clearness and sufficiency of the words of incor- poration ; the necessity of taking probate will depend (a) 1 Redf. Wills, 262-2G3 ; In the goods of Hunt, 2 Rob. C22 ; 17 Jur. 720 ; In the goods of Steioart, 3 S. & T. 192 ; S.C. 4 S. & T. 211 ; 9 Jur. N. S. 417 ; 32 L.J.P. 94 ; Sheldon v. Sheldon, 1 Rob. 81 ; 8 Jur. 877 ; In the goods of Mathiaa, 3 S. & T. 100 ; 9 Jur. N.S. C30 ; 32 L.J. P. 115; 8L.T.N.S. 471, (6) n Moo. P.C. 427. (c) In the goods of Truro, L. R. 1 Prob. at p. 205 ; 35 L. J. P. 89 ; 14 L.T.N. a. 893. ((/) 1 Rob. 81 ; 8 Jur. 877. iri^M m there is as then ig ascer- ' There Tibed as UNEXECUTED PAPERS. 247 ui)on the validity or invalidity of the instrument to be Book III. incorporated. For instance, if a man by will or codicil chap. iv. simply ratifies a deed valid per se, no one would be com- pelled to take probate of that deed, but the title to pro- bate remains the same ; if he ratifies an instiniment invalid or inoperative i)er se, then the title and necessity co-exist. If a party refers to a valid deed, and directs that his property shall be settled on similar trusts, then tliere is a title to probate, and if there be litigation there is also necessity ; for I have yet to learn how a Court of Laiv GOV Id give e feet to such tuill, unless the instrument referred to formed paH of the i^rohatc." 17. Strictl}', all papers entitled to probate ought to receive j)robHte ; but in the case of a will referring to and incorporating a deed in the possession of persons (trustees for example) who will not give up the deed, probate may be passed of the will alone, without a deposit of the ori- ghial deed («). In England, a notarial copy, if obtainable, is deposited in the registry, and a similar copy is made part of the probate (6). 18. The deci-sions which have been referred to, it is ob- vious, create a marked distinction between cases in which there is a reference to an existing paper, and cases in which a testator attempts to create, by a will duly attest- ed, a power to dispose by a future unattested codicil " To allow such a codicil," observes Mr. Jarman (c), " to bo supplementary to the contents of the will itself, would, it is obvious, tend to introduce all the evils against which -mj^ ■*':K\ ''^""',-1 ^l'\ (a) In the goods of Lansdowne, 3S. & T. 191 ; 32 L.J.P. 121 ; 9 L. T.N.S. 22 : In the goods of Dundas, 9 Jur. N.S. 360 ; 32 L.J.P. 165; 12 W.R. 18 ; In the goods of Garbett, 21 L. T.N.S. 366; Sheldon v Sheldon 1 Rob. 88 ; 8 Jur. 877 ; In the goods of Battersbee, 2 Rob. 439; In the goods otiSibthorp, L.R. 1 Prob. 106 ; 35 L.J.P. 73; 13 L.T.N.S. 803. (i) In the goods of Z>icAens,3 Curt. 61; In the goods of the Countess of Limerick, 2 Rob. 313, probate was granted of a will with extracts from a document referred to, but not re- cited in the will. (c) 1 Jarin. Wills, 86. '*> K * 248 INCORPORATION OF UNEXECUTED PAPERS. Book III. the Statute of Frauds was directed, and, indeed, give to Chap. IV. the will an operation in the testator's lifetime, contrarj- to the fundamental law of the instrument." It has been held, accordingly, in several cases, that the attempt to create such a power in the manner indicated is ineffec- tual (a)." (a) See the cases referred to in IJarm. Wills, 87 c« sc?. ■; I f r i< ! \ :iv i 1 1 )J u k MHWHIii CHAPTER V. OF THE TESTATORS KNOWLEDGE OF THE CONTENTS OF HIS WILL. 1. A testator must know the contents of his will. He cannot adopt a paper as a will, if he is ignorant of its contents. 2. When a person benefited draws the will, the proof of knowledge of contents by the testator must be clear. 3. It is not necessary to prove that the will was actually read over to the testator, but if testator was blind or incapable of reading, proof is required that he knew the contents of the will. 4. Rule, as stated by Dr. Lushington. 5. If testator shown to be of sound mind, it is presumed I'hat he knew and approved of the contents of the will. 6. Rules laid down by Sir J. P. Wilde in Guardhouse v. Black- burn. 7. Proof of signature only required. 8. Case of Morrit v. Douglass. 9. Presumption +Kat testator knew the contents of will may be displaced by evidence. 10. Clause introduced into a will by fraud or mistake does not be- come part of the will. 11. But if the will has been read over to the testator, an error in it cannot be corrected. 12. Recent case of Harter v. Harter. Opinion of the court; as to its power to correct a will under the new statute, n. (a) This case an authority upon " The Wills Act, 1873." Judg- ment of th ' 1 1 1 i i 1 i. iu..... ~ OF THE EXECUTION OF WILLS. have seen, a very suspicious circumstance, and, if it should appear that the testator had not a full and perfect knowledge of the contents of the instrument, it will be set aside as having been improperly procured (a). 3. In Harrison v. Rowan (b), Washington, J. said : " It is not necessary in order to establish the will, that the person claiming under it should prove that it was read over to the testator in the presence of the attesting and otlier witnesses (c); the law presumes, in general, that the will was read over by or to the testator. But if evidence be given that the testator was blind, or from any cause incapable of reading ; or if a reasonable gi'ound is laid for believing that it was not read to him, or that there was fraud or imposition of any kind practised on the testator, it is incumbent on those who would support the will to meet such i)roof by evidence, and to satisfy the jury either that the will was read, or that the contents were known to the testator. 4. The rule upon the subject of knowledge by the tes- tator of the contents of the will is thus stated by Dr. Lushington {d) : " The doctrine is, that proof of the know- ledge of the contents may be given in any form, but the degi'ee of jn-oof depends upon the circumstances of each cas3 — that, in perfect capacity, knowledge of contents may be presumed, — but that, when the capacity is weakened, and the benefit to the drawer of the will is large, the pre- sumption is weaker, the suspicion is stronger. The proof must be more stringent, and the Court must be satisfied of the knowledge of the contents beyond the proof of execution by the testator. I must add another consider- ation — the nature of the instrument executed — its sim- (a) See the cases cited under the head of undue influence. (6) 3 Wash. C. C. 580, 584, 585. (c) See Mitchell v. Thomas, C Moo. P. C. 137 ; 12 Jur. 967. id) Durnell v. Corfidd, 1 Kob. 51 63. ~ testator's knowledge of contents of his will. 251 plicity or complexity. I have always undei'stood the Book hi. doctrine to be, that in case of suspicion (which depends Chap. V. upon all the cii'cumstances of the case), the proof is to be in proportion to the degree of suspicion ; but it may be truly said, the greater the loss of capacity, the more strin- gent is the necessity for adequate proof of knowledge of contents (a)." 5. If, in propounding a will, it is shown that the testator was of sound mind, that he read the will, or that it was read to him, and that he signed it, the presumption is that he knew and approved of the contents of every part of it (Ij). And such evidence has, in the absence of ])roof of fraud, been held almost conclusive that the testator knew and approved of the contents of the will (c). G. In Guardhuuse v. Blackburn (d), Sir J. P. Wilde laid down the following important rules regarding wills duly executed. First, Before a paper so executed is entitled to probate, the Court must be satisfied that the testator knew and a))proved the contents at the time he signed it. Secondly, That exce])t in certain cases, where suspicion attaches bo the document, the fact of the testator's execu- tion is sufficient proof that he knew and approved the contents. Thirdly, That although the testator knew and approved the contents, the paper may still be rejected on pre of establishing beyond all possibility of mistake, that he did not intend the paper to operate as his will. Fourthly, That although the testator did know and (rt) See also Barry v. Butlin, 1 Curt. 637 ; 2 Moo. P. C. 480 ; Cfeare V. Cleare, L, R. 1 Prob. C55 ; 38 L. J. P. 81 ; 20 L. T. N. S, 497. (b) Alter V. Atkinson, L. R. 1 Prob. 666 ; 20 L. T. N. S. 404 ; Cleare v. Cleare, L. R. 1 Prob. 655; 38 L. J. P. 81 ; 20 L. T. N. S. 497 ; Sutton V. Sadler, 3 C. B. N. S. 87; 3 Jur. N. S. 1150 ; 26 L. J. C. P. 284. (c) Guardhouse v. Blackburn, L. R. 1 Prob. 109 ; 12 Jur. N. S. 278 35 L. J. P. 116 ; 14 L T. N. S. 69. {d) Sup. ■uk , .,; ,; '^(,'( ■ ' 4 AM #.• J'^^Ss 262 OF THE EXECUTION OF WILLS. I i it; I: if'fl ii\l Book III. approve the contents, the paper may be refused probate, Chap. V. if it be proved that any fraud has been purposely prac- tised on the testator in obtaining his execution thereof Fifthly, That, subject to the last preceding proposition, the fact that the will has been duly read over to a capa- ble testator on the occasion of the executi(>n, or that its contents have been brought to his notice in any other way, should, when coupled with his execution thereof, be held conclusive evidence that he approved, as well as knew the contents thereof. Sixthly, That the above rules apply equally to a por- tion of the will as to the whole. The learned Judge referred to Barry v. Butlhi (a) and Allen v. McPherson (h) as supporting the propositions laid down by him [c) 7. In a case where the testator had signed his will by putting his mark to it, it was held unnecessary to give further proof than the proof of signature. And an objec- tion to the will on the ground that evidence had not been produced that the will had been read over to the testator before execution, was overixiled ((?). 8. Where, however, it appeared in evidence that a mark had been made to the will before the witnesses were intro- duced, and they saw the mark, and one Davis who was present said to them that he wished them to sign Thomas Morrit's will, and Morrit sat by without making any remark, and nothing more was said, and the will was not read over in the presence of the witnesses, one of whom deposed that he thought the deceased was not exactly in 4^ ' ^ ! I ' (a) 2 Moo. P. C. C. 480. (6) 1 H. L. C. 191. (c) See the recent case of Good- acre V. Smith, L. R, 1 Prob. 359 ; 36 L. J. P. 43 ; 15 L. T. N. S. 511, in which the will was upheld, though Hiade ia favour of strangers in blood, and though the instructions were given in presence only of those inter- ested under the will, and though the will was not read over or its contents explained at or before the execution, it being shown that the will was in accordance with previously expressed intentions. (d) Clarke v. Clarke, 2 Ir. C. L. R. 395, Q. B. I!, i 1' . ' ',.' ,1, TESTATOR S KNOWLEDGE OF CONTENTS OF HIS WILL. 253 C. L. his right mind at the time ; the Court refused to admit Book ill. the will to probate, Sir James Hannen observing that the Chap. V, evidence entirely failed to satisfy him that the deceased knew what the contents of the alleged will were («,). 9. The presumption that the testator knew the contents of his will may be displaced by evidence that such was not the case; and, therefore, where the sole executor of a prior will pleaded to a declaration propounding a subse- ijuent will, that the deceased, at the time he signed the subsequent will, did not know and approve of its contents, a demurrer to the plea was overruled (b). 10. Where a clause is introduced into a will by fraud (c), or 2i6T incuriam, the testator not having given instruc- tions for, and being ignorant of the existence of such clause {d), it forms no part of the will of the testator, and probate will be granted of the remainder of the will. 11. On the other hand, a testator having era.sed a clause in his will after execution, asked a friend to make a fresh copy of it, omitting the erased clause. The copy was made, but the person who made it, by mistake omitted .several other clauses. The copy was duly executed, and the omissions were not discovered until after the testator's death, both wills having remained in his custody up to that time. The two wills not being inconsistent with each other, and the latter containing no exi)ress clause of revo- cation, the Court granted probate of both documents, upon parol evidence of the circumstances under which they were drawn up and executed, as together constituting the deceased's last will and testament (e). (a) Morrit v. Douglas, L. R. 3 Prob. 1. (6) HastUow V. Stobie, L. R. 1 Prob. 64 ; 35 L. J. P. 18. (c) AUcn V. McPherson, 1 H. L. C. 191. {d) In the goods of Duane, 2 S. & T. 590; 8 Jur. N. S. 752 ; 31 L. J. P. 173 ; 6 L. T. N. S. 788. (e) Bir/cs v. Birks, 4 S. & T. 23 ; 34 L. J, P. 90 ; 13 L. T. N. S. 193. m ,.: W. • ' <; '''"lllij 254 OF THE EXECUTION OF WILLS. Book III. 12. In an important case (a) whicli lately came before Chap. V. the Court of Pjx)bate in England, the Court had occasion to consider the question how far it was competent for the i ) ■; t ((() Hitrttr V. Harier, L. R. 3 Prob. 11, In this c»*e. .Sir J. Han- nen thus* liiiil down the law : " I think it is not in the |»uwer of the Court to supply wonU accidentally omitted from .^ will. The Wills Act (1 Vict. c. liCi, s. 9) ailmiU of no (pialitication. ' N« will .-ihail be valid unless it sliall l«e in wriliny, and executed in manner hereinafter mentioned." that is, by a duly at- tested signature. In the preswnt case there is no testanjentary tlisjx*- sition of the residue "'f the |>er*onalty of the (lece.ast.il fulfilling the re«juire- ments of the Act. and the intention of the deceased, however clearly it may ap|iear in the unatte^stetl in- structions, cannot l>e ^ven effect to. ' With respect to wili< made on or after .fanuary, ISiS," say* ^ir E. V. Williams 1 1 Williams Esor?. ;«.>), it is plain that liy reas<>n <tanientaiT ilispo- sition must be in wiitin;^, and attested [lursuant to the Act. Whence it follows that the Court ha.s no power tf) correct omLssions or mistakes by reference to the instruc- tions in any case t*» which that statute extends." This disposes of the numerous cases which were cited in ari,'ument, of dates anterior to 1 Vict. c. 'M ; and with rerjarvl to wills to which that statute is appli- cable, it has not l.»een susc-'estetl that the Court can .-ulmit to probate any words not containe*l in some duly attested testamentary document, however cogent the evidence may be, from oral or written instructions, that they were intended to be part of the will. But it wa* contended on behalf of the p'aintiffs that the true view of the nature of the mis- take in the draft and copy as exe- cuted is not that the words 'and personal' were omitted, but that the word ' real " was inserted, and that the will ouglit to be made to reatl,' all the residue and remainder of my estate." I have already stated my grounds for holding that the error was one of omission, but there are further sjiecial reasons why I cannot expunge the word 'real' from the residuary clause. Theiv are, undoubtedly, numerous cases which establish that this Court nu'vy decree probate of a part only of a properly attested instrument [nu'- porting to be a will. It is not necessary to do more than refer to the authonties collected in the cise of Ftiwci'lt V. Junes, ',i Phillim. 4;i4, wh' h, though relating to wills be- fore the statute 1 Vict. c. 20, aie on this head applicable to wills of a later date. And in the case of A I /en V. .UrPhcrsnn, 1 H. L. C, at p. •-'O'.t, Lord Lvndhur.st .said, ' It i.s per- fectly clear that the Ecclesiastical Court may admit part of an instru- ment to prcjbate, and refuse it as to the rest.' Lord Campbell, 1 H. L. C. , at p. 233, in the same case, says, ' It is quite clear that the Ecclesi- astical Court had jurisdiction to re- fuse probate of that part of the codicil which affects the appellant, because, giving credit to the facts stated, that part of the codicil was not the will of the testator; he was imposed upon, and probate of that part of the codicil ought to have been refused,' In that case fraud was the ground on which it was sought to expunge a part of a codicil ; but. In the goods of Duum, 2 S. & T. 590, Sir C. Cresswell applied the same reasoning to a case of simple mistake. There the wi^ds which were rejected were part of a printed form, and ought to have been struck out as inconsistent with the instructions given by the testator ; they were not read by or to the te-- tator, but the person who prepaied the will omitted to strike them out. Sir C. Cresswell, after referring to Allen v. McPherson, said: 'I can see no diflference in principle be- tween that case and the present one, where a clause for which the ile- ceased gave no instructions, and which was not read over to him, formed, per incuriam, part of the document signed by tne deceased." The facts of that case distinguish it in an essential manner from the present. There an entire clause of which the testator was altogether ignorant was introduced by accident, testator's knowledge of contents of his will. 255 Court, since the Statute 1 Vict. c. 2G, to correct an error book iil in a will. The facts in that case were as follows : The Cha7. V, testator gave oral instructions for a will to his attorney, and it waH contrary to the intention of the person who tlrow the will that the clause should be in it. In the Iiresent case the testator intended that the clause disposing of the residue of his nersonalty shouhl be in the will, but ne left it to another person to choose the language by which his intention should be carried into effect, and he read and adoi)ted as his own the language so chosen. Inappropriate language having been useci, the Court is asked to remedy the mistake, not by rejecting wonis of which the testator is proved to have been ignorant, but by modify- ing the language used by the drafts- man, and adopted by the testator, so as to make it express the suji- posed intention of the testator. This IS, in fact, to make a new will. The theory of the plaintiffs is, that the testator had his personalty only in his mind when he gave instructions for the residuary clause, because he hatl no realty undisposed of. If so, the proper mode of carrying out the instnictions would have been to say, ' the residue of my personal estate ;' and in that case the error consists in having sulistituted the word ' real ' for 'personal.' Upon this hypo- thesis the Court is asked to strike out the word ' real,' not because the clause would then be in the form the testator intended, but because it would in its transformed shape sub- stantially carry out the testator's wish. It is also to be observed, that not only the form, but probably the effect would be different ; for a bequest of the residue of the testa- tor's estate would, according to the modem decisions, include the realty, unless the context clearly excluded it. (Jarm. on Wills, ch. 22; The Mayor and Corporation of Hamilton v. Hodsdon, 6 Moo. P. C. 76.) Such a mode of dealing with wills would lead to the most dangerous conse- quences ; for it would convert the Court of Probate into the court of construction of a very peculiar kind, whose duty it would be to shape the will into conformity with the sup- posed intentions of the testator. In very many of the cases which come before the Courts of Law and Equity, as to the proper constniction of wills, the intention of the deceased is supposed to be seen, but the ques- tion is whether the language used expresses the intention. If the process now sought to be applied to this will were to be adopted, the Court of Probate will in future be asked, first to ascertain by extrinsic evidence what the testator's inten- tion was, and then to expunge such words or phrases as, being removed, will leave a residuum, carrying out the intention of the testator in the particular case, though different in form, and possibly in legal effect, from that which the testator or his advisers intended. If I felt myself at liberty to am: ■H CHAPTER VII. OP WHAT MAY BE DEVISED OR BEQUEATHED. ■'■'. 1. General power of devising freehold lands created by 32 H. 8, c. 1. 2. The power of disposing of personalty was of gradual growth. 3. Provisions of " The Wills Act, 1873." The Statutes of Henry repealed by that Act. Enabling provisions of s. 5 of the new Act. 4. Construction of real and personal estate given by the interpre- tation clause of the new Act. 5 . Under the present law all interests are devisable, which, on decease, if not disposed of, would go to the real or personal representative. 6. The interest of a joint tenant cannot be devised unless he sur- vives his co-tenant. The interest of a tenant in common may be devised. 7. A devise of real estate regarded as a conveyance. 8. Consequently a testator coiild not, under the old law, devise real estate of which he was not seized when he made his will. 9. Rule in Equity as to equitable estates. 10. Provisions of 4 W. 4. c. 1, s. 49. 11. Construction of this section in Whately v. Whately. 12. Opinion of the present Chancellor, (a) Results of the old doctrine. (b) Remedy applied by the Legislature by 4 W. 4, c. 1, s. 49. (c) Difference between our Statutes and 1 Vict. c. 26. (d) Conclusion to be drawn from the difference in wording of the two Statutes. (e) Opinion of Mowat, V.-C, remarked upon. (/) Difference between a will of real and personal estate as to construction of bequest. Peculiar language of our Statute. (g) Testator in the will under consideration joins real and per- sonal estate in one devise. This considered immaterial. 13. Statute 32 Vict. c. 8, s. 1. 14. That Statute repealed by the new Act as to wills made after the 3l8t December, 1873. 15. Wills of real and personal estate placed by the new Act on the same footing. 16. In order that 4 W. 4, c. 1, may apply, the testator's death must occur after 6th March, 1834. 17. Consideration of the words " contrary intention " in the 2l8t section of the new Act, Case of Cole v. Scott. 18. Case of Wagstaffv. Wagst aff considered. 19. V. -C. Wood's opinion in Goodlad v. Bennett, 20. Case of Castle v. Fox. WHAT MAY BE DEVISED OR BEQUEATHED. n. (c) Judgment of Malitis, V.-C, in that case ; review of the cases. 21. It is only as to the property comp-riaed in it that a will is made to speak as if executed immediately before the testator's death. 22. The " contrary intention " must, to be effectual, appear in the will, and must have a continuing operation to the death of the testator. 23. Provisions of " The Wills Act, 1873," as to estates |)«r au«re vie. 24. Provisions of the Statute of Frauds as to such estates. ' 263 '- hm 1. By the Statute 32 H. 8, c. 1, a general power of Book III. disposing of freehold lands of inheritance by will was Chap. VII. created. This Statute was followed by the explanatory Act 34 and 35 H. 8, c. 5, by which it was enacted " That all and singular person and persons having a sole estate or interest in fee-simple, or seised in fee-simple in coparcenary, or in common in fee-simple, of and in any manors, lands, tenements, rents or other hereditaments, in possession, re\ ersion, or remainder [or of rents or services incident to any reversion or remainder, and having no manors, lands, tenements, or hereditaments, holden of the King, his heirs or successors, or of any other person or persons by knight's service], shall have full and free liberty, power and authority, to give, dispose, will, or de- vise to any person or persons (except bodies politic and corporate), by his last will and testament, in writing, as much as in him of right is or shall be, all his said manors, lands, tenements, rents, hereditaments, or any of them, or any rents, commons, or other profits or commodities out of or to be perceived of the same, or out of any parcel thereof, at his own free will and pleasure." 2. The power of disposing by will of personal estate in England was of gradual growth. At the time the Cana- dian Statute 32 Geo. 3, c. 1, was passed, the right of be- queathing personal estate extended to the whole of the r^' I' < ■•;, M ' ' :'■ iff J hi 1 A i'i i.. I i w |i > \ iij i" 1 'I ?|- : t ( 1' i( i klf i' if M 111 ! 264 OF THE EXECUTION OF WILLS. Book III, goods and chattels of the deceased (a), and this right, Chap. VII. therefore, became, and has sine continued to be, part of the law of this Province. 3. By " The Wills Act, 1873" (6), the Statutes 32 H. 8, c. 1, and 34 & 35 H. 8, c. 5, are repealed as to wills made after the 31st December, 1873 (c), and new powers of disposition are substituted ; it being provided by s. 5 that "Every person may devise, bequeath, or dispose of by will, executed in manner hereinafter mentioned, all real estate and personal estate which he shall be entitled to, either at law or in equity, at the time of his death, and which, if not so devised, bequeathed or dis- posed of, would devolve upon his heir at law, or upon his executor or administrator ; and the power hereby given shall extend to estates pur autre vie, whether there shall or shall not be any special occupant thereof, and whether ine sane shall be a corporeal or incorporeal hereditament ; and also to all contingent, executory, or other future in- terests in any real or personal estate, whether the testa- tor may or may not be ascertained as the person or one of the persons in whom the same may respectively be- come vested, and whether he may be entitled thereto under the instrument by which the same were respec- tively created, or imder any disposition thereof by deed or will ; and also to all rights of entry for conditions broken and other rights of entry, and also to such of the same estates, interests and rights respectively, and other real and personal estate, as the testator may be entitled to at the time of his death, notwithstanding that he may be- come entitled to the same subsequently to the execution of his will." 4. By the interpretation clause of the Act (d), it is pro- (a) 1 Williams Exors. 1-5. (b) S. 46. (c) Sees. 2, {d) a. 4. mm WHAT MAY BE DEVISED OR BEQUEATHED. 265 vided that the term " real estate" shall extend to raes- Book III. suages, lands, rents, and hereditaments, whether freehold Chap. Vll. or of any other tenure, and whether corporeal, incorporeal or personal, and to any undivided share thereof, and to any estate, right, or interest (other than a chattel interest) therein ; and that the term " personal estate" shall ex- tend to leasehold estates and other chattels real, and also to moneys, shares of Government and other funds, securi- ties for money (not being real estate), debts, choses in action, rights, credits, goods, and all other property what- soever, which by law devolves upon the executor or ad- ministrator, and to any share or interest therein. 5. Under the present lavj, all interests in real or per- sonal estate which, at the decease of the testator, would, if not so disposed of, devolve to his general real, or per- sonal representatives, whether the testator be the legal or the beneficial owner only, or unite in himself both these characters, may be devised or bequeathed (a). Whether, therefore, an interest in real or personal estate can be de- vised or bequeathed or not, must depend upon the answer to the question, would such an interest, in the event of the death of the owner, intestate, devolve to his general real, or personal representatives ? 6. Thus it is clear that the interest of a joint tenant cannot be devised in the event of the testator's death ia the lifetime of his co-proprietor, as it survives to the co- tenant ; and on the other hand, the interest of a tenant in common may be devised (h). An executory interest in real or personal estate, including an executory use, is dis- (a) 1 Jarm. Wills, 40. (6) 1 Jarm. Wills, 40 ; Smft v. Robert!, 3 Burr. 1488 ; 1 W. BL 476. Mil ft! m :\ M » !■ 2(56 OF THE EXECUTION OF WILLS. M Si UJ •!- ■•'■) l-':'^ Book TIL posable by will, if it be descendible or transmissible (a), Chap, VII. and so also is a right to set aside a conveyance (6). 7. It has been before remarked that a devise of real estate was regarded as a conveyance of the estate. The nature of such a devise is clearly stated by Lord Mans- field in Hardwood v. Goodright (c). " Though as to per- sonal estate, the law of England has adopted the rules of the Roman testament, yet a devise of lands in England is considered in a different light from a Roman wiU. For a will in the civil law was an institution of the heir ; but a devise in England is an appointment of particular lands to a particular devisee, and is considered in the nature of a conveyance by way of appointment; and upon that principle it is that no man can devise lands which he has not at the date of such conveyance. It does not turn upon the construction of the Statute 32 H. 8, c 1, which says that ' any person having lands, &c., may devise,' for the same rule held before the statute, when lands were devis- able by custom." 8. The consequence of this doctrine as to the nature of a devise was, that a testator could not devise any real estate of which he was not seized at the time of making his will (d). 9. And in analogy to the rule regarding legal estates, it was held by the Courts of Equity that a testator could not devise an equitable interest in real estate, unless he was entitled to such interest at the time of making his will (e). From these rules the harsh consequence followed, that if a testator was, at the time of making his will, (a) 1 Jarm. Wills, 41 ; Ooodtitle V. Wood, Willes, 211 ; S. C. cited 3 T. E. 94 ; Roe v. Jme8, 1 H. BL 30 ; Moore v. Hawking, 2 Eden. .342. Selwyn v. Selwyn, 2 Burr. 1131 ; 1 W. Bl. 222, 251 ; Doe v. Ch-ititha, 1 W. BL 606. (6) Qreiley v. Moualey, 5 Jur. N. S. 583 ; 4 De G. & J. 73 ; 28 L. J. Ch. 620. (c) 1 Cowp. 90. (d) See also Whately v. Whately, 13 Grant, 436 ; S. C. on rehearing 14 Grant, 430, and cases there cited. (e) ] Jarm. Wills, 45. WHAT MAY BE DEVISED OR BEQUEATHED. seized only of a legal estate, the equitable interest being in another, and he devised his estate, and subsequently to such devise he acquired the equitable interest, his devisee was held to be a trustee for the heir, to whom the equita- ble interest descended; and conversely, if the tastator, at the time of making his will, owned the equitable interest, the legal estate being outstanding, a devise of his interest passed only the equitable interest, though he should have subsequently aci^uired the legal estate ; and the heir-at- law, to whom the legal estate descended, was held to be a trustee for the devisee of the equitable interest (a). 10. Such was the state of the law in this Pro\dnce when the Statute 4 W. 4, e. 1, was passed; by the 49th section of which it was enacted that " when the will of any person who shall die after the sixth day of March, one thousand eight hundred and thirty-four, contains a devise in any form of words of all such real estate as the testator shall die seized or possessed of, or of any part or proportion thereof, such will shall be valid and effectual to pass any land that may have been or may be acquired by the devisor after the making of such will, in the same manner as if the title thereto had been acquired before the making thereof" (6). 11, The construction of this section was considered by the Court in the case of Whately v. Whately (c). The testator had made a will dated the 13th September, 1859, containing the following clause : " I give all my real and personal estate to my executors and trustees for the pur- pose of this my will," and the question was whether these words were, under the Statute, sufficient to pass real es- tate which the testator had acquired subsequently to the (a) 1 Jarm. Willfl, 45 ; Strode V. Lady Falkland, 3 Ch. Rep. 187 ; 2 Vera. 626. (6) Con. Stat. U. C. c. 82, s. 11. (c) 13 Grant, 436; S. C. on rehear- ing, 14 Grant, 430. 267 Book III. Chap. VII. I.-. % 1 ^^1 1. :M"i I' \ 1 ' b - it i l[ I 1 \ 1 'f ^it ^ \' . 1 I : m M 268 OF THE EXECUTION OF WILLS. Book III. date of the will. Mowat, V.-C, held that the words of the Chap. VII. will did pa.ss after-acquired real estate (a), but, on re- hearing, it was held otherwise by the majority of the Court {b), the learned Vice-Chancellor still, however, e.l- hering to his opinion expressed in the Court below. The Court considered that the words used in the will did not import an intention to devise the testator's after-acquired real estate. . , 12. The present Chancellor, then V.-C. Spragge, said (c) : " Before the passing of the Act 4 Wm. 4, c. 1, the law as to the passing of real and personal estate by will stood thus : As to personal estate, the will took effect as if executed immediately before the death of the testator ; as to real estate, the testator could not, by any form of words, devise what he had not at the date of the will." The point " that a man cannot make a will of any lands before he has a title in them," had been determined in the House of Lords in Brownlee v. Cokt {d) ; and Lord Boslyn, in Bi'ydges v. The Duchess of Chandos (e), explained the rule and the true nature of a devise of real estate, in much the same terms as the same had been explained by Lord Mansfield in Harwood v. Goodinght. (a) " It resulted from this state of the law, that when- ever a man acquired real estate, which he wished to dis- pose of by will, it was necessary that he should make a fresh will, if he had made one before ; and so from time to time, as often as he acquired more real estate, or it would go to his heirs ; at that time, his eldest son alone, if he had one. This, in a country like Canada, where real estate was in a comparatively greater number of hands, and changed hands more frequently than in Eng- (a) 13 Grant, 436. (6) 14 Grant, 430. (c) At p. 432. (d) 1 B. P. C. 19 («) 2 Vea. 427. WHAT MAY BE DEVISED OR BEQ HEATH KD. land, worked, to say the least of it, inconveniently. The evil to be remedied was that a testator could not dispose by will of any property that he had not at the time. (b) "To remedy this evil, the Statute provided that a will contuining a ' devise in any form of words, of all such real estate as the testator shall die seized or possessed of, or of any part or portion thereof, * * shall be valid and effectual to pass any land that may have been or may be acquired by the devisor after the making of such will, in the same manner as if the title thereto had been ac- quired before the making thereof (c) " Nothing would have been easier than for the Legis- lature to do what " tS afterwards done in England by the Imperial Act 7 W . 4, and 1 Vict. c. 26 — to enact * That any will shall be construed, with reference to the real estate and personal estate comprised in it, to speak and to take effect as if it had been executed immediately be- fore the death of the testator, unless a contrary intention shall appear by the will.' This, in few simple unambig- uous words, places a disposition of real estate by will upon the same footing as a disposition of personal estate. If the Legislature of Upper Canada had intended to do the same, it is difficult to conceive that they would have missed so plain a way of doing it. {d) " I think that their not making an enactment in some such terms, and the terms in which the alteration of the law is made, go far to show that the Legislature did not intend to place the disposition by will of real and per- sonal estate upon the same footing. (e) "My brother Mowat thought that 'when a man devises all his real estate, his purpose is to devise all he may own at the time of his death just as much as when ^- bequeaths all his personal estate.' With great respect for my learn- ed brother's opinion, I think there is no warrant for this 269 KOMK III. Chap. VII. • : 1 ■fH nm •' i ,j .1 t i 'i i 1 I , I t' I) I'. it ! H' i' t.'l : m\ ■ (. II :i'3l ! w 270 OP THE EXECUTION OF WILLS. Book III. conclusion. Such may have been the testator's intention, Chap. VII. certainly. I may even surmise that it probably was his intention ; but the language he has used is not such as, in my judgment, to warrant the legal conclusion that such was his intention. (/) " In a will of personal estate there is an expressed in- tention that it should be a bequest of what the testator has at the time of his death, because the law r^^'es his words expression as at the time of his death. u our Statute, making no such rule as to real estate, requires the testator to express an intention as to after-acquired pro- perty, if he has such intention. The language of the Sta- tute, ' a devise in any form of words of all such real es- tate as the testator shall die seized or possessed of,' im- plies, or rather requires that the testator must, in some form of words, express it to be his intention to devise his after-acquired real estate. The words ' I give, or I de- vise all my real estate,' do not import such intention ; the reason being wanting which, in the case of personal estate, imputes such intention to the testator. (g) " There is, however, this point in the < lefore us. The testator joins together his real and personal estate, making one disposition of both in these words : ' I give all my real and personal estate.' Is that a form of words denoting an intention to devise after-acquired real estate ? Or may it not with equal propriety be said that they denote an intention on the part of the testator to limit his bequest of personal estate to what he then possessed ? I think the proper construction of the will is to read it, as to each kind of property, as the law requires it to be read, if each were expressed separately." 13. Shortly after the decision of Whately v. Whately the law was altered by the Statute 32 Vict. c. 8, by which i WHAT MAY BE DEVISED OR BEQUEATHED. 271 it was provided (a) that every will shall be construed Book m with reference to the real and personal estate comprised Chap, vil in it, to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention appears by the will. This section, which wafl adopted from the English Statute 1 Vict. c. 26, 8. 24, does not apply to the wills of persons who died be- fore the Ist day of January, 1869 (6). 14. The Statute 32 Vict. c. 8, is repealed as to wills made after the 31st December, 1873, by " The Wills Act, 1873," but the 1st section of the former Act is, with but one verbal alteration, ro enacted by the 21st section of the new Statute, whicii provides that every will shall be construed, with reference lo the real and personal estate comprised in it, to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention shall appear by the will. 15. The effect of this section is to put real estate upon the same footing, in respect of th^ devising operation of a will upon it, as was personal estate before the passing of the Act. A will, as to the personal estate comprised in it, always spoke from the day of the testator's death, without reference to the state of the property at the time the will was made ; unless it appeared from the instru- ment itself that its operation was to be restricted to such property as the testator was possessed of at the time he made his will (c). 16. It is to be observed that the Act 4 Wm. 4, c. 1, s. 49, refers to the testator's death after the 6th day of March, 1834, as the event in which the Statute is to ap- ply. The Act therefore applies to wills made before the \i la S. 1. (6) See s. 6 of same Act. (c) 1 McN. & G. 529 ; Douglas v. Douglas, Kay, 400, 404 ; Goodlad v. Burnett, 1 Kay & J. 341, 347, 348. Per Spragge, V.-C, in Whately v. Whatdy, 14 Grant, at p. 432. i it*' 1 1 if ,■( 'f ' ^. ...kitu IjI ii 272 OF THE EXECUTION OF WILLS. M-'*-' i ~ii Book III. 6th day of March, 1834, by testators who have survived CHAprviL that date. Care must therefore be taken, in considering the effect of a devise contained in a will made before the 6th day of March, 1834, to ascertain whether the testa- tor died before or after that date. If before, the devise is governed by the old law ; if after, by the new, 17. Since the passing of the Stat. 1 Vict. c. 26, cases have frequently occurred involving the consideration of what is sufficient to show the " contrary intention " re- ferred to in the 24th section of the English Act (a). In one case, a will made after the passing of the English Act contained a devise of " all the estates of which I am noiv seized and possessed ;" and the word now was used in other parts of the will in such a manner as to be distinctly referable to the date of the will ; the Court held that the use of the word " now " plainly denoted the " contrary intention " referred to in the Statute, and that therefore real estate acquired after the date of the will did not pass by it (6). 18. On the other hand, when a testator made a gift of " all my ready money, bank and other shares, freehold pro[)erty, and any other property that I may novj possess," it was held that personal estate acquired after the making of the will passed by the bequest (c). The Master of the Rolls in this case said, " If the testator had said ' I give all my real and personal estate,* there can be no doubt that after-acquired property would have passed. So again if he had said, ' I give all the real and pei'sonal (a) Tlie 2l8t section of "The Willd Act, 18-;3." (6) Cole V. Scott, 1 Mac. & G. 518 ; 16 Sim. 259. See also D(mffl(u v. Douglat, Kay, 400 ; Bullock v. Ben- nett, 1 Kay & J. 315 ; 7 DeG. M. & G. 283 ; Ooodlad v. Burnett, I Kay & J. 341 ; Jepton v. Key, 2 Hur. & C. 873 ; Langdale v. Briggi, 3 Bni. ^ G. 246 ; 8 De G. M. & G. 391, 437 : In the goods of Otiey Kail- way, 11 Jur. N. S. 818 ; 34 Beav. 525 ; Thomas v. Jones, 2 J. & H. 47"i ; 8 Jur. N. S. 1224 ; 31 L. J. Chan. 732; 10 W. R. %5H; Hwjhes v. Jones, 1 H. & M. 765, 770. (c) Wagstaff v. Wcigstaff, L. R. 8 Eq. 229. WHAT MAY BE DEVISED OR BEQUEATHED. 273 urvived sidering fore the le testa- 3 devise 26, cases •at ion of ion" ve- (a). In jlish Act am noiv used in listinctly that the contrary therefore [ not pass a gift of freehold possess," e making ter of the ' I give no doubt sed. So personal M. & a. { Otley Hail- 14 Beav. 525 ; & H. 475 ; L. J. Chan. Htujhai V. 70. taff, L. R. 8 estate I possess.' Does it make any difference when he Book III. puts in the word ' now ? ' The words ' I possess ' mean Chap. VII. the same thing as ' I now possess,' In all these cases the law says you must read the will as if it had been written on the day of the testator's death, and you must have distinct words, as there were in Cole v. Scott, in order to show that the property acquired subsequently to the date of the will is not intended to pass. ''19. In the case of Goodlad v. Burnett (a), V.-C. Wood illustrated his opinion as to the proper construction of the 24th section of the English Act. He said, " If I refer to a particular thing, e. g. a ring or a horse, and bequeath it as ' my ring,' or ' my horse,' it would seem that the contrary intention, to which the 24th section refers, ap- pears by the will ; and the will speaks from the date of its execution ; but when a bequest is of that which is generic, of that which may be increased or diminished, the Act requires something more on the face of the will, for the purpose of indicating such ' contrary intention,' than the mere circumstance that the subject of the be- quest is designated by the pronoun ' my ' " (b). 20. In Castle v. Fox (c), the testator devised his mansion and estate, called Cleeve Court, with the appurtenances, (a) Ubi Bup. (6) See also Trinder v. Trindcr,lj. R. 1 Eq. 695. In the goods of Gib- ion, L. R. 2 Eq. 069. (c) L. R. 11 Eq. 542 ; 40 L. J. Ch. 302 ; 24 L. T. N. S. 536. V. -C. Malins, in this case, reviews the authoritit . After referring to the various additions to the estate made by the testator after the datt of his will, he says : " Looking at the transaction itself, can any man doubt what the intention of the ttHtator wac? Can there be the sli((htest doubt tnat in m.'>king these purchases — all for very small sums, except the £2,258— his object was to buy up the small patches of property which lay inconveniently intermixecl with the estate, and add them to it This point was much pressed upon me, that I am not at liberty to go into evidence upon that question, that I am not at liberty to look at the surrounding circumstances when there is a particular devise, although I may do so whe.i there is a general devise. It is admitted that if he had said, ' All my lands in the county of Somerset,^ every thing would hav passed ; but because he says, I giv a particular part of it, whir'i in known by a particular nam**, and he has added property which is also known by that name, therefore it is not to pass, because I must read the description of Cleere Court as apply- ing only to that which was, in the '& » '■ .1 , ■' m! |,l T 274 OF THE EXECUTION OF WILLS. Book III. upon certain trusts, and gave the residue of his pro- Chap. VII. perty of every description, other than those thereinbefore mentioned, upon other trusts. The testator had contracted, strict sense of the word, Cleeve Court at the date of his will. In pressing the argument to that extent, it must follow that the decision of the Master of the Rolls In re 31id- land Kfiilway Company (M Lea". .525), must be entirely wrong. In that case the testator devised ' a messuage or dwelling-house, wherein D. C now resides, with the stable.s or appurtenances theieto belonging and therewith occupied.' If this argument is good for anything, nt)- thing could pass by that description but that which was actually part of it when the will was made ; but be- tween the date of the will and the death of the testator he purchased a garden, which he attached to the existing messuage ; and if the argu- ment is to prevail, the Master of the lloUs ought to have hel hat the original j)roperty only pa.sseu by the will, and that the garden which had been adiled to it diil not pass. Sup- pose a man Xva* a house and garden, and he finds his garden too small, and purch.ases from his neighbour some more laud, which he adds to his own garden, and builds a new wall. In that case I ought to hold that as to one part of the garden, if tliere is a residuary devise, it would pass under that ; but if there is no residuary devise, then I must hold that, although ht died seised of a house .and garden, which garden he had enlarged after the date of his will, therefore he died intestate as to one part of the garden. Such argu- ments lead to conclusions utterly re- pugnant to sense, and, as I think, repugnant to the intention of the Legislature in making this enat!t- ment. Therefore it ajipears to me that, whether it I)e a particular description, or whether it be a general description, if a testatr)r, as in the jiresent case, givcd i)roj)erty by a partictdar name, the question is not wheo was known by that name when he made his will, but what wa.s known by that name and treated by him as coming imder that descrip- tion at any time during his life ; and I think, therefore, evidence as to his treatment of the property, and what he called the particular estate after the date of his will, is just as legi- timate evidence aa evidence of what he did before the date of his will. because the words of the statute are, that I am to reatl the will as sjieak- ing immediately before the death of the *,estator, unless a contrary inten- tion ipjjears. No such contrary in- tention does appear here, and there- fore I think the whole of thi^ evidence, showing what the testator treated as part of the Clfre Voin-i estate not .'nly before but between the date of his will and his death, is as legitimate as any evidence that can bu ifiven for the purjiose of put- ting the Court in the position of tlti' testator. It hajMJens here that l)i.- tween the date of the will and the death of the testator there is an interval of only five years, but I have had many ciises where, between the making of the will and the death of the testator, there has been twenty or thirty years' interval. A man may add a ^''eat deal to an estate during that time, but although he may have done so, and may have described it in a receive that evidence, because I can only receive evidence as to what wa< part of the estate at the date of thi will. The argimient is further carrie( 1 to this extent ; It is said that this i» distinctly shown by the residuary devise- -' I give and becjueath all the rest, residue, and remainder of my property of every description other than those herembefore men- tioned and exi)ressed.' It was argued that ' hereinbefore mentioned and ex- pressed' is only that which he had at the date of the will ; that that only is mentioned ; oyo, nothing can pas^ but that which is the-re mentioneil. The effect of that, again, is to abro- gate the statute and to jjass over the words of the Legislature altogether Many eases have been put by wa\' of illustration, and I think the ca*e in Mr. Jannaii's book (1 Jami. Wills, ;WU), alwmt the house in (froarenor Siinarc, is a very good one. 'Suppose a testator has a WHAT MAY BE DEVISED OR BEQUEATHED. 275 Iteforethedateof his will, to purchase an esta,te near to Book ill. and adjoining the Cleeve Court estate, which was con- uhap~v:i. veyed to him subsequently. It was held that evidence house in Orosvctior Squnre, and he says in his will, " I give my house in drosirnor Si/nare ; " then supixise he *ells the house he had at the date of his will, and buys another in Groa- renor Sqitare ; my o])inion is (and I have not a doubt aljont it), that under that general description, " my house in Grnsrcnor Square,'" the house would pass. The liegislature says I must read the will as if it were made immediately before the death . if the testattion of " my house " where he has specifically descrilwd the house by name. Therefore I am as clearly of opinion that in that case it would not pass, as I am of opinion it would jiass in the fonner case.' So I answer the (piestion put by Vice-Chancellor Knight bruce with regard to the brown horse (2 De <>. & Sm. 73;i) : 'Sui)iM)se a man to have a, brown nurse." the Vice-Chan- ceilor says, ' and bequeath it, and then to sell it, and ))uy another brown horse, and «lie, does the horse of which he wa.s possessed at the time (if his death pass?' I should say, unless he uses other words to des- cribe the brown horse, all I am at liberty to ask is. ha2), and Cox V. Jiennctt (L. U. (J Eq. 422j -one before Lord RoinUh/, and the other before Vice-( 'hancellor Gif- fard. In each case the testator gave a particular house of which he was a leaseholder at the date of his will, but of which he acioiired the free- hold afterwards. In both those cases it was decided that, having devised a particular thing, it passed everj- interest the testator su]ise(|uently ac- quired in it. In Gitodlad V. liurndt (1 Kay and J. lUl), a very ex. tended construction was given to a will by the present Lord Chancel- lor, when Vice-chancellor. In that case, the testator said : — ' I give all my ij per Cents. ;' and it was there • • i "')%ii ■' w 276 OF THE EXECUTION OF WILLS. » :J- BooK III. was admissible to show what property the testator desig- Chap. VII. nated by the particular description, up to the time of his death, and that all the property acquired after the date said he only intended to pass the 3^ per Cents, he had when he made his will ; but he more than trebled them afterwards. The words were gene- ral, and the Vice-Chancellor there applied the rule I do here, and made the will speak as from the death of the testator, and said : — ' All you can ask is, what 31 per Cents, he had at the time of his death. The will speaks from the time of his death, and all he had then passed.' In the case of Doe v. Walker (12 M. & W. 591), the testator, having acquired property after the date of the will, said : ' I devise the lands I have ;' and the question was, whether those words were to speak at the time of the making of the will, or at the time of the death of the testator ; and it was decided hy the Court of Exchequer on the broad principles of common sense, and in accordance with what was the intention of the Legislature, that the will was to speak from the death of the testator, and that the words ' the lands which I have,' meant ' the lands I have at the time of my death ;' and therefore after- acquired lands passed. Then, there is a case which has been a good deal commented upon, the case of Cole v. Scott (1 McN. & G.518), and which came first before Sir Lavncelot Shad- well, and afterwards before Lord Cot- tenhatn. I argued it before both those learned .Judges. I was, at the time, entirely dissatisfied with the result of the decision, and I am equally dis- satisfied now. It is not necessary for me to go into it, because the decision entirely depended upon a word which is not to be found in this will, the word * now.' In Doe v. Walker, sup., it had been decided that the words ' the lands which I have ' passed after-acquired lands. Lord Cottenham came to a contrary conclusion, name- ly, that 'the lands which I now have ' meant ' lands which I have at the date of the will,' and did not ?ass after-acquired land. I confess am totally at a loss to see the dis- tinction between the expression ' lands wliich I have, ' and ' lands which I now have.' It is merely a differing form of expression apply- ing to the present tense. ' The lands which I have' means lands which I now have ; ' and in both cases I am of opinion, on prin- ciple, that Lord Cottenham ought to have applied the nile that the will is to speak immediately before the death of the testator. As the testa- tor dies, he is sujiposed to say, ' I give all the lands I now have ; ' and therefore, I think it ought to have passed subsequently-acquired lands. The word ' now ' doss not occur here, and therefore it is not neces- sary for me to decide in opposition to that case ; but I have no hesita- tion in saying, that if the word ' now ' had occurred here, I should have come to the same conclusion that I now do, and decided in oppo- sition to Cole V. Scott, sup., in order that the case might be carried fur- ther, if the parties desired, and that that decision might be reconsidered. In the meanwhile I can only express my dissent from it. The caoe nf Webb V. Bimj (1 Kay & J. 380), de- cided by the present rd Chancel- lor, when Vice-Chancellor, turned upon very peculiar circumstances. The words in the will were : ' I give my executors all my Quendon Hall estates in Essex.' IJpon the i)rinci- ple I have adverted to, I take it to be quite clear that every addition the testatrix had made between the date of her will and her death to tlie Quendon Hall estates ought to have passed, Init the description was a very inaccurate one, and the evi- dence, in my opinion, totally failed to show that the lands she afterwards acquired were an addition to that estate, and I think it was upon the failure of the evidence to prove that it was part of the estate that the de- cision of the Vice-Chancellor entire- ly proceeded ; because in so many other cases he decided that after-ac- quired property does pass by a gene- ral description in the will. But, if the intention was to decide in that case, that any additions made by the testatrix to the Quendon Hall estate, between the date of her will and her death, did not i)ass, I should most A , ': i i; *Pft; WHAT MAY BE DEVISED OR BEQUEATHED. 277 of the will, and treated by the testator jmmediately before Book III. his death as additions to the Cleeve Cou.o estate, passed Chap. vii. under the pai'ticular devise. 21. It will be remarked that it is only as to the pro- ]ierty comprised in it, that a will is, by the 21st section (if " The Wills Act, 1873," made to speak and take effect as if executed immediately before the testator's death ; it does not extend, therefore, to the objects of the testator's bounty (a) ; nor can the Statute be construed to make good a devise executed by an infant on the ground that, at the time of death, the infant had attained full age (b) ; nor is the Statute applicable to the construction of a clause, excejHing property from the operation of the will (c). 22. In order to exclude the operation of the sec- tion under discussion, the contrary intention must ap- ■ l>ear in the will, and must have a continuing operation down to the death of the testator. The will must be taken as if executed immediately before the death, and when so taken must show a contrary intention (d). A ■ r. E:). ir ■»*" ■1 : 'I give respectfully dissent from that con- clusion. I cannot help thinking, in a case like this, where it is clear beyond all doubt that these lands were an addition to this estate, the Lord Chancellor would come to the i-ame conclusion as I do, that all ad- ditions of that kind to that particu- lar estate would as much pass by the description as if they had been in the possession of the testator at the date of his wilL There is one other case I must refer to, of Hiujhes v. Hoskiny, 11 Moo. P. C. 1, which ap- parently, at first sight, is opposed to Doe V. Walker, 12 M. & W. 591 ; but I think it is perfectly clear, uix)n looking at the case, that it pro- ceeded upon the ground that there was a particular description of the thing devised in the original will — words like the words ' I devise my house No. 2, Oroauenor Square,' or ' the brown mare I bought of A. B.' — something added to, or limiting it to, a particular property; and that it was on that ground the case was de- cided, and not in the slightest degree in opposition to the decision of Doc V. Walker" (sup.) (a) Bullock V. Bennett, 1 Kay & J. 315 ; 7 D. M. A G. 283. lb) Hayes & Jarm. Wills, 43 n. (i. ) (c) Hughes V. Jones, 1 H. & M. 765. (rf) Per Lord Westbury, in Tho- mas V. Jones, 1 D. J. & S. 63, 83 ; 12 J. & H. 475 ; 8 Jur. N. S. 1224 ; 31 L. J. Ch. 732 ; 10 W. 11. 853. See further upon the con- struction of this section the follow- ing cases : — Hutchinson v. Barron, 6 H & N. 583 ; 9 W. R. 538 ; Williams v. Owen, 2 N. R. 585 ; Hepburn v. Skirving, 4 Jur. N. S. 651 ; Strei'ens v. Bayley, 8 Ir. C. L. Rep. 410; Hawkins Constr. Wills, 18 ; 0' Toole v. Brown, 3 E. & B. 572 ; Stokes v. Solomons, 15 Jur. 483 ; Dobson v. Boremun, L. R. 6 Eq. 404 ; &a)bon v. Gibbon, 13 C. B. 211 ; 17 Jur. 416 ; Lloyd v. Davis, I i 278 OF THE EXECUTION OF WILLS. Book III. 23. In the enumeration of the estates or interests Chap. VII. which a person is enabled by the fifth section of " The Wills Act, 1873," to dispose of by will, occur estates j^vr autre vie. These estates differ from all other interests, freehold or chattel, in this : that they are capable of be- ing rendered transmissible to either real or personal representatives, according to the terms of the instrument creating the estate ; or rather the instrument vesting it in the deceased owner, or in the pei-son under whom he derived his title by act of law (a). 24. Estates pur autre vie are expressly made devis- able by the l2th section of the Statute of Frauds, which required that a devise of an estate pur autre vie should be attested by three witnesses. Where such an estate, however, was not limited to the heirs of the owner, it was distributed as part of his personal estate whether ho died testate or intestate ; and, as a necessary consequence , an executor, taking it as such, was bound to give effect to any bequest or direction in the will affecting such pro- perty, though the will might not have been attested in the manner required by the Statute of Frauds (a). 15 C. B. 76 ; 18 Jur. 10.5 ; Struthcrs V. StT^thers, 5 W. R. 80!) ; Pierce v., Atttrrncy-Oeneral ; Pierce v. Harrison 3 W. R. 012 ; Emim v. Smith, 2 Ue G. & S. 722 ; Sugd. R. P. Stat. 305 ; Hcnsman v. Fryer, L. R. 3 Ch. Ajip. 420 ; Wheeler v. Thomas, 7 Jur. X a. 599. (o) 1 Jam. Wills, 55. 3' «> BOOK THE FOURTH. OF THE [{EVOCATION OF WILLS. CHAPTER I. Mr -^ti! OF REVOCATION BY MARRIAGE AND BTllTH OF CHILDREN, OR BY MARRIAGE ALONE. 1. Rules laid down by the Court in the case of Marstmi v. Fox, with regard to the revoking effect of marriage. 2. Marriage aiut birth of issue recjuired to effect a revocation. Marriage alone, or birth of issue alone, is insufficient. 3. The will of married man having children may be revoked by birth of other children and circumstances showing an inten- tion to revoke. 4. Judgment of Sir J. NichoU in Johiistu7i v. Johnston. The grounds on which marriage and birth of issue operate as a revocation explained. 5. Marriage and birth of issue create such a change in condition that the will is presumed to be revoked. 6. The will of a widowur revoked by marriage and birth of issue. 7. The birth of a posthumous child is sufficient to effect a revoca- tion. The will, having been revoked by the birth, is not re- vived by the death of the issue. 8. It is only in the event of no provision having been made for children, that the birth of issue revokes a will. 9. And the will must devise all the testator's property. 10. The birth of a child alone does not revoke a will made after marriage. 11. But the birth of a child, together with other circixmstances, maj effect such revocation. 12. The revoking rule will not apply, when the effect of the revo- cation would be to benefit exclusively a child in esse when the will was made. 13. Effect of the abolition of primogeniture in this Province. 14. The marriage of a feme sole had always the effect of revoking her will. 15. Wills and testaments only in the strict sense revoked. 16. Provisions of 32 Vict. o. 8, as to revocation by marriage and alteration of circumstances. 17. Provisions of " The Wills Act, 1873," on same subject. \4<-ii ^ % 11 i ! H \\ i ': ■ 'I ' U 'i 'm r )i< iii liM 280 OF THE REVOCATION OF WILLS. 18. Remarks of Jarman on the provisions of the new Act regard- ing revocation by marriage, &o. 1.9. If testator has made his will before 19th December, 1868, and has married after that date, and has survived the 31st De- cember, 1868, the will is not revoked by his marriage . 20. The marriage of a testator before the Act was passed, and the birth of a child after that time, revoke a will made before the Act was passed. 21. Marriage on the day of, but subsequent to, the execution of a will, revokes the will. 22. Case of In the goods of IVorthington. Book IV. 1. In the leading case oi Marston v. Fox (a), the Court Chap. I. of Exchequer Chamber, on appeal from the Queen's Bench, held : Ist. That when an unmarried man, without children by a former marriage, devises all the property he has at the time of making his will, and leaves no provision for any child of a future marriage, the law annexes to such will the tacit condition that if he afterwards marries and has a child born of such marriage, the will shall be revoked. 2nd. That such revocation is not prevented by a provision in the will, or otherwise, for the future wife only ; the children of the marriage must also be provided for. 3rd. ' That such revocation is not prevented, if property ac- quired by the testator after making his will descend upon the child of such marriage on the testator's death. 4th. That evidence (not amounting to republication) cannot be received in a Court of law to show that the testator meant his will to stand good, notwithstanding the subsequent marriage and birth of issue. 2. It will be observed that both marriage and birth of issue were required to effect the revocation under the cir- cumstances above stated. Marriage alone did not operate as a revocation of a man's will. The rule as to revocation was not confined to the case of an unmarried testator (6) ; (a) 8 A. & E. 14; 2 N. & P. 604 ; W. W. & D. 712. (b) Chrutopker v. Ohristopher, cited in 4 Burr. 2182 ; S. C. Dick, 445. OF REVOCATION BY MARRIAGE, ETC. but applied also to the case of one whose wife subsequently deceased, and who married again, and had issue of the subsequent marriage. 3. And a will made by a married man having children, was held to be revoked by the subsequent birth of other children left unprovided for, aided by other circumstances, concurring clearly to show that it was not the intention of the deceased that the will should operate; the Court taking the subsequent birth of issue as the essential basis of the proof, accompanied by the other concurrent circumstances of the deceased, that the will should not take effect (a). 4. In the very elaborate judgment of Sir John NichoU in this case, the rule with respect to implied revocations is traced up to its origin ; and the authority upon which the rule stood, and the principle upon which it is founded, are explained. The learned judge, after reviewing various established cases, decided in favour of presumptive revo- cations ; and referring to some of the cases in which the presumption has been considered as rebutted (6), proceeded in his judgment by observing that " in all these cases, and in several others, the will was not absolutely revoked, though followed both by marriage and issue ; in such ques- tions, whether it be to examine if the presumption be raised, or whether it be to examine if the presumption be rebutted, the Courts always inquired into all the circum- stances of the case. What then was the true sense and sound reason and foundation of the rule itself? In looking through the several cases, the foundation upon which the presumption stood, as pretty constantly stated, was the alteration in the testator's circumstances between the time of making his will and the time of his death. If it 281 (o) Johnston v. Johnston, 1 Phil- lim. 447. (6) Brawn v. Thompson, 1 Eq. Gas. Abr. 413 ; Brady v. CvJbitt, 1 Doug. 31 ; Kenebel v. Scrafton, 2 East. 530 ; Ex parte Earl of Hchester, 7 Ves. 348; Sheath v. For/t, 1 V. & B. 390. Book IV. Chap. I. 'Wti M'. Hmi r 282 OF THE REVOCATION OF WILLS. Book IV. stood SO general as the mere alteration of circuTnstances, Chai'. I. it would be very loose indeed. If it be added total alter- ation of circumstances, it is not much more definite. But we find that the Courts required such an alteration of circumstances, arising from new moral duties accruing subsequent to the date of the will, as, by necessary impli- cation, created an intention to revoke. Intention is thu very foundation and comer stone, the very essence of all wills. It is the principle of revocation, whether it be di- rect by act, or implied by circumstances. The animun t (standi or revocandi is the governing principle. By Courts holding that marriage and the birth of children were not an absolute revocation, but only an implied revo- cation, by their inquiring into all the circumstances, it was (piite obvious that the}' examined into and endeavoured to got at the real intention ; but it might be opening too wide a door, if this enrpiiry were to be directed to every change of circumstances. Those loose rules which pre- vailed in Swinburne's time, were afterwards no longei- admitted. Courts had therefore required that the rule should have for its basis a change of intention, produced by, and to be presumed from, some new moral obligation arising after the will was made. Marriage and issue were supposed to produce those new moral duties. Every man was presumed to intend the making of a provision for his family." 5. And it was said by the Court in another case (a), that " The principle is, that marriage and the birth of issue create such a change in the condition of the deceased, such new obligations and duties, that they raise an infe- rence that a testator would not adhere to a will made pre- vious to their existence, considering it an act of moral t i'i (a) 1 HagK. 711, 712. OF REVOCATION «Y MARRIAGE, ETC. ^41 283 duty to revoke that disposition, in order to make provision for his new wife and new issue ; but, on the other hand, if there does not arise such a state of circumstances as to produce new duties, if the change is provided for, there is no reason to presume revocation. The question, after all, is one of presumed intention, whether to die intestate, or, notwithstanding the change of circumstances, to leave the former will existing and effective." G. Marriage and birth of issue, whenever unprovided for, was a revocation of a will of personalty, though the testator, at the time of the making, was a widower, and the will wtis in favour of children by a former marriage (a). 7. It was not necessary to the operation of the rule of levocation above stated, that the birth of the child should occur during the lifetime of the father, A posthumous birth was a fulfilment of the condition (6). The will, having been revoked by the birth of issue, wjis not revived by the death of the issue during the testjitor's lifetime (c). 8. Again, it will be observed that the operation of the rule of revocation stated above, was made conditional on there being no provision left by the testator for any child of a future marriage. When, therefore, the testator, before making his will, or contemporaneously with it, made ex- press provision by the will, or by a separate deed or instru- ment, for future issue, subsequent mariiage and l/irth of issue did not operate as a revocation (d). 9. Further, in order that the will should be revoked, it was necessary that the testator should devise all the pro- KOOK IV. Chap. I. '"|*l| (o) 1 Williams Exors. 188 ; Hol- Imeay v. Clarke, 1 Phillim. 339; Walker v. Walker. 2 Curt. 854. (6) Per Lord Kenyon in Doe v. Lancashire, 5 T. R. 4J>-59 ; Israeli V. Rodon, 2 Moo. P. C. 51, 63, 64 ; Afatson v. Magrath, 1 Bob. 680 ; S. C. 6 No. Cas. 709. (c) 1 Jarm. Wills, 118, 119. Emer- Sim V. Boville, 1 Phillim. 342. Ca- Hea cited, 1 Phillim. 343 ; BnuJ- dyll V. Jclien, 2 Cas. temp. Lee, 193. (d) Kenebel v. Hcrafton, 2 East. 530. See 1 V. & B. 465 ; Brown V. Thompson, 1 Eq. Cas. Abr. 413 ; Ex parte Ilchester, 7 Ves. 348 ; Tal- bot V. Talbot, 1 Hagg. 705 ; Johnson V. Wells, 2 Hagg. 561. 284 OF THE REVOCATION OF WILLS. i'\t . 1 '.hi. Book IV. perty he had at the time of making his will. This propo- Chap. I. sition has received the support of Lord Mansfield in Brady V. Citbitt (a), and of Lord Elienborough, in Kenehelv. Sera/ton (6). 10. The birth of a child alone was not sufficient to re- voke the will of a man made after marriage, it being as- sumed that such a contingency was contemplated and provided for by him (c). 11. But the case of Johnston v. Johnston (d) shows that the subsequent birth of children unprovided for by a will, aided by other circumstances clearly concurring to shoiv that it was the intention of the testator that the vnll should not operate, effected a revocation of the will of a married man, made when he had already several children. The remarks of Sir John NichoU in this case are very in- structive, and have already been partially quoted (e). He further observes, " The birth of children, after making a will by a married man, may have imposed as strong a moral duty upon him, forming the groundwork of jyre- sumed intention, and may be accompanied by circum- stances furnishing as indisputable proof of reaZ intention, as if the will had been made previous to the marriage. Mar- riage, alone, may possibly stand upon a different founda- tion and footing from after-born issue. Marriage is a civil contract ; the wife may make her own conditions before marriage, in order to provide against the negligence or injustice of the husband ; marriage settlements are usual ; the law out of the real property makes a provision for the wife by dower. If she enters into the contract, and takes (a) Doug. 31. (6) 2 East 541. (c) Doe V. Burford, 4 M. & S. 10. See as to the effect on a man's will, of marriage alone, or the birth of a child alone, Wellington v. Welling' ton, 4 Burr. 2171 ; Jackton v. Hur- lock, Ambl. 495 ; f^hnl ' • sAep- herd, cited in ZV) .La -e, 5 T. R. 5;^. "■ eH»\. WiUon, 5 T. R. r. " (d) 1 . 447. OF REVOCATION BY MARRIAGE, ETC. no precaution of this sort, she takes her chance either of the husband providing for her, or of providing for herself But after- bom issue are parties to no contracts; they come into the world entirely dependent upon the parent ; and if it is the legal duty of a father, while living, to main- tain his children, so it is a strong moral obligation upon him not to exclude them from a provision after his death. It is true he has a right to do it ; though at one time, at least in particular districts, he had not the right of exclud- ing them ; the law did not allow him to dispose of his whole property ; at present he may if he pleases, and the law can afford no relief : but, by moral obligation, there is a strong foundation laid for presuming that he did not intend to exclude them. In point, then, of true reason, and sound sense, the concurrence of subsequent marriage is not essential in all cases." 12. It has been held that, inasmuch as the object of the revoking rule is to make a provision for children born after the making of the will, effect will not be given to the rule when the consequence of the revocation^would be to benefit exclusively a child who was in esse at the time the will was made (a). 13. But in this Province, since the abolition of primo- geniture, it is conceived that if a testator who had chil- dren should, whilst a widower, have made a will, and should afterwards have married and have had issue of such mar- riage, the will would have been revoked tis to real csttite, inasmuch as the children of the second marriage would have been benefited by such revocation ; such, in fact, was the rule regarding wills of personal estate, which, in the case put, were held to be revoked (6). (a) Sheath v. York, 1 V. & B. 390 ; Ex parte IlchaUr, 7 Ves. 348. (6) 1 Jarm. Wills, 118 ; UoUoway V. Clark, 1 PhUlim. 339 ; Walker v. Walker, 2 Curt. 854; GiUoa v. Caunt, 4 Ves. 849 ; Wright v. Ne- therwood, 2 Salk. 285 Book IV. Chap. I. J <. :K ' :Ii lAl TT l'^ ■;«'■! i\- III 'i H \m 286 OF THE RKVOCATION OF WILLS. Book IV. 14. The marrifge of a fame sole had alway.s the effect vJh.vp I. of revoking her will, upon the principle that a will sii]»- poscd disposing ))ower at the time in the person makint; it, and that it sliould be always afterwards subject to tlu' contiol of such person ; but that was not the ca.se with ii woman after coverture ; f.n- wher. .she entered into that engagement, she gave up her right to licr own property (a). The will of a feme sole, revoked by marriage, was not revived by the fact that she survived her hasband (6). 15. But wills and testaments only, in the strict sense, were revoked by nuuriage ; for a will made by a woman before marriage under a power, was not necessarily re- voked by her marriage (c) ; nor, if made after niamage, but during the life of her husband, either urider a power or with his assent, was it necessarily revoked by thedeatli of the hushand (il). IV). By Statu' e of Ontario 32 Vict.c. 8, it is provided (e), as to the wills of persons who shall die after the fir.st day of January, 18(!}>, that every will shall be revoked by the marriage of the testator, except a will made in exerci.se of a power of a])pointment, when the real or personal estjito thereby appointed would not, in default of .such appoint- ment, pa.ss to the testator's heir, executor, or administra- tor, or the person entitled as the testator's next of kin, under the Statute of Distributions (/) ; and a. 4 enacts that no will .sh-'i ue revoked by any pre.>iunij)tion of an inten- tion on the ground of an alteration in circumstances. The word not, in s. .*}, was omitted in the Act referretl to; but the error was corrected by Stat. 35 Vict. c. 16, s. 'I (rt) Doe V. Stapfe, 2 T. li. (m ; Hmisdcn v. IJovU, 2 Hn). C;. C. 53;}; 1 WilliiiiUH Kxoi-h. 184. (Il) Finse it- Uambtinij* ( 'aw, 4 Cd. Kep. *>()•<> 1. {() 1 .lurm. Will8, 114 ; lAtijtm v. litU, 1 ('. H. S7'2 ; rtuil toiiiparu Douijlas V. ViHtuev. 't ?«l. Ik, K. .'CS. (d) 1 Janu. WillM, 114 ; Mornaii V. Thompton, A HagK- 2;<'J ; Chiiiih V. Clomih, 3 M. &. K. 2tHi. (e\ S. X (f) See an to the cunHtruction of thu exception contained in thix nee- tion, In the goods of McVirar, Ij.K. I I'rol). (i71 ; 38 L. J. P. 84 ; 20 L. T. N. S. 1013. OF REVOCATION BY MARRIAGE, ETC. 17. "The Wills Act, 1873," repeals the Statute 32 Vict. c, 8 ; but by ss. 15 and 16 of the new Act, the provisions of ss. 3 and 4 of the repealed Statute are re-enacted (a). These sections have been adopted from ss. 18 Jind 19 of the English Act 1 Vict. c. 26. 18. Concerning their operation and etf'ect, Mr. Jarman remarks (6) : 1st, That, unless in the expressly excepted cases, maniage alone will jiroduce absolute and complete revocation, as to both real and personal cstiite ; and that no declaration, however explicit and earnest, of the testa- tor's wish that the will should continue in force after mar- riage, still lesa any inference of intention drawn from the contents of the will, and, least of all, evi \. I. [•■ Ik. W \%H • %.'vr ' H ;''*.' ■: . ii : i ill?''' 288 OF THE REVOCATION OF WILLS. Book IV. 21. Marriage on the day of, but subsequent to, the ex- Chap. I. ecution of a will, now operates as a revocation, even though it appear from the will itself that the testator did not intend it to take effect ur ' '1 after the marriage (a). 22. When, by a deed of settlement executed between a wife and her intended husband, property was conveyed to trustees to pay the income to the wife herself during her life, and, if she pre-deceased her husband, then to him for life, if she should so appoint by will, but not otherwise, and if she did not so appoint, then it was to go to the issue of the maiTiage ; and the .same day she made u will exercising her power of appointment in favour of her intended husband ; it was held that the will came within the exception of the 18th .section of the English Act, and was not revoked by the subsequent marriage (6). (rt) Otmtu V. S(idlier,4 It. Jur.N. S. y? ; 33 L. T. 46. (b) In the goods of Worthingtun. 20 W. R. aw ; 25 L. T. N. S. 8.53. |,i CHAPTER IT. OF RELOCATION BY BURNING, CANCELLING, TEARING, OB- L'TERATING, OR OTHERWISE DESTROYING A WILL. 1. Provisions of the Statute of Frauds as to revocation by burn- ing, iV:c. 1'. Provisions of 32 Vict.c. 8, on same subject. ■;. Provisions of "The Wills Act, 1873," (tn same subject. 4. The new Statutes apply to wills of personal as well as real estate. 5. There must be an\mn» revocundi. A tearing or destruction by accident, &c., will not revoke, ti. The means of revocation nmst be effectively used. 7. Example. Case of Bibb v. Thiftmis ; tearing. 8. Tearing of signature sutticient. !>. Rule laid down by V.-C. Wood. The tearing of that which the testator has made a substantial, though by law it is not a necessary, part of the will, is sufficient to revoke. 10. Case of In the goods of GhUhh. 11. The tearing off of a seal and part of a word held sufficient ; or the drawing of lines through the testator's name. 12. A will taken froiu the fire before being burnt held unrevoked. 13. If the intended act of revocation is not completed, there is no revocation. 14. A will torn in four pieces held unrevoked. 1 5. Case of Elms v. Elma to same effect, IG. A will torn under a misapprehension as to its validity con- sidered not revoked. 17. A will held unrevoked though several lines had been cut off. 18. When the revoking act is merely deliberative it will not effect a revocation. 1(1. A will may be partially revoked by obliteration, &c. The whole (question considered by Sir J. Dodson in Clarke v. ikripiis. 'M. The erasure of the name of one of two joint devisees is a re- vocation pro tanto only. 21. Difference .'tween the Statute of Frauds and the new Statutes ; — the wc»aH "cancelling" and "obliterating" omitted from the new Statutes, and the words " otherwise destroy, ing " substituted therefor. -2. The words " otherwise destroying " mean a destnictii>rit. A. 4 E. 209 ; 1 N. & P. 4a5 ; W. W. & I). 100. ^H' 1 "' ||ir *'* l^HuM 2 ' 1 ' 1 I Mi I'- ll 1 i .|j;i I • ' 1 ■ ' ■ il 'ff ' III il ' OF THE REVOCATION OF WILLS. affixed a seal, instructed his solicitor to prepare another, and signed the draft prepared from these instructions, and then proceeded to tear off the seals of the old will ; when, after all the seals but one had been removed, he was informed that the new will would not operate upon his lands in its then state, which induced him to desist ; and, before the new will was complete, the testator died, it was held that the original will remained unrevoked (a). 14. So ako, when, upon sudden disaffection with one of the devisees, the testator tore his will into four pieces ; but, upon being pacified, fitted the pieces together and ex- I)re8sed gratification that no more had been done, saying " It was well it waa no worse ; " it was held that the will was not revoked, the jury having found that the testator had not completely finished what he intended to do for the j)urpose of destroying the will (6). 15. The same principle was acted upon in the case of Elrtia V. Elms (o), wherein it appeared that the testator, having torn his will nearly through, was stopped by a friend before he had completed the intended means of de- struction. IG. In a recent case (d), a testator being led by a friend to believe that his will waa invalid, tore it, and told his wife to put it in the fire. The tire had not been lighted, but the wife placed the pieces in the grate. A few minutes afterwards, the testator, thinking that he and his friend might possibly be wrong, took the pieces from the grate and preserved them. It was held that there had been no revocation, the act of tearing not having been accompanied with the animus revocandi. Ja) Hyde v. Hyde, 1 Eq. Ctm. Ab. 409. See also In the gooda of Eelu, 2 S. & T. 600 ; 32 L. J. P. 4 ; 7 L. T N S. ;138 '{b)'Doev. Perka, 3 B. A A. 489. Cumpare In the goods of Colberg, 1 No. faa. 90 ; 2 Curt. 832. (c; 4 Jut. N. S. 766 ; 1 S. & T. 165 ; 27 L. J. P. 96. (d) Giles V. Warren, L. R. 2 Prob. 401 : 41 L. J. P. 59 ; 20 W. R. 827 ; 26 L. T. N. S. 780. REVOCATION BY BURNING, CANCELLING, ETC. 295 17. When, on the death of the testator, a will which . had been written on the first side of seven sheets of paper, and had been signed by the deceased and wit- nessed on each sheet, and at the end, was found in an iron chest, in which the deceased kept important papers, and the first seven or eicjht lines were found to have been cut or torn off, but in other respects the will was complete : it was held that from the mere cutting or tearing off of the beginning of the will, without other circumstances, it could not be inferred that the deceased intended to revoke the whole will, and that it must be admitted to probate in its incomplete state (a). 18. When the revoking act is merely deliberative, show- ing an intention to have the revocation depend upon the testator making another will, it will not be regarded as an effective revocation. Tlius, where the testator wrote the word " cancelled" over his signature with his initials, and had written a memorandum on the will, part of which was, " I intend to make another will, whereupon I shall destroy this, W. B. ; " and no other will could be found ; tlie Court considered that the testator had done no suffi- cient act to effect a revocation under the English Statute 1 Vict. c. 2G (h). 19. A will may be partially obliterated or torn so as to effect only a partial revocation, leaving the rest of the will unrevoked (c). |The case of Tn the goods of Woodward, cited above, is an instance of partial revocation by tearing or cut- ting. This subject was discussed by Sir J. Dodson, in the case of Clarke v. Scrippa (d). In his judgment, he considers Book IV. Chap. II. i^ '■l\ ' ''* ^'1 (a) In the goods of Woodward, T*. R. 2. Prob. 20K ; 40 L. J. P. 17 ; 24 L. T. N. S. 40. (b) In the goodn of Brewster, C Jur. N. S. 5« ; 29 L. J. P. 69. (c) Sutton V. Sutton, CowiJ. 812 ; Larkitu v. Larkint, 3 B. & P. 16 ; Clarke v. Scripps, 2 Rob. 563, 567, by Sir J. DodBon: Chrittnuu v. Whin- yaUi, 3 S. & T. 81 ; 9 Jur. N. S. 283 ; 32 L. J. P. 73 ; 8 L. T. N. S. 801 (d) 2 Rob. 563 ; 16 Jur. 783. '-^ 290 OF THE REVOCATION OF WILLS. 1;. .! ■ri Fi 4 i I'- m\ Book IV. the whole (juestion of revocation by the means now luulei Chap. II. con.sideration, and reviews the various authorities. He says : " Out of the mutilated state of this instrument, arises the que.stion, not very ea.sy of .solution, namely, whether the will is to be considered revoked in toto or in part only. Upon this enactment (1 Vict. c. 2G, s. 20) it is obvious, — First, that a |>art only of a will may be revoked in the manner described — in other words, that the whole will is not neces-sarily revoked by the destruction of a i)art ; neverthele.s.s, I do not by any means intend to say that the destruction of a part may not, under certain circum- stances, operate as a revocation of the entire will. Secondly, it is to be observed that the burning, tearing, or otherwise destroying the instrument must be done with intention to revoke. It is not the mere manual ojiera- tion of tearing the instrument, or the act of thrijwing it into the fire, or of destroying it by other means, which will sati-sfy the refpiisites of the law ; the act must \w ac- companied with the intention io YQ\oV{i\ theio must be the animus as well as the act ; both must concur in order to con.stitute a legal revocation. It is the fninmts, also, which must govern the extent and mea.sure of operation to be attributed to the act, and determine whether the act shall eflect the revocation of the whole instrument,")) only of some, and what |x)rtion thereof Now, the inten- tion of atestiitor to revoke wholly or in part may, I con- ceive, be proveroper sen.sc of the word of the substance or contents of the will, and not a destroying in a secondary sense, as by cancelling or incomplete obliteration ; and he refers to Stepheufi v. Tap- I'dl (h), and Ilobhs v. KvUjht (c), in support of this view of the Act {(l). Ho further .says that these latter means, un- less they prevent the words, as originally written, fi'om being apparent, that i.s, apparent by looking at the will itself, are plainly excluded by the Statutes {c) ; and that Lfiassos or other scientific means may be used for discover- ing what the words obliterated originally were (/). (n) Lnrkins v. Lnrkins, 8 B & P. M ; but see Short v. Smith, 4 East. 41!). {!>) 2 Curt. 4.58. (<•) 1 Curt. 77'.>. ((/) 1 Jarm. Wills, 1.^3. See also Suj,'(len"8 Essay, p. 4ti ; In the gotuls iif Ilogc, 4 No. Cas. 101; In thu^'otKls of Dv Bode, 5 No. CVi. I8lt, 1!»1 ; III tlie K'ooils of Jirewste)-, 2(» L. J. P. •>'•• ; Jur. N. S. 5 No. Cas. 187 ; 12 Jur. 4(>5 ; 2 Curt. 4.58. 297 BuuK IV. Chap. II. I'M* S98 OF THE UEVOCATION OF WILLH. liooK IV. 23. In Stephens v. Taprell (a), which is ono of the lead- Chap. II. ing cases on the construction of the 20th section of the En^jli.sh Act, it appeared that n will .signed by the tcHtator, and attested by two witnesscH, was found a few days after hi.s death in a cancelled state ; the body of the will was struck through with a pen ; the name of the testator was crossed out, the attestation clause and the names of the witnesses were likewise run through with a pen ; and what had been intended for a codicil (but which was not legally executed) was also cancelled with a pen. (a) The Court said : " It is admitted that, prior to the l.st of January, 1H3H, this would have been a good revo- cation ; for, under the old law, cancellation animo revo- candi was a mode of revoking a will. The Act 1 Vict. e. 26, however, has made a very considerable alteration in testanienUuy law. By this Statute, a distinction existinj,' under the former law is removed ; wills both of person- alty and of lands are required to be executed and revoked in the same manner. The Court has therefore no di.scre- tion, but must govern itself by what it considers to be the true meaning and constmction of the Act. (6) " In order to arrive at the construction which ought to be put upon the Act, it may be necessary to inquire what the Act has done. In the fii-st place, it has abolished all implied revocations; no alteration of circumstances (with one exception) with respect to the condition of a testator or of a legatee will amount to an implied revo- cation. The only alteration of circumstances which is to amount to a revocation of a will duly executed, is that of marriage. This altemtion of the testamentary law was founded on the Fourth Report of the Commissioners ap- pointed to examine the state of the law with respect t o (o) 2 Curt. 458. UKVOCATION BY BURNINO, CANCELLING, ETC. real property, who suggested a great number of improve- ments of that hiw ; and in their Fifth Proposition, ' with respect to implied revocations,' they propose that 'a will lie revoked by burning, cancelling, tearing or obliterating it, with the intention of revoking it by the testator, or in liis presence and by his direction ; these being the modes prescribed in the Statute of Frauds.' (c) "The Legislature, however, in acting upon this report, (lid not adopt all its suggestions ; for, in the Krst place, tlie enactment with respect to the revocation of a will by marriage is not founded on the rej)ort ; and the suggestion ' that no will should be expressly revoked, otherwise than by another inconsistent will or codicil, or some other writ- ing executed and attested in the same manner >us shall be required for the validity of a will, they did not adopt wholly ; but the 20th section stands thus : ' That no will or codicil, or any part thereof, shall be revoked otherwise than as aforesaid' (that is, by marriage), ' or by another will or codicil executed in manner hereinbefore retiuired, or by some writing declaring an intention to revoke the •same, and executed in the manner in which a will is here- inbefore recjuired to be executed' — so far departing from tlie suggestion of the Commissioners and from the law as it stood before the Statute, as regards ' any other incon- sistent will ;' and the section goes on, ' or by the burning, tearing ' (two of the modes prescribed in the Statute of Frauds and suggested in the report), omitting the words ■ cancelling' and ' obliterating,' ' or otherwise destroying the same by the testator, or by some person in his presence and by his dii'ection, with the intention of revoking the same.' {d) "Then the question comes to this ; Is a will destroyed within the meaning of the 20th section by being struck through with a pen, the name of the testator being crossed ]»OOK IV. Chap. II. 1 'hk i:\ . 4: i II r I', i t I i ; ' V '{ Hi it ill i I 300 OF THK REVOCATION OF WILLS. Book IV. out, and the names of the attesting witncfcs l»eing struck Chap. II. thiougli? It appeal's to the Court Jnij)o.s.iible to jiut stieli a construction to tlie Act, as to say tijoc cancelling a will Ity str:''ing it through with a pen is a destruction of the will. When tlic Legislature, after mentioning ' burn- ing' a will, jind ' tearing' a w ill, speak of ' otherwise des- troying-' a will, they must be understood as intending some mode of destruction ('Jnsdtnn (jencrh, not an act which is not a destroying in the primary meaning of \ni word, though it may have the .sen.se metjiphorically, as being w destruction of the contents of the will ; it never coulij have been their intention, that the cancelling of a will should be a mode of destroying it. And tlie Court is jus- tified in this conclusion by seeing that cancelling was advisablv omitted, the Commissioners havintj rc'commeiuicil that ' cancelling' and 'obliterating,' as modes of revocation, should stand. The Legislature, however, with tliis ri.- connnendation of the Conuuissioners before them, (»niit 'cancelling' and 'obliterating,' and insert ' otherwise des- troying.' " (r) The Court further observed that " the 20th .section pplies to a total an(' not a partial revocation. The 21st section is founded uj)on i)art of the Fifth Proposition of the Connni.ssioners, who recommend that ' where a will is fo\uid with unattested obliterations, it should be consi- dered wholly unaltered, except that, if any words cannot be read or made out in evidence in conse(|uence of tlio (tbliteration, the will shall take effect as if such words dM not form part of it.' Here again the Legislature have not adopted the whole of tne recommendati(m ; the terms they liave used are, ' except jvs fu" as the words or effect of the will before such alteration shall not be apparent ;' not adopting the .suggestion that the words might l)e 'made out in evidence ;' and the Court is obliged to reject extrin- il m REVOCATION BY BURNINO, CANCELLING, ETC. 301 sic evidence, however strong it may be, as to the contents Book IV. of the will before the attestation, and to look only to the Chai-. II. will itself, and when itHnds a word to V>a utterly illegible, to omit that word lus well lus the word substituted. (/) " Whether the Conunissioners would have reconi- monded that partial alterations .should have thi.s ettect, if they had known that the Legislature would have rejected the other ])art of their reconunendation, it is dilHcult to say ; as it .stand.s, there seems .some inconsistency. If an alteration 1)0 made in a single legacy by .striking it through with a |»en, it is of no effect unless it bo attested by witnesses, or unless the original word be rendered utterly illegible. If the construction contended for be correct, then the Legislature would have .said that the wh(tle might be revoked by a mode more simple than is required for a small part; that where all the higaries were struck out l>ut one, the whole nuist have eHl-ct ; whereas if that one be also struck out, then the whole will is re- voked. This never could have been intended ; it (jouUl not have been the intention of the Legislature that the striking a will through with a pen should be a mode of re- vocation. ' Cancellation ' and ' revocation ' are different terms, though sometimes confounded ; cancellation being an e(iuivocaI act. It appears to the Court that the Legislature, having advi.sedly emitted ' cancelling ' amongst the lodes of reviujtion, and substituted words iif more e(iuu(jcal meaning, cannot have intended that striking through with, a pen should have been a mode of revocation ; and that if they did consi«lcr cancellation taKo of th*- I'ourt in till' fiii-).-goii.'«{ I'Mic ai.'plu'H fxactly, it 'M conceiveJ, tu the 'tth section of the Statute J? Vict. c. 8, and the 17th Bectiim of "The Wilk Act. IHi'.}," which ore ahnodt literal cou" tirparts ( f the '20th f>cv,ti' total, not to piirtiiil rfvocn- tioiiH liy olilituratioi) or i-aiK't-llatioii ; am! thut .\ct nuitaiiix no proviHioii I'orrfHiHiniliii^' to tin- 2lBt Hi-ctiou of tlic Kn>,'l:Hli Statute. 'I'lif law sw to partial n-vocatiou by ol)titerution \v(iM, therrfore, uiiatffi'tt'd bv thr Statuti- .\'l ^'ict. c. S. If thi« \»- ho, it followM that any will niailc hefon- tin- pa«Min»; of the Act ;fcJ Vict. c. S, may, iiotwitliHtaniiinn tlmt Act, Jm) rfvokcii or altcrcil l)v olilitcration or cancclliitioii to any extent r- Hervcil that the 'hu\ Heclioii of "TIk' VViMh Act, 1S7.'«," proviilex that, »iti- It .^ therein ottierwitte exprcHNly i>ro- \i(le(l, the Act Ndall not extent! to any will made h-fore the Int f-xnn- iiry, 1H7t. The oneHtion ariMvM, 1V> the provi.-iioHs of^ the IHth Hectio i with reHpett to ohlitt'rationn, Ac, niiply {■■ oMiteratioiiH, tVi.. nia>i ' after the I int .January, lt(7*, in wI'In eXt I ilteil fiefore tluit 'latr ',' 'I'he iToviHion iu< to oliliteratioim, it will '>e rememliereil, w not eontaineil in tlie Statute :« Vict. c. 8. Therti Mould Kcent to he ntroHK' ground for argument that, if tl.'^- wil! w m.ttle U'Tore t»ie \nl .liimiary. 1H74, it may lie altered aftei the Act conicH into force ill Hie naiiie manner a* under the prcHcnt law. It woidd Kv"ni to be an -Auswek- tr< (-, will continue to In- valid, there Heenm to be no iiicnii ienitioii Ih not exi'mjited from tht- neceiwily of <:ompIvinK ^'ith the pmviiiioni nf the new law, with niipect to any act done to it after that periiHl. Set I Vf'illianiN Kxoi-n. I'.i.'i. («) HM.» V. Kniyht, 1 Curt, T<»^; In the uoimU .if i.'ixik, fi No. Can. •.m ; t't'in-ke v. .Scrims, W, Jur. 7Ki; 2 Hon. MW, !ii''i; In the gootln of Simj>Ki,i, .1 .lur. N. a. Kkifl; In the jjxhkIh of Nelnou, (1 Ir. Hep. Kip M'J- REVOCATION BY BURNING, CANCELLING, ETC. 303 rebutted, and that the gumming on the signature in its Book IV. proper place did not revive the will (a). Chap. II. 25. A I rson, while insane, cannot be said to possess intention, and therefore he can no more revoke a will than he can make one. Any act which, if the testator had l)een sane, would have been a sufficient revocation of a will, if done animo revocandi, will therefore, if done by the testator whilst insane, be of no force or effect what- .soever v^)- 2G. The revocation of a will procured by compulsion is ineftectual. Thus, when a woman having made a will un- der a power, was compelled to destroy it by her husband, the will was held to be unrevoked (o). A will fraudu- Itntly destroyed may also be estahlished ((/). 27. The powt r to revoke a will in the testator's alsenco cannot be created ; thei'efore the direction by a testate »r that Ids will shall be destroyed, either in his lifetime (- ) or after his death (/), is inopemtive, the Act re(iuirin(> ; Jliirlast \\ Hurlittc, 4 No. Cm. IH'.t ; III tilt' h'oiMlit of Sli.') ; //'im» V. Uerrall, 1 S. ^ T. IM ; Urunl V. Jiriii.t. L. U H Prolt. .'»7. Ill which riuH- the t«-«iTator huviiiK iliily exfciitt-)! hiti will,Nnl»*c<|iii'iitly, when HMffi-riiiB under an Httot^k of ilrhriiim tranfi't, ton* it in piecen. 'I'hf lUecuH were prtherved, luiil on hig rccovfry he wuh infonne<) of what ho ha. Lee. Iia '; I'lxlmon v. Whutio,,, A S. A 'I'. 4-l!t ; 10 L. T. X. S. 7rA ; S.', L..I.I'. M.'l ; III tlie >.'i.odH of t'ohiUDi, 14 W. 1{. i'.tJ ; l.H L. T. N. S. tiS2. (. I li,H,h V. L; •£' L. T. W. I f) Stofkiifll V. mtherd'in, 1 Roh. mi; 12.1.ir. I'M. (1)) H'iriif V. //'"•iif, Froli. Ct. Dec. ]MV, Haye.' & Jarm. Willn, 35 n. (y.) ,U.!| 1 I If! i M! 1 m hI!, ^I 111 i;f S04 Book fV. Chai'. II. OF THE REVOCATION OF WILLS. voked a certain will by a ."ubsequent will not forthcom- ing, cannot be adniittetl a.s evidence of revocation either by that means or oy any other means, as by burning, tearing or cancellation ('0- 29. A will is not revoked by mere abandoinncut. To etfect a revocation there nmst bo some unetiuivocal act of cancellation or obliteration by the testator himself, oi by some other person in his presence and by his di- rection (b). 30. After the due execution of a will has been proved, the burthen of proving that it was revoked lies upon those who set up the revocation, and, in the absence ol evidence, revocation will not be presumed. Therefore, when a will duly executed before the passing of the Fn- glish Wills Act, and remaining in the testator's custody until his death after the passing of that Act, was found with his signature crossed out — a mode of revocation v'hich was etiectual under the old law — the Court, in the absence of evidence as to the date when the act of cross- ing out was done, refused to presume that it wa.s before 1838, and therefore pronounced for the will (c). (rt) Stainet v. Stewart, 2 S. & T. .T20 ; 8 Jur. N. S. 440 ; 31 L.J.IMO. (h) Andrew v. Motley, 12 C. U. N. S. 514. ((') lieitton V. licnmm, \t. \\. '1 rrc.l.. 172; 40 L. J. P. 1; 23 L. T N. S. 70y. ot fortliconi- cation eitlu'i by burning, onniunt. To OF 1 •([uivociil act r binisolf, oi 1. 1 by his (li- 2. been proved, ed lies upon 3. 4. 10 absence ol 0. 6. . Therefore. ig of the Fn- tor's eust()ti\- 8. t, was found 9. )f rovocatioii 10. Court, in tiir act of eross- n. t was before 12. (.). 13. kngoii, L, U. 'J r. P. 1 ; 23 L. r U. 16. 10. 17. 18. 19, 20. 21. 22. 23. 24. CHAPTER III. OF REVOCATION BY A SUBSEQUENT WILL OR CODICIL OR OTHER WRITING. Prior to Statute of Frauds, will* were revocable by par^'. The Statute provides that wills should only be revoked by writing, &c. Provisions of the Act as to the revocation of wills of per- sonalty . Provisions of 32 Vict. c. 8, as to revocation. Provisions of " The Wills Act, 1873," on same n-ibjeot Statute 3U Vict. c. 8, applies 19th Peceinber, 1808. A man may revoke his will as often as he plopses. A will revoking a devise was re(}uired by Statute of Frauds to be attested as a devise. Distinction between mode of attesting ii ('evise and a revoking will. A letter, declaring an intention to revoke, is sufficient under the 22nd section of the Statute of Fi-auds. Instructitjus may bo a good revoking will. Parol evidence may be given, notwithstanding the 22nd sec- tion, of a ^evoking will having been made which is not forthcoming. A will o I personalty may be revoked by a partially unfinished will. Rule laid down in Williams on Executors. Such partiallj' untinislied will, if it ccmprises realty and per- sonalty, will scai-cely bo allowed to operate. Presumption nf law is adverse to an unfinished instrument revoking a will regular in form and regularly e.cecuted. Circumstances under which parol evident u vill or will not be received. If the instniment is incomplete, it will not effect a revocation. The revoking instrument must indicate a present intention to revoke. Effect of a general revocatory clause. An inconsistent disposition of previously devised property will revoke a will. The Court will so construe both instruments as to give both effect, if i)o8siblo, or as far as possible. Rules laid down by Sir .1. P. Wilde in Lemaye v. Ooodban, Case of In the goods of Lewin. A revocatory clause in a subseciuent will doos not necessarily revoke all prior tostamuutary papere. The iiUention of the testator will be looked at. If the provisions of a subseciuent will cannot be ascertained, the prior will remains unrevoked. DitHculty of ascertaining the relative dates of lestameutaiy papers. Water-mark not a sate guide. u, 1i I 1 ii 1 i ' t I M lit 1 1 ! r 1 11 ! i ■;.i i 306 OF THE REVOCATION 0^ WILLS. 26. If no evidence is givun to determine the respective dates, both wills are void so far as they conflict. The words " last will " are of no importance. A revocation of a trusteeship conferred by a will does not revoke a guardianship or other office conferred by the will. 28. The provisions of a codicil not permitted to affect a will further than is actually necessary. Case of Farrer v. St. Catheritie's Collei}e. A revocation, founded on a wrong assumption, is ineffectual. A codicil may revive the prior of two wills by referring to it as existing. But this cannot be where the prior will has been destroyed. The proof of a subsciiuent revoking will, not forthcoming, must bo clear and distinct. If the contents of the subsequent revoking will cannot bo proved, both are void. Distinction between a revoking will and a writing revoking a will. • 36. Mode of executing a writing containing an intention to revoke, Provisions of 32 Vict. c. 8, and " The Wills Act, 1873," as to such a writing. 26. 27. 29. 30, 31. 32, 33, 34 Book IV. 1. Prior to the passing of the Statute of Frauds, will.s ChapTiit. and testaments were revocable by parol, though by the Statute 34 H. 8, c, 5, wills of real estate were required to be in writing {a). It was, however, provided by the Gth section of the Statute of Frauds (6) that " no devise in writing of lands, tenements, or hereditaments, nor any clause thereof, shall be revocable otherwise than by some other will or codicil in writing, or other writing declaring the same (or by burning, &c.) ; but all devises and bequests of lands and tenements shall remain and continue in force (until the same be burnt, &c.) ; or unless the same be altered by some other will or codicil in writ- ing, or other writing of the tlevist^r, signed in the presence of three or four witnesses dec'^riti^ the same." 2. By the 22nd section of the same Act, it was pro- vided " that no will in writing concerning any goods or chattels or personal estate shall bo re|)ealed, nor shall (a) 1 J»nn. Willr, 155 ; F,x parte Earl qf Ikhtttm; 7 Vm. 348; JHch- urdi»n v. Harry, .*) HatW 24tf. (b) 29 Car. II. #. ,'1. no REVOCATION BY A SUBSEQUENT WILL, ETC. 307 any clause, devise or bequest therein be altered or changed 1^'w IV. by any words, or will by word of mouth ()nly, except the ( 'hap. III. same be in the life of the tostjvtor committed to writing, and after the writing thereof read unto the testator, and allowed by him, and proved to be so by three witnesses at least." 3. The Ontario Statute 32 Vict. c. 8, provides (a) that " no will or codicil., or any part thereof, shall be revoked otherwise than as aforesaid, or by another will or codicil (.'xecutod according to law, or by Home writiiig declaring an intention to revoke the same, and executed in the manner in which a will is by law recjuired to be exe- cuted, or by burning," &c. 4. " The Wills Act, 1873," which api)lies to wills made after Uip 31st Decern iKir, 1873, repeals the Statute 32 Vict. c. 8, jis to such wills, and, by s. 17, provides that " no will or codicil, or any part thereof, shall be revoked otherwise than .'is aforesaid (by jnarriagc), or by another will or codicil e;;ecutcd in the manner hereinJ^eforo re- (juired, or by some writing dc<^laring an intention to revoke the same, and executed in the manner in which a will is hereinbefo»*i required to be executed. Sic, with the intention of revokirjg the same " (/>). 5. As the Statute 32 Vict. c. 8 was not passed until the l!)th December, 18G8, it will be necessary to consider particularly the state of the law before that date. 6. Concerning the making of a latter testament, .so large and ample is the liberty of making testamenta, that a man (a) S. 5. (5) The now Act dooa not extend to a revocation by will or other writ- ing', of a will inodt* before Ist Janu- ary, 1874. See U,M$ v. Kni{iht, I Curt. 768 ; 1 Williams Kxor«. 175. Suuh a will may, therefore, be re- vokiil after th«.t date by a will t'xecutecute ■ 1 ; ?' IP ' '' 1 ; ■ ' i f ' W ■;; R ^' I i:'- ■• B ' i' s ;!; ' nj .:■;■■ '' ;il: I 1 ' : I'k :|: 1 !■ j'liiil 1 ^.'t 1 1 ' '1 ■ i ? !'■■ i' i ':■ ■ 1 M' ^ i i ' T .^ ^' '■:.!! / 1 , : ' . ,';■ ., ,;, U' i , ■ 5 :'i.if| r i|;,; '1 1 '1'' 1 ■■ '■ "^';|- i''M , ■ !. , ■ ! * IM' : K' -i 1 ■ K-I' 1 ml '^ ' J ! i, i, i; ' ■\: Hllii ^ li, ; :* OF THE REVOCATION OF WILLS. expressed in Mr. Justice Williams' book on Executors. He says : ' The mere fact of making a subsequent testa- mentary paper does not work a total revocation of a prior one, unless the latter expressly, or in effect, revoke the former, or the two he incapable of standing together ; for though it be a maxim, as Swinburne says above, that no man can die with two testaments, yet any number of instruments, whatever be their relative date, or in what- ever form they may be (so as they be all clearly testa- mentary), may be admitted to probate, as together con- taining the last will of the deceased. And if a subsequent testamentary paper be partly inconsistent with one of an earlier date, then such latter instrument will revoke the for- mer, as to those parts only where they are inconsistent, (a). This passage truly represents the result of the autho- rities. The will of a man is the aggregate of his testa- mentary intentions, so far as they are manifested in writ- ing, duly executed according to the statute. And as a will, if contained in one document, may be of several sheets, so it may consist of several independent papers, each so executed. Redundancy or repetition in such in- dependent papers will no more necessarily vitiate any of them, than similar defects if appearing on the face of a single document. Now, it was argued that in the case of more than one testamentary paper, each professing in form to be the last will of the deceased, it is necessary for the Court, before concluding that they together constitute the will, to be satisfied that the testator intended them to operate together as such. In one sense this is true, for the intention of the testator in the matter is the sole guide and control. But the intention to be sought and dis- covered" relates to the disposition of the testator's pro- (a) 1 Williams Exors. 15G. REVOCATION BY A SUBSEQUENT WILL, ETC. 315 perty, and not to the form of his will. What dispositions did he intend — not which, or what number of, papers did lie desire or expect to be admitted to probate — is the true question. And so this Court has been in the habit of ad- mitting to probate such and as many papers, all properly executed, as are necessary to effect the testator's full wishes, and of solving the question of revocation, by con- sidering not what papers have been apparently superseded by the act of executing others, but what dispositions it can be collected from the language of all the papers that the testator designed to revoke or to retain." 21. In a recent case, where a testator left two testa- mentary papers, in the earlier of which was an appoint- ment of executors, but in the later of which he disposed of his whole property in a manner at variance with the dispositions made in the earlier paper, omitting to appoint executors, or to revoke the former appointment, the Court included both papers in the probate (a). 22. It has been held that, notwithstanding a revocatory clause contained in a subsequent will, a paper, prior in date to that will, will not be revoked if the Court is satis- fied that * . was not the testator's intention to revoke the legacy or benefit contained in the paper (6). Where there is an express and unqualified bequest in a will, and there is a subsequent clause inconsistent with the first, but with only an implied revocation, the prior gift will take effect (c). 23. Where the provisions of a subsequent will cannot be ascertained in consequence of its loss, the prior will was held to be unrevoked {d) ; and where the jury found Book IV. Chap. III. (a) In the goods of Letoia, 19 W. R. 1038 J 25L.T.N. 8.510. (6) Denny v. Barton, 2 Phillim. 575; Gladstone v. Tempest, 2 Curt. 650 ; Doe d. Evert v. Ward, 16 Jur. 709 ; 21 L. J. Q. B. 145 ; 18 Q. B. 197. (c) Kerr v. Clinton, L. R. 8 Eq. 462 ; 17 W. R. 98i0. (d) Hitchinga v. Baaaett, 3 Mod. 203; S. C. Comb. 90. 316 OF THE REVOCATION OF WILLS. i. 1 " h^im ' I, ' 1 j,-^ Book IV. Chap. Ill that there was a second will containing dispositions dif- ferent from the dispositions contained in a former will, but in what particular was unknown to them, and they did not find that the testator had cancelled the second will, or that the devisee under the first will destroyed the same, but what became of the second will they could not tell, it was held that the second will was no revocation of the first (a). 24. It is frequently difficult, from wills not being dated, to ascertain the time of their execution, so as to determine which of several testamentary papers left by the testator was the latest, and resort is had to other circumstances in order to determine the respective dates. The water-mark of the paper may be consulted, though it is not a safe guide, as paper made in one year sometimes bears the date of the following year (h). In a late case, where two wills bore the same dat*" and were similar in substance, but different in language, there being no extraneous evi- dence to determine which was last executed, the Court acted upon the internal evidence afforded by the wills themselves, and granted probate of one only (c). 25, If no evidence can be obtained to determine the respective dates, both wills are held void, in so far as they conflict with each other, the property, which is the sub- ject of the conflicting dispositions, going as in a case of intestacy ; but this unsatisfactory expedient is not resorted to until all attempts to educe from both papers a scheme of disposition consistent with both, has been tried in vain (a) Ooodright v. Harwood, 3 Wila. 497 ; S. C. 2 Black, 937 ; Cowp. 8, n. See also Dickinson v. Stidolph, 11 C. B. N. S. 357; Cuttov. Gilbert, in ap- peal, 9 Moo. P. C. 131 ; Freeman v. Freeman, 5D. M. & G. 704 ; Birka V. Birks, 34 L. J. P. 90. (6) 1 Jam. Wills. 160. (c) In the goods of Stephens, 22 L. T. N. S. 727 ; 18 W. R. 528. (d) IJarm. WiUs.ieO; Phippsy. Earlof Anglesea, 7B. P.O. Tom). 443 ; 1 Williams Exors. 160. REVOCATION BY A SUBSEQUENT WILL, ETC. 317 26. The words "last will," contained in a testamentary Book TV. instrument, are not of themselves suflScient to constitute Chap. III. it the last will of the testator (a) ; and indeed, in deciding whether a later will containing these words revokes an earlier will, they have lately been held to be entitled to no weight whatever (6). 27. Where the same person is by will appointed to more than one office, as where he is appointed guardian, trustee or executor, a revocation of the office in one parti- cular will not operate to revoke the other offices (c), un- less it is apparent from the will that these appointments were intended to be united in the same person (d). 28. The provisions of a codicil are not permitted to affect the dispositions of the will farther than is absolutely necessary for the purpose of giving effect to the codicil (e). And where the will contains a clear and unambi- guous disposition of property, real or personal, such a gift is not allowed to be revoked by doubtful expressions in a codicil (/). 29. In a late case (g) the question arose as to the effect (a) Pepper v. Pepper, 5 Ir. R. Eq. 85, Prob. (6) Lesliev, LeMie, 6 Ir. Rep. Eq. 332, Prob. (c) Ex parte Park, 14 Sim. 83 ; Graham, v. Oraham, 16 Beav. 550 ; Cartwright v. Shepheard, 17 Beav. 301 ; Worleyv. Worley, 18 Beav. 58 ; Hare v. Hare, 5 Beav. 628 (d) Barrett v. Wilkins, 5 Jur. N. S. 687. (e) 1 Jarm. Wills, 162 ; Duffield V. Dvffield, 3 Bli. N. S. 261 ; 1 D. & CI. 268, ,395 ; Beckett v. Hardin, 4 M. & Sel. 1 ; Young v. Hassard, 1 Dr. & War. 638 ; ^ v. Fr//, 9 Jur. 895 ; Lushington v. Boldero, G-. Coop. 216 ; Clarke v. Butler, 1 Mer. 304 ; Doe d. Murch v. Marchant, 6 M. & Gr. 813 ; 7 Scott, N. S. 644 ; Doug- las V. Leake, 5 L. J. N. S. Ch. 25 ; Earl of Hardwicke v. Douglas, 7 CI. & F. 795 ; West P. C. 555 ; Ingle- Mdv. Coglan, 2 Col. 247 ; Evans v. Evans, 17 Sim. 108 ; Newman v. Lade, 1 Y. & C. C. 680; Barry v. Crundall, 7 Sim. 430 ; Froggart v. Warden, 3 De G. & S. 685. To words used by the testator in a pecu- liar sense in his will, the same sense will usually be ascribed in a codicil to the will : x Jarm. Wills, 165 ; Evans v. Evans, 17 Sim. 86. (/) 1 Jarm. Wills, 168; Goblet \. Beechey, 3 Sim. 24 ; 2 Russ. & M. 624 ; Gm'don v. Hoffman, 7 Sim. 29 ; Mann V. Fuller, Kay, 624 ; Pratt v. Pratt, 14 Sim. 130 ; Bunny v. Bun- ny, 3 Beav. 109 ; Sawrey v. Jiumney, 5 De G. & Sm. 698 ; Stokes v. He,m, 12 CI. & F. in 161 ; Cleobury v. Beckett, 14 Beav. 583. But see Bead v. Backhouse, 2 IRubs. & M. 546 ; Pilcher v. Hole, 7 Sim. 208 ; Carring- ton v. Payne, 5 Ves. 423. ig) Farrer v. St. Catherine's Col- lege, L. R. 16 Eq. 19. ',: III ''. -.111. '1 ■''i! 1^1 i. m 1 .■;. ii[ :,^i'^^.i ', : 'Mk m I 'Mil ■:Mii: ill ■el; 318 OF THE REVOCATION OF WILLS. Book IV. upon a prior codicil, of a codicil revoking a will. Lord Chap. II f. Selboine observes (a): "I think +he cases of Bunny v. Bunny (6) and Pratt v. Pratt (c) are sufficient authori- ties to show that where a testator begins by distinguish- ing between his last will and a codicil to it, and purports to revoke his last will only, not referring to any previous codicil, that the revocation is not to be carried further than the necessity of the temis which he has used may require, and it is in accordance with the well-known principles of the case of Doe v. Hicks (d) that a clear gift is not to be revoked except by clear words. I hold, therefore, al- though .it is perfectly true that the word ' will,' used ab- stractedly from the context, carries all testamentary in- struments which together make the will of the testator, yet here, where you have the context which expressly distinguishes the last will from the codicil, you are not to infer that all previous codicils are revoked, because he re- vokes the last win, and still less to do so where reference is made to the will apparently as a particular instrument, and that is an inaccurate reference." 30. Where, by a codicil, a devise or bequest in a wiU or a previous codicil is revoked by the testator, who grounds such revocation on the assumption of a fact which turns out to be false, the revocation does not take effect, being, it is considered, conditional and dependent on a contin- gency which fails (e). 31. Sometimes a codicil has the effect of impliedly re- voking the posterior of two wills, by expressly referring to and recognizing the prior one as the actual and subsisting o) At p. 23. 6) 3 Beav. 109. c) 14 Sim. 129. d) 8Bing. 475, (e) 1 Jarm. Wills, 170 ; Campbal V. French, 3 Ves. 321 ; Evans v. Evans, 10 A. & E. 228; Atty.-Gen. V. Lloyd, 1 Ves. 32. . 1 V I REVOCATION BY A SUBSEQUENT WILL, ETC. will of the testator (a). But if the prior will has been de- stroyed, it cannot be thus revived. Thus, in Rogers v. Ooodenough (b), the testator made his will in 1858, by which all former wills were e'icpressly revoked. He made another in 1859, slightly altering the dispositions of his estate. After the will of 1859 was executed, the will of 1858 was destroyed by burning. In J860 he made a codicil, which began by expressing a desire to have it treated as a codicil to his will of 1858, but it contained no other words of confirmation or revocation, and contained no other provision, except the wish to have it treated as a codicil to the will of 1858, which was not equally appli- cable to the will of 1859 ; it was held that, a« the will of 1858 was not in writing at the time of the execution of the codicil, it could not be revived by or incorporated into it, or be admitted to probate ; and it was held also that, as the codicil of 18G0 did not expressly revoke the will of 1859, or dispose of the estate contrary to its provisions, that will, together with the codicil, must be admitted to probate (c). 32. Where the revocation of an existing will is sought to be established by the proof of the execution of a subse- quent will, which is not forthcoming, the evidence should be clear and conclusive, not only as to the execution, but as to the contents of the missing instrument (d). 33. And where a will was found after the testator's death, but parol evidence was given that he had executed a subsequent will which contained a clause of revocation, (a) 1 Jarm. Wills, 175; Lord Wal- pole V. Earl of Orford, 3 Ves. 402 ; Payne v. Trappes, 11 Jur. 854 ; 1 Rob. 583 ; In the goods of Chap- man, 8 Jur. 902 ; 1 Rob. 1. (6) 2 S. & T. 342; 8 Jur. N. S. 391; 31 L. J. P. 49 ; 5 L. T. N. S 719. (c) An inaccuracy in regard to the date of the will referred to waa held not material, unless it created doabt as to which of the two wills was re- ferred to : 1 Jarm. WiEs, 175 ; Jan- sen V. Jansen, cited in 1 Add. 39 ; Thomson v. Hempenatall, 1 Rob. 783 ; 13 Jur. 814. (d) Berthon v. Btrthan, 18 L. T. N, S. 301 ; 16 W. R. 673. 319 Book IV. Chap. III. •?.| ili ill' "1 1^ III ti ■■ < 1 ill: 1 i- P ^. 320 OP THE REVOCATION OF WILLS. Book IV. and which remained in his custody until his death, and Chap, III. could not then be found, and that he had declared an in- tention to destroy it, it was held that he died in- testate (a). 34. The distinction between a revoking will, and a mere -^ riting revoking a will, as a means of revocation, deserves attention. The former is entitled to probate, the latter is not (6). In a late case, the testator, in a letter addressed to his brother, which was signed by him in the presence of two witnesses, directed his brother to obtain his will and bum it without reading it. The Court held that the letter was a writing duly executed, declaring an intention to revoke the will, and the letter being also tes- tamentary, it was admitted to probate (c). 35. A mere writing, declaring an intention to revoke a wiU, as distinguished from a will containing a revoking clause, was required by the old Statute to be executed in the presence of three or four witnesses, but no furthei- ceremony was made necessary for its validity, such as was required for the due execution of a will. It will be ob- served that by the recent Statute of this Province, 32 Vict. c. 8, such a writing is required to be executed in the manner in which a will is by law required to be executed {d). In order to revoke a will of real estate it must therefore be duly executed with all the formalities necessary to the validity of a wiU of real estate ; but as a will of personal estate does not require signature or attesta- tion, neither does a writing revoking such a will. But a (a) Wood V. Wood, L. R. l,Prob. 309; 15 L. T. N. S. 593; 36 L. J. P. 34. (b) In the goode of Frater, L. R. 2 Prob. 40 ; In the goods of Hicks, L. R. 1 Prob. 683 ; 38 L. J. P. 65 ; 21 L. T. N. S. 300. (c) In the goods of Durance, L. R. 2 Prob. 406 ; 41 L. J. P. 60 ; 20 W. R. 759 ; 26 L. T. N. S. 983. (cf) See 8. 6. ^rm, REVOCATION BY A SUBSEQUENT WILL, ETC. 321 writing revoking a will under the provisions of " The Iuwk IV, Wills Act, 1873," must be executed with the formalities chap. III. piescribed by the Act for the due execution of wills. 'Si ;t!l I s 'Wif* '1'^ CHAPTEll IV. 'h OP THE ALTERATION OF A WILL BY OBLITERATIONS, INTERLINEATIONS, kc. i I :i • " ll:|ii J . Wills of personal estate may, by the present law, be altered by unattested interlineations. Otherwise as to wills of real estate. 2. Obliterations were authorized by th«3 Statute of Frauds as a means of total or partial revocation. 3. Opinion of Baron Parke in Locke v. James. 4. The striking out of one devisee's name is a revocation pro tanto only. 5. Case of Short v. Smith. 6. Provisions of 1 Vict. c. 26, as to alterations. 7. Construction to be placed on s. 2 of "The Wills Act, 1873." 8. The cases decided under the English Act, as to wills of person- alty, have only a limited application to wills of realty in this Pro vine 0. 9. Alterations in a will may be in pencil, but pencil alterations in a will written in ink are considered deliberative. 10. Alterations are presumed to have been made after the execution of the will. 11. And where there is a codicil which does not notice them, after the execution of the codicil. 12. Rule as to presumptive date of alterations laid down by Privy Council in Orcville v. Tylee. 13. Slight evidence is sufficient to rebut the presumption that al- terations in a will were made after the execution. 14. Evidence of parol declarations may be admitted to establish interlineations as part of a will. 16. The rule as to the presumptive date of mutilations the same. 10. The words " otherwise destroying," in the 17th section of " The Wills Act, 1873," explained. 17. Scientific means may be used to decipher unattested oblitera- tions. 18. The doctrine of dependent relative revocation is applied to alterations in a wUl. 19. Example of insufficient attestation of alterations in a will. Book IV. 1. As wills of personal estate do not require to be sign- Chap. IV. sd or attested, neither signature nor attestation is neces- sary to the validity of alterations made therein after the ili I; m OF ALTKHATIONS IN WILLS. making of tho will {(i). It is otherwise, however, us to alteriitions of wills of real estate. Such wills being re- (juireJ by the Statute of Frauds to be signed and attested with niueh soloniuity, there would have been a manifest inconsistency in {)ennitting additions byway of interline- ations, made after execution, to form part ^>f the will, without a re-cxecutiou or re-publication of the instru- ment. 2. Obliteration was authorized by the Statute of Frauds as a means of total or 'pmihd revocation. An unattested obliteration, therefoi-e, operates as a revocation pro tanto (6) ; unless it isdircctly connected with a substitut- ed interlineation, which is ineffectual, ii vhich event the Courts usually aj)ply the doctrine of dependent relative revocation so as to preserve the obliterated devise (c) Thus, where a testator, by his will ualy execute], devised I ; rtain real estates to R. N. in fee, subject i > and charged with an annuity of 600/. a year, which he gave to his daughter, E. J., for her life, with i)owers of distress and entry on the devised estates, in ease the annuity wtic in arrear, and he subsequently erased with a pen the word " six," and inserted over it the word " two," leaving, how- ever, the word " six " legible in each place where it oc- curred, and on the same day he added a memorandum or codicil to his will, signed by hnn in the presence of one witness only, recognizing the above alterations ; it was held that the substitution of the word " two " for " six " was under these circumstances inoperative (d). 3. Parke, B., said : " It was not, and indeed could not 323 (a) Martins v. Gardiner, 8 Sim. 73 ; Ravenscroft v. Hunter, 2 Hagg. 08 ; Mence v. Mence, 18 Ves. 348. See also as to revocation pro tanto, Swinb. P. 7, a. 16, pi. 4 ; Sutton v. SiUton, Cowp. 812 ; Humphreys v. Tayli/r, 7 Gwillim, s. Bac. Abr. 363 ; Hcruby v. Fordham, 1 Add. 78. (6) Larkins v. Larking, 3 B. & P 16. (c) See post, chapter on Depend- ent Relative Revocation. id) Locke v, James, 11 M. & W. 901. Book IV. Chap. IV. : ;|i ll I,' I If k l^:i]i\l mm ii ;1 , t 1^ 1 ii '' 1 Ii ?l 1!!' 'If f^l! !;<» ; id 324 OF THE REVOCATION OF WILLS. ^'■J ..^ vl i ; 1 i 1 |i'' 1W| ■' 1 1' , < 1 1 , ) 1 i 1 i Irn Book IV. have been disputed, but that if the annuity had been Chap. TV. charged on the real estate only, then neither the erasure nor the codicil would have affected it. The erasure would have had no effect, because the testator did not mean to destroy the annuity of 600?. per annum in anj^ other way than by substituting for it an annuity of 200Z. per annum. The substitution in the will was inoperative, havi ig been made after the subscription of the witnesses, not in their presence, and without re-publication ; and the substitution, for the purpose of giving effect to which the erasure was made, thus failing, the law is clear that the erasure fails also. It is treated as an act done b}' mere mistake, sine anirao cancellandi. What the testator in such a case is considered to have intended is a complex act — to undo a previous gift, fv^r the purpose of making another gift in its place. If the latter branch of his inten- tion cannot be effected, the doctrine is, that there is no sufficient reason to be satisfied that he meant to vary the former gift at all. The codicil or memorandum, being un- attested, clearly could have no effect on the disposition of the real estate." 4. Where a testator, having duly executed a devise of lands to several trustees as joint tenants in fee, and after- wai'ds, having struck out the name of one of the devisees by drawing a pen through it, a case was sent from tlie Court of Chancery for the opinion of the Court of Com- mon Pleas ; Lord Alvanley said, " Whatever the altera- tion might be, it was not an alteration arising fron) a new gift, but merely from a revocation. If the remain- ing devisees were to acquire any estate which they had not before, something beyond a mere revocation would be necessary. If, therefore, the devisees had been tenants in common, upon the erasure of one name the remaining two would take no more than two-thirds of the estate." M^^ OF ALTERATIONS IN WILLS. 325 It was certified that the devise of the estate to the two Book IV. trustees to whom, together with the third trustee, the Chap. IV. estate was devised as joint tenants in trust, to be sold, was not revoked by the testator having struck out the name of the third trustee after the execution of the will (a). 5, And where a testator devised lands to two trustees in trust for certain purposes, and he afterwards made several alterations in the will, and struck out the name of one of the trustees;, and inserted the names of two others, but did not republish his will ; it was held that the alter- ation should operate as a revocation pro tanio as to the trustee whose name was obliterated, leaving the devise good as to the old trustee whose name was retained ; Lord EUenborough observing, that " the facts of the case plainly showed that the testator had no object but to change his trustee ; that it would be unreasonable, when he had not indicated anj*^ intent to dispose of his lands to different purposes than those declared by his will, and when it clearly appeared that he meant to dis- inherit his heir-at-law, to infer that he designed that his will should become inoperative, and so let in his heir-at- law. It was better to conclude that he thought he had by the alterations introduced made a valid disposition of his estate to the new trustees, and that he had no design to alter his will except so far as such obliteration or in- terlineation could effectuate that purpose, by substituting the persons whose names he interlined in the stead of him whose name was struck out" (6). 6. In England, by the Statute 1 Vict. c. 26, it is pro- hat no obliteration, interlineation, or other (c) (a) Larkim v. Larkina, 3 B. & P. 16 ; Winsor \.Pratt, 2 Br. & B. 650. (6) Short V. Smith, 4 East. 419. See also Sutton v. Sutton, Cowp.812. (c) S. 21. »'■' 1 4. - 1 'ir ' I: f' ;i i'tilr 326 OF THE REVOCATION OF WILLS. Book IV. alteration made in any will after the execution thereof, Chap. IV. shall be valid or have any effect except so far as the words or effect of the will before such alteration shall not be apparent, unless such alteration shall be executed in like manner as hereinbefore is required for the execution of the will ; but the will, with such alteration as part thereof, shall be deemed to be duly executed if the sig- nature of the testator and the subscription of the wit- nesses be made in the margin or in some other part of the will opposite or near to such alteration, or at the foot or end of or opposite to a memorandum referring to such alteration, and written at the end or some other part of the will." This section has been introduced without alteration into, and forms the 18th section of " The Wills Act, 1873 ;" but the old law, as it existed in England prior to the passing of the Act 1 Vict. c. 26, is still in force in this Province. 7. It might fairly be inferred from the wording of the 2nd section of "TheWillsAct,1873," which provides that, unless therein otherwise expressly provided, the Act shall not ex- tend to any will made before the 1st January, 1874, that any will made before that date might be altered after that date in any manner permitted by the law as at present in force. But that does not appear to be the construction placed upon the 34th section of the jEnglish Act, which is similar in its provisions to the 2nd section of our Act. Regarding the 34th section of the English Act, Sir E. V. Williams remarks (a) : " The 34th section of the new Statute enacts, that ' this Act shall not extend to any will made before the 1st day of January, 1838.' And cer- tainly these words are of very general import, and seem to leave all wills made before January, 1838, in the same (rt) 1 Williams Exors. 125. ■liiitaii.tMa Mi OF ALTERATIONS IN WILLS. 327 situation as if the Act had not passed, and to be dealt Book IV. with in all respects, with regard to execution, revocation, Chap. IV. or alteration, according to the law as it then stood ; and if this were the true construction, a testator whose will was in existence before January, 1838, if he should live for fifty years after that date, might at any time during his life revoke the will by any of the modes which were effectual according to the old ecclesiastical law, or make alterations in it to any extent, or at any period, without regard to the exigencies of the Statute of Victoria. But the interpretation of the Act which has been adopted by the Prerogative Court, and approved by the Privy Coun- cil, is that the operation of the Act was meant only to be suspended with respect to the execution of such wills as were already made at the passing of the Act, and those made between the passing of the Act and the 1st of Jan- uary, 1838, and that a will made before the Statute came into operation is not exempted from the necessity of com- plpng with the provisions of the new law with respect to any act done to it after that period " (a). Assuming that the same construction would be placed by the Courts on "The Wills Act, 1873," it follows that the provisions of the 18th section of that Act, will be operative as to all wills after the 31st December, 1873. 8. The principles established by the cases decided un- der the late English Act with reference to alterations in wills of personalty, have only a limited application to the same class of wills in this Province ; but they apply, it is conceived, in many respects to alterations in wills of real estate, and they will apply to alterations in wills of * .a (rt) In the goods of Livock, 1 Curt. 906 ; Hobbs v. Knight, 1 Curt. 768 ; Brooke v. Kent, 3 Moo. P. C. 334 ; Ferraris v. Hertford, 3 Curt. 468, 512, 513 ; Croker \. Hertford, 4 Moo. P. C. 339, 356. See also 1 Jarm. Wills, 134 ; Andrews v. Twner, 3 Q. B. 177. ■^W. ^'I • I - 328 OF THE REVOCATION OF WILLS. Book IV. either real or personal estate made after the new Act Chap, IV. comes into force. 9. Alterations in a will may be made in pencil as well as in ink (a) ; but if the original will is written in ink, the usual presumption will arise that such alterations are merely deliberative and not final, and effect will not be given to them (b). In a recent case the testator had exe- cuted a will and codicil. At some time after the execu- tion of the will, but before that of the codicil, he, with a pencil, struck through several paragraphs of his will, and made his initials on the margin. He also placed a quer^' opposite other paragraphs. The codicil confirmed, in so far as it did not alter, the will ; but the Court held that the alterations were only deliberative and not final, and were not included in the confirmation of the codicil (c). 10. It has been laid down that, contrary to the rule in the case of deeds and other instruments, it will not be presumed that interlineations and erasures appearing on the face of a will, either of real or personal estate, were made before the will was executed (d). In the case of Williavis V. Ashton (e), Sir W. P. Wood considered that the rule,,a.s thus stated, was not strictly correct. " The correct view," said he, " is that the onus is cast upon the party who seeks to derive an advantage from an altera- iri-' (a) Colvin v. Frasei', 2 Hagg, 327 ; and see Wynn v.Heveningham,! Coll. 638, 639. (6) Francis v. Grorer, 5 Hare, 39; but see Mence v. Mence, 18 Ves. 348. See as to the effect of alterations which appear to be only cursory or deliberative, Parkin v. Bainbridge, 3 Phillim. 321 ; Lavender v. Adams, 1 Add. 409 ; In the goods of Bolls, 2 Add. SI'S; Martins v. Gardiner, 8 Sim. 73. (c) In the goods of Hall, L. R, 2 Prob, 2.56 ; 40 L. J. P. 37 ; 25 L.T. N. S. 384. (d) Simmons v. Bendall, 1 Sim. N. S. 115; Doed. Shallcross v. Palmer, 15 Jur. 836; 20 L. J. Q. B. 367 ; 16 Q. B. 747 ; In the goods of White, 6 Jur. N. S. 808 ; Williams y. Ashton, I J. & H. 115 ; Banks v. Thornton, II Hare, 180; Doe d. Tatham v. Cuttamore, 16 Q. B. 745 ; 20 L. J. Q. B. 364 ; Cooper v. Bockett, 10 Jur. 931; 4 Moo. P. C. 419; Bnr- goyne v. Sliowler, 1 Rob. 10 ; 8 Jur. 814; Oreville v. Tylee, 7 Moo. P. C. 320; Lushington v. Onslow, 12 Jur. 465 ; Oann v. Gregory, 3 D. M. & G. 777. {e) 1 J. & H. 115. ' i in OF ALTERATIONS IN WILLS. 829 tion in a will, to adduce some evidence from which a jury might infer that the alteration was made before the will was executed. I do not consider that the Court is bound to say that it will presume such alterations to have been made either before or after execution. With regard to a will, I do not see any necessary presumption of the kind" {a). 11. Where there is a codicil to the will which takes no notice of the alterations, the presumption is that they were made after the date of the codicil (b) . To rebut this pre- sumption, alterations and obliterations made after the exe- cution of the will and codicil should be referred to and identified in the codicil, or be proved to have existed before the date of the codicil (c). Under " The Wills Act, 1873," if the alterations are not shown to have existed before the date of the codicil, they should not be admitted to pro- bate (d). The mere circumstance of the amount or name of a legatee being inserted in different ink and in differ- ent handwriting from the rest of the will, does not con- stitute an obliteration, interlineation, or other alteration within the new Statute ; nor does any presumption arise against a will being duly executed as it appears. The case is different, however, where there is an erasure appa- rent on the face of the will, and that erasure has been superinduced by other writing ; under such circumstances, the onus prohandi lies upon the partj'^ who alleges such alteration to have been made prior to execution, to prove by extrinsic evidence that the words were inserted before (o) See also the remarks of Sir J. Honnen In the goods of Sykes, L.B. 3 Prob. 27. (6) 1 Redf. Wills, 316-317; Bow- ley fr. Merlin, 6 Jur. N. S. 1165 ; Ckrittmas v. Whinyates, 9 Jur. N. S. 283; 3 S. & T.81 ; 32 L. J. P. 73; 8 L. T. N. S. SOL (c) In the goods of Mills, 11 Jur. 1070 ; In the goods of Parker, 27 L. T. 18; In the goods of Mogg, 1 No. Cas. 325 ; In the goods of IVyatt, 2 S. & T. 494 ; 10 W. R. 783. (d) In the goods of Bradley, 5 No. Cas. 95, 186; Swete v. Pidsley, 6 No. Cas. 189. Hook IV. ("H.vi". IV. M' ■ ' tj'i 4 t f 330 OF THE REVOCATION OF WILLS. Book IV. Chap. IV. !•*] execution, and that they had the sanction of the testa- tor (a). Where, however, a will was drawn up with blanks, as for the names of legatees and the amounts of legacies, which blanks were found filled up partly in black and partly in red ink, but there was no evidence to show- when it was done, but the envelope containing the will had been opened and resealed, the former were presumed to have been tilled up before the execution, the latter after the execution of the will (b). 13. The presumption of law that the interlineations in a will were made after execution, prevails onlj' in the absence of evidence to the contrary, and very slight affirmative evidence is sufficient to rebut the presump- tion (c). And the Court is not bound in all cases to pre- sume that interlineations were made after the date of the will. Thus, when a will contained several unattested interlineations, most of them of single words, each of which was required to complete the sf itence to which it belonged, and the interlined words were apparently writ- ten with the same ink and at the same time as the rest of the will, but at the time of execution the body of the will was covered up by the testatrix, so that the witnesses could not see whether the interlineations were there or not; the Court, referring to Cooper v. Bockett (d), held that, notwithstanding the absolute terms in which the rule was laid down in that case, the Court was not bound to presume that these interlineations were made after execution, and included them in the probate. Sir J. P. Wilde remarked, " I think there is a marked distinction between interlineations and a]terat.v J ^.teilineaidons are generally used to complete ar. ',., ^rfect sentence, (a) GrevUle v. Tylee, 7 Moo. P. C 320. (6) Birch V. Birch, 1 Eob. 775 ; 12 Jur. 1057. But see In the goods of Bacon, 3 JN'^ Jaa. 645. (c) In the goods of I>uffl/, 5 Ir. Rep. Eq. 506, Prob. id) 4 Moo. P. C 419. OF ALTERATIONS IN WILLS. whilst an alteration is a change in the original disposi- tion. * * * * I conceive that the Court is not pre- cluded, by the absence of direct evidence of the fact, from considering the nature of the interlineations, and the inter- nal evidence, if any, furnished by the document itself (ft). 14. Evidence of parol declarations of the testator before, but not after, the date of the execution of the will, may be admitted to establish undated interlineations as part of the will (6). In a recent case (c) the deceased executed a will and a codicil, the latter referring to the former by its date. The name of the executor appointed by the will was written on an erasure. The Court admitted the declara- tion of the testator as to the person he had appointed executor, made before the execution of the codicil, and granted probate of the will and codicil to such executor. 15. The same rule applies regarding the presumptive date of mutilations, as to the date of alterations in a will. If no evidence can be given as to the time when they were made, it will be presuni 1 that they were made after the execution of the document in which they appear; and if there is a subsequent codicil or testamentary paper, after the execution of that codicil or paper (d). 1 6. The attention of the reader has already been called to the words (e) " otherwise destroying," contained in the 17th section of " The Wills Act, 1873 ;" and it has been shown that these words were not intended to include obliteration or (a) In the goods of Cadge, L. R. 1 Prob. 543; 37 L. J. P. 15; 17 L. T. N. S. 484; In the goods of Swinden, 2 Rob. 192. But see In the goods of Oaussen, 16 W. R. 212; 17 L. T. N. S. 354. For cases in which the Court presumed the alter- ations to have been made before ex- ecution see Keigwin v. Keigwin, 3 Curt. 607; 7 Jur. 840 ; In the goods of Merton, 13 Jur. 1108; In the goods of Hindmarsh, L. R. 1 Prob. 307 ; 36 L. J. P. 24. (6) In the goods of Foky, 25 L. T. 311; Doe d. Shallcross v. Palmer, 16 Q. B. 747 ; 20 L. J. Q. B. 367. (c) In the goods of Sykes, L. R. 3 Prob. 26. {d) Christmas v. Whinyates, 9 Jur. N. S. 283 ; 3 S. & T. 81 ; 32 L. J. P. 73; 3 L. T. N. S. 801 ; Rowley V. Merlin, 6 Jur. N. S. 1165. (e) See chapter on Revocation by Burning, &c. 331 i'.OOK IV. Chap. IV. ;J82 OF THE REVOCATION OF WILLS. m ■1" i3(i()K 1 V. cancellation, so as to make these acts a revocation pre tanto (HAP. [\'. under the 17th section of the Act (a). Obliterations are dealt with by the 18th section of the new Act, by which it is provided that no obliteration should be valid or have any effect, except so far as the words or effect of the will before such alteration shall not be apparent, unless such alteration shall be executed in the same man- ner as a will. The wording of this section implies that if the obliteration is so complete as to render the obliterated part illegible, the obliteralaon will be an effectual revocation pro tanto. It was the intention of the Legis- lature in this respect, that if a testator shall take such pains to obliterate certain passages in his will, and shall so effectually accomplish his purpose that those passages cannot be made out on the face of the instrument itself, it shall be a revocation as good and valid as if done according to the stricter forms mentioned in the Act of Parliament (6). 17. Glasses or other scientific means may be used for the purpose of ascertaining the words which have been obliterated, if the obliteration has not been duly exe- cuted (c) ; but the Court is not at liberty to receive evi- dence dehors the will itself, such as a draft copy or in- structions for the will {d). If the words obliterated can- not be distinguished by an inspection of the will, they must be omitted from the probate (e). 18. When a provision in a will is erased so as to be [a) See Lushington v. Onslow, 6 No. Cas. 183; 12 Jur. 465; Gfreville V. Tyke, 7 Moo. P. C. 320. (6) 3 Curt. 769; 1 WilUama Exors. 140. See also In the goods of Nelson, 6 Ir. Rep. Eq 569, Prob. (c) Cooper v. Bockett, 4 Moo. P. C. 419 ; 10 Jur. 935 ; In the goods of Oppenheim, 17 Jur. 306 ; In the goods of Rushout, 13 Jur. 468 ; In the goods oi Abbey, 5 No. Cas. 615 ; In the goods of Ibbetson, 2 Curt. 337 ; In the goods of Beavan, 2 Curt. 369 ; In the goods of James, 1 S. & T. 238. (d) Townley v. Watson, 3 Curt. 769 ; 1 WUliams Exors. 141. (e) In the goods of Ibbetson, 2 Curt. 337 ; In the goods of Nelson, 6 Ir. Rep. Eq. 569, Prob. Ml ■ «a I ■ V . i -1 i' OF ALTERATIONS IN WILLS, illegible, and another is substituted for it ; if the substi- tuted provision should be inoperative for any reason, the doctrine of dependent relative revocation is aj)plied, so as to preserve the obliterated words, which may be proved hy evidence aliunde (a). 19. When a testator made some alterations in a duly executed will, and he and the attesting witnesses traced their former signatures with a dry pen, and the attestin/^ witnesses placed their initials in the margin opposite ec-Ji of the alterations, the Court refused to regard the initials ill the margin as evidence that the alterations had been duly executed and attested, and declined to gi'ant probate of the will with alterations (h). 333 (a) In the goods of Nelson, 6 Ir. Hep. Eq. 560, Prob. ; Brooke v. Kent, 3 Moo. P. 0. 334; -Soar v. JJolman, 3 Curt. 121 ; Townlei/ v. ll'atson, ibid, 769; In the goods of Ikdford, 5 No. Cas. 188; In the :.'(iods of Harris, 1 S. & T. ,536 ; In tlie goods of Parr, 29 L. J. P. 70 ; f attestation to m.ike it valid : In the gootls of Wituivitrr. 15 ,Jv>r. 91. The initials of the tes- tator and witnesses, placed in the margin of the will near the altera- tion, are sufficient to incoqwrate tlie alteration into the will : In the goods of Hinds, 16 fur. 1161. (6) In the goods of Cunninqham, A S. & T. 794 ; 29 L. J. P. 71. .See also In the goods of Martin, 1 Rob. 712 ; 6 No. Ca.s. 6J4. But see in the goods of Dewell, 17 Jur, 1130, I'.HK IV, I'H.Xl'. [V )!!■,*■ t CHAPTER V. OF THE REVOCATION OR ALTERATION OF WILLS MADE IN DUPLICATE. 1. Wills frequently made in duplicate, and questions arise as to the effect upon one duplicate of alteratioTis in the other. 2. The revocation by cancellation of one duplicate operates as a revocation of the other, if one is in the testator's custody, and the ether not. 3. And the same presumption, though weaker, arises if both are in the testator's custody. 4. Remarks on this presumption. 5. In Eoberts v. Mound, where one duplicate was destroyed and the other carefully preserved, the latter was held unrevoked. 6. The erasure in one duplicate is an erasure in the other. 7. If a duplicate, known to have been in testator's custody, cannot be found, presumption arises that the will is revoked. Book IV. 1- Wills being frequently made in duplicate, questions Chap! V. ^^^^^ arisen as to the effect upon one duplicate of alter- ations made by the testator in the text or condition of the other. 2. The cancellation animo revocandi by the testator of one duplicate in his custody, revokes the other which is not in his custody (a). 3. But it may happen that both duplicates are in the testator's custody, and that he cancels but one. In such a case, Lord Chancellor Erskine expressed an opinion that a presumption arises of an intention to revoke the whole will, though weaker than in a case where the duplicate js out of the testator's custody ; and that when the testa- tor alters one and then destroys that which he had altered, (a) Onions v. Tyrer, 2 Vem. 741 ; Seymour's case, cited in Burtenshaw v. Gilbert, 1 Cowp. 52; Colvin v. Fraser, 2 Hagg. 266 ; Richards v. Mumford, 2 Phillim. 23; Boughey v. Moreton, 3 Hagg. 191, n. See also In the goods of Slade^ 20 L. T. N. S. 330; Doe d. Strickland v. Strickland, 8. 0. B. 724: 19 L. J.C. P. 89. REVOCATION OF WILLS MADE IN DUPLICATE. 336 I; .S MADE IN es if both are retaining the other intact, the same presumption obtains, but still weaker (a). 4. The presumption in the latter ease, however, seems ([uite as much in favour of an intention to let the duplicate which he had not altered stand, since the fact of having altered one of the duplicates explains sufficiently the rea- son for destroying that one, and the fact of the other being preserved, rather looks towards the purpose of having it remain in force, after any sufficient reason is found for destroying the duplicate, which does not attach to the part preserved (6). 5. And accordingly in the case of Roberts v. Round (c), where one of the duplicates, both being in the testa- tor's custody, was found mutilated, and the other carefully preserved, it was held the will remained unrevoked. 6. It has lately been determined that the erasure of one part of a will, executed in duplicate, is to be regarded as prima facie an alteration of the whole will (d), and the same rule obtains where the testator had expressed the same purpose both in the will and codicil, but had obliter- ated it in the codicil only (e). 7. It has been held, in analogy to the rule laid down regarding wills not executed in duplicate, 'that if a will was executed in duplicate, and the testator has the cus- tody of one part, and it cannot be found after his death, the presumption of law is, that he destroyed it animo re- vocandi; and both parts are consequently to be considered revoked, unless this presumption be rebutted (/). (o) Pemberton v. Pemberton, 13 Ves. 310 (6) 1 Jarin. Wills, 129 ; 1 Redf. Wills, 308, 310. (c) 3 Hagg. 548. (rf) Doe d. Strickland V. Strickland, 8 C. B. 724 ; 1 Redf. Wills, 310, 311. 1500K IV. ('H.vr. V. (e) 1 Redf. Wills, 310, 311 ; Ut- terson v. Utter son, 3 V. & B. 122. (/) jRickards v. Mumford, 2 Phil- lim. 23 ; Calvin v. Eraser, 2 Hagg. 266 ; Saunders v.' Saunders, 6 No. Cas. 518. t > I f i ' ffl ■ 1 lli. CHAPTjai VI. 'Jh OF THE EFFECT ON A CODICIL OF THE REVOCATION OK THE WILL OF WHICH IT FORMS PART. 1. A codicil was, under the old law, prima facie dependent on tlic will, and was revoked by the revocation of the will unless it could 1)0 shown that it was intended to subsist inde- pendently. 2. This fact may bo shown in various ways. I}. Cases of In the goods of JhinLi and In the goods of Ellice. 4. Leading case of Black v. Jubliny. The cases reviewed. («) Statement of the facts (jf tliat case. (b) The general rule of the old law stated. (f) Case of Barnrw v. Banoio. (d) Case of MecUycott v. /J .sa/ic/on considered. (i') Case of Taijart v. Bukcwell considered. (/) These cases leave in doubt what is meant by " dependent on the will." (fl) Remarks >«K TV. 1. A codicil was, under the old law, prima facie de- Chap. vt. pendent on the will with which it was connected, and the destruction of the latter was an implied revocation of the former (a). Subject to this rule, the question whether a codicil was to be considered revoked by the revocation of the will, was one of intention. Where a will and codicil had been in existence, and the will wsis afterwards re- voked, it must have been shown by the party applying for probate of the codicil that it was intended by the deceased (a) 1 Williams Exors. 1^8. ct reviewed ) of In the EFFECT OF REVOCATION OF WILL ON CODICIL. 337 that it shoulfloperate separately from the will ; otherwise, Book IV. it was presumed that, as the will was destroyed, the Chap. VI. codicil was gone also (a). 2. That the codicil was intended to be an independent instrument, operating separately from the will, might be shown in various ways. The frame of the codicil was important. If it was entire and intelligible in itself, and contained an effective distribution of all or most of the testator's estate, and was found carefully preserved by the testator in a place where he naturally would have been aware of its existence, it would have afforded a very strong presumption of an intention to have it operate. But, when those circumstances were wanting, or others indicating a contrary purpose existed, it might have required a different consideration; as when tho dis- positions of the codicil were so complicated with and dependent upon those of the will, as to be incapable of a separate and independent existence (b). 3. In the goods of Harris (c), the Court allowed pro- bate of the codicil alone ; founding its action on the state of the will, and on parol evidence that the deceased in- tended the codicil to stand, notwithstanding the revoca- tion of the will. And In the goods of Ellice (d) it was held that the codicil, being substantially independent of the will, was not involved in the destruction of the latter. 4. In Bldck V. Jobling (e), Lord Penzance reviewed the previous cases on the subject under consideration ; and as (a) Ctrimwood v. Cozens, 2 S. & T. 364 ; 5 Jur, N. S. 497, per Sir C. Cresswell. See also Barrow v. Bar- row, 2 Lee, 335 ; Plenty v. West, 1 Rob. 264 ; TagaH v. Hooper, 1 Curt. 289 ; Medlycott v. Attheton, 2 Add. 231 ; In the goods of HaUiwell, 4 No. Cas. 400 ; Glogstown v. Walcott, 5 No. Cas. 623 ; In the goods of &reig, L. R. 1 Prob. 72 ; 35 L. J. P. 113 ; 13 L. T. N. S. 680. (6) 1 Jann. Wills, 130; Usticke V. Bawdm, 2 Add. 116-7 : 1 Redf. Wills, 311-312. (c) 3 S. * T. 485 ; 10 Jur. N. S. 684. (d) 33 L. J. P. 27; 12 W.»R. 353. (e) L. R. 1 Prob. 685 ; 38 L. J. P. 74; 21 L. T.N. S. 298. li ,*i " If vfl 338 OF THE REVOCATION OF WILLS. '^■i.i ' ■ ^0 Book IV. the 20th section of the English Wills Act, on the con- Chap. vl stniction of which that case turned, has been adopted in this country, with some slight modifications, by Stat. Ont. 32 Vict. c. 8, s. 5, and " The WiUs Act, 1873," s. 17, the remarks of the learned Judge will serve to explain the state of the law as it now exists, and as it existed in this Province before the passing of the last mentioned Acts. (a) " In this case," said the learned Judge " the deceased had executed several wills ; but at the time of his death no valid will was found. In the hands of a legatee, how- ever, was a document which purported to be « codicil, and is dated Oct. 19th, 1867. It recites that the deceased had already bequeathed to his grandchildren the lease, stock, and profits, with everything relating to the farm of Fen- ham Hill, and gives in addition to each of them 300^. The question is, whether this paper can be admitted to proof. It speaks of a bequest of a certain farm, which is contained, not in any will of the deceased, but in a deed of gift executed by him on the 25th of Ma^-, 1867. (6) " The general proposition in relation to codicils is, that a codicil stands or falls with the will to which it be- longs. This general proposition is subject to certain ex- ceptions, and my first consideration will be what were the exceptions under the old law ? The result of my in- quiry into the matter is very unsatisfactory. (c) " The first case reported is that of Barrow v. Bar- row and Others (a). The deceased in that case had exe- cuted a will and codicil. By the codicil he gave tlie residue of his property to his wife. He then burnt his will. The Court said : ' As to the codicil, it was clear that, by the law of England, it was not destroyed by the burning of the will, but was a substantive instrument or (a) 2 PhiUim. t. Lee, 335. 1^1 rip : EFFECT OF REVOCATION OF WILL ON CODICIL. testamentary schedule ; and as in this case the testator intended to die testate, considered it as his will, and de- clared he intended his wife should have almost all, agree- ably to the codicil, I nronounced for the validity of it as a testamentary disposition.' And yet, in that case, the codicil only disposed of the residue, and it was not possi- ble to ascertain the extent of the term 'residue' without the will. (d) " The next ease was Medlycott v. Assheton [a), in which the deceased executed a will and codicil. By the codicil she gave lOOZ. each to two trustees named in her will, and divided some trinkets amongst her family. She afterwards ordered the will to be destroyed, which was done, but she preserved the codicil uncancelled, and it was found in her writing-desk. Sir J. NichoU said : ' A codicil is 'prima facie dependent on the will ; and the cancellation of the will is an implied revocation of the codicil. But there have been cases where the codicil has appeared so independent of and unconnected with the will, that, under the circumstances, the codicil has been established, though the will has been held invalid. It is a question altogether of intention, consequently the legal presumption in this case may be repelled merely by show- ing that the testatrix intended the codicil to operate, not- withstanding the revocation of the will. In my judgment, however, the circumstances of this case are not sufficient to establish such an intention in order to repel the legal presumption.' (e) " In Tagart and Bakeivell v. Hooper (b), the codicil was headed, ' This is a codicil to my last will, and to be taken as a part thereof Sir H. Jenner, in pronouncing for its validity, said : ' In all the cases referred to, there (a) 2 Add. 229. (6) 1 Curt. 289. 339 Book IV. Chap. VI. V' I 340 OF THE REVOCATION OF WILLS. *:!: mi ih i:| Book IV. were circumstances which showed that the codicils were Chap. VL dependent upon the wills ; there is nothing here to show that the codicil was contingent upon the existence of the will. The Court, therefore, in this case, suggests a pre- sumption contrary to that raised in the other cases ; for it decides that, to- make a codicil invalid, there must be proof that it was intended to be dependent on the wiU. (/) " The consideration of these cases leaves upon the mind no very definite idea of what is meant by ' depen- dent on the will.' In one sense, any codicil that makes any disposition of property at all must be considered to be dependent on the will, 'which disposes of the rest, for the codicil conveys only a part of the testator's intention regarding his property, and the motives inducing that particular part of his intention cannot, with any certainty, be dissevered from the motives which induced the dis- position of the rest. It is difficult, if not impossible, to predicate of a particular bequest in a codicil, that the testator would have made it, if he had disposed of his other property in any different manner than that expressed by his will. (g) " It may be that the independence of the will spoken of, is something of a more limited character ; and the meaning of the cases may be that a codicil is indepen- dent of a will, unless it is of such a character that the giving validity and eflect to it, without the wiU to which it was intended to be attached, would produce some manifest absurdity. I am not sure that even this rule is capable of being easily applied to all the cases that might arise, and I have serious doubts whether such a rule is to be gathered from the cases with sufficient distinctness to justify the Court in adopting it. (h) "Bui all these cases occurred before the Wills Act. EFFECT OF REVOCATION OF WILL ON CODICIL. 341 Now, the 20th section of that Act is most distinct and Book rv. positive in its terms : ' No will or codicil, or any part Chap. VI. thereof, shaU be revoked otherwise than as aforesaid, or by another will or codicil executed in the manner herein- before required, or by some writing declaring an inten- tion to revoke the same, * * * or by the burning, tearing, or otherwise destroying the same by the testator, * * * with the intention of revoking the same.' And I should have had no hesitation in holding that the intention of that section was to do away with all these implied revocations, and relieve the subject from the doubt and indistinctness in which the cases had involved it. (i) " But there have been two eases decided since the Act. The first was Clogstown v. Walcott and Others (a), in which the only observation bearing on this point, made by Sir H. J. Fust, was, ' Under the old law the effect of destroying a will was, by presumption, to defeat the operation of the codicils to that will ; but by the present law there must be an intention to destroy.' The other was the case of Grimwood v. Cozens and Others (6), in which Sir C. Cresswell said : ' I think it has been estab- lished by the cases cited at the bar, that previous to the passing of 1 Vict. c. 26, a codicil was prima facie depend- ent on the will, and that the destruction of the latter wa«" an implied revocation of the former ; and, moreover, that Sir H. J. Fust was of opinion that no alteration of this principle was made by the passing of the Statute. The question, then, is entirely one of the intention of the deceased. Where a will and codicil have been in exist- ence, and the wiU is afterwards revoked, it must be shown by the party appljdng for the probate of the codicil alone. (a) 5 No. Cas. 623. (b) 2 S. & T. 364. 1 ! r''' ^i.MlL %. !!- ■ r §4 ? 342 OF THE REVOCATION OF WILLS. i, ' h Book IV. that it was intended that it should operate separately Chap. VL from the will, otherwise it will be presumed that, as the will is destroyed, the codicil is also revoked. (Jc) " Now, in reviewing these decisions, I cannot per- ceive that the effect of the Statute has been fully con- sidered by the Court. Sir C. Cresswell seems to have thought that it had been decided that the Statute made no difference, and passed it by as having been so decided ; and Sir H. J. Fust dismissed the point without any reasoning whatever, merely affirming that the Statute had made it necessary that there should be an affirmative intention to revoke. (0 " But the Statute says nothing of the kind, and unless it makes an actual revocation necessary, it does not interfere with the existing law at all. In this un- satisfactory state of the decisions, I think I shall do best in such a case as the present by adhering to the Statute, and by holding that as this codicil has never been revoked in any of the modes indicated by the Statute as the only modes by which a codicil is to be revoked, it remains of full force and effect, and is entitled to be admitted to proof" o. The case of Black v. Johling was followed by the recent case of In the goods of lavage (a), decided by the same Judge (Lord Penzance), who, after referring to the former doctrine, to the case of Black v. Johling, and to the wording of the 20th section of the English Act (1 Vict. c. 26), remarks : " The Court cannot, in the teeth of the language of that section, lay down the proposition that a codicil is revoked by the mere fact of the revoca- tion of the will." He then mentions the cases of Clogstoivn V. Walcott and Orimwood v. Cozens, and remarks : " It (a) L. K. 2 Prob. 78 ; 39 L. J. P. 25; 18 W.E. 766 ; 22 L.T.N.S. 375. m EFFECT OF REVOCATION OF WILL ON CODICIL. 343 .1 seems to me that the matter was not properly considered Book iv. in those cases. I said as much in Black v. Johling ; but chap. vi. on looking at the case again, it occurred to me that the meaning of the Court had not, perhaps, been made suffi- ciently clear. The result is that, in my judgment, the words of the Statute are imperative, and that the deci- sions to which I have referred, since the passing of the Statute, do not appear to have proceeded on a considera- tion of the effect of those imperative words. In this case, the testator having left behind him a properly executed testamentary paper, which no doubt is in the form of a codicil, that paper must be admitted to probate, unless it is revoked in some manner indicated by the Statute. If a testator destroys his wiU and does not destroy his codicil, it appears to me that his intention probably is not to revoke the codicil ; hut I ^proceed not on the ground 0/ intention, out on words of the Statute. I hold that ivJien a testator has once executed a testamentary paper, that 23aper luill remain in force unless revoked in the particular manner named, in the Statute" (a). 6. These decisions lay down a plain and satisfactory rule regarding the revocation of codicils. Codicils are, in considering the question whether or not they are revoked, to be treated as independent testamentary papers. The old doctrine that the codicil is prima facie dependent on the will may be considered as abrogated by the Statute ; ill {«) Seo also the recent case of In the goods of Turner, L. R. 2 Prob. 403 ; 21 W. R. 38 ; 27 L. T. N. S. 322, where ther. "vas a close connec- tion between the will and the codicil. In the latter, the testatrix referred in several paragraphs to the dispo- sitions contained in the will; and she bequeathed a legacy to be held under conditions stated in her will. She subsequently destroyed the will by burning it, but preserved the codicil; and the Court held that the latter must be admitted to probate. This seems to be an extreme case- 's {','-. >i. V .1!^ if:' !:| ^4 .. V-"- ^i ,4 " > '(■ 344 OF THE REVOCATION OF WILLS. Book IV. and the question in each case will be, " Has the codicil (Jhap. VI. been revoked by any of the means prescribed by the Act" (a)? (a) It seems strange that this con- seems, however, to be based upon elusion, if correct, should not long clear and satisfactory reasoning, since have been established. It CHAPTER VII. OF DEPENDENT RELATIVE REVOCATION. 1. Origin and application of the doctrine of dependent relative revocation. 2. Case of Onions v. Tyrer, one of the earliest cases on the subject. 3. Statement of the doctrine by the Master of the Rolls in Ibbott V. Bell. 4. Case of Powell v. Powell stated. 6. Sir J. P. Wilde's judgment in that case. 6. Cancellation preparatory to the making o2 a new will, which was never made, ineffectual. 7. Cancellation, in consequence of a misapprehension as to the effect of a subsequent will, held ineffectual. 8. Revocation under the impression that the will was invalid, held ineffectual. 9. The doctrine applies to partial alterations. 10. Statement of the law by Baron Parke in Locke v. James. 1 1. Case of Dickinson v. Swatman. 12. Opinion of Sir C. Cresswell in that case. 13. The case of Dickinson v. Swatman, as reported, conflicts with Powell v. Powell. 14. The intention of the testator to revive an earlier will must, in order that the later destroyed will may be supported by tho doctrine in question, be plainly declared at the time of de- struction. 15. A revocation made under a false impression of fact ineffectual. 16. And it is immaterial whether the fjdse impression is the result of deceit or mistake. 17. Distinction between cases where testator refers to a fact as having actually happened, and those where the revocation, is founded on an expressed doubt. 18. Case of Attomey-Oeneral v. Ward. Lord Alvanley's opinion on the foregoing distinction. 19. Where the second disposition fails for want of capacity in the grantee, the first is nevertheless effectually revoked. 20. If the testator revokes his will upon the mere general purpose (unfulfilled) of making another, the revocation is effectual. 21. In order that the doctrine may be applied, there must be proof of actual destruction. 1. The doctrine of dependent relative revocation has Book iv. been established by the Courts to limit the consequences Chap. vii. of mistakes and misapprehensions on the part of testa- 1 ; ; .;-:-fJ ■ ■■ ,, ■'■'. ■ cr. 1 1 ,'«'"!' l' '"f i ^ h % ,. f'l i ^i. Ml IS if I: %i 346 OF THE REVOCATION OF WILLS. Book IV. tors. It applies in a variety of cases, but most commonly Chap. VII. in those where the testator, having made a subsequent will, which fails to take effect by reason of defective ex- ecution or otherwise, revokes a prior will : in such cases, the condition upon which the revocation was presumedly founded, being unfulfilled, the former will remains unre- voked. 2. One of the earliest cases in which the doctrine in question was applied was Onions v. Tyrer (a). In that case a man made a second will to the use of the same per- son to whom he had devised the land by the first will, with a variation only in the name of one of the trustees ; but the second will was not good, because not duly attested according to the Statute of Frauds. After so executing the second will, he proceeded to cancel the first by tearing off the seal. One question was, whether the cancelling of the former will was a revocation thereof within the Statute of Frauds and Perjuries ; and it was held that it was not, because there was no self-substi- tuting independent act, but only an act done to accom- pany or in way of affirmation of the second will. It was done from an opinion that the second will had actually revoked the first, which induced the testator to tear that, as of no use. Therefore, if the first was not effectually revoked by the second, neither ought the act of tearing the first to revoke it ; for though a man might, by the Statute of Frauds, as effectually destroy his will by tearing or cancelling it, as by making a second will ; yet when he intended to revoke the first will by the second, and it was insufficient for that purpose, as in the princi- pal case, and the tearing and cancelling the first was only iu consequence of his opinion that he thereby made good (a) 2 Vem. 742 ; S. C. Prec. in Ch. 459 ; 1 Eq. Caa. Abr. 408. ^ Mi DEPENDENT RELATIVE REVOCATION. 347 ains unre- the second will, the tearing and cancelling should not Book IV. destroy the first, but it ought to be considered as still chap. VII. subsisting and unrevoked (a). It would have made no difference if the latter will had been in favour of another person from the former (b). 3. The doctrine of dependent relative revocation has been thus laid down by the Master of the Rolls in Ibbott V. Bell (c) : " If a will is revoked by cancellation, so as to give effect to different dispositions, such revocation is not effectual if the substituted dispositions are not effective. The rule of the English law, following that of the civil law, is, Tuncprius testamentum rumintur cum posteHus perfectutn est." 4. In Powell v. Powell {d), where a testator executed a will in 1864, revoking all former wills, and in 1865 he destroyed this will, with an intention expressed at the time that he wished to substitute for it a will of 1862 which he held in his hand ; this intention failing to take effect (e), it was held that the act of destruction by the testator was referable solely to his intention to validate the will of 1862, and that the act being conditional and the condition unfulfilled, there was no revocation. 5. Sir J. P. Wilde remarks in his judgment : " I con- ceive that the doctrine of dependent relative revocation properly applies to facts such as this case involves. This doctrine is based upon the principle that all acts by which a testator may physically destroy or mutilate a testa- mentary instrument, are in their nature equivocal ; they may be the result of accident, or, if intentional, of various intentions. It is therefore necessary in each case to study the act done by the light of the circumstances under ijfl iit, '■I ' i d'' 'I .r ■ i ^tv1 (a) Powell Dev. 60. (6) See Sir Wm. Grant's judgment in Ex parte the Earl of Ilchester, 7 Ves. 379. (c) 34 Beav. 395- (rf) L. R.lProb. 209;35L. J. P. 100 ; 14 L. T. N. S. 800. (e) See 1 Vict. c. 26, s. 22. :;l'ri^;1 ;t i ii iiti m II, I lift iiii i| ■ i ' ^■. I]. \ . ■ ■: ,t 1, , ji in 8 ■iih ^ . i.'; 1 V . ii V , t.l s t . t ' , > '. ^ '• ■ 'i ^V j '' \i \ , ■ ' i ' !i \ ' : J f! r 1 ; f ■ U. , ]■ 348 OF THE REVOCATION OF WILLS. Book IV. which it occurred, and the declarations of the testator Chap. VII. with which it may have been accompanied. For unless* it be done animo revocandi, it is no revocation. What, then, if the act of destruction be done with the sole intention of setting up and establishing some other testa- mentary paper, for which the destruction of the paper in question was only designed to make way ? It is clear that in such case the animus revocandi had only a con- ditional existence, the condition being the validity of the paper intended to be substituted ; and such has been the course of decision in the various cases quoted in argu- ment. But then it is said that this method of reasoning has only hitherto been applied to cases in which the de- struction of the script has accompanied the execution of the instrument intended m substitution ; and that no de- cided case can be found in which the instrument intended to be established has been a long-previously executed paper. But I fail to perceive a distinction in principle between the two cases. For what does it matter whether a testator were to say, ' I tear this will of 1860 because I have this day (1st of January, 1861) executed another designed to replace it,' or ' I tear this will of 1860 be- cause I desire and expect that the effect of my doing so will be to set up my old will of 1840 ? In either case the revocatory act is based on a condition which the tes- tator imagines is fulfilled. In both cases the act is re- ferable, not to any abstract intention to revoke, but to an intention to validate another paper ; and, as in neither case is the sole condition upon which revocation was in- tended fulfilled, in neither is the animus revocandi present" (a). (a) See also Scott v. Scott, 6 Jur. 423 ; Major v. Williams, 3 Curt, N. S. 298 ; 1 S. & T. 258 ; Ex parte 432 j In the goods of Cockayne, Earl of Ilchester, 7 Ves. .348, 372, Deane Ecc. Rep. 177 ; 2 Jur. N. S. 379; Perrott v. Perrott, 14 East. 454$ HaXlv. TokeUm,2'Bxi\>. 318; TTrr DEPENDENT RELATIVE REVOCATION. 149 G. In a case before Sir John Nicholl (a), where it Book IV. appeared that a will was, by the direction of the testator, CHAprviI. altered in pencil, and was approved of by him when so altered, and was then cancelled only in order that another might be drawn up, which was prevented by the testator's death ; the learned judge held that the cancellation being preparatory to the deceased making a new will, and con- ditional only, was not a revocation (b). . , 7. It was considered by Lord Ellenborough, in the case of Perrott v. Ferrott (c), that a will cancelled in conse- quence of a mistaken idea of the legal effect of the pro- visions made by a subsequent will, is not thereby effec- tually revoked. " If," said his Lordship, " a man cancel his will under a mistake in point of fact that he has com- pleted another, when he really has not, as was the case in Hyde v. Hyde, the cancellation is void ; and if he cancel it under a mistake in law, that a second will, complete as to the execution, operates upon the property contained in the first, when, from some clerical rule, it really does not, shall this be deemed a valid cancellation '<" 8. The doctrine of dependent relative revocation has z-ecently been applied to a case in which it appeared that a testator, under the false impression that his will was invalid, tore it up. Immediately afterwards, on recon- sideration, he collected the pieces, and placed them together amongst his papers of importance, and preserved Newton V. Neioton, 12 Ir. Ch. Rep. 118 : 13 Jr. Ch. Rep. 24.5 ; In the goods of Middleton, 3 S & T. 583 ; 11 L. T. N. S. 684 ; 10 Jur. N. S. 1109 ; 34 L. J. P. 16 ; Glarkson v. Clarksm, 2 S. & T. 497 ; Rogers v. Goodmovgk, 2 S. & T. 342 ; 31 L. J. P. 49 ; 8 Jur. N. S. 391 ; 5 L. T. N. S. 719 ; Dickinson v. Swatman, 6 Jur. N. S. 831 ; 30 L. J. P. 84 ; Lord Thynne v. Stanhope, 1 Add 52 ; Tupper V. Tupper, 1 !Kay& J. 665; Ifeifill V, Boddam, 28 Beav. 654 ; Quinn v. Butler; L. R. 6 Eq. 225 Burtenshaw v. Gilbert, Cowp. 49 Winsor v. Pratt, 5 J. B. Moo. 484 2 Br. & B. 650. But see In the goods of Weston, L. R. 1 Prob. 633 : 38 L. J. P. 53; 20 L. T. N. S. 330. (a) In the goods of Applebee, 1 Hagg. 143. (6) See also In the goods of De Bode, 5 No. Cas. 189; In the goods of Eeles, 2 S. & T. 600 ; In the goods of Mitcheson, 32 L. J. P. 202. (c) 14 East. 440. .1-) . ■ ■< ijs, ■;P l\),}} p i P' : 11;^ i:i ii ■;•! ' I: >]■ ■^-1 lit U ' 850 OF THE REVOCATION OF WILLS. iBooK IV. them until his death ; the Court held that as the act done Chai'. VII. was not accompanied by an intention to revoke a valid will, it was ineffectual jis a revocation, and the will was admitted to probate (a). 9. The doctrine of dependent relative revocation applies to partial alterations. Thus, when a testator strikes out the name of a devisee, and at the same time interlines that of another, or substitutes a larger or smaller interest for that which he had previously given ; if the interlineation is inoperative for want of attestation, the obliteration will also fail of effect (6). And when a testator executed a will bequeathing a number of legacies, the amounts of which were stated in words, and afterwards erased some of these words, and inserted others — the alterations being unattested — and also cut out a portion of his will, the substi- tutions failing of effect, the doctrine of dependent relative revocation was applied so as to preserve the will in its ori- ginal condition (c). 10. In Locke v. James (d), Parke B. said, " It (the erasure) is treated as an act done by mere mistake, sine animo cancellandi. What the testator in such a case is considered to have intended is a complex act, to undo a previous gift for the purpose of making another gift in its place. If the latter branch of his intention cannot be effected, the doctrine is, that there is no sufficient reason to be satisfied that he meant to vary the gift at all." The doctrine under discussion is here very clearly stated. 11. In the case of Dickinson v. Swatman (e) it was, however, held, that where a testator had madeawill in 182G, (a) Oilesv. Warren, L.K.2.Prob. 401; 41 L. J. P. 59; 26 L. T. N. S. 780 ; 20 W. R. 827- (6) SkoH V. SmUh, 4 East. 419; Kirke v. Kirke, 4 Russ. 435 ; Locke V. James, 11 M. & W. 901 ; Soar v. Dolman, 3 Curt. 121 ; Brooke v.Kent, 3 Moo. P. C. 334 ; 1 No. Cas. 99 ; In the goods of Ibbetson,2 Curt. 337 ; In the goods of Reeve, 13 Jur. 370. (c) In the goods of Nelson, 6 Ir. Rep. Eq. 569, Prob. (d) Sup. (e) 6 Jut. N. S. 831 ; 4 S. & T. 205 ; 30 L. J. P. 84. DEPENDENT RELATIVE REVOCATION. 351 1 ■h '* '» and a subsequent one in 1851 which revoked the former Book IV. will, and in 1859 he destroyed the will of 1851 with the Chap. VII. avowed object of recalling into existence the will of 1820; an object which was prevented by s. 22 of 1 Vict. c. 26 ; it was held that, although the intention of the testator failed, yet the destruction of the will of 1851 must be held to be final and complt ti\ and the deceased must be considered to have died intestate, 12. Sir C. CressweU said, "The doctrine of dependent relative revocation applies only where a will is destroyed on the supposition that a subsequently executed will is valid. There is no case in which it has been applied to past transactions, or that a will which has been cancelled on the supposition that an earlier will is thereby revived, shall, on the failure of that condition, be re-established." 13. The circumstances in Dickinson v. Sivatman, it will be observed, were very similar to those in Pcyivell v. Powell above referred to (a), in which the Court came to a contrary conclusion. Sir J. P. Wilde remarks in his judgment that Sir C. CressweU, in deciding Dickinson v. Sivatman, did not appear to have been satisfied that the sole intention in destroying was to set up the previous will ; and he suggests that the case was aecided on other grounds than those assigned in the report. Such indeed appears to have been the fact; and the case of Dickinson V. Swatman may, therefore, be considered only an autho- rity for the proposition, that the Court will not apply the doctrine of dependent relative revocation to a case where a testator has destroyed a will, through a mistaken notion of the legal effect of its destruction, if it is satisfied that he intended entirely to revoke that will. 1 4. The intention of the testator to revive an earlier ';,' ip 1 I'^^HI • 'i f 1 1 't (a) L. R. 1 Prob. 20», Ml ii: 562 OF THE REVOCATION OF WILLS. M ' IB Book IV. will by the destruction of a li; Jer one must, in order that Chap. VIL the doctrine of dependent relative revocation may be suc- cessfully invoked in favour of the destroyed will, be plainly declared at the time of the destruction. Thus, where, in England, a testatrix destroyed a will, without stating at the time her intention in doing so, and she sub- sequently, on the same day, said that she destroyed the will with the intention that a former will should take effect, the Court refused probate of the destroyed will (a). And it is also necessary, in order to establish a case of dependent relative revocation, to show, by the evidence of disinterested witnesses, that the act of destruction by the testator was referable wholly and solely to an intention to set up some other testamentary paper (h). 15. The principle of the doctrine of dependent relative revocation has been extended to cases in which, by a sub- sequent will or codicil, a disposition is made different from a former one under a false impression, the impulse of which is the foundation of his wish to change his former intent ; in such cases the new disposition will be considered only as effecting a contingent presumptive re- vocation, depending on the existence or non-existence of that fact (c). A.s if one, having previously' devised to A, afterwardrf, by another will, without destroying ihe first, or by codicil, devise to B, stating her to be his wife, so that it may be understood that he intended her to be benefited in that character only, and it turn out that she was married before, and had a husband living, neither of which facts, v/ere in the devisor's knowledge (d), such de- vise or codicil will not operate as a revocation of the (a) In the goods of Weston, L. R. 1 Piob. 633 ; 38 L. J. P. 53 ; 20 L. T. N. S. 330. (6) Eckersley v. Piatt, L. R. 1 Prob. 281 ; 36 L, J. P. 7 ; 15 L. T. N. S. 327. (c) 1 Williams Exora. 165. Id) An appointment by a will to a husband under circumstances of this nature occurred in Kennell v. AlAxM, 4 Yes. 802. 'f ii i 1 DEPENDENT RELATIVE REVOCATION. 353 former will, because it depends on a contingency which fails {a). 16. And it is immaterial to the operation of the rule whether the testator acts under a ftilse impression origin- ating from a deceit practised upon him. or whether the reason given by him for making che new disposition is the result of mistake on the part of the testator, and not of deceit practised upon him (h). Thus, where the testator gave legacies to the grandchildren of his sister, and after- wards, by a codicil, revoked the legacies, giving as a reason that the legatees were dead ; upon its being proved that the fact of their death was not true, Lord Loughborough held that the legacies were not revoked, on the ground t'lat the cause of the revocation was false: and said whether it was by misinformation or mistake was per- fectly indifferent (c). 17. It must be observed, however, that there is a dis- tinction between cases where the testator refers to a fact as having actually happened, which is the class of cases just considered, and those in which the revocation is founded merely upon an expressed doubt, supposition, or advice of the fact. In the latter class of cases, the authori- ties show that whether or not the doubt, supposition, or advice is well founded, the revocation is effectual {d). 18. In the case of The Attorney -General v. Ward (e), a testatrix, having by her will given 300^. to be divided among such of the children of E. D. as should be living, by a codicil gave to her brother's son " the 300Z. designed Book IV. Chap. VII. 11 (a) 1 Powell Dev. 524. (b) 1 Williams Exors. 165, 166. (c) Campbell v. French, S Ves. 322. See also In the goods of Moresby, 1 Hagg. 378, where a nuncupative will, made under the mistaken im- pression that a fonner written will was lost, was held not to have re- voked the fonner will ; and Doe v. W Evans, 10 A. & E. 228, where the Court supported the provisions of a will which the testator had revoked under the misttiken impression that no person intended to be benefited by the former will was in existence. (d) 1 Williams Exors. 167 ; Att) 1 Williams Exors. 108. (r) Tapper v. Tapper, 1 Kay & J. (5(55. See also Quinn v. Butler, L. K. 6 Eq. 225. (t/) Williams v. Tylei/, 1 Johns. 529. (c) Doe d. Crooks v. Cummings, '1 U. C. Q. B. 305. hi p DEPENDENT RELATIVE REVOCATION. 355 was unexecuted, it was held that the old will was Book iv. effectually revoked, and that the testator had died intes- CHArrvii. tate, the Court remarking that no case could be found to support the proposition that when the former will was completely cancelled a mere intention to substitute a new will for it would prevent such cancellation from being effectual. 21. The Courts will not apply the principle of de- pendent relative revocation unless there is proof of the actual destruction of the instrument («). (a) Homerton v. Hewett, 25 L. T. N. S. 854. 'ri«;i 4,i .)! I 1 ', li'iiL CHAPTER VIII. OF THE CONSEQUENC^-S RESULTING FROM THE LOSS OR MUTILATION OF A WILL. 1. The rule is, that a will traced into testator's custody and not fcrnd at his death, is presumed to have been revoked ; but if in custody of another, revocation must be proved. 2. Example of this rule. 3. There must, however, be evidence to satisfy the Court that the will was not in existence at the time of the testator's death. 4. The rule is not always rigidly adhered to— example. 5. If testator having custody of his will becomes insane, revoca- tion will not be presumed. 6. After due execution of a will is proved, the burden of proving revocation lies on those who assert it. 7. Mutilations presumed to have been made after execution. 8. Declarations of a testator not admissible unless part of the res gesta. 9. A will lost or destroyed by accident may be proved in various ways. 10. The Court regards evidence of the contents of a lost will with great jealousy. The evidence must be clear and satisfac- tory. 11. Example of insufficient proof of execution. 12. An entry in the books of a deceased solicitor, in his own hand- writing, held admissible to prove that a will was executed . 13. Mode of establishing contents of a lost will considered. 14. The declarations of a testator when he made his will, as to its contents, held admissible to prove the contents, if the will be lost. 15. It is not necessary to show how the original instrument was lost. 16. "Wills of living persons may be deposited for safe keeping in the Surrogate Court office. ■ i 'I. ig . I I'ooK IV. 1. The rule of evidence in regard to presumptive revo- Chap.~VIII. cations from the absence or mutilation of the will seems to be, that if the will was traced into the testator's posses- sion or custody, and was there found mutilated in any of the modes pointed out in the statute for revocation, or was not found at all, it was presumed that the testator destroyed OF LOST OR MUTILATED WILLS. 357 LOSS OR tody and not revoked ; but •oved. Court that the jtator's death. .le. nsane, revoca- en of proving xecution. part of the rts ved in various I lost will witli r and satisfac- his own hand- as executed. dered. s will, as to its 8, if the will be nstrument was keeping in the mptive revo- le will seems ator's posses- ted in any of jation, or was ior destroyed or mutilated it animo revocandi (a) ; but if it was last in the Took iv. custody of another, it was incumbent upon the party Chap. V II asserting revocation to show the will again in the testator's custody, or that it was destroyed or mutilated by his direction (6). 2. Where a portion of a will was found locked up in the testator's bureau, the first sheet, containing the substance of the will, being detached and missing, it was held on the presumption of law, that the mutilation was done by the testator animo revocandi (c). And o codicil not found with the will, and other codicils, is presumed to have been revoked (d). 3. But the presumption that a will in the testator's pos- session, and not forthcoming after his death, has been revoked, does not arise, unless there is evidence to satisfy the Court that it was not in existence at the time of his death. Thus, when a will which had been in the testator's custody, could not be found in his depositories after his death, but there was evidence of declarations recognizing its existence up to within three weeks of his death, and there was no evidence of any change of intention during those three weeks, and the only person who was inter- («) Cutto V. Gilbert, 9 Moo. P. C!. S. 131; Bcssey v. Bosttvick, 13 Grant, 27i»; Ehm V. Elms, 1 S. & T. 15.5; 4 Jur. N. S. 765 ; 27 L. J. P. 9() ; In the goods of Mitcheson, 9 Jur. N. S. 3(J0 ; 32 L. J. P. 202 ; In the goods of Sliaw, 1 S. & T. 62 ; 31 L. T. 41 ; Hnmerton v. Keicett, 25 L. T, N. S. 854. (b) Hare v. Nasmiith, 3 Hagg. 192 n. ; In the goods of Lewis, 1 S. A T. •SI; 4 Jur. N. S. 243; 27 L. J. P. 31; Battyl! v. Lutes, 4 Jur. X. S. 718 ; Eckersley v. Piatt, L. 11. 1 Prob. 281; 31) L. J. P. 7 ; 15 L. T. N. S. .327 ; Wood V. Wood, L. R. 1 Prob. ;i09; 36 L. J. P. 34; 15 L. T. N. S. .593 ; Pat- ten V. Poitlton, 1 S. & T. .55; 4 Jur. N. S. ;J41; 27 L. J. P. 41. See Wi/nn v. Heveninyham, lColl.638, 639,upoii the general question of pre8umptions,and 1 Redf. Wills, mi, 307; Emva v. Dal- low, 31 L. J. Prob. 128; In the goods of Brown, 1 S. & T. 32 ; 4 Jur. N. S. 244; 27 L. J. P. 20; Battytl v. Lylea, sup. ; In the goods of Shmv, 1 S. & T. (12; Mum ford v. Richards, 2 Phillim. 23 ; Thynne v. Stanhope, 1 Add. 52; .Shaw V. Thoriie, 4 No. Cas. 649 ; In the goods of Gullan, 1 S. & T. 23 ; 27 L. J. P. 15 ; 4 Jur. N. S. 196. ' c) Williams v. Jones, 7 No. ('as. 106. See also. In the goods of Gullan, sup.; Gullan v. Grove, 26 Beav. 64. See also as to the contrary presump- tion, In the goods of Kinq, 2 Rob. 403; In the goods of Kennct, 2 N. R. 461. id) In the goods of Sha%o, 1 S. & T. 62;31L. T. 41. t^!'; i ...c 358 OF THE REVOCATION OF WILLS. ■ 1 f? Hi Book IV. ested in an intestacy had access to and made a search in the Chap. VIII. depositories before they were searched by any other per- son, and failed to aj^pear to be cross-examined, the Court refused to presume that the will had been revoked, and granted probate of the draft (a). 4. And the rule of evidence, above referred to, is not rigidly adhered to. Thus, where a will, executed two years before the death of the testator, was found in a box, torn in several pieces, and the woman who had cohabited with the testator some years before his decease in Decem- ber, 1860, testified that in August of that year, at his re- quest, she took the will from the box and gave it to him, and that he tore it in pieces and returned it to her, and directed her to put the pieces in the fire, and her testi- mony was confirmed by that of her brother-in-law, who claimed to have been present ; it was, nevertheless, held .at from the improbability of the story and other testi- iiiouy by letters written by the deceased, a counter pre- sumption arose that the tearing was not done by him or with his knowledge, and that therefore there was no revocation (6). 5. And where the testatrix became insane, and the will was in her custody as well before as after she became so, the will being torn or destroyed, it was held that the burden of showing that the revocation was done, not after the testatrix became insane, but when she was of sound mind, is cast on those who set up the revocation (c). The same principle was acted upon in Sprigge v. Sprigge (d), where the will could not be found after the testator's death. (a) Finch v. Finch, L. R. 1 Prob. 371 : 16 L. T. N. S. 268 ; 36 L. J. Prob. 78. See also Podmore v. What- ton, 3 S. & T. 449; 33 L. J. P. 143; lOL. T. N. S. 754, (6) Staines v. Stewart, 8 .Tur. N.S. 440 ; 2 S. & T. 320 ; 31 L. J. P. 10 ; 1 Redf. Wills, 331, 332. See also Patten v. Poulton, IS. & T. 5o ; 4 Jxir. N. S. 341 ; 27 L. J. P. 41. (c) Harris v. Berrall, 1 S. & T. 153. (d) L. R. 1 Prob. 608 ; 38 L. J. P. 4 ; 19 L. T. N. S. 462. I i^f,!' OF LOST OR MUTILATED WILLS. 359 f 'm^ 6. After the due execution of a will has been proved, Book IV. the burden of proving that it was revoked lies upon those Chap. VIII. who set up the revocation ; and in tlie absence of evidence revocation will not be presumed. Thus, where, in Eng- land, a will duly executed before the passing of the Wills Act, and remaining in the custody of the testator until his death, was found with his signature crossed out — a mode of revocation which was formerly effectual — and there was no evidence as to the date when the crossing out was done, the Court refused to presume that it was done be- fore 1838, and therefore pronounced for the will (a). If, therefore, the words " otherwise destroying," in the oth section of our Act, 32 Vict. c. 8, must receive the same narrow construction as the same words in the 20th section of the English Act, the principle of this decision will, in this Province, be applicable to all wills made before the passing of our Act (19th December, 1868), by personswho have died since the 1st day of January, 1869 (6). 7. The same principles apply to mutilations as to alter- ations and interlineations in a will ; so that, if no evi- dence can be given as to the time at which they were made, it will be presumed that they were made after the execution of the document in which they appear ; and if there is a subsequent testamentary paper to that, after the execution of the subsequent paper (c). 8. The declarations of the testator to the fact of re- vocation are not admissible, except made at the time, as part of the transaction, and in connection with and ex- ^k (a) Benson v. Benson, L. K. 2 Prob. 172 ; 40 L. J. P. 1 ; 23 L. T. N. S. 709. (6) 32 Vict. c. 8, s. 6. See also In the goods of Streaker, 4 S. & T. 192 ; 28 L. J.P. 50 ; Harris v. Berrall,! S. & T. 153 ; Sprigge v. Spriyge, L. K. 1 Prob. 008 ; 38 L. J; P. 4 ; 19 L. T. X. S. 462. (c) Christmas v. Whinyates, 3 S. & T. 81 ; 9 Jur. N. S. 283 ; 32 L. J. P. 73 ; 8 L. T. N. S. 801. \] I , 1 L I 360 OF THE REVOCATION OF WILLS. Book IV. planatory of the purpose of his acts (a). But such decla- Chap. VIIJ. rations were held admissible in a recent case to rebut the presumption of revocation, from the will not being found at the testator's decease (6). 9. A will lost or destroyed, sine animo revocandi, may be proved by the instructions, or by a copy, or by the re- collection of persons who heard it read over (c). Thus where the will of a testator was, after his death, torn by his eldest son, the Court established the will upon parol evidence of the contents, and some evidence furnished by some pieces of the will which had been preserved (d). 10. The Court regards evidence of the loss or destruc- tion of a will with great distrust, and requires strict proof that the will was in existence after the testator's death (e), and was duly executed, and that the circum- stances of the loss or destruction should be explained (/)• (a) Staines v, Stewart, 2 S. & T. 320 ; 8 Jur. N. S. 440 ; 31 L. J. P. 10 ; Doe v. Palmer, 16 Q. B. 747 : per Lord Campbell, p. 757. Seealsoasto the effect of statements made by the testator regarding his will, Johnson V. Lyford, L. R. 1 Prob. 546 ; 37 L. J. P. 65 ; 18 L. T. N. S. 769 ; In the goods of Riplei/, 1 S. & T. 68 ; 4 Jur. N. S. 342 ; Quick v. Quick, 3 S. & T. 442 ; 10 Jur. N. S. 68 .! ; 33 L. J. P. 146 ; 12 W. R. 1119 ; 10 L. T. N. S. 619 ; Bessey v. Bostioick, 13 Grant, 279. (6) Whitely v. King, 17 C. B. N. S. 756 ; 10 Jur. N. S. 1079 ; 11 L. T. N. S. 342. (c) Taylor Evidence, 430 ; Brown v. Brown, 8 E. & B. 886 ; 4 Jur. N. S. 163 ; 27 L. J, Q.B. 173. See S». t'. 1 S. & T. 32 ; 4 Jur. N. S. 244 ; 27 L. J. P. 20 ; Wood V. Wood, L. R. 1 Prob. 309 ; 15 L. T. N. S. 593 ; 36 L. J. P. 34 ; In the goods of Lang- trv, 1 N. R. 194 ; In the goods of Pe- chelf, 6 Jur. N. S. 406 ; In the goods of Gardner, 1 S. & T. 109 ; 27 L. J. P. 55. But see Wharram v. Whar- ram, 3 S. & T. 301 ; 33 L. J. P. 75 ; 10 L. T. N. S. 163 ; 10 Jur. N. S. 499 ; Bessey v. Bostioick, 13 Grant, 279 ; In the goods of Thomas, 25 L. T. N. S. 509 ; 20 W. R. 149 P.; In the goods of Brining, 22 L. T. N. S. C30. (d) Foster v. Foster, 1 Add. 462. See also Knifiht v. Cook, 1 Cas. temp. Lee, 413 ; Podmore v. Wliatton, 3 S. & T. 449 ; 10 L. T. N. S. 754 ; 33 L. J. P. 143 ; In the goods of Colman, 14 W. R. 291 ; 13 L. T. N. S. 682. In a doubtful case our Court of Chanceiy will direct a bill to be filed in order to try the rights of the various parties: Bessey v. Bostwick, 13 Grant, 279. (e) But in Bessey v. Bostwick, su))., the Court established a lost will without requiring such proof. (/) Quick V. Quick, 3 S. & T. 442 ; 10 Jur. N. S. 682 ; 3;$ L. J. P. 146 ; 10 L. T. N. S. 619; Moore v. White- house, 3 S. & T. 567 ; 34 L. J.P. 31 ; Burls V. Burls, L. R. 1 Prob. 472 ; In the goods of Barber, L. R. 1 Prob. 267 ; Hayes & Jarm. Wills, 36 n. {:.) And see Berthon v. Bei-thon, 18 L. T. N. S. 301, where it was sought to have an existing will declared n- voked by a will which was not forth- coming. OF LOST OR MUTILATED WILLS. 361 And the evidence to establish the contents of an absent Book I v. will must be such as leaves the mind free from all reason- Chap. viit. able doubt. The Court will therefore refuse to declare the contents of a lost will on the unsupported evidence of one witness, who is related to the person benefited by the will (a). Evidence of the declarations of an alleged testator as to the contents or factum of a will not forth- coming, made after its execution, is not admissible to prove the contents (6). 11. In a late case, in which it was sought to establish the factum and contents of a missing codicil, of which no cop3' had been preserved, the purport of the codicil was proved by the intervener and the legal adviser of the tes- tator, both of whom had read the document, and they proved that it had been attested by two females. The witnesses remembered signing a paper, but they could not say what the nature of the paper wa.s. One of the witnesses was in the habit of witnessing papers for the testator. The Court did not consider this evidence suffi- cient proof of the factum, and refused probate (c). 12. Where a will had been left in the custody of a solicitor, but could not be found in his depositories, an entry in the books of the solicitor, in his handwriting, to the effect that he had prepared the will and attested its execution, and been paid his charges, wa.s, after the death of the solicitor, admitted as evidence of the execution of the will (d). 13. When a will has been lost, and evidence of its con- tents is supplied by the production of a draft and of the {(t) Bessey v. Bostwick, 13 Grant, 279. See also Cidto v. Gilbert, 9 Moo. P. C. 131, where it was sought to establish a revocation of a will by a subsequent will not forthcoming. (b) Quick V. Quick, 3 S. & T. 442 ; 10 Jur. N. S. 082 ; 33 L. J. P. 146 ; 10 L. T. X. S. 619 ; In the goods of Ripley, 1 S. & T. 68 ; 4 Jur. N.S. 342. (r) Cfickett v. Field, 19 W. R. 232 ; 23 L. T. N. S. 630 P. (d) In the goods of Thomas, 20 W. R. 149 ; 25 L. T. N. S. 509. iili m m III )vJl 862 OF THE REVOCATION OF WILLS. * ! Book IV. jiarol testimony of persons who had read the will, the Chap.' VIIT. parol evidence must be placed side by side with the draft, and out of them the Court will extract the contents of the will to be proved (a). 14. The verbal declarations of a testator at the time when he made his will, respecting his will, and letters written at that time, are admissible as evidence of the contents of the will, if it be lost, the factum of the will being proved {b). 15. It is not necessary for the parties seeking probate, having proved the factum of the original instrument, and given sufficient secondary evidence of its contents, to show how the original instrument was in fact destroyed or lost (c). 10. The Surrogate Courts Act (C. S. U. C. c. IG) pro- vides (d) that the office of the Registrar of every Surro- gate Court shall be a depository for all wills of living persons given to such Registrar for safe keeping ; and all persons may deposit their wills in such depository upon payment of such fees and under such regulations as may from time to lime be directed by rules or orders in that behalf made under that Act. (a) Burls v. Burls, L. R. 1 Prob. 472. (b) Johnson v. Li/ford, L. R. 1 Prob. o4(i ; 37 L. J. P. 65 ; 18 L. T. N. S. "Gil. (c) Patten v. Poulton, 1 S. & T. 55 ; 4 Jur. N. S. Ml. (d) S. 73. U T?f CHAPTER IX. •1; OF REVOCATION BY ALTERATION OF ESTATE AND BY VOID CONVEYANCES. 1. Nature of this revocation. It is not properly a revocation. 2. Old rule that an alienation of lands revoked a devise. 3. Revocation by alienation may be total or partial. 4. The revocation is eflfected though the conveyance be for a lim- ited object, «S;c. 5. The same rule follov ed in the Courts of Equity as to equitable estates. (5. Exceptions to the : ule — cases of partition and cases of mort- gage. 7. Qualification of the latter exception. 8. Where a man purchases by parol contract, supplemented by part performance, and devises, and accepts a conveyance accord- ing to terms of purchase, there is no revocation ; but if the estate conveyed is different, there is. 9. A valid agreement to convey is a revocation . 10. A void conveyance will operate as a revocation. 11. Lord Kenyon's statement of the reason of this doctrine. 12. True explanation of the doctrine. 13. Conveyance to charitable uses, which is void, does not revoke. 14. A deed void in equity but not at law was a revocation. Lord Thurlow's decision in Hawes v. Wyatt more consonant to reason. 15. Case of Louyhead v. Knott in our own Court. Construction of Con. Stat. U. C. c. 82, s. 11. IG. Judgment of Y.-C. Mowat. (a) Condemnation of the principle of the doctrine. {b) Its abolition by 1 Vict. c. 26, in England. (c) Statement of the doctrine. (d) C. J. Eyre's statement of the law. (e) Lord Hardwicke's explantation in Parsons y. Freeman. (f) Some cases go even further. (g) C. J. Wilmot's statement of the law. (h) Rule applies though there is no change of seisin. Law altered by Stat. Ont. 32 Vict. c. 8, s. 2. Provisions of " The Wills Act, 1873." Construction placed on 1 Vict. c. 2C, s. 23, by l'.;i English Courts. Case of Ford v. De Pontes. Judgment of the Master of the Rolls in that case. Construction of the concluding words of the section. Case of Gale v. Gale stated. 17. 18. 19. 20. 21. 22. •.^ '^ :i !i I! I f I'll r t .5 364- Book IV. Chap. IX. OF THE REVOCATION OF WILLS. 1. It is not purposed in this work to discuss with much particularity the law relating to revocation by alteration of estate. Strictl}' speaking, what is termed a revocation by alteration of estate is merely a withdrawal, by aliena- tion, from the operation of the will, of real estate of which the testator was seized at the time of making the will ; and it is founded upon the technical '". which has been previously noticed, that a will co iiot pass any intei-est in freeholds of which the testator was not seized at the time of making the devise. 2. Formerly, if a testator, subsequently to his will by deed, aliened lands which he had disposed of by such will, and afterwards acquired a new freehold estate in the same lands, such newly acquired estate did not pass by the devise, which was necessarily void {a). This rule of law- is described by Sir W. Page VVood,V.-C. (6), as " that law, now happily obsolete, by which, with a sort of remorseless logic, any person who had once made a will, and after- wards disposed of his interest for any purpos'^ latsoever, even although he might get back the id 1 estate which he parted with, was held to have revoked his will, and Equity could not give any assistance except in the single case of a moi'tgage." 3. A revocation by alienation may be total or partial. Thus, if a testator, seized in fee, made a devise of such ice and afterwards carved out of the fee simple a particular estate, which he conveyed to anothei", the devise was re- voked as to the particular estate thus aliened, but was no further disturbed (c). When, however, the conveyance subsequent to the devise, though made for a partial pur- pose, embraced the entire fee simple or the whole estate (a) 1 Jarm. Wills, 136 ; Goodtitic d. Hoi ford v. Otwaii, 7 T. R. 309 ; 2 H. Bl. 516 ; 1 B. & P. .576. (' ) Orant v. Bridget, L. R. 3 Ef|. 35'2 ; 36 L. J. Ch. 377. (.) IJarm. WiUs, 137. REVOCATION BY ALTERATION OF ESTATE. 365 of freehold which is the subject of the dovise, the rule Hook IV, under the old law (with some exceptions) is, that the Chap. IX. conveyance, though limited in its purpose and thou2.'<; Rider v. Kwicr, I1)..S82 • Mailer v. (iinrUiiid,iyn;]i<-MA, W.i : Knnlhis v. Akork, i> \'fs. fi54 ; Vawser v. Jefferi/. 2 Sw. 208. \i .i : -J Iltii I' «ii 868 OF THE REVOCATION OF WILLS. Book IV. estate to tnisteea, for the use of his wife, was held not to Chap. IX. amount to a revocation of the bequest (a). 10. An instrument purporting to be a conveyance, but incapable of taking effect as such, might nevertheless operate to revoke a previous devise, on the principle, as it should seem, that the attempted act of conveyance was inconsistent with the testamentary disposition; and therefore, though ineffectual <^"> vest the property in the alienee, it produced a revocation of the devise. The rule obtained wherever the failure of the conveyance arose either from the incapacity of the grantee, or from the want of some ceremony which was essential to the efficacy of the instrument. 11. Lord Kenyon, in the case of Shove v. Pincke (h), places this doctrine upon the ground that the conveyance was intended to operate as a revocation of the will. " If," he says, " it demonstrates an intention to revoke the will, it amounts in point of law to a revocation." 12. It is submitted, however, that the doctrine in ques- tion is seldom based upon an intention to revoke, but is the offspring of pure technicality. It is true, that a tes- Uitor, in attempting to alienate land which he has de- vised, must, in a certain sense, intend to withdraw that land from the operation of the devise ; but that intention is merely dependent upon the intention to convey. If, therefore, the intention to convey be defeated, it would seem that the dependent intention should be defeated also. There seems to be no good reason why the principles on which the doctrine of dependent relative revocation is based, should not be applied to their fullest extent, to prevent the revocation of a devise by a void conveyance. 13. A conveyance to charitable u.ses, which could not ipfii'ii't (a) Clini/an v. Tenn. St. 25. MitcheUree, 31 ('*) 5 T. R. 124. REVOCATION BY VOID CONVEYANCE. :m o]>erate on account of the Sttitute of Mortmain («), tho grantor havinor deceased within twelve months of the date of the conveyance, did not revoke a prior devise of the same estate (b). So also a deed made by one under per- .•>( 'nal disability, as a feme covert, did not operate to re- voke a devise (c). But a feme covert who had a power of appointment either by will or deed, and who made a will in execution of such power, might afterwards by deed revoke such execution, she having become a feme sole by the death of her husband (d). 14. It has been decided that a deed executed under circumstances which render it void in Equity, but not at Law, was a revocation of a former will devising the same e>tate (e). But the decision of Lord Thurlow in Hawes \. IVyatt (/) seems more consonant to reason. In that •ase he held that if a deed were so void in Equity that tlie Court must decree its surrender, it could not be held to operate as a revocation of the former devise of the same estate. His Lord.ship says : " Whoever orders it to he delivered up declares it to be no deed." And it seems admitted that if a deed is fraudulent, so as to be void at hiAv, it can have no operation by way of revocation, and tliis we think the true rule in regard to all ineffectual deeds, which do not contain an express and formal revo- cation. If the deed is void or inoperative as a deed, it sliould not be allowed an incidental ojjeration by way of («) Geo. 2, c. 36. ('>) Mathews v. Vcnabtcs, D J. B. Moo, 286 ; 2 Bing. 1*5. (.) Eilberk v. IVood, 1 Russ. .564. ((/) Lavfrenee v. Wnllis, 2 Br. C. I'. 3191. This was decided mxin the ground that the deed was the reiil execution of the power, but no stress is laid upon the fact of the de- ceive of the husband. (c) Simnnon v. Walker, 5 Sim. 1 The Vice-Chancellor, Sir Laun- lelot Shailwell, here reviews the Book IV. ('H.vr. 'X. i-r former cases, and decides in con- formity with the cases of Hirk v. Mors, Amb. 215 ; Hawcs v. Wuritt, 2 Cox, 2»!3 ; and the dictum of Lord Eldon in Attorneii-Oeiieral v. Viijar. 8 Vesey, 283 ; but goes counter t<> the decision of Lord Thurlow in Hatocs V. Wyatt, 3 Br. (;. C. ir)6, where the decision of Lord Alvan- ley is reversed l)y the Lord Cliun- cellor: 1 Redf. Wills, 343, 344, n. 8. (/) 3Bro. C. C.166. ^ V i-\ M "I, i 370 OF THE REVOCATION OF WILLS. Book IV. revocation (a). A deed executed for an immoral consirl- (Jhap. IX. eration, it has been held, will not revoke a devise of the same land (6). 15. In a late case in our Court of Chancery (c), the ([uestion arose whether the provisions of Con. Stat. U. C c. 82, s, 11, had changed the old law regarding revoca- tion by alteration of estate. In that case, a testator de- vised 200 sicres of his land to one of his sons, a minor, and the remainder (100 acres) to his (the testator's) wife. Subsequently, conveyances were executed by which the 300 acres were conveyed to a trustee, the wife releasing her dower, and in consideration of such release, the trus- tee conveyed to the wife 100 acres absolutely, and exe- cuted a declaration of trust, whereby he agreed to convey the remjiining 200 acres as the husband should appoint ; it was held that, notwithstanding the provisions of the Act referred to, the devise of the 200 acres was revoked by the conveyance. IG. The law is clearly stated by Mowat, V.-C. (at p. 3(j). He says, "The question is, whether the deed of tlie 2()th February, 18G7, is a revocation of the will. Previ- ously to the Act of 1834 (d), that, no doubt, would have been the effect of the deed (e). No one imagines that the testator, in executing the deed, had any intention of le- voking his will : the contrary is admitted. And as Lord Mansfield observed in Doe v. Pott (/), ' All revocations which are not agreeable to the intention of the testator, are founded on artificial and absurd reasoning. The ab- surdity of Lord Lincoln's case (in which the rule had been applied) is shocking. However, it is now law.' (o) 1 Jarm. Wills, 154. (6) Ford V. De Pontes, 30 Beavan, 672, (c) Longhead v. Knott, 15 G 34. id) 4 W. 4, 0. 1, 8. 49; Con. Stat. U. C, c. 82, B. 11, p. 831. (e) Kenyan v. Sutton, 2 Ves. 601 ; P/owdat V. Hyde, 2 Sim. N. S. 174 ; 1 Jann. WillB, 136. (/) Doug. 722. REVOCATION BY ALTERATION OF ESTATE. (a) "Most persons nowadays concur 'vith those gi'eat au- thorities (who) have hunented that a will should be de- feated by an Act that does not necessarily mark tliat intention ; and all persons competent to form an opinion would probably agree that the rule which makes a deed like that in question to opeiate as a revocation of the grantor's will, depends on subtle reasoning ; and that if it was entire, it would not now be decided, and it would be better if it never had been so decided (a). (b) " The English Parliament has since, by express enact- ment, abolished the rule (b) ; and it never had any ap- plication where the testator's interest was leasehold in- stead of freehold (c), though the leasehold should be of 1,000 years. The English enactment has not yet been adopted in this country ; but from what I recollected of some of the cases, in which the foundation of the rule is stated, 1 thought it right to defer my judgment until I should have an opportunity of considering, in view of the uuthorities, whether the rule should not be held to hi».ve been impliedly abrogated by the enactment rendering ;ifter-ac(]uired freeholds devisable. My conclusion, after looking into the authorities, is, that I cannot so hold ; and 1 shall state what has occuired to me on the point, that I may not hereafter be supposed to have overlooked it. (c) " The terms of a deed may be so inconsistent with the provisions of a jmor will, that an intention to revoke may reasonably be inferred from the deed ; and, in such a case, the deed is held to have that operation, though the deed should be incapable of taking effect as a convey- ance (d). But the rule obtains even where, as in the present instance, there cannot be said to be such an in- 371 I (a) See2Ve8. 427. \h) 1 Vict. c. 26, 8. 23, (c) Woodhouse v. O'Kill, 8 Sim. 122. (d) 1 Jarm. WiUs, 1.13. Book IV. Chap. IX. ' II*'' Si :\ .■■■ '^'■l 'm ,j Ml I l1 iiyt m Iff ^■ I' rill 1 ."'I I 'i' 372 OF THE REVOCATION OF WILLS. Book IV. Consistency; and in such cases the rule is often [JUt on C'HAi'. IX. the ground that the Statute of Wills authorized the de- vise of existing estates only (a). Thus Lord Eldon ex- ])lained in ffarmood v. Oylander (6) : ' By the mode of doing it, he ])arts with the estate ; and, therefore, has not the estate in the terms of the Statute of Wills.' {(I) " The reasoning was more fully stated by Lord Chief- Justice Eyre: ' By a construction on the Statute of Wills, a will csin only operate on those estates which the testator had at the time of making the will : and therefore, in [)leading, it nmst be stated that the party was seized, that he made his will, and thereby devised the lands, and that he afterwards died so seized. If, therefore, the es- tate had been parted with after the making of the will, but comes back again to the testator with modifications of the whole interest in it ; or if he should afterwards take the whole estate back again by purchase, the will could not operate on the new estate independent of the law of revocation. The new modified estate, strictly speaking, is not the same estate; and the veiy same (jUiintity of estate newly acc^uired, suppose it were a fee simple, is not that fee sim})le which the testator had at the time of making his will,' &;c., &c. (o). (e) "But I cannot say that the rule is always put on this ground and no other. In Parsons v. Free- man (d), for example, Lord Hardwicke explained the doctrine thus: 'Determinations in cases of revoca- tions of wills have always been favourable to the heir-at-law. It is admitted on all hands, that if the tes- tator had had a legal fee, devised it, and afterwards suf- (o) See Cavev. Uolford, 3 Ves. 650 and the authoritieH there cited. (b) 8 Vea. 120. (c) OowUitle d. Cave v. Otway, 1 B. & r. 595. id) 1 Wils. 31() ; S. C. 3 Atk. 747. i. C. 3 Atk. REVOCATION BY ALTERATION OF ESTATE. 373 fered a recovery, it would h.ive amounted to a revocation Book IV. of his will ; or, if the recovery had been declared to be to Chap. IX. such uses as he should direct, and for default thereof to the testator in fee, that this would also have amounted to a revocation ; and it is as certain, likewise, that if a man seized in fee devises, and afterwards convej's the siuno away by any legal conveyance whatever, and takes back again a new estate, this would be a revocation of the de- vise.' (/) " But there are cases which go further; for, if one seized in fee devises, and after levies a tine to his own use in fee, this has always been held a revocation, though the testator is in of the old use. This is a prodigious strong case. The reason is, that Courts of justice, in favour of the heir, will presume that the testator had some intention to alter or revoke his will in favour of the heir, by such an act done after the will. ((/) " Chief- Justice Wihnot, in Darley v. Ddvleij (a), Hinted the rule and the principle of it in the same way : ' It seems to be clear, from the latest determinations on this subject, that if a man be seized in fee, makes his will and devises, and afterwards conveys by recovery, fine, feotf- ment, release, &c., and takes back the same or a different estate, it shall amount to a revocation. The reason is, it must be presumed that he intended to alter his will.' (h) " I need not (luotefrom other cases. The rule is held to apply, though by the conveyance there was no change of seisin (/>), and though the estate of the testator was, and continued to be, equitable only (c), the rule having al- ways been held to be binding in Courts of Equity as well (it) .'iWikl3. (b) Lanyford v. Little, 2 J. & L. a2. (c) Earl of Lincoln's case, Sliow. 1.54 ; 1 Eq. Van. Ab. 411, pi. 11 ; Lock V. Foote, 5 Sini. 018. «l II. ■f-.; \\ :f ' 1 ■ w l\'. ium '■I 374 OF THE REVOCATION OF WILLS. Book H'. as Courts of Law (a), except in certjiin cases of mortgage Chap. IX. and partition, not applicable to the present case. I must, therefore, hold the deed to Knott to have revoked the will, so far as relates to the lands comprised in that deed. I hope that the anomaly which compels this decision may soon be removed by the Legislature." 17. It was no doubt in pursuance of the recommenda- tion of the learned judge, that the revocation of devises by alteration of estate, and by void conveyances, was placed on a new footing by the late Statute 32 Vict. c. 8, by the 2nd section of which it is enacted that " no con- veyance or other act made or done subsequently to the execution of a will of or relating to any real or personal estate therein comprised (except an act by which the wil' li' revoked), shall prevent the operation of the will with lespect to such estate or interest in such real or personal estate as the testator shall have power to dispose of at the time of his death." The Statute 32 Vict. c. 8, is repealed by "The Wills Act, 1873," as to wills made on or after the 1st January, 1874, but the 2nd section of the repealed Act is re-enacted by the 20th section of the new Statute. The 23rd section of the English Act 1 Vict. c. 20, from which the 2nd section of our Act 32 Vict. c. 8, and tin 20th section of " The Wills Act, 1873," have been adopter: has received the consideration of the English Courts on several points. 18. Tt has been held in England that a will made before the passing of the Act, is revoked by a deed executed sub- sequently to the passing of the Act which disposed of the estate devised by the will, though the testator became seized again of the same estate (b). a) See Parsons v. Freeman, 1 Wils. 311 ; Brydges v. Duke of Chan- dog, 2 Vea. 417 ; Sparrow v. Hard- caMle, 3 Atk. 802. (b) Langford v. Little, 2 J . & L. 613 ; Walker v. Armstrong, 21 Reav. 284 ; Coivper v. Mantill, 22Beav.22.S. 231. I' 3 will with REVOCATION BY ALTERATION OF ESTATE. 19. Where, subsequently to the Statute, a testatrix bj' her will devised freehold lands, and by a subsequent deed, attested by two witnesses, she conveyed them upon other trusts, and such deed was void, being turpis contractus ; it was contended that the deed operated as a revocatiori of the will, being an instrument showing an intention to revoke duly executed ; but it was held by the Master of the Rolls that the deed had no such effect (a). 20. The learned judge thus stated his reasons for the conclusions at which he arrived (b) : "The question depends on the Wills Act, 1 Vict. c. 26, and it has been observed that under the construction of that Statute, so far as it atfects this case, the disposition by will can only be re- voked either by some writing declaring an intention to revoke the will, or by ademption, that is to say, by taking away the subject matter of the devise. The two modes may be illustrated thus : — If a person devise Whiteacre to A., and he afterwards signs a paper, attested by two wit- nesses, in which he says, * I wish to alter my will, and I declare that the devise to A. shall not stand,' or, ' I wish that my will shall be revoked,' this would no doubt ope- rate Jis a revocation. Again, if the testator sells or parts with Whiteacre, and does not possess it at his death, then there is nothing on which the will can operate. But it has been contended that by 1 Vict. c. 26, s. 20, the deeds operate for the purpose of showing an intention to revoke the will, and that the two deeds profess to deal with the property, by appointment, in a totally different manner from that in which the testatrix has dealt with it by her will ; that although the same person is to take under the will, still it is a new disposition, and inseparable from an intention to revoke the will. But without, therefore, le- ((() Ford V. Dc Pontes, 30 Beav. (6) At page 592. 572. 875 Book IV. Uhap. IX. .,1 1 !• 370 OF THE REVOCATION OP WILLS. ;| Book IV. feiTing to Oil loTis V. Ti/rev (a), and the other cases which C'H.\i'. IX. ^^^y down that no codicil or sub.se([uent will is etiectual to revoke a former will, unless that revoking instrument is valid of itself — because revocation fails if the particular pui-po.se for which it is made fails — without, I say, referring to that principle, I am of o})inion that this (pic-jtion i^ concluded by the Wills Act, 1 Vict. c. 2(5. One gi'eat object of that Statute was to jmt an end to all those questions which previously arose where a devise was destroyed by the alteration of the estate of the testator. This is dis- tinctly pointed out b}' the 23rd section, which states that no conveyance or other act subsequent to the execution of a will shall prevent its operation on the interest therein which the testator may have at his death. Therefore, all those cases in which it was formerly held that a will was revoked by an alteration of the estate of the testator, are now put an end to by this section of the Act, and a ^\ ill can only be revoked by marriage, by express declaration in writing, or by burning, &c. By express declaration, I do not mean that the words must be ' I do declare that I intend to revoke my will,' but that any e([uivalent words which amount to that will be sufficient. If I held other- wise, 1 should be merely reviving the old system of law, for it is impossible not to see that the arguments used in the present case would ecjually apply to all the otht-r cases which were determined previously to the Statute, and which are expressly put an end to by it. It has been argued that Mrs. Dolphin revoked her will, because slie again executed her power of appointment, and that such an execution is inconsistent with the intention that the will should stand, and that such new execution of the power at once contemplated the creation of a new and (o) 1 P. W. 348. i ,i». REVOCATION BY ALTERATION OF ESTATE. indefeasible eatate and intercHt in n stranger. But what can be more inconsistent with the intention that a will should stand than where the testator conveys the devised property to tnistees on certain trusts which fail ? It is ob- vious that when he was executing the deed, he intended the will to be revoked, in order that the trusts of such deed might be carried into ett'ect. That, however, is one of the cases which the Wills Act declares shall no longer be the law, and these are expressly the difKculties which it was intended to remove." 21. A mere claim for purchase money, with a lien on the estate for its payment, is not such an interest in the estate as is contemplated by the concluding words of the 2nd section of 32 Vict. c. 8, and the 20th section of" The Wills Act, 1873" (a). But where a testator has given an option to A. to purchase an estate of the testator's after his death, which option is accepted, and the purchase com- pleted, the purchase money, if the estate be specifically devised, devolves, according to the limitations of the will, in the same way as the estate would have done, in case A. had not decided to purchase (b). 22. Real estate was conveyed to trustees, upon trust, after certain life estates, for such persons as A. should by deed or will ay)point, and, in default, for the children of five persons named. The trustees were empowered, with the consent of the life-tenants, to sell the settled property, and invest the proceeds in other real estate to be settled to the same uses. A., in exercise of his power, by will dated in 1846, appointed the settled estate to trustees, upon trust to sell and to pay the proceeds to the children of B., and he devised all other his real estate, not thereiu- 377 BuoK IV. i:hap. IX. »' i '^ i' .i;:v.'' - (Li "5* (rt) Farrar v. Earl of Winterton, .5 Beav. 1. See also Moor v. Baiabeck, 12 Sim. 12a (h) Emus V. Smith, 2 De G. & S. 722. L ; ■i ^U n7H OF THE REVOCATION OF WILLS, I! Book IV. before specifically disposed of, to his wife. In 1849, the Chap. IX. trustees of tl\e settlement, with the requisite consents, sold the settled estate ; but on the death of A., which took place in 1850, the purchaser's conveyance was not exe- cuted by one of the trustees, and the purchase money wu.s un|)aid. It was held that there was an ademption; that the appointment by the will of A. had no effect either on the new estate to be purchased with the produce of the settled estate, or on the purchase money which stood in its place ; and that the widow and residuary legatee of A. was entitled to the purchase money of the settled estate (a). (a) Oak V. Gale, 21 Beav. 349. w BOOK THE FIFTH. OF HKPUBLICATION, RKVIVAL, KTC. CHAPTER I. OF REPUBLICATION AND REVIVAL. 1. Provisions of 1 Vict. c. 26, as to republication. " The Wills Act, 1873," contains similar provisions. 2. Republication is of two kinds, express and constructive. 3. A will of real estate cotild not under the Statute of Frauds be republished, except by re-execution in presence of three attesting witnesses, or by the regular execution of a codicil. But a will of personalty could be republished by parol. 4. A revoked will of personalty may be revived by recognition as a valid will. 5. Mere conservation of a will considered by Sir John NichoU sufHcient to revive it. 6. The act done must be animo republicaiuli. 7. Declarations are sufficient to revive a will found with an exist- ing revoking will. Case of Daniel v. Nockolds. 8 . A will actually cancelled may be revived if recognized a/nimu repuhlkandi. 0. Examples — cases of Ulade v. Frieiul, and Brothertun v. Hellier. 10. A codicil is a republication of a will. n. (c) A will containing a devise, but not duly attested, may be republished by a codicil duly executed. 11. The question is always whether the particular case is within the general rule. 1 2. The republication of a will amounts to a making of the will de novo. 13. DiflFerence between wills and codicils in this respect. 14. Case of Upjill v. Marshall. 15. The will when republished extends to svibjects arising between its date and republication. 16. An infant, on attaining majority, may adopt a will made during infancy — so a will made by a testator while iion compos, may be adopted by him when sane. 17- Wills made before 1st January, 1874, must be executed in accordance with the new statute, in order to duly republish them. M Ik' '•I 380 OF UEPin?LiCATION, llEVIVAL, ETC. IH. Question whether, if a revoking will is cancelled, the fmiiKr revoked will is revived, unsettled. The Connuon L;i\v Courts adopted the attirmativo opinion, the Ecclesiastical Courts the nega':ivo. l!>. Opinions of Lord Mansfield and Chancellor Kent. 20. Statement of the law by .larnian. '.'1. Opinion of Sir .Fohn NichoU. 22. Construction of the word" ' .-jhowing an intention to revive.' in the l!»th section or " The Wills Act, 187:i." (a) Tlie (luestion a!/ issue one of ct.ustruction and of ^onie d' h- culty. (/<) Propositions established by the cases. ((•) Evidence should be received of surrounding circumstaiios (il) There can be no revival o^ it destroyed will. ((■) Remarks upon tlie caH<;d. (/) The ellect of the Statute considered. (;/) Meaning of the words " allowing an intention to revive.' (/i) Discussion upon those words. (() The result of the documents in each case must be uettr- mined from the language of the documents themselves. read in the light of the facts of the case, (j) The language of the codicil must be closely considered. n.(b) Judgment of Sir J. P. Wilde In the goods jf St>'il> ; In the goods of Maij ; In the goods of Wilson. 23. The revival of a will by a codicil does not necessarily involve the revival of a prior r(;voked codicil. Book V. 1- By the English Statute 1 Vict. c. 20, s. 22. it is Chu. I pvovided that " No will or codicil, or any part therent". I'-hich shall he in (ury nuinni'i' revoked, shall be revived otherwise than l>y the re-8xec\ition tliereof, or by a eodi- eil executed in manner hereinbefore reciuired, n Luw Ecclesiastical n to revivt." of aome <1' b- ircnmataiic*" I to revive.' lust b»! detn- 9 theiuselvts. msidered. ,d8 )i Shel>-. ssarily involve s. 22, it IS be revivi'il n' by a coili- H-n any will 1 nfteiwanls ill shall not (ocn revokt'tl mless an m- le I (revisions Province by w upon the iiUy the same he passinL*^ ot le Wills A.t, bs73," is in the same words as the 22nd seetion of I Vict. e. 2(). 2. Uepublication is said to V)e of two kinds, ex j)re.ss and cunstruetive ; the former eonsisting in a re-execution of the will, with tlie formalities necessary to an original ex- ecution, and with the view of republishing the will ; the latter eonsisting in the execution of a codicil for some other purpose, in which case the efi'ect of the codicil, ii" not neutralized by internal evidence of a contrary inten- tion, is to republish the will (a). •S. 1'he oidy mode of republishing a will of real estate under the Stitute of Frauds (/>), was by re-executing the will in the presence of tlnee attesting ^. tuesses, or by making and executing a codicil in accordance with the forms prescribed by the Statute (c). But tlie oth sec- tion of the Statute did not apply to wills of i)ersonalty, which may be republisheil by an unattested codicil or (»thor writing, or by the mere parol acts or declarations of the testjitor {d). 4. As no formalities are required by law for the due txecution of wills of personalty, it would appear that if a V ill of personalty which has l^een revoked or made at some distant periotl, be afterwaids sufficiently recognized by the testator as his ojterative will, by parol acts or de- clarations, the will so recognized becomes, as any other vviitten document would, his legal will at the date of re- cognition (c): A will of personalty imder the {(resent law (/) ap])ears in fai-t to stand nearly in the same situ- fition as a will of lands did before the Statute of Frauds; it mu.st be in writing by the i>rovisions of the Statute of Wills, but no i.Jier formalities are nece.s.sary; and we tind liooK v. t'HAl'. 1. («) l.Iami. WillH, 178. {!>) 2<.t Car. II. c. .». r) IJarm. Wills, 178;lSftun(l. .'7m ; 1 Powell Deviaeii, (JOU, 3rd ed. («/) 1 WillianiH Exoph. 1!»8. («-) 1 WilliatnH ,^xont. lUU. (/) In 1873. h .•!» • i 'ft. " T !•'. tt '' 11 M . ' i: 382 CI li^l Book V. C'HAl'. I. OF REPUBLICATION, REVIVAL, ETC. that before the Statute of Frauds, and after the passing of tlie Statute of Wills, it was holden that a written will of lands might be republished by parol (a). 5. It ,vas the opinion of S John Nicholl in Long v. Aldred {b), that the mere consei-vation of a will of per- sonalty might amount to a republication of it. And where the question involved in the case was, whether a will made by a woman before marriage had been repub- lished by lier after mairiage, so as to restore its validity, it was held that an acknowledgment of the will by the testatrix to an attendant as a valid and existing will, and her assertion to difierent persons after the death of her husband that she had a will, naming her executor, and that she intended the will to oj)erate, and that her affairs were to be settled according to the directions contained in such a will, was a sufficient republication (c). And in another case of a similar character, the recognition by a widow, after her husband's death, of a will made before her marriage as an existing will, and its delivery by her t(t the executor in a box with other papers, with the re- mark that the box contained her will, were held tn cun- stitute a republication so far as the will affected per- sona '*.y {d). 6. It is essential, however, to the republishing opera- tion of any Act, that it should be done animo republi- anidi (c). And wiiere there are two uncancelled wills of different dates, some direct and unequivocal act of repub- lication is necessary to revive the former and revoke the latter, the presumption of law being in favour of the last dated will being uncancelled (/). (rt) 1 WilliamH Kxoni. VM ; Jack- iim V, Hiniock; Ami). 4!>4 ; Beekford V. P«r«ecoM,('r«).Eliz.4«3i I Saund. •277 c. d. ; 1 UolL Ab. «17 (z), pL2. (b) 3 Add. 4». ifX. c) Braham v. Burchell, 3 Add. (d) Miller v. Broum, 2 Haxg. 20!t. tc) Abiieii V. Miller, 2 Atk. r.99. (/) I WiUianiH Kxore. 201 ; Striut V. Oooper, 1 Plullini. 33(i. KliPUbUCATiOM aNU KEVjVAL. Ibli trchell, 3 Add. 7. Mere declarations have never been held an effectual republication of a will which is found in the same reposi- toiy with a later uncancelled will containing an express clause of revocation. In Daniels v. Nockolds (o), Sir John I iicholl, after stating the facts, observes, "This is not like the case of a later cancelled will, because then the very act of cancellation revokes the latter, and lays a foundation for an inference that the testator intended the former will to operate. But here is a later revocatf)ry will entire, and in force as a revocation of the fornier, though the devises and bequests may have lapsed. Can the former will V)e revived without an act of republica- tion, or indeed of re-execution ; or rather can the latter will be revoked by mere declarations ? If it were merely a will of realty, it clearly could not have been contended that there had been a rej)ublication of the former will, because the words of the 0th s(;ction of the Statute of Frauds are express. It is clear also under .s. 22 that the latter will could not have been revoked b}' mere declara- tions unaccompanied by some writing : but here is iu> declaration in writing ; nothing reduced into writing during the deceased's lifetime; nor are there any acts; the circumstances of the finding are too slight — they might be merely accidenUxl. The latter will was in an envelope ; and there is no appeav>>nce that it was rum- pled. Why did not the deceased, a professional man, can- cel, if he inter led to revoke it, and revive the fornjcr will ? Declarauons without acts are always dangerous evidence : they are frequently insincere — liable to be mis- apprehended — not accurately recollected. The caae of Miller v. Brown (6) does not apply. In that case there had been no revocation ; all that was required was to IJOOK V. ''HAI- I. ^ki t r flir (a) 3 Hagg. 777. v6) 2 Hagg. 209. I • '% iM : H !1 Mi I. i I V 384 Book V. Chap. I. OF REPUBLICATION REVIVAI,, ETC. show adherence. In this case there is an express revo( a tion, and that revocation is to be removed by parol— that is the difKculty " (d). 8. Under the present hiw it would seem that if a w ill of personalty be actually cancelled it would be considered as republished upon satisfactory proof of recognition, v written over his he.'id by the testator, or by his appoint- ment, now he is a revived executor. So if the testator express by word, in the presence of witnesses, that the l)ai*ty put out sluill be executor. But now, I mean where the executor's name is not so blotted out but that it may be read and discerned, for else the stet is upon nothing ; and if the verbal re-alBirmance should renew his executor- ship, then must the will be partly in writing and partly nuncupative, his name not being to be found in the writ- ten will." 9. Where the will was found locked up in the de- ceased's trunk, of which she kei)t the key, and it dic.k, Amb. 487 ; S. C. cited, 1 Ves. 492 ; 8. C. 2 Edfu, 2 ; In the goods of Honblou, 11 .fur. N. H. .M'.t ; InthegoodH of Whatman, ;W L. .1. I'. 17. >See ftlno tlie ciweof Liird St. HtlciiK V. Lail/i Krctcr, ',\ I'hillini. 4til,'iii note to Fdwrett v. Jones ; and Hff iwrthvr, Th)mii»i()iiv.IIfmj>eiiiitaH, 1 Hob. 7S.!. A codicil will refer to the last in date of .several wills if no expreHK date in mentioned ; if there Ik, to that of the |iait,iculi.r date ex- i)ri'Hsed : Cronhic v. MarDonal, 4 Vfo. Cd.'); and the ccmrts of law have determinetl that evidence cannot Ix- lidniitted to prove that mich refer- ence wan a niiKtake, and that the te«tator ilid not mean to refer to the will to which the codicil does ex- liresHly refer : Lord Walpole\. Lord Orfoni,:\ VeK. 402; S. ('. by the name of Watfmic v. ('Iwlmondetcy, 7 'V. 11. i;W ; CroHoif. v. MarDoual, I VeH. «il(i. The deoi v. Walker, 12 M.& W. !\\)8, (iOl ; MoneiiiKnuy v. Bris tow, 2 IluKs. & M. ' 117 ; Hnnhes v. Turner, HM. & K. *>&> ; Doe A. Bid- didph V. Hole, 15 (i. B. 848 ; Ut Jur. V.i ; 20 L. J. (i. B. .57 ; Nuohes v. Hoiking, 11M a la>*t in thf con- (int to any II- t'on»truetl al exirttoncf ,() a ievok» Kob. :{2C., ,in Howes \. 11. See alwi H. L. C. ■\nri' it wiVK not ni-cen- Irate w if it at the ilatf •2(Mi; Strath- 482 ; S. ('• Ij, V. BOWCK, rnii. rM). [I'h jntlgment T'owj). i:*- ; \K M*o. 24 ; .lerv. 27S. ,,or(l Cotten- \lker, 12 M.* ,„^ V. firm ; Hiiahex V. , /^>«(1. ««'• 848 ; 15 .Tur. ; Hughes V. xore. 209,and REPUBLICATION AND REVIVAL. principle that, of any number of wills, the last and new- est is that in force, it revokes any will of a date prior to that of republication («). 13. But there is a great distinction between wills and c<»dicils in this respect; for as every codicil is, in con- struction of law, a part of the will, a testator, by expressly referring to and conhrming the will, will not be con- sidered as intending to .set it up against a codicil or codi- cils, revoking it in part. And therefore, in a case where a testator made a will, and afterwards executed several endicils thereto, containing partial alterations of, and ad- ditions to the will ; and by a further codicil, ref -iring to the will by date, he changed one of the trustees and exe- ♦ utors, and in all other respects expressly confirmed the will ; this confirmation of the will was held not to re- vive the parts of it which were altered or revoked by the tnimcr codicils ; Lord Alvanley, M. R., observing, that if a man ratitie s and confirms his last will, he ratifies and confirms it with every codicil that has been added toit(6). 14. In Upfill V. Marsliall (o), a will (dated February, 1«37) disposed of rea and pei-sonal estate. A codicil (dated June, 1837) partly revoked the disposition of the personalty. A memorandum (dated July, 1838) formally republished the will. And it wa.s held that parol evidence was admissible to .show quo (inimo the memorandum (a) Serocold v. Henimimj, 2 Can. Uini). Lee, 4!»0 ; Rixjerit v. Pittin, 1 Ailil. ;18 ; Jannen v. Jaimeii, Ibid. i'.i ; Walpole v. Orford, -i VeH. 402 ; WiUpole V. Cholmondeleii, 7 T. 11. l:W ; 1 WilliamH Exorn. 2(Ht. (6) Crosliie v. MacDnual, 4 VeH. •ilO ; 1 Powell Dev. <}24, .Jarman'H eilition. See Grand v. Reeve, 11 >) or is (lancellcd (c), or otherwi.se revoked Ijy the tes- tator in his lifetime, the effect of such revocation clearly is, according to the old law (which, it will be remembered, still applies to all wills made before the year 1838), to restore the prior will to its original position ; and such restored will, if not revoked by any subsequent act of the testator, will come into operation at his decejuse. This is an inevitable conseciuence of the ambulatory character of the instrument, which character, of courae, jiervades its whole contents, extending no less to an ex[)ress clause of revocation than to every other part {d) ; and hence the distinction sometimes suggested between cancelled wills which do and those which do not contain .such clau.ses, in regard to their revoking effect upon an earlier uncancelled will, is wholly without foundation (e). The clause of revocation, like every other clause, is silent until the death of the testator calls the will into operation ; and though the £cclesia.stical Courts appear for a long period to have entertained the notion that a cancelled will, with a clause of revocation, revoked a prior uncancelled one (/), yet those Courts have of late greatly modified, if not wholly abandoned the doctrine ; for, in the case of Uaticke v. Bawden (g), Sir John NichoU laid it down, that the legal presumption was neither adverse tt> nor in favour of the (o) 1 Jam. WiUs, 127. (6) Rainier v. Rainier, 1 Jur. 7M. (c)> Ooodriyht v. Glazier, 4 Burr. 2.-1I2. (d) HarwQod v. Ooodrij/ht, Cowp. 92. (c) See Roper on Revocation, 94. (/) Vide CHses cited in Moore v. Afoore, 1 Phillim. 412. ({/) 2 Add. 116. ■4 REPUBLK'ATION AND REVIVAL. revival of a fonner uncancelled, upon the cancellation of a later revocatory, will (ft). The (juestion was, he .said, open to decision cither way, according to facts and circum- stances, and which in the case then hefore the Court were thought strongly to favour the revival. 21. In Wllsonv. Wilson (/>) and Kirkciulbrif/ht v. Klrk- fiuib)'u/ht (c), Sir John Nicholl, who is high authority, considered the point as still unsettled, whether the pre- sumption of law is th'ic on the revocation of a later will, a former uncauvreiled will is piesuiiied to revive or not. " The presumption," hesays,"in the latterca.se may depend jtrhiui fdcie on the nature and contents of the will itself, exclusive of circumstances tlehors the will. If the latter will contains a disposition (piite of a different character, tlie law may i)resume such a complete departure from *he former intention, that the mere cancellation of the latter instrument may not lead to a revival of the former, but intestacy may be inferred. If, however, the two wills are of the same character, with a mere trifling alte- ration, it may be presumed that when the testator des- troyed, the latter, he departed from the alteration, and reverted to the former disposition remaining uncancel- led " (d). 22. "The Wills Act, 1873," provides (e) that " no will which .shall be in any manner revoked shall be revived " by a codicil, unless it be a codicil duly executed, and sliawinr/ an Intention to revive the same. The construc- tion to be put upon these latter words in the English Act was fully con-idered by Sir J. P. Wilde, in three cases which came before him recently for adjudication (/). 391 Book V. < 'H.\P. I. >i\ if' i ■^ ..J 'I''! f: M 1 (a) See James v. Cohen, 3 Curt. 770 ; 8 .Iiir. 249. (6) 3 Phillim, 5.54. (c) 1 HagK. 326. (d) See WeUh / Phillips, 1 Moo. P. C. 209. (e) S. 19. ( /) In the goods of Steele ; In the goods of Mau; In th«^ goods of Wil- son, L. R. 1 Prob. 575. 392 OF REPUBLICATION, REVIVAL, ETC. ■; I Book V. The conclusion at wliich the Court arrived was, that a will Chap. I. cannot, since the Statute, be revived by mere implication, and that the intention must appear on the face of the codicil, either by express words refeiTing to a will as revoked, and importing an intention to revive the same, or by a disposition of the testator's property inconsistent with any other intention, or by some other expression (conveying to the mind of the Court, with reasonable cer- tainty, the existence of the intention. Sir J. P. Wilde reviewed the authorities in a judgment which is deserving of careful consideration. (a) " The broad question," he said, " in these three cases is, whether a will which has been revoked, and another will substituted, has or has not been revived by the opera- tion of a subsequent codicil. This is a question of con- struction, and one of some difficulty. (6) " The occurrence of no less than three instances within a short period in which this question has arisen, makes it desirable to pass in review some of the decisions by which the judgment of the Court ought to be guided. The following appear to be the propositions established by previous authority : — Unless there be a latent ambi- guity in the codicil, evidence of the testator's real mean- ing must be excluded. This is in obedience to the well- known common law doctrine with respect to written in- struments, as was decided in Walpole v. Chohruyndeley (a), which was acted upon In the goods of Chapman (6). It may be proper on some future occasion to consider the doctrine upheld in Courts of Equity, where mistakes, if proved to demonstration to be so, have been rectified even in written documents. This subject is well discussed in Story's Equity Jurisprudence, 156, 167. (o) 7 T. R. 138. (6) 1 Rob. L 'i!.- i REPUBLICATION AND REVIVAL. 393 («;) " The next proposition is this : That, although evi- dence of the testator's intention is excluded, the Court ought alwoys to receive such evidence of the surrounding circumstances Jis, by placing it in the position of the tes- tator, will the better enable it to read the true sense of the words he has used. This is a doctrine constantly acted upon at common law in relation to written docu- ments, and notably in cjises of written guarantee. It is affinued in the fifth proposition of Sir James Wigram's excellent book on the subject. ((I) " Thirdly, it has been decided by no less than three very remarkable cases that if the codicil refer to a will with the intention of reviving it, and it turn out that such will had been entirely burnt or destroyed by the testator animo revocandi, the codicil cannot effect its revival. (e) " The circumstances of these three cases of course varied, but in all three there were two wills, the latter one revoking the former, and a subsequent codicil refer- ring by date to the former will. They all had this further feature, that the tirst will was not only revoked, but destroyed. The earliest was the case of Hale v. Toke- love (a), decided by Dr. Lushington in 1850. He held, that the codicil would not in law revive the first will, because the will ' w»us gone, destroyed animo revocandi,' but that the second will ' was revoked by necessary impli- cation because a prior will was confirmed.' The only paper entitled to probate he held to be the codicil. The next was the case of ^'eivton v. Newton (6), determined in Ireland by Mr. Justice Keating in 1860. He held, like Dr. Lushington, that the codicil could not revive the first will, but that the second will was entitled to probate, as the intention to revoke the second was dependent upon the Rook V. (^HAP L ■ .. t1 : M {a) 2Rob. 31& (b) 5 L. T. N. S. 218. .i \ '1 > ;' 1 ;'■ 1 ' ' i u. 394 Book V. Chap. I. OF RKPUHLKATIOK, REVIVAL, ETC. ostablislinient of the fiixt. His decision on this last hcmi wa.s revei-sed by the Court of Appeal in IhGl (a), and the testator declared to have died intestai.o'. The la.st case was that yf M<). fr Hows : — " No will which shall be in any manner revoked shall b; revived' by a codicil, unless it be a codifil duly execuccil, jind ' showing an intention to revive the same.' What is the meaning of these last words i To appreciat*; tlicm it is neces.sary to beai in mind the law as it stood wlun they were eniurted. The theory of the law is, and always (a) 12 Ir Ch. R«j). p. llS. (t) 2S. k T. M'l; M L.A.V. ••'.». (<■) 1 Vict. u. 26, H. 22. REPUBLICATION AND REVIVAL. 395 was, that a codicil forms part of a will, and, conseciuently, J<<><»k V. that to make a codicil to your will is firat to attiriii the y had never been in- troduced. If the merely declaring that a particular pajter was to be taken an a codicil to a particular will was all that the Legislature reciuired when it enacted that the codicil should ' show an intention to revive' a revoked will, the words ' showing an intention to revive the same' were <|uiteii dle.ss, fore\ ? , -jcxlicil to u revoked will, by force of being a codicil to such will, so showed it. I, there- tore, infer that the Legislature meant that the intention of which it speaks should appear on the face of the codi- cil, either by express words referring to a will as revoked and importing an intention to revive the .same, or by a tlis|M)8ition of the testator's proper'./y inconsistent with any other interl/ion, or by some other expressions conveying to the mind of the C'ouii,, with rei»«onable certaintv, the M -I % 396 ifc i ') Book V. Chap. I. OF REPUBLICATION, REVIVviL, ETC. existence of the intention in question. In other words, 1 conceive that it was designed by the .statute to do away with the revival of wills by mere implication. It is pro- per here to take note of the cast of Payne v. Trappes (a). In that case there would seem to have been but little beyond the reference by date to show the intention to revive a former will. But the Court did not lay down the proposition that the date alone was sufficient ; on the contrary, the learned Judge said he must 'gather the intention from the codicil itself;' 'that the intention to revive the former will was clearly shown .iid 'that the testator had taken great pains to describe the instru- ment to which the paper was intended as a codicil.' The decision proceeded upon the grounds that the Judg«' wns convinced of the testator's intention, not that he felt bound by the language in the face of an opposite con^ ion. On the other hand, I am much fortitied in the view r U'^keof the meaning of the statute by the remarks of S - T' • Vess- woll in the case of Marsh v. Marsh (b). I allude to his .statement that the words 'last will' and ' prima facie' refer to the real hist will, and particularly to the opinion he there expressed, that ' it appears to have been the object of the Legislature to put an end equally to implied revo- *"jitions and implied revivals.' ^ (i) " The due result of the documents in each case, and of such external facts a* may be mlmitted in evidence, must of course be gathered from the langinige of the docu- ments themselves read in the light of such facts. Some geneial views, however, present themselves — some gene- ral [)robabilitieH of intention attend all such cases m those now under judgment. It may in t^ e outset, I think, be doubted whether any testator who bore ni mind that (a) 1 Roh. 583. Iv ' 77. {bj 1 8. 4 T. ftt p. 533 . ;« L.J.k'. , I REPUBLICATION AND REVIVAL. 397 533; ;«L.J.l' he had revoked his will, and substituted another for it, Book V. ever really sat down with the purpose of revoking his last Chap. I. will and re iving the former one, and set about the exe- cution of that purpose by simply making a codicil refer- ring by datt) to his fii-st will, without more. Would any lawyer advise such a course, or would any unskilled tes- tator iujagine he could achieve the end by such a method ? The leading idea of revoking the one and reviving the other in its place w(»uld surely find exjiression by some form of words in a pa|)er designed maiid}' for that object. On the other hand, I conceive that, in the vast majority of <:ases, when a man declares his intention that a particular paper, varying his previous disposition.s, should be taken >us a codicil to ' his last will and testa- ment,' he means that which really is his la.st will and testti- ment, his then existhi'j will, and the dispositions of his properly then in force. In like manner, when he goes on to declare, in the comm )n language of codicils, that 'in all other respects he ratifies and confirms his last will and testamch.,' he really means t'j confirm that which exists, and not to l)ring to life a paper which hjw ceased to be testani'intary or revive dispositions which have no exis- tence, autl arc therefore not, properly speaking, capable of being ratified. (j) " That these conclusions are Justin the main is amply proved by the fact that, whenever full light has (wen ciwt on the testator's real purpose by moans of parol evidence, the reference to the ear ier will has in most cjwes turned out to l)e nothi/ig but a blundor. If experience had not shown the fact, it would Vmj almost incredible that mistakes should occur so constantly aft they do in so simple a matter as reciting the true date of the will. And yet in many cases errors of this kind, if allowed to be prnved, can not U) demonstration. The ox- ! 1 i p ; H ri is ily be provt pro> ;W8 OF REIMIBLRATION, REVIVAL, ETC, ■ t M Book V. fludcd evidence in the celebrated case of Wolpole t. Chol- Chap 1 inondelc}/ (a) prove' the error that had been committed and the cauH(j of it, on testimony so clear and so free from suspicion as to remove the last tnice of rejisonablo doubt. Sometimes the error arises from the attorney or a clerk who has laid his hand on the wrong paper ; sometimes from the testaitor, who luus kept his first will in his own possession and forgotten his second, which he has left in the hands of his attorney ; oftentinjes from the employ- ment of an attorney to draw the codicil, who has made KU earlier will, and has been in ignorance that an inter- nieS oKSTKEr.K. I pro- e»'C(l to the fiictH of thi' nrt'Hi'iit ciiMe. Till- U-Htator iiiiulfii will on tlu' Ititli of Jiuiuiiry, lS revok", though he Isire in mini! the ol)jei't of his iKiimty. On the otlier hand, the will he speaks of is ids ' last will ;' and then no trace of a desin to depart from it is to he found on the fiwe of the codicil. I think, therefore, that the will of October, 1H(M), waH never revoked, and that it is entitled to probate, together with the ciKlicil in i|Uestion. "In tkk (Joodh of Mav. The testutor mikde a will on the 11th of January. IWH. On the IHth of August, lS(t(>, he mar- ried. On the same IHth of Au- ^iiHt, after hiK niarriaKe, he made a resh will, and in tennn re>'oketl his former one. In the month uf Se p- |i 1 UKPUHLICATION AND REVIVAL. 399 23. It has hceii lield that the revival of a will l)y a IUxik V. nnlicil (li'l not nectcsHarily involve the revival of a prior CHAr. I. in.licil to that will ; and that an intention to revive such jii ior codicil, distinct fron» the intention to revive the will, must V)e shown («). The intention of a codicil to revive !i will cannot be established by an act of the testator liiliorn the in.strunient (/>). There can be no revival of a will which has cejised to have both a physical and legal t'xistence (c). ttiiiluT, in the name yt'ar, he took thi- tr (;iiiicfl his fir»t will liv tearing "Hf thi' Hi^rnaturo. < )ii thf ii'ii of .Fuly, ISiil, )if iiiadf a ('ari)l ••vicU'iKf is lidriiiH- mIiIc, it in plaiii tliat tluH rcfi-ri'iici- tn till' carlitT will wiw iiothiiiK I'Ut a iiiistakf on the part of tin- attornuy uliodi'fW it ; but I do not think it i- iii'ci'twary to dt-cidf wlu'tluT it w.ik ^'> or not; for I am unahU- to \ivr- civf any mitticifnt I'vidiMU't- on the fi'Cf of t)ii' oodifil itn»'lf that the ti's- t;itor t-ntiTtaiiicd an ii>tt'ntioii to I'vivi' tin' forniiT will. Hik iiiarriaKc it-rlf had revoked it. He hiul iin- liately after his marriage i*\il)- -tit\ited another for it in almost the ^aine identical terms, and to prevent :tll mistakes he had taken the tnnihh- til tear off the si).n)ature. It is plain tluit in Seiitemher, IWlO, when he tliiiN iM;t" i, he Considered the will of AumiHt to lie the effective record of liii* testamentary disiMisitions ; and I can conceive iio inotive which u"idd rei'iier it prohahle or Imrdly |ii>li;.iii to demonstration, from the contents uf the codicil itself, that he was really referrill),' to the will of 1H)»1. lie spciiks of b '(luests which arc to be foiiiitl only there, and >,'oes on to say that he has altered those beijuests ill his own hand on the face of ' his .said will,' and for ^'rcater certainty has numbered the lines in which these alterations ar • to be found. 'I'hese alterations, witli numbers to the lines, are found in the will of IMit, and the ( 'oiirt hits no hesitation in aiiirmini; that it was to that will lie intended the codicil to altply. 'I'lie Court 1,'rants jirobate of tlie will of lS«. :{'.il ; .*. I.. T. N. S. 71!t. For cases in which tin Court has held the revival sullicielit, see In th LTiiods / TirnUr, 1 .S. it T. l-iO ; In the Koods »i Lmis, 7 Jtir. N. 8. '220. '^ ■ .) la Ji I mn CHAPTER ri (a). SUU(JKHTroNS TO THOSE KMPI.OYBD IN DRAWING WILLS. 1. Tlu> tiiiu" of iiDikiiig wiIIh, too ofttsii dufor?ei)oiiduiit, to ii ^reut oxtent, upon legal ad- vict" as to tho form of their wills. 4. Care is often re<|uiHite to tntnslate the testator's langtiai^c accurately. 5. Counsel should Ik; careful to understand testators, and l)c- understood by them. 0. Mr. .larman's hinU as to description of estates, intunuediate profits, and charge for debts. 7. In relation to securing property to wife and childmn. n. («) It is always safe to advise testators against end)arra8sing the transinissiun of the title to estates. Book V. 1 Ix not uiifrtMnuntly happens, that the nioiit impor- Ch.vp. TI. Unit net of a mans lifo, .so far as mere property interests are concerned, is left to the veiy moment of death ; or so near that fatid crisis that no time or capacity for reflection or (lelil>eration, either of the testator or his legal advi.ser, or next to none, remains. In regard to that considerably numerous chtss of ca.ses, and one which we fear is not sensibly diminishing;, we could give no advice which would be likely to pro\e of nmch advantage. All that then remains to be done, is, ir make tho best iniprovo- ment of the short period of time lemaining, always remem- bering to do nothing against one's clear convictions of (a) Thin ciiAptvr and the forms i)niittators in a transaetion which, in its most favonrahle aspectt, is merely eoloiirahlo. 2. Hut where the tisstator jLjives his instnictions wliilo in sound health, lioth of hody and mind, and there seems no a(h'(|uate motive either for hjvste or reserve, great care should ho taken that the testator comprejiends the full force of his acts. This may seem an unimjiortant su^'gestion, sinc(5 it is g(!nerally supposed that most of the Hook V. i'HAP. II. ((() W<* liavf vriitiuvd hi'it' to iiiiiki- IV Itrirf mih';;fstioi) ii|Hiii this lint iii'.iiii|Hii'tiiMt topic, liiriiiiHc w<* liiivc iicri'i'ivcil ii very iiiiirkt'il ooii- trimt l>i'twi'c>ii tlio ri'scrvf iiriu'tiHiHl iiiiioiu' l''iii,'liMh siilicitiii-s mill lri,Ml imIvImi'In, ill rci,'Hnl to iiMsisloij,' iit tlif f ifi\ "I lU't of tliii t'Xi'inition uf n will, !iy oiu' (•\ idfiitly in iniinilo 'rtiK ; mill tlu' forwjiriliu'HM wliii'li is iiioi-t' foiiiiiiiiiily foiiiiil miii>ii'.{ all c liissi'S, about till- ili'llth-lii'il iif :uiy liiTsoii ill tliix I'omitry. Wi- liiivc tlioiiKlit this iliiriTi'iiri' the ri'Mult of wrmii,' views on tlif pmt of tlir pt^t- plr of this country. \Vf luivr no i|iii'stion it results from over-teiiiU'r- tit's> often. It si'i-ins to lie snpposeil Ityniivny, tliiit iiii!:!<^' ii niiiu in per- foriniiis,' the forniiil iu:i, of exeoiitinh' his will, is only one of tiose ottiees of the tleiith lieil 'vhii'li it 'Voiilil im- ply want of ileliem'y to withliolil. Anil it is, therefore, often ilolie, liy the most upri^'ht mill eonseieiitioiiH persoiiM, without the remotest siis- pieioii that there is the sli'.{litest iiii/aiil of thereby wron;,'inh' any other person. Hut a niomeut'H re- lli'i'tioii will I'onvinee all that this is not sure to lie the fiwt. A man is always s\i|i|Miseil to ile- sire to execute his will ; ami those- ahoiit hisilt-ath-lieil wlioilesire him to ilo so, j,'enerally iiru*' liim to execute it; becausi'it will ^five the property of the testator a iliirerent ilirection from what it niiKht otherwise have. The att«'miit, therefore, to execute a will for a tlyiiiK man, or for any one ii> a Htute of miixl where lie is evi- ili'iitly lot fully the niiwtm' o^ hin own acts, is an attempt to uko the lirtkuii uaiMtcity of the tentator, huuIi Z iw it Ih, for the puriMMe of divertinL' his property from those natural and onlinary chamiels, in which the wis- ,'oes into court and testilies that he did not revfai'd the testator, at the time of his attesta- tion of the execution, as lieini,' in a state of mind suitalile to the full comprehension mid iinderstandiiiK of his act, he virtually decliires his own infamy. Hut this is done, every d:iy almost, in the .Vmerican courts, without tile reinolest suspi- cion that there is any want of fair dealini,' in tlie transaction. We have idliideil to the suliject more than once, in this work, liecause wo would lie >,diul to coiTect what we re^'iiiil an a vicious jiractice. It wiw decided, ill tfiliii/itoil v. tJni'ltlilil, 2 H.ayw. 147, that the attestint,' wit- ness to a will may lie olFereil to prove want of smiiiy in the testator at till! time of itH execution, and there is no doiitit of the correctness of the deeision. Hut ttiey ini^ht al- most an well have testified the iii- Htriiinei't was a forgery, so far as their own credit wiw uimuunuHl, 402 sr(i(!KHTI<)NS TO TIIOSK H«»«iK V. trnnHnt'tioriH connecti'd with tlu' making' of a will are sim- Chah, II. |»le, and notMUfsceptilde ol'nuu-li uiicfitaiiit y in iIhmi- n-MiltN. liut tliis will l>e found to lie, in general, a nii.sa])|)relien.si(in ; sineu it i.s tlie constant experieneo of those most employed in litigation, resulting from the settlement of estates, how very mueh disappointment of the testjitor's ex|>eeta- tions gem rally supervenes, in spitti of all efforts of eourt> to the contrary. This is a remark constantly ma tlu mere routine plan of writing, a.s nearly as practicable, the very words of the tesUitor, without any ett'ort to get at hi.s real purpose, the result will generally be that the instrument itself will be dark, confused and incomprehen- sible. Whereas, on the contrary, a slight effort of the draughtHman would have enabled him to learn, with pie- cision, tho exact purpose of the testator, and using his own EMPLOYED IN DKAWINU WILLS. 40.3 Ijiiijjmigc, without a too strict copyinfj of the wonls of tlio '*'•♦"' ^■ U'stiitor, iMi<,'lit Imvf! suvi'fl liti^^atlon, or seourc luattor of framing wills for otli(!rs : 1. That the h-^^al adviser fully possess himself (»f the real purposes of tlie test^itor. 2. That he hecome reasonahly certain, l>efore he allow the instrument to paMs to its tinal authentication, that the laiigua^'e wliich he at!i precisely concur, since more controversy arises out of .such discrepancies than from any other one source. (Si.) That where "u estjito is devised to a class, not cer- tain to be in existence at the decease of the Uistaior, as t<» w I: ^ i If!' 404 HL'(J(JKSTI()NS TO TIIOSK UiHJK V. tlu' cliildrt'ii of A., who iimy Imvo iioiio at tluit time, |ini- Chap. II visioji ]to iimdu for tho lispositioii of thu iiitt'iiiicdiato prctfits of the estjite. (ii.) That where any |iarti(!uhir funds aro sot apart foi- piiynient of dcl)ts, it should ho c^hmrly doHnt'd, whcthiM it is tlic intontion of the testator therehy to exonerate the j^onerul pei-sonalty fi-oui hcing priniai'iiy liahle to that charj^'e. Ho also names the case ol" ntort<^aj^(,'d estates, id ready alhuled to. 7. So nlso in rolation to tlie ohjeets of the testators l>ounty,sonte decree of cireunispeetion may In; re(|uisite(«f j. In seeurinty an estate to the wife and children of tlie {ii) 'I'lu' puritoHt-H mill wiNlifNof t«'n- tntoi-H i\w Kit viiriiiUK in i't'j,';iril t" iiiiikiiiK |ii'(>viHiiiii fur huv'h fitinily, tliut iiiitliiiiK' upprniu'liiiiK' ct'rtiiiiity c'liiilcl ]»■ HiiKh'fHtftl ill my i^'i'iuTiil view iif tllr HUlljrct. Milt ill tllix country, wIu'it iiiiytliiiiK ii|i|)rii\i- niittiiiK |M'i'iii:in>'iu'y of iiivcHtiiiciit IllUft 111' I'l'KiH'" It'll If tllr I'Xci'litiiill, rutlirr tliun tin' riili-, it Iuin iilwayH Hfi'iiii'ii til iiM, tliiit r\ cry tiling of the clmiiw'tcr iif ciiiii|ilicati'il ur rcrttrii'- tivc priiviHiniiN, in i-ckiiiiI U\ the iilicn- ntimi i>f cstatcn, wiim nini'i' liiililc to IcHHcli the viilllc of the cMtilte til the (IcviHce, than tu Hcciireiin i'i|iiivaleiit nilvaiitai,'!' iiy nicaiiM nf it» limKereii- jiiyniciit. 'I here kIudiIiI, therefnre, at a KCIIi'I'hI thill'.;, he Iml^'eil Hiillie- where, a ilincretiiiiiary pi nvenif alien- atimi, when the interest nf the lUniHce iinperiiiiiMly ileinaiiilH it. There is it striiiiK priiciivity in the hnnian iniiul ti> fasten the iiiiist iiniiiniteil restrio- tiiillH lipiill liriipel'ty lieipleatlicil. jtiit all such thiiiK's, ill this cimntry cer- tainly, xaviiiir niiii'e of the vanity ami ciinceitiif the testator, or of his want of 'Tiist in the iipholiliiiK care ami protection of an overriiliiiK I'rovi- «Knce, than either of wisilom or prn- (Ifiice. Hnt, after all, it is not to ho ex- pt'cted that mere It'Kiil ftilviserM c.in excrfise nni(;h control over the char- a«'tcr of teHtiuneiitary ilispoHitionK ; iinil many might think it nnilcsirnhle that it hIiohIiI ho ho. NVc have, ne- vertheless, experienceil, in inunv in- HtftuceH, the very threat btiiettt of wIbo iiml jiiilicioiiH coiniselri ii|Mtn sui-ii siilijects. .Villi we make nil i|iiesti'>n, that if niiire free loin were felt ami exercised Upon suclisillijects, it Wolijil he follliil useful. 'i'lie fiillowiiiK' lire .Mr. Jariiian's concliiilinK' siib'K'estions u|Min tiiis siilijevt : 1. "The olivioiiM ini|uirieH (in a>(• |)|UC'I-)1 llllt of tllf |>IIWCI' of Iiii'iiiii1m, (.(. liiniti'd to triiMtt-cH for tliijr Hi-piirittc Urn- for lifr, Hiilijfct or Hot to Ik ri-ntrirtiori on ulii-n:itioii (wliicli, liowi'vtT, In II iifc-fKHiiry I'oii- coiiiitniit to k'ivf full <-irf('t to till' iiiti'iitioii of i-xcliiiIiiiK' initritiil in- HtKiicc), with II |Miw('r of iliH|MMitinti oviT till* iiilii'ritiiiK'f, or cuiiitiil, hh tli< nutf may )><' ; iiiiil if it lit- in- ti'iiilfd to prcvi'iit tliiit powi-r of ijJH- (HiHitioii from Immii^' t'Nt'rciscd, iiiulfr mariUkl iiiHiH'iirf, without tin- poMni- liilitv of ri-tru(.'tioii. it nhnilti hfi'oii- Kiii'il to iliNiHiNitioiii' '<.'/ iriti, whii'h, licin^' Hiiiliuliitiiry iluiiiiK hi-r lifi', can iif\ vr I M'li-'iHiMl HO ikM to fftter hiT |Miwcr of ulifiiiition ovi-r tiif ]iro- )i.rty. .1. " If th<- il.'visf }»• of thi' It'K'iil i-rttatf of lamU of iiihcritaiic*' to u luiui, it hIiouIiI hi' iiii|iiircosterior to thf testator's ileeease, and in respect of whom, therefore, the same caution may be siiggesttnl. I>. "It may he observed, that where interests not in |H)ssessioii are created which are intended to 1m' contingent until a given event or period, tlli-< should be explicitly stated ; as a contrary construction is generally the result of an absence of expi'i'ssion. Kxplicitness, generally, on the subject of vi'sting, cannot be too strongly urged on the attention of the framers of wills. 7. "Where a testator pro|H»s«s to recommend any person to tht; favour- able regaril of another, whom he has made the object of his Isiunty, it should be ascertained whether he in- tends to impose a legal obligation on the devisee, or legatee, in favour of such person, or to express a wish without conferring a right. In the former ciise a clear and definite tnist should be createressions should be used. Kipiivocal language, in these cases, has given rise to uiuuh litigation. Limthi. " It may be sujj'gested. that where a testator is marrieil, aiui has no children, unless provision Iw mmle in his will for childn^n coming ('/( r.«f, or it be unreasonable to con- template his having issue, the disix)- sitions of his will Dhouhl 1h* mode expressly contingent on his leavinf/ no issue surviving him ; for, as the birth of children alone is not a revo- cation, that may be excluded under a will made when their existence was not contemplated ; and cases of great hardship of this kind have sometimes arisen from the neglect of testators tu make a new diHirasitiun of their in II IMAGE EVALUATION TEST TARGET (MT-S) I 1.0 I.I H |;a III 2.0 1.8 1.25 1.4 1.6 M 6" ► V] <^ >>^ ^^1 >^ r^ ■^7 'W o 7 Hiotographic Sciences Corporation s. S^ \ ^ ;\ \ ' ^0 ^^^J i 406 DRAWING WILLS. Book V. such proportions as she may deem most just and useful ; Chap. II. or by providing that the children shall share equally in the remainder, after her decease ; but no child shall have any share until after majority, or marriage. property at the birth of children ; indeed, it has sometimes happened that a testator has left a child en ventre sa mere, without being con- scious of the fact ; for the same rea- son, provisions for the children of a married testator, who has children, should never be confined to children in esse at the making of the will. A gift to the testator's children, gene- rally, will include all possible objects. Where, however, the gift is to the children of anothci' person, and it is intended (as it generally is) to include ;ii! the children thereafter to be bom, ■Ji .s tc this effect should be used, . »less a prior Ufe-intere.st is given to til.! Durent of such children ; in wh. ■ i:.,>j5e, as none can be bom afr t el gift to them vests in pos- se w -i, V hich is the period accord- inj- '.. di' established rule of ascer- taiulTig the objects, none can be excluded, " To the preceding suggestions it may not be useless to add, that it is in general desirable that prof essii in:d gentlemen, taking instructions for wills, should receive their instnic- tions immediately from the testator himself, rather than from third per- sons, jjarticularly where such persons are interested. In a case in the Pre- rogative Coui-t, Rollers v Pitt in, 1 Add. 40, Sir J. Nicliolt 'admonished professional gentlemen generally, that where instructions for a will are given by a party 'iom being tlif proposed testator, a fortiuvi. where by an interested party, it i? their bounden duty to satisiy themselves thoroughly, either in person or Ijy the instrumentality of some confi- dential agent, as to the projiosed testator's volition and capacity : or, in other words, that the inst r.mient expresses the real testamentary in- tentions of a capable testator, prim to its being executeil de facto as a wiU at all.' " \% -I,. ! i '■ f- ih:. f APPENDIX I. "THE WILLS ACT, 1873," (36 Vict. Cap. 20.) i^\: AX ACT TO CONSOLIDATE AND AMEND THE LAW AS TO WILLS. [Assented to 2^th March, 1873.] WHEREAS it is expedient to consolidate and amend the Appendix I. law as to Wills ; Therefore Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows : — 1. This Act may be cited as "The Wills Act, 187.3." Short title. 2. Unless herein otherwise expressly provided, this Ac't; shall t'ominerxe- not extend to any will made before the first day of January, {."'."l^ifth^^cT one thousand eight hundred and seventy-four, but every will re-executed or re-published, or revived by any codicil, shall, for the purposes of this Act, be deemed to have been made at the time at which the same shall be so re-executed, re-published, or revived. 3. Nothing contained in the thirty-eighth and seven follow- Ss..S8 to 45 not ing sections of this Act shall apply to or affect any case at the *" «l'Ply *" time of the passing of this Act pending or heretofore adjudi- orl^cldell.'"*^ cated upon and decided by any Court, in Ontario. 4. In this Act, the term " will " shall extend to a testament, Interpretation and to a codicil, and to an appointment by will, or by writing clause. in the nature of a will in exercise of a power, and also to a 20. s. 1. " disposition by will and testament, or devise of the custody and "Will." tuition of any child, by virtue of an Act passed in the twelfth year of the reign of King Charles the Second, intituled " An Act for taking away the Court of Wards, and liveries and 40b^ "THE WILLS ACT, 1873." ■ Real estate. "Perwonal estate. " t (inures «i cajnk, and by knights' service and purveyance, and lor settling a revenue upon His Majesty in lieu thereof," and to any other testamentary disjiosition ; The tenn " real estate " shall extend to messuages, lands, rents, and hereditaments, whether freehold or of any other tenure, and whether corporeal, incorporeal or personal, and to any undivided share thereof, and to any estate, right, or interest (other than a chattel interest) therein ; The term " i)ersonal estate " shall extend to leasehold estates and other chattels real, and also to moneys, shares of govern- ment and other funds, securities for money (not being real estates), debts, choses in action, rights, credits, goods, and all other property whatsoever, which by law devolves upon the executor or administrator, and to any share or interest therein ; The term "person" and also the term "testator" shall in- clude a married woman ; The term " mortgage " shall include any lien for unpaid purchase money, and any charge, encumbrance, or obligation Imp. ;iO and 31 df any nature whatever upon any lands or tenements of a "Person." " Testator." " JMortgage." m. testator or intestate. m\ '■ I ; l- ' Power to dis- pose of all property : Imp. 1 v., e. 26, 8. 3. Pin' autn ni Contingent interests. Eights of entry. Property ac- quired after the will. 5. F.very person may devise, bequeath, or dispose of by will, executed in manner hereinafter mentioned, all real estate and jiersonal estate which he shall be entitled to, either at law or in equity, at the time of hio death, and which, if not so devised, bequeathed, or disposed of, would devolve upon his heir at law, or upon his executor or administrator • and the power hereby given shall extend to estates pur mitre vie, whether there shall or shall not be any special occupant thereof, and whether the same shall be a corporeal or incorporeal heredita- ment ; and also to all contingent, executory, or other future interests in any real or personal estate, whether the testator may or may not be ascertained as the person or one of the persons in whom the same may respectively become vested, and whether he may be entitled thereto under the instrument by which the same were respectively created, or under any disposition thereof by deed or will ; and also to all rights of entry for con- ditions broken and other rights of entry, and also to such of the same estates, interests and rights respectively, and other real and personal estate, as the testator may be entitled to at the time of his death, notwithstanding that he may become entitled to the same subsequently to the execution of his will. m Wills by in- 6. No wUI made by any person under the age of twenty-one Imp' iT"c" y®^^^ ^^*^^ ^® ^^^^^ 26,8.':. ▼1 # " THE WILLS ACT, 1873." 409 7. No will shall be valid unless it shall be in writing, and I'xecution. executed in manner hereinafter mentioned; that is to say, it .^|."''' f,^"*^' shall be sv^ned at the foot or end thereof by the testator, or by " ' some other jjerson in his presence, and by his direction ; and Attestation. such signature shall be made or acknowledged by the testator, signature. in the presence of two or more witnesses, present at the same Imp- !•'' and 16 time, and such witnesses shall attest and shall subscribe the ' ^' ' ^' will in the presence of the testator ; but no form of attestation shall be necessary ; Provided always, that every will, so far only as regards the position of the signature of the testator, or of the person signing for him as aforesaid, shall be deemed to be valid, \vithin the meaning of this Act, if the signature shall be so placed at, or after, or following, or under, or beside, or opposite to the end of the will, that it shall be apparent on the face of the will that the testator intended to give effect by such signature to the writing signed as his will ; and that no such will shall be affected by the circumstance that the signature shall not follow or be immediately after the foot or end of the will, or by the circumstance that a blank space shall intervene between the concluding word of the will and the signature, or by the circumstance that the signature shall be placed among the words of the testimonium clause, or the clause of attesta- tion, or shall follow or be after or under the clause of attestation, either with or without a blank space intervening, or shall follow or be after, or under, or beside the names or one of the names of the subscribing witnesses, or by the circumstance that the signature shall be on a side, or page, or other portion of the paper or papers containing the will, whereon no clause or paragraph or dispn ing part of the will shall be written above the signature, or by the circumstance that there shall appear to be sufficient space on or at the bottom of the pre- ceding side or page or other portion of the same paper on which the will is written to contain the signature ; and the enumeration of the above circumstances shall not restrict the generality of the proviso ; but no signature under this Act shall be operative to give eff'ect to any disposition or direction which is underneath, or which follows it, nor shall it give eff'ect to any disposition or direction inserted after the signature shall be made. 8. No appointment made by will, in exercise of any power, Ari>"i"'ments, shall be valid, unless the same shall be executed in manner l.'x^j^sed" hereinbefore required ; and every will executed in manner . y. . " ,. hereinbefore required shall, so far as respects the execution g. lo."' ' ' and attestation thereof, be a valid execution of a power of appointment by will, notwithstanding it shall have been ex- pressly required that a will made in exerciso of such power 410 WUIh of perso- nalty of Holdi- erH and sailors. Imp. 1 V. , c. 2(i, H. 11. Publication unnt'(;es.sai'y. Imi). 1 Y., c. 2(i. s, i;i. Will not invalid if witness interested. Imp. 1 v., c. '2(i, s. 14. Gifts, &c. . \vitness invalid. Imi). 1 v., 2(5, H. 15. to c. f,!i "THE WILLS ACT, 1873." should be executed with some additional or other form of execution or solemnity. 9. Any soldier being in actual military service, or any mari- ner or seaman being at sea, may dispose of his personal estat" as he might have done before the making of this Act. 10. Every will executed in manner hereinbefore required, shall be valid without any other publication thereof. 11. If any person who shall attest the execution of a wiU shall at the time of the execution thereof, ov at any time after- wards, be incompetent to be admitted a witneso to prove the execution thereof, such will shall not on that account be invalid. 12. If any person shall attest the execution of any will, ti) whom or to whose wife or husband any beneficial devise, legacy, estate, interest, gift, or appointment of or attecting any real or personal estate (other thar. and except charges and directions for the payment of any debt or debts) shall be there- by given or made, such devise, legac}' estate, interest, gift, or appointment shall, so far only as cone .is such person attesting the execution of such will, or of the wife or husband of such person, or any person claiming under such person or wife or husband, be utterly null and void, and such person so attesting shall be admitte'l as a witness to prove the execution of such will, or to prove the validity or invalidity thereof, notwith- standing such devise, legacy, estate, interest, gift, or appoint- ment mentioned in such will. M: .J ■ ' 1: Creditors competent wit:i esses. Imp. 1 v., 20, 8. 16. Executor competent witness. Imp. 1 v., 0. 2«, a. 17. 13. In case by any will any real or personal estate shall be charged with any debt or debts, and any creditor or the wife or husband of any creditor whose debt is so charged, shall attest the execution of such will, such creditor, notwithstanding such charge, shall be admitted a witness to prove the execution of such will, or to prove the validity or invalidity thereof. 14. No person shall, on account of his being an executor of a will, be incompetent to be admitted a witness Lo prove the execution of such will, or a witness to prove the validity or in- validity thereof. Revocation by 15. Every will shall be revoked by the marriage of the Snp.^l^V. c testator, except a will made in the exercise of a power of ap- 26, s. 18 ; ' pointment, when the real or personal estate thereby appointed 32V.,c.8,s. ;i, ■would not, in default of such appointment, pass to the testator's ii i "THE WILLS ACT, 1873." 411 heir, executor or administrator, or the person entitled as the and 36 v., c. . testator's next of kin under the Statute of Distributions. ^^' ^" '* (^"*-) 16. No will shall be revoked by any presumption of an in- tention, on the ground of an alteration in circumstances. 17. No will or codicil, or any part thereof, shall be revoked otherwise than as aforesaid, or by another will or codicil executed in manner hereinbefore required, or by some writing declaring an intention to revoke the same, and executed in the manner in which a will is hereinbefore required to be executed, or by the burning, tearing, or otherwise destroying the same, by the testator, or by some person in his presence and by his direc- tion, with the intention of revoking the same. No rsvoraticiii by chanjje in circumstances. Imp. 1 v., c. 2(5, a. 1!), ancl;i2 v., c. 8, s. 4(()nt.) How only will can be re- voked. Imp. IV., c. 2(!, 8. 20, and 32 v., c. 8, s. .5(()nt.) 18. No obliteration, interlineation or other alteration made Obliterations, in any will after the execution thereof, shall be valid or have Interlinea- any effect, except so far as the words or effect of the will before im^f.'i v., c. such alteration shall not be apparent, unless such alteration 20, s. 21. shall be executed in like manner as hereinbefore is required for the execution of the will ; but the will, with such alteration as part thereof, shall be deemed to be duly executed, if the signature of the testator and the subscription of the witnesses be made in the margin or on some other part of the will oppo- site or near to such alteration, or at the foot or end of, or opposite to, a memorf.ndum referring to such alteration, and written at the end or some other part of the will. 19. No will or codicil, or any part thereof, which shall be in Revival, any manner revoked, rhall be revived otherwise than by the l^v- ^^•' ^• re-execution thereof, or by a codicil executed in manner here- " ' **' inbefore required, and showing an intention to revive the same ; and when any will or codicil which shall be partly revoked, and afterwards wholly revoked, shall be revived, such revival shall not extend to so much thereof as shall have been revoked before the revocation of the whole thereof, unless an intention to the contrary shall be shown. 20, No conveyance or other act made or done subsequently to the execution of a will, of or relating to any real or personal estate therein comprised, except an act by which such will shall be revoked as aforesaid, shall prevent the operation of the will with respect to such estate, or interest in such real or personal estate, as the testator shall have power to dispose of by will at the time of his death. No act as t^" property named in the will to prevent operation of the will as to any interest left intestatfir. Imp. 1 v., c. 20, 8. 23. 21, Every will shall be construed, with reference to the real 8. a. 2 (On't.) iW ' . 41 m 11 , 1 ; ' ■«' i * si?/ r ': 1 ill , •: in t ^iH it ' 412 Will to speak frnni death. Imp. IV., c. 2ti, s, 24, aml:i2 v., c. 8, s. l(()nt.) Lajhsed (levine t" sink into re«iiluary device. Imp. 1 v., c. 26, 8. 25. Leaseholds, "THE WILLS ACT, 1873." and personal estate comprised in it, to speak and take effect as if it had been executed immediately before the leath of the testator, unless a contrary intention shall appear by the will, 22. Unless a contrary intention shall appear by the will, such real estate or interest therein as shall be comprised or intended to be comprised in any devise in .such will contained, wliicli shall fail or be void by reason of the death of the devisee in the lifetime of the testator, or by reason of such devise being contrary to law, or otherwise incapable of taking effect, shall be included in the residuary de\'ise (if any) contained in such will. 23. A devise of the land of the testator, or of the land of iinder'a^gerie- " ^^^^ testator in any place or in the occupation of any person ral devise. Imp. 1 v., f. :i6, s %. General gift to inclnde I'ealty and personalty over which testator has power to appoint. Imp. 1 v., c. 26, s. 27. mentioned in his will, or otherwise described in a general man- ner, and any other general devise which would describe a leasehold estate, if the testator had no freehold estate which could be described by it, shall be construed to include the leasehold estates of the testator or his leasehold estate or any of them to which such description shall extend (as the ca,se may be), as well as freehold estates, unless a contrary intention sliall appear by the will. 24. A general devise of the real estate of the testator, or of the real estate of the testator in any place or in the occupation of any person mentioned in his mil, or otherwise described in a general manner, shall be construed to include any real estate, or any real estate to which such description shall extend (as the case may be), which he may have power to appoint in any manner he may think proper, and shall operate as an execution of such power, unless a contrary intention shall appear by the will ; and in like manner a bequest of the personal estate of the testator, or any bequest of personal estate described in a general manner, shall be construed to include any personal estate, or any personal estate to which such description shall extend (as the case majr be), which he may have power to appoint in any manner he may think proper, and shall operate as an execution of such power, unless a contrary intention shall appear by the will. General devise 25. Where any real estate shall be de^^sed to any person to pass whole " " " ' ' " " estate in the land devised. Imp. 1 v., c. 26. s. 28. Con. Stat., c. 82, 8. 12. without any words of limitation, such devise shall be construed to pass the fee simple, or other the whole estate or in- terest, which the testator had power to dispose of by will, in such real estate, unless a contrary intention shall appear by the will. 11 "THE WILLS ACT, 1873." 413 26. In any devise or bequest of real or personal estate, thf Import of words "die without issue," or "die without leaving issue," or ^ri'fV'"*,,! •'''?, '• , . „ ', 1 1 • 1 • • 1 without isHue, " have no issue, or any other words wluch may import eitliei' or to that a want or failure of issue of any person in his lifetime or at 'fffi^t. the time of his death, or an indefinite failure of his issue, shall .j'"'^' 2. s. 32. the time of the death of the testator, such devise shall not lapse, but shall take effect as if the death of such person had happened immediately after the death of the testator, unless a . contrary intention shall appear by the will. 30. Where any person being a child or other issue of the Gifts to issue I m lii ^1 i'. fl ! u, ; When devise i ' ^ to a tnistee shall pass the whole estate i bejond wliat is requisite for j the trust. Imp. 1 v., c. ii' 20, s. .n. 414 "THE WILLS ACT, 1873." wholoaveiHHui' testator, to whom any real or personal estate shall be devised li'i'iitli* Hhair ^^ bequeathed for any estate? or interest not determinable at or not lapHe. before the death of such person, shall die in the lifetime of •L'"'' s'i^' ^' ^^^^ testator, leaving issue, and any of the issue of such person ' " ' ' shall be living at the time of the death of the testator, such devise or bequest sliall not lapse, but shall take effect as if the death of such person had happened immediately after the death of the testator, unless a contrary intention shall appear by the will. :'i!i,:'; Proviso. Mortgage 31. When any person shall, after the passing of this Act, priimirily ^^^ seized of or entitled to any estate or interest in any real charj^eable on estate, which shall, at the time of his death, be charged with the lands. ^^g payment of any sum or sums of money by way of mortgage, V.'^'c. llTand ^^^ ^"^^ person shall not, by his will or deed or other docu- •2!) v., c. 28, s. ment, have signified any contrary or other intention, the heir ■» (Ont.) Qj. devisee to whom such real estate shall descend or be de- vised shall not be entitled to have the mortgage debt dis- charged or satisfied out of the personal estate, or any other real estate of such person ; but the real estate so charged shall, as between the different persons claiming through or under the deceased person, be primarily liable to the payment of all mortgage debts with which the same shall be charged, every part thereof according to its value bearing a proportionate part of the mortgage debts charged on the whole thereof : Provided always, that nothing herein contained shall affect or diminish any right of the mortgagee on such real estate to obtain full payment or satisfaction of his mortgage debts, either out of the personal estate of the person so dying as aforesaid, or other- wise : Provided also, that nothing herein contained shall affect the rights of any person claiming under or by virtue of any will, deed, or document made before the passing of this Act. 32. In the construction of any will or deed or other docu- ment to which the next preceding section of this Act relates, a general direction that the debts or that all the debts of the testator shall be paid out of his personal estate shall not be deemed to be a declaration of an intention contrary to or other than the rule established by the said section, unless such con trary or other intention shall be further declared by words expressly, or by necessary implication referring to all or some of the testator's debts or debt charged by way of mortgage on any part of his real estate. Devisee in 33. Where by any will which shall come into operation after mouev^^'^sale ^^^ passing of this Act the testator shall have charged his or age to real estate, or any specific portion thereof, with the payment of Consequence of direction that testator's debts be paid ont of per- sonalty. Imp. 30 and31 V.,c. 69, 8, 1, and 35 V. , c. 15, 8. 1 (Ont.) ■ii:'if 1 1^1. 1 11^ "THE WILLS ACT, 1873." 41 o lii.s debts or with the payment of any legacy or other specific Hatisfy thart^cs !>iim of money, and shall have devised the estate so charged to ""twitlmtaiKl- aiiy trustee or trustees for the whole of his estate or interest ..xproHs iK)wcr therein, and shall not have made any express provision for the »«» tli« will, raising of such del)t, legacy or sum of money out of such estate, v 'c.iw''" U it shall be lawful for the said devisee or devisees in trust, not- ami 29 V., C ' withstanding any trusts actually declared by the testator, to -^> "• I'Mt^'a") raise such debt, legacy or money as aforesaid by a sale and absolute disposition, by public auction or private contract of tlie said real estate or any part thereof, or by a mortgage of the same, or partly in one mode and partly in the other, and any deed or deeds of mortgage so executed may reserve such rate of interest and fix such period or periods of repayment as tlie person or persons executing the same shall think proper. 34. The powers conferred by the last section shall extend to Power given all and every person or persons in whom the estate devised ''v ':wt section , I, p .-, '^. '^ I . ,^ 11 • 1 . 1 extended to shall for the time bemg be vested by survivorship, descent or wui-vivors, devise, or to any person or persons who may be appointed under validity of any such iU'viHe«'H in feu sale or mortgage shall be ascertained and iletermined in all ini'i? 22aiul2;{ '"'^•'^pt'cts as if this Act had not been passed ; and the said several v., c. :{;■), H. IH, sections sliall not extend to a devise to a>.y person or persons Q«'^"i7^f'^" '" ^""^ "' '" *'"'' '" ^**' *"''*' testator's whole estate and interest , H. 17 ((-an.) ^.),.^py^,,i y,\^\^ debts or legacies, nor shall they affect the power of any such devisee or devisees to sell or mortgage as he or they may by law now do. Powers of nale, 38. Whenever, after the passing of thi.g Act, there shall ))e &c., may bi; j,^ .^,^y ^yj^ f,j. cojifil of any deceased person, whether such will executor, wLn ^^^ made, or such person shall have died or shall die; before nv none other after the passing of this Act, any direction, whether express or implied, to sell, dispose of, appoint, mortgage, encumber, or lease any real estate, and no person shall be by i:he said will, or some codicil thereto, or otherwise by the testator appoint id to execute and carry the same into effect, the executor or ext?- cutors (if any) named in such will or codicil shall and may execute and carry into effect every such direction to sell, dis- pose of, appoint, encumber, or lease such real estate, and any estate or interest therein, in as full, large, and ample a manner, and with the same legal effect, as if the executor or executors of the testator were appointed by the testator to execute ami carry the same into effect. named to exercise Applicant for administration with the will annexed to de- pose to value of the realty. ;«V., C-. 18, H. 1 (Ont.) tJondition of the bond, and justification of siireties. 39. In every case where any person applies to be appointed an administrator with the will annexed, he shall in his appli- cation state, and in his affidavit of the value of the property devolving shall depose to the value or probable value of all tlie real estate over which, or over any estate in which, the executor or executors named in the will or codicil were by the said will or codicil clothed with any power of disposition, or which real estate, in case of no executor being appointed, was by the will or codicil directed to be disposed of, without any person being appointed to effect such disposition ; and in every such case the bond to be given by such person upon his obtaming a grant of administration with the said will annexed, shall, as respects the amount of the penalty of the bond, and the justification of the sureties, include the amount of the value or probable value so stated and deposed to ; and the condition of the bond, in addition to the other provisions thereof, shall provide that the administrator shall well and truly pay over and account for to the person or persons entitled to the same, all moneys and assets to be received by him for or in consequence of the exer- cise by him of any power over real estate created by the will or codicil, and which may be exercised by him. "THE WILLS ACT, 1873." 417 40. Whenever, after the passing of this Act, there shall be Administrator in any will or codicil thereto of any deceased person, whether nyx^jYuav" such will be made or such person shall have died before or execute powers after the passing of this Act, any power to any executor or of «al«. ftc. executors in such will to sell, dispose of, appoint, mortgage, en- '^2 ("('hit ) cumber, or lease any real estate, or any estate or interest therein, whether such power be express, or arise by implication, and whenever, from any cause, letters of administration, with such will annexed, shall have been by a court of competent jurisdic- tion in Ontario committed to any person, and such person has given, or shall hereafter give, the additional security in the next preceding section mentioned (which additional security the Judge of the Surrogate Court is authorized to receive), such porson shall and may exercise every such power, and sell, dis- pose of, appoint, mortgage, encumber, or lease such real estate, and any estate or interest therein, in as full, large, and ample ;i manner, and with the same legal effect for all purposcb is the said executor or executors might have done. 41. Whenever, after the passing of this Act, there 'tall b Adniinis*' itor in any will or codicil thereto of any deceased person, .vhfther n,!*'^j ,n(iy" such will be made or such person shall have dlea before (. execute pow- after the pas&Uig of this Act, any power to sel', dispose of. a\> ers of sale, etc., point, mortgage, encumber or lease any real estate, or any n^nil^s nomao estate iic interest therein, whether such power be express, or execute, arise by implication, and no person shall be by the said mW, iwX'.';' ^^' '*' ur some codicil thereto, or otherwise by the testator appointed " ^ " ' to execute such power, and letters of administration with such will annexed, shall have been by a court of competent juris- diction in Ontario committed to any person, and such person has given or shall hereafter give the additional security before mentioned (which additional security the Judge of the Surro- gate Court is authorized to receive), such person shall and may exercise every such power, and sell, dispose of, appoint, mort- gage, encumber, or lease such real estate, and any estate or interest therein, in as full, large, and ample a manner, and with the same legal effect, as if such last named person were appointed by the testator to execute such power. 42. Whenever any person shall have entered into a contract wiien execu- in writing for the sale and conveyance of real estate, or of any tor or admin iw- estate or interest therein, and such person shall have died in- *''^*"'" "?'*^y testate, or without providing by will for the conveyance of such pursuance of real estate, or estate or interest therein, to the person entitled contract of or to become entitled to such conveyance under such contract, 33*v** c 18 then, whenever, upon the supposition of the deceased being s. 4 (Out.) alive, he would be liable to execute a conveyance, the executor, AA I. 11 1 tit fen; 418 f: ^ .!';<' Duties and lia- bilities of an executor and administrator acting under the powers in this Act. .•«V.,c. 18, s. 5 (Ont.) "THE WILLS ACT, 1873." administrator, or administrator with the will annexed (as the case may be), of such deceased person, may and shall make and give to tie person entitled to the same a good and sufficient conveyance or conveyances for such estates, and of such nature as the said deceased, if living, would be liable to give, but without covenants, except as against the acts of the grantor : which conveyances shall be as valid and effectual as if the said deceased were alive at the time of the making thereof, and had executed the sanie, but shall not have any further validity. 43. Every execator, administrator, and administrator with the will annexed, shall, as respects the additional powers vested in him by this Act, and any money or assets by him received in consequence of the exercise of such powers, be subject to all the liabilities, and compellable to discharge all the duties of whatsoever kind, which, as respects the acts to be done by him under such powers, would have been imposed upon an executor or other person appointed by the testator to execute the same, or in case of there being no such executor or person, would have been imposed by law upon any person anpointed by law, or by any coui-t or judge of competent jurisdiction, to execute such powers. 44. Where there are several executors, adrainistratoi's, or administrators with the will annexed, and one or more of them dies, the powers hereby created shall vest in the survivor or survivors, 45. After the grant of administration with the will annexed by any court of competent jurisdiction in Ontario, no executor named in the said will shall execute any of the powers con- tained in the will, and of the nature above mentioned, unless such lettei's of administration be first revoked. Powers given by this Act to two or more to survive. ;« V.,c. 18, s. (Ont.) After adminis- trator api)oint- ed, no executor to execute powers. 33 v., c. 18, s. 7 (Ont.) Acts repealed. 46. The Acts de'ioribed in the Schedule to this Act ai-e, except so far as the same relate to any wills to which this Act does not extend, repealed to the extent in the third column of the said Schedule mentioned ; but such repeal shall not revive any Act or provision of law repealed by them, nor shall the said repeal prevent the application of any of the said Acts, or of any Act or provision of laws formerly in force, to any transaction, matter or thing anterior to the said repeal to which they would otherwise apply. in "THE WILLS ACT, 1873." 419 ced (as tlie ll make and d sufficient such nature to give, but he grantor : I if the sai\ 4 '; t i ^m ■H ^k !'l ill V? Ill ^ i :! ^ It ■ !^^ ■| '!■ : |i M >$■ ■; ) *i' ^ n 422 FORMS OF WILLS. No. II. COMMON FORM OF WILL. Appendix II. 1. I give, devise, and bequeath unto my beloved wife (A. B.), all my remaining estate, both real and personal, in whatever it may consist, or wherever situated, at the time of my decease, to be by her used and disposed of, dur- ing her natural life, precisely the same as I myself might do were I living ; and giving my said wife full power tc» sell, exchange, invest and reinvest the same, in the same manner I might do if living ; and to distribute the same by gift, or otherwise, among my children at any time during her life as to her shall seem meet and proper ; and to appoint the same among my said children, by will, after her decease, according to her own judgment and discretion. 2. But if any of my said estate shall remain undisposed of by my said wife, at the time of her decease, I give, de- vise, and bequeath all such residue and remainder of my said estate, to be equally divided among my children who shall be living at that time, and the issue of any child who may have then decejised ; such issue taking the share to which such deceased child would be entitled, if living. 3. But I hereby DIRECT, that the share of any of my daughters, who shall be then living, shall not absolutely vest in any such daughter, but her share shall be retained by my executors and trustees, for the time being, whether appointed by me, or by the proper tribunals, and put at interest, or upon rent, and only the in- come thereof paid to my said daughters, or any of them, during their natural lives, and after their decease, the whole shares of such daughters, or either of them, to be i;i^.5i come a frequent practice there, to have iustructions for preparing wills, and all correspondence between tes- tators and the intended beneficiaries under their wills ; an^ which, from the peril of sickness, or other casu- alty, may fail of being carried into effect, by reason of not being reduc- ed lo the requisite statutory form ; to have all such provisional testa- mentary acts executed before the re- quisite number of witnesses, and with all due formalities, so as to be operative, as testameritary disposi- tions, in the event of any accident occurring to prevent the due execu- tion of the more formal instrument, in contemplation. Hayes & Jarm. Wills, 101, 102 ; ante, p. 231. [These precautions should also be used in this Province, as " The Wills Act, 1873," is similar to the English Act. See ante, pp. 230, 231 .J FORMS OF WILLS. 423 u equally distributed among their and each of their lawful Appendix II. heirs, according to the laws of this Province. And I hereby expressly direct, that no part of the share of any of my said daughters, or of the income thereof, shall be in any manner subject to the control of any husband of any of my said daughters, or liable under any mortgage, pledge, or other contract of such husbands, or in any manner liable for any debt of such husband. But my trustees shall retain the entire property of the share of any of my said daughters, whether it be of real or personal estate, during the life of said daughters, and pay over the use and income thereof, quarterly, or oftener, as may be con- venient for them, into the hands of my said daughters, or any of them, upon their own sole receipt thei'efor. And I hereby appoint, &c. In witness whereof, &c. No. III. "• -ife DEED Oil WILL IN TRUST. I, A. B., of, &c., do hereby give, grant, alien, convey, and confirm, &c., or devise and bequeath unto A. B., and C. D,, of, &c., and their heirs, the following described real and personal estate : or the residue and remainder of all my estate, real and personal, of which I shall die seized and possessed, after the payment of my debts and the expenses of administra- tion, together with such legacies and bequests as are hereinbefore made ; or as I have made in my will, bear- ing even date herewith, together with any codicil which I may hereafter add to the same ; or as I shall hereafter make by any will or codicil remaining un- revoked at the time of my decease. In trust : For the following purposes. 1. To pay my dear wife, A. B., for and during the term of her natural life, one thousand dollars annually, in equal quarterly payments, reckoning from the first day of January in each year, the first payment to be made within one month after my decease, for the cuiTent quarter. ■m r-^ 424 FORMS OF WILLS. Wi Appendix II. 2. To pay the expense of supporting, maintaining, and educating each and all my said children, in such manner as my wife, with the advice of my trustees, shall deem suitable and proper, until the sons shall arrive at the age of twenty-one years, and the daughters shall arrive at that age, or shall marry. 3. To pay to each of ray sons at th: age of twenty-one years, and during his natural life thereafter, each and every year, in equal quarterly payments, reckoning from the first day of January, one thousand dollars, the first {)ayment, for the current quarter, to be made within one month after my sons shall severally arrive at majority ; and to pay the same sum to my daughters, respectively, in the same manner, upon their marriage or arriving at the age of twenty-one years, whichever shall first happen. 4. Upon the decease of any of my said children, leaving issue, to pay the said sum of one thousand dollars annually to such issue or to the legal guardian of such issue, in the same manner any of my said deceased chil- dren would have been entitled to receive the same, if still living. 5. Upon the decease of the last surviving on< of niy children, my trustees shall convey all the remainmg part of my estate hereinbefore conveyed to them, together with any income of the same remaining in their hands, t(j the heirs and legal representatives of my deceased children, in equal shares, according to the number of my deceased children so represented, such heirs and legal representatives taking by way of representation, and not according to their number. And I hereby appoint, Jtc. In witness whereof, Szc. In this manner the trusts may be made more or less numerous and extended. No. IV. WILL GIVING TO ONE ABSOLUTELY ALL THE TE&J'i t'C -i REAL AND PERSONAL ESTATE. This is the last will and testament of me [testator's name, residence and occupation], I devise and bequeath all the FORMS OF WILLS. 425 real and personal estate to which I shall be entitled at the Appendix ii. time of my decease, unto [devisee's name and residence], absolutely ; but, as to estates vested in me upon trust or by way of mortgage, subject to the trusts and equities aifecting the same respectively. And I appoint the said [name'] sole executor of this my will, hereby revoking all other testamentary writings. In witness whereof, &c. No. V. WILL DISPOSING OF REAL AND PERSONAL ESTATE IN FAVOUR OF TWO SONS, OF WHOM ONE IS AN ADULT AND THE OTHER A MINOR ; GIVING TO THE DEVI- SEES A POWER OF APPOINTMENT OVER THE REAL ESTATE. DIRECTION TO PURCHASE A LIFE ANNUITY. This is the last will and testament of me [testator's name and residence]. I devise the dwelling-house at , in which I now reside, with the garden, orchard, and the appurtenances thereto belonging, ;ind also the pieces of land called respectively [names], i w \n my occupation, situate in the said of , with the easements and appurtenances therewith usually occupied or enjoyed, unto my eldest son [name], his heirs and assigns. And I devise my messuage and lands situate at , now in the occupation of [tenant] under a lease, with the easements and appurtenances therewith usually occupied or enjoyed, to my younger son, &c. But in case my said younger son shall die under the age of twenty-one years, then I devise the last-mentioned hereditaments and premises, in the same manner as hereinbefore is expressed concerning the other hereditaments and premises hereinbefore firstly de- vised. And in case my said younger son shall at my decease be under the age of twenty-one years, I empower and direct my executors or administrators, executor or administrator, for the time being, during his minority, to let from year to year, or for any term not exceeding [seveii] years in possession, at the best rent, and to manage in all respects the hereditaments hereinbefore devised to him, and to receive the rents and profits there- of, and after payment of the incidental outgoings and {11 ' ill ^'ii 426 FORMS OF WILLS. Appendix II. expenses, to apply the net rents and profits, or an adequate part thereof, in his maintenance and education, and to invest the unapplied surplus, if any, in or upon the public funds or securities of the [ ], or real or leasehold securities in [ ] (and not elsewhere), or in or upon any other security, and improve the same as an accumulating fund, varying the investment from time to time, as often as may be thought proper, for any other of the kinds aforesaid; but with liberty to apply the income, and, if deemed necessary, the capital also, of the same fund, for the maintenance or advancement in life of my said son ; and the same fund, or so much thereof as shall not be so applied, shall, in the event of his attainment of the age of twenty-one years, be his absolute property ; but in the event of his death under that age, shall be the absolute property of my said elder son. I direct my executors to purchase, within twelve calendar months after my decease, in the name and for the benefit of my servant [viame], an irredeemable annuity of $ for her life, payable in equal half-yearly cr quarterly portions, such purchase to be made in the discretion of my executors, either from Government or any j)ablic company, or from any private person or per- sons, but so that the annuity, if purchased from any pri- vate person or persons, shall be well secured on freehold or leasehold property. And T direct that until such pur- chase shall be made, a like annuity shall be paid her out of my general joersonal estate, in equal quarterly portions, the first portion to be paid at the end of three calendar months from my decease ; And I declare, that the said annuitant, or her executors or administrators, shall not be allowed to have the value of the said annuity in lieu thereof. I give to my said younger son, if he shall attain the age of twenty-one years, the sum of $ , to be transferred to him within three calendar months after he shall attain that age, or, if he should attain it in my life- time, within three calendar months after my decease. I direct that the expenses incident to the bequests of the annuity and stock legacy, hereinbefore respectively be- queathed, shall be paid out of my residuary personal estate. As to the residue of the real and personal proper- ty whatsoever and wheresoever which may belong to me at my decease, I devise and bequeath the same to my said FORMS OF WILLS. 427 elder son, his heirs, executors, and administrators, abso- Appendix II. lutely ; but subject as to property vested in me as trustee or mortgagee, to the trusts and equities affecting the same respectively. I appoint my said elder son and [names] the executors of this my will, with power to compound debts and settle claims against or in favour of my estate, and to retain and allow to each other the expenses of executing my will ; And I constitute my executor or executors for the time being guardians or guardian of m^- said younger son during his minority. Lastly, I revoke all former wills, and declare that this writing, consisting of three sheets of paper, contains the whole of my will. In wit- ness whereof, I have hereunder set my hand, and I have also set my hand to each of the preceding sheets of this my will, this day of , in the year of our Lord , &c. No. VL ii' 1?v WILL DEVISING REAL ESTATE TO TRUSTEES. Will devising real estate to trustees, upon tnists for raising money, by mortgage, in aid of the personal estate, to pay debts and legacies ; and, subject thereto, for the testator's son and his issue, in strict settlement ; and, failing such issue, for raising certain sums ; and, subject thereto, for collateral relations. Power of leasing. Specific bequest of leasehold for years, and other specific legacies. Bequest of annuities and pecuniary legacies. Devise of mortgage and trust estates. Power to give discharges to mortgagees and others. Power to appoint new trustees. ;!:i ,« <■§ This is the last will and testament of me [testator's name, residenceand occupation]. I devise all the freehold manors, messuages, lands, tenements, and hereditaments, to which I may be entitled at my decease, with their appurtenances, unto and to the use of [trustees], their heirs and assigns, upon the trusts following: (namely,) upon trust, in the first place, with or out of the rents and profits of the said devised estates, or by mortgaging or charging the same or a competent part or parts thereof, to raise, in aid of my personal estate (if insufficient), so much money as shall be requisite to satisfy my funeral and testamentary expenses and debts, and the annuities and pecuniary ir: FORMS OF WILLS. Appendix II. legacies hereinafter bequeathed, together with the ex- penses of executing this trust, and to apply the money to be so raised accordingly ; And, subject thereto, in trust for my son (name) and his assigns during his life, without (as to the said freehold hereditaments) impeachment of waste. And immediately after his decease in trust for the first and every other son successively, according to ; seniority of birth, of my said [son], and the heirs (or, heirs Miq'e) of the body of each such son. And, failing such issue, in trust for the daughters of my said son, equally, as tenants in common, and the heirs of their respective bodies, with trust limitations in the nature of cross remainders between such daughters and the heirs of their respective bodies, as to both the original and the accruing shares. And, fail- ing such issue, upon trust, with or out of the rents and profits of the said devised estates, or by mortgaging or charging the same or a competent part or parts thereof, to raise and i)ay to the respective persons or classes of per- .sons next hereinafter named or described, if living at the time of the ftiilure of the antecedent tru.sts, the respective sums of money which immediately follow theii respective names or descriptions (viz.), [iiame, tly, I re- favour of bwenty-one tor during [•ry on the V^ife niarry- .e proi)erty Devise of debts, &c. [testators », being a ' twenty- ', being a it age or at age or children nd of six dren sub- six calen- ;ome such 1 or chil- li thereof, f, or their eclare by lame], to that pur- use at my nploy my f my per- or her at ir sons of e thereof, and lend to him or them the capital employed or requisite Appendix II. to be employed therein, or any part thereof, upon such security and such terms as she shall think reasonable. I empower my said wife to manage my personal estate generally in such manner as shall appear to her to be most advantageous to my family, with liberty, at her dis- cretion, either to pennit it to continue in the state in which it shall be found at my death, or to get it in, and invest the proceeds in her name, upon any stocks, funds or secu- rities, or at any rate of interest, or in the purchase of any real or personal property, and to vary the investment when and as she shall think fit (the real property so pur- chased to be considered as converted into and treated as personalty for all the purposes of my will). T give to my said wife all the income of so much of the personal estate to which I shall be entitled at my decease as shall be in any wise employed or invested (inclusive of the profit of the said business), and also the use of the residue thereof, but charged with the maintenance, education, and bringing- up, in a manner suitable to their station in life, of my .sons for the time being under the age of twenty-one years, and my daughters for the time being under that age not being or having been married. In the event of my said wife marrying again, I thenceforth annul the powers and benefits hereinbefore given to my said wife, and give to her an annuity of $ during the remainder of her life, pay- able quarterly into her proper hands and on her personal receipt, as a separate and inalienable provision, the first payment to accrue due and be made at the end of three calendar months after her marriage, if she shall within chat time account for and deliver up my personal estate in her hands to the other trustees or trustee for the time being of my will, to their or his satisfaction ; and, if not, then at the end of three calendar months after such accounting and delivery. And I declare, that if my said wife shall, either before or after such her second marriage, do or suffer any act or thing whereby her said annuity of $ , or any part thereof, shall be aliened or encum- bered, the same annuity shall thereupon cease. I declare, that on the death or marriage of my said wife, my personal estate shall vest in the other trustees or trustee for the time being of my will, who shall have the same power and liberty in regard to my business as I have given to my wife by 1 "' i.'i V i' ! k % 1. :ff iii 444 FORMS OP WILLS, i-' <' Mf Appendix II. the second clause of my will, carrying on the same for such period as the circumstancts of my estate or my family shall, in the opinion of my said trustees or trustee, render it convenient or desirable so to do ; and, subject thereto, shall convert or get in my personal estate not invested in stocks, funds, or securities of the , or on real securities in the , and invest and place out the produce in and upon investments of that description, but with liberty to continue any investments of a different description which they or he shall think it inexpedient to disturb, and with I)()wer to vary from time to time the investment of my personal estate, so as the investment be confined to stocks, funds, or securities of the description aforesaid. I declare, that the said trustees or trustee shall hold my per- sonal estate, from and after the death or ^larriage of my said wife, in tiust for my child, if only one, wholly, or all my children, if more than one, equally, to be absolutely vested in a son or sons at the age of twenty-one years,, and in a daughter or daughters at that age or marriage ; and, as to the share or shares, original and accruing, of a son or sons dying under that age, and of a daughter or (laughters dying under that age without having been married, in trust for the other or others of my children, conformably to the preceding trust ; with power for the said trustees or trustee to apply the whole or part of the income, and any part not exceeding one moiety of the capital of each child's original and accruing share not absolutely vested, for his or her benefit by way of main- tenance, advancement, or otherwise, and the unapplied income of each such share shall be accumulated, and the accumulations be deemed an accretion to the same share. I devise all lands and hereditaments which shall, at my decease, be vested in me as mortgagee or trustee, in fee or othei-wise, unto and to the use of my friends [naTnes, » ^ja ^ ^a e j^y ^^^^^r^i^ F0RM3 or WILLS. im 445 same for ly family 20, render , thereto, vested in securities ?e in and liberty to on which and with it of my to stocks, I declare, my per- re of my Uy, or all tbsolutely ne years,, narriage ; ling, of a lighter or ing been children, • for the Tt of the ty of the share not of main- unapplied and the me share. .1, at my 1, in fee or ',mes, <&€.], IS, subject pectively, said wife, lall marry umes], to i,nd guar- compound Y accounts 8 paid or accounted for to my estate by purcluvsei's or others, who Appknuu II. shall be exonerated by such receij)tH fnjui all liability in respect of the application of the money. And I declaie, so far as concerns the trusteeshij) of my said friends, that vacancies occurring therein from death in my lifetime or otherwise, disclaimer, resignation, unfitness, or incapacity, may from time to time be supplied by the other trustees or trustee for the time being i r, if none such, then by the disclaiming or resigning trustees or trustee, or, if also Tioim such, by the acting executors or executor for the time being, oi' the administrators or administrator for the time being, of the last deceased trustee. And I declare, that as well my said wife as the other trustees or trustee of my will, shall be chargeable only to the extent of her, his, or their lespective actual receipts, and be exempt from responsibility for involuntary losses, and be entitled to retain all disbursements and expen.ses incident to the execution of my will. I revoke all prior wills. In witness, fcc. ',:'i No. XI. WILL DEVISING ESTATES TO THE USES OF A STRICT SET- TLEMENT MADE UPON THE TESTATOR'S MARRIAGE. This is the last will and testament of me [t^fttatoi's name, t&c.]. Whereas, by the settlement made in con- templation of my marriage with my wife [name], by in- dentures of lease and release, bearing date respectively, &c., divers hereditaments therein described were settled by me to the use of myself for life, with remainder to the use of trustees and their heirs, during my life, to preserve contingent remainders ; with remainder (subject to limita- tions for securing a jointure rent-charge to my wife, if she should survive me, for her life, and to a term of five hun- dred years for raising portions for our younger children), to the first and other sons of our marriage successively in tail male, with remainders over ; which settlement con- tains divers powers and provisions concerning the said hereditaments. Now I do hereby devise and subject all the hereditaments of which I am co'^petent to dispose, with the appurtenances, to such of the uses, trusts, powers, and 1 446 FORMS OF WILLS. Appendix II. | lovisions contained in the said settlement concerning the hereditaments thereby settled posterior to the limitation of the said term of five hundred years, as at the time of ni}-^ death shall be capable of efiect ; anl I confirm the said settlement. In witness, &c. No. XII. CODICIL MAKING ALTERATIONS AND ADDITIONS TO THE WILL, AND APPOINTING DIFFERENT EXECUTORS OR TRUSTEES. This is a codicil to my last tuill and testament, dated , A. D. . Whereas, by my said will I have given my wife one-third part of all my real and personal estate, I now declare that it is my will, that, instead of that pro- vision, she shall have the use of one-half of all my estate, real and personal, during her natural life ; and so much of the principal as may be necessary or convenient for her support during the term of her natural life, or so long as she shall remain my widow. And in the event of her marrying again, she shall be entitled to the absolute pro- perty in one-third of all my personal estate which shall then remain, and the use of one-third of ray real estate during her life ; and at the decease or marriage of my said wife, the remainder of all my estate, real and per- sonal, including the reversion of the portion of the real estate, the use of which is hereinbefore devised to my said wife, shall be equally divided among my children, and the issue of any deceased child, such issue taking the share to which such child would have been entitled if living. And I hereby revoke the appointment of A. B. to be one of my executors and trustees ; and I appoint C. D, to that office, with all the powers and duties in my said will declared. Or, Instead of the persons named as executors and trus- tees in my said will, I hereby appoint , i-i- i 1:111 No. XIII. NUNCUPATIVE WILL. A nuncupative will, as the term implies, is not made in writing, but by the declaration of the testator, in the m FORMS OF WILLS, 447 3riiing the limitation e time of nfirm the THE WILL, USTEES. ent, dated ave given lal estate, that pro- ny estate, I so much nt for her so long as it of her )lute pro- lich shall al estate ^e of my and per- the real my said 1, and the share to ing. B. to be t C. D. to 1 my said and trus- i made in r, in the presence of witnesses. It is proper, although not indis- Appenimx il })ensable, that such declarations should be reduced to writing, in the presence of the witnesses, at the time they are made, and subscribed by them, or some of them. The form of the memorandum is not important, but the precise words of the testator should be preserved. FORM. The following is the will of A. B., mariner, soldier, or otherwise, of , feeing sick and nigh unto death, which occurred the day following, at six o'clock P. M. The same was made by the said A. B. in the presence of the persons whose names are hereto subscribed, and who were spe- cially requested by said testator to take notice of the same, as witnesses, and was in these words : "I give my watch to A. B., my silver spoons to C. D.," &c., detailing each particular. " All the rest I give to my wife, and she will carry this will out. She shall be the executrix. ■' Done in the sick-chamber of the said A. B., on Mon- day the 10 April, 18 , at nine o'clock p.m." A. B.) C. D. Y Witnesses. E. F.j If there is time and opportunity to read over the mem- orandum in the presence of the testator, it would be jiro- ] >er to state that fact in the memorandum. An instrument for the mei-e purpose of revocation is sometimes executed, but as this is more readily effected by defacing the will, it is u.sually done in this mode, where that is at hand. And it is common to make, in drawing a new will, a formal revocation of aU fonner wills. But this is not im- portant, as the making of a new will, embracing an entire disposition of the testator's e.state, is, in itself, a revoca- tion of all existing wills of the testator. The form of a revocatoiy will, or of a revocatory clause, is much the same. " I HEREBY REVOKE ALL FORMER WILLS AND CODICILS BY ME MADE." i: ■ 1 1- ,. I. » H: li"l iMM ' ryr I , '. iwn.- If!) ADDENDA. m \'M Page 77— As to effect of delusions in reference to the Addenda. conduct of children, and the question of delusion generally. See Boughtonv. Knight, L. R. 3 Prob. 64. " 183 — Note (6) add recent case of Rees v. Mees, L. R. 3 Prob. 84. " 197 — Note {k) The case of In the goods of Eynon is now reported in L. R. 3 Prob. 92. " 323— To note (c) add In the goods of McCahe, L. R. 3 Prob. 94. " 333 — To note (a) add same case. " 346 — Instance of revocation held to be absolute, not relatively dependent. In the goods of Gentry, L. R. 3 Prob. 80. " 347— To note (a) add Dancer v. Grahh, L. R. 3 Prob. 98. The report of the case of Mitchell v. Weir, on page 44, was taken from the report as originally printed. This report has since been slightly altered, and the reader is advised to refer to the report as amended. The following are the editions of text books reterred to in this work. Jarman on Wills, 3rd edition. Redfield on Wills, 2nd edition. Williams on Executors, 6th edition. < 1 19 i '»! ir CC :'■ ! i ,.;! INDEX. ■i A. ACKNOWLEDGMENT, of signature by testator. {See Execution op Wills op Real Estate.) is sufficient signature, 187, 188. may be by testator nearly blind, 190. may be presumed from attendant circumstances, 190. may be by gesture, 191. cases on the subject considered, 191, and note. misrepresentation of nature of instrument immaterial, 191, 192. witnesses must be present when testator acknowledges his signature under " The Wills Act, 1873," 196. of signature of toihiess. insufficient— he must actually sign at time of attestation, 197-199. AFTER ACQUIRED REAL ESTATE, {See What may be Devised ok Bequeathed.) did not formerly pass by will, 266-268. devisable under provisions of 4 W. 4, c. 1, 267. " " " The Wills Act, 1873," and 32 Vict. c. 8, s. 1, 271. AGE, {See Infants— Old Age.) mode of computing for testamentary purposes. 24. infant can make will of personalty, if male at 14, if female at 12. 21, 22, 24. law altered by "The Wills Act, 1873." 22. no infant can make a will after 31st December, 1873. 22. no age at which testamentary capacity determines, 1 17. incapacity produced by old age, 117-120. (-!?ee Old Age.) AGREEMENT, {See Will.) to leave property by will may be enforced, 170. s ^'m ■k\ 452 INDEX. :>,■* ^il, ALIENAGE, (See Testamentary Capacity.) disability of, in regard to testamentary disposition. 17-19. disability of, in regard to holding real estate. 17. disability of, removed by 12 Vict. c. 197, s. 12, 17. ALIENATION, {See. Revocation by Alteration of Estate.) ALTERATIONS IN WILLS, {See Revocation by Burning, &c.) (Revocation of Wills made in Duplicate.) of personalty do not, under present law, require, signature or at- testation, 322, 323. of real estate, by interlineation, must be authenticated by re-execu- tioi' or rp'^>"^>lication, 323. mig'iit ^e .■e' under Statute of Frauds by obliteration, 323. \inatteste ■>•■' X ., .itions good as a revocation pro tanto, 323. unless connected with ineffectual substituted interlineation, 323. doctrine 'i uependen r^^ >tive revocation applies in such cases, 323. example oi this j ule, ^W4 INDEX. AUTRE VIE, ESTATES PUR. devisable under Statute of Frauds, 278. mode of executing devise of, 278. devohition of, 278. * devisable under s. 5 of " The Wills Act, ]873." 278. B. BEQUEST, definition of, 12. applied to legacies and devises, 12. BLANKS, as to, in wills, 164, 177. BLIND PERSONS, (»S'ee Di^'.FNEMS, Dumbness, and Blindness.) BURDEN OF PROOF, of insanity, lies on those who allege it, 66, 67. of sanity may be shifted to party supporting a will, 67. consideration of, with regard to competency of testator, 67 et seq. of sanity, if insanity established, 69. of revocation while sane, lies on those who allege it, if testator found insane, 73. of hicid interval, 109. of undue influence, lies on those who allege it, 142. lies on those who propound a will, that it is the will of a free and capable testator, 147. where will prepared by a party interested, 147 et i^sq. of coercion or improper influence in case of wills, 147-156. of paper, not testamentary in form, to be a will, lies on those who ;vl- lege it, 162. of informal or unsigned paper to be a good will, lies on those who allege it, 225, 226. of revocation, lies on those who allege it, 304, 359. BURNING, (See Revocation by Burning, &c.) CANCELLING, {See Revocation by Burning, Cancelling, &c. — Alterations in Wills.) INDEX. 455 7 et seq. stator found ' a free and i. hose who al- 1 those who :ratio\s in CHILDREN, BIRTH OF, {See Revocation by Marriage and Birth of Issue.) CIPHER, Will may be written in, 159. CODICIL, (See Republication and Revival.) definition of, by Godolphin and Swinburne, 11. modem definition of, 11. forms part of the will, 11. contingent, is re-execution of will, 261. attestation of, 209. duly executed, republishes will, 209, 385. revocation by. (See Revocation by Subsequent Will, &c.) efiect on, of revocation of will. (See Effect of Revocation of Will on Codicil.) not found with will, presumed to be revoked, 357. is rei)ublication of will, 385, and note, inaccuracy of reference to will in, immaterial, 386. which revives a will, does not necessarily revive a prior codicil, 387. may render valid an invalid will, 386. effect of, in republishing or reviving will. (See Republication and Revival. ) CONDITIONAL OR CONTINGENT WILLS, test of, 257. made on condition precedent, 258. examples of, 258, 259. courts disinclined to treat wills as, 259. evidence cannot be received of adherence to, notwithstanding contin- gency has not happened, 269, 260. of personalty, may, under present law, be adopted under same circum- stances, 260, 261. contingent codicil operates as re-execution of will, 261. CONSENT OF HUSBAND TO WIFE'S WILL, (>i» arc. (See What may bk Devihek or Bequeathed.) DEVISE, definition of, 9, 12. api)liud exclnsively to a will uf real estate, 12. regarded by Blackstone as a conveyance, 12, 200. could nnder old law i)a88 only real estate owned by testator at date of will, 12, 200. DIS.VBILITIES, classification of, 15, 10. classification of persons of inisound mind, 15, 10. alienage, 17-19. (iSVc Aliens.) infancy, 2()-24. (^S'ec Infants. ) covertnre, 2i-47. (Nc*' Married Women.) deafness, dumbness, blindness, 48, 40. criminal conduct, 50. idiocy, 51-63. (See Idiots.) insanity, 5:1-74. (Sec Insane Persons.) monomania, 74-100. (See Monomaniacs.) lucid intervals, 100-112. (. acknowledgment may bo presumed from attending circumstances, 190. acknowledgment may bo by gesture, 191. result of the cases as to acknowledgment, 191, misrepresentation by testator of nature of instrument immaterial, 191, 192. facts in Crawford v. (kirrcujh, 192. judgment in that case, 193 et aeq. change in old law effected by 4 W. 4, c. 1, 193. under " The Wills Act, 1873," both witnesses must be present when will is signed or signature acknowledged, 196. but witnesses need not sign in presence of each other, 190. presumption as to due attestation, 196, n. (a.) meaning of the word "attest," 196, n. (t/.) witness may subscribe in any manner in which testator may sign, 196. a mark is sufficient, or initials, or a fictitious name, or witness's description, or holding top of pen while his name is written, or by guiding witness's hand, 197 . witness may direct another to sign for hira, 197. signature must be with view of attesting, 197. and must be in presence of devisor, 197. acknowledgment of previous signature by witness, or running over previous signature, or addition of witness's residence, insufficient, 197-199. subscription must be by act apparent on the paper, 198. objeCb and iise of attestation clause, 199, 200. attestation or testimonium clause not necessary, 200. meaning of word " subscribe," 201. presumptions aa to due execution considered, 201-203. execution may be proved by other evidence than that of the subscrib ing witnesses, 203. witnesses should sign in such a place as to leave no doubt of the object of their signature, 204, alterations must be duly attested, 204. provisions of Con. Stat. U. C. c. 73, s. 16, as to attestation of wills of married women, 208, 209. presumption that will under tlxat Act must be attested, 208, 209, 464 INDEX. EXECUTION OF WILLS OF REAL ESTATE— Con^iwW. preitence of testator at attestatioii. requirements of Statute of Frauds as to, 205. reciuirements of " The Wills Acts, 1873," as to, 205, construction of word " presence" same in both Acts, 206. testator must be conscious, 206. and must be aware that will is being attested, 206. testator must be where he might see the attestation, 206. examples illustrating this rule, 206, 208. presumption as to testator's position when there is no evidence, 208. rule as to blind testator, 208. attestation of codicil, 209. competency of witnesses. witnesses must be credible under Statute of Frauds, 210. word credible does not occur in Con. Stat. U. C. c. 82, s. 13, 210 but character of witnesses not altered by that Act, 210. witness must be credible when will attested, 210, 211. witness deriving benefit from will not credible, 211. provisions of 25 Geo. 2, c. 6, 211, 212. witness deprived of benefit under will by that Act, 212, Act does not extend to executor or devisee in trust, 212, 214, 215. provisions of "The Wills Act, 1873," as to interested witnesses, 212, 213. this Act applies to wills of personal as well as real estate, 214. and to wives and husbands of attesting witnesses, 214. evidence received to show that a person interested did not sign as witness, 215. P. FEAR, WILL PROCURED BY, {See Liberty and Freb Will— Want of.) FELONY, ( large, the KNOWLEDGE BY TESTATOR OF THE CONTENTS OF HIS WILL — Co7itinned, proof must vary with degree of suspicion, 251. or with degree of capacity, 261. knowledge of contents of will, if the testator is capable, is presumed, 251. rules laid down by Sir J . P. Wilde, regarding wills diily executed. 251 . knowledge of contents is presumed where will signed by mark, 252. presumption of knowledge may be rebutted by evidence, 253. clause introduced into will by fraud or mistake, does not become jiart of will, 253. errors in wills cannot be corrected, 253 — 256. LIBERTY AND FREE WILL, old rule as to disability to make wills created by, 132. modern rule, 132. question iu each case is whether testator had liheiiim niwxm testundi, 132. will procured by force may be set aside, 132. extent of fear which will set aside a will considered, 132, 133. LOCAL LAW REGULATING WILLS, law of domicil governs forms of will of personalty, 5, 6. that is — domicil of testator at his death, 6, G. administration of personalty, governed by law of domicil, G. interpretation of will judged by law of domicil, G. next of kin determined by same law, 0. if probate of will granted, that is conclusive as to due executicni according to law of domicil, 6. difficulty of determining true domicil, 7- domicil not lost by mere abandonment, 8. will of real estate governed by the lex loci rei sitie, 7. LOST OR MUTILATED WILLS, {See Revocation of Wills made in Duplicate.) if provisions of, cannot be ascertained, a former will remains unre- voked, 315. same rule applies to destroyed will, 316. evidence of revocation by, must be clear, 319. 470 INDEX. LOST OR MUTILATED WILLS— Continued. will which was traced into testator's custody, and cannot be found, or is found mutilated, presumed to be destroyed or mutilated atiiino revocandi, 366, 357. but if last in custody of another, revocation must be proved, 357. codicil not found with will and other codicils, presumed to be re- voked, 367. prestimption of revocation of will from loss will not obtain, unless the Coui-t is satisfied that the will was not in existence at testatcjr's death, 357. presumption not rigidly adhered to, in case of testator's insanity, 358 proof of revocation lies on those who allege it, 359. application of this rule to 32 Vict. c. 8, 359. same principles apply to mutilations as to alterations in wills, 359. mutilations presumed to have been made after execution, 369. admission of testator's declarations as to revocation, 369, 3tiO. lost or destroyed will may be proved by instructions, or copy, or parol evidence, 360. evidence of contents of lost will must be clear, 360, 361. one interested witness insufficient, 361. will must be proved to have been in existence after testator's death, 360. due execution must be proved, 360. circiniistances of loss or destruction must also be proved, 360. lost will may be established by Court of Chancery, 360, note, contents or factum of lost will cannot be proved by parol declarations of testator after execution of will, 361. factuvi of lost will, what evidence sufficient of, 361 . entries in books of deceased solicitor admitted to prove, 361. mode of proving contents, 361, 362. contents of will may be proved by declarations of testator at time of execution, 362. mode of loss or destruction of will need not be proved, 362. provisions of Surrogate Courts Act as to deposit of wills of living persons, 362. LUCID INTERVAL, will made during, valid, 107. definition of, by Lord Thurlow, 108. definition of, by other Judges, 108. i : f i 1 bo found, or ilated animo ed, 367. >d to be ve- il, unlesa the at testator's isanity, :J58 ills, 359. 369. 360. 5py, or parol T testator's 360. ate. declarations 51. •r at time of 2. lis of living T INDEX. 471 LUCID INTERVALS— Con«ijme(/. preRumption as to, 109. measure of proof of, required, 109. caution required in examining proof of, 109, 112. probabilities of, stronger in cases of delirium than in cases of perma- nent insanity, 109. presumptions as to, as affecting the execution of wills, 110. rational will evidence of, 110, 112. act of making will evidence of, 110. Swinburne's remarks as to, 111. duration of, 111. M. MARRIAGE, REVOCATION BY. {See Revocation of Wills.) MARRIED WOMEN, disabilities of. had under civil law same power of disposition as /ernes solea, 26. power of making will refused to, by English law, 26. testamentary power of not enlarged by 1 Vict. c. 26, 26. anomalous character of disabilities of, 26. powers of, generally, 26, 27. recent legislation abolishes disabilities of, 27. power of to make will of personalty with assent of hxisbands, 27-29. effect of such assent, 27. operates as renunciation of right to administration, 27, 28. general assent not sufficient, 28. assent may be implied from circumstances, 28. revocation of assent must be formal, 28. power of husband to revoke consent, 28. death of husband extinguishes will, 28. after-acquired property does not pass by such will, 28, 29. question whether power to make will with the assent of husband not abolished by Con. Stat. U. C. , c . 73, 34 et seq note, power of, to will legal estate . contract cannot enable married women to pass legal estate by will, 29. general testamentary power of. wife of felon, or attainted person, may make will, 29. married woman may make will under a power, 29. 472 INDEX. I' I ''mIs, MMITUED VfOMEii— Continued. or a8 exocutrix, 30. effect of will of exocutrix, 30. whero husbnnd not heard of for Boveu years, liis death presumed, 30. will niade during coverture not revived by death of husband, 30. effect of 32 Vict. c. 8, s. I, on will of married woman, 30. such will Hpeaks as if executed imnudiatcly before death, 30 34. question whether married woman can make a will with the assent of her husband since Con. Stat. U. C. c. 73 cot\siderod, 34-37 tiotv. fioiver of, to iHll property nettlal to their separate iMe. origin of separate use, 3G, 37. l)ower of disposition over sejiarate jtroperty, 37. gradual enlfirgement of tjliat ])ower, 37, 38. that power still valuable, 30. power to dispose by will of savings in)dor protection order, 30. ■itntntoi'y powern of, to iHs})ose of property 6i' ivill, provisions of Con. Stat. U, C. , c. 73, 40. construction of that Act, 41, 42. meaning of " separate property " in that Act, 42, 43. right of testamentary disposititm limited, 44 & n 45. " Married Women's Property Act. 1872." extent of testamentary power created by that Act, 46. ccmstruction of that Act, 40, 47. prorisiom of " The Wills Art, 1873," 47. testamentary disability of married women removed by that Act, 47. mode of executing will of, under provisions of Con. Stat. U. C. c. 73, s. 16, 208, 237. MEDICAL ATTENDANTS, wills drawn by in their own favour regarded with suspicion, 151. {See Unduk Influence.) MENTAL CAPACITY NECESSARY TO MAKE A VALID WILL. testator must be of sound and disposing mind and memory, 84, 08, 99, 100, 121. nile in Combe's case, 84, 85, 121. Manpiia of Winchester's case, 85, 121. testator must have sufficient recollection to remember his propc and the persons to whom he wishes to give it, 85, JOO, 122, 123. nmst be able to understand the nature of the testamentary Act and itu effects, 96, 100, 101, 122, 123. -^"'^"•'^ INDEX. 47n MENTAL CAPACITY NECESSARY TO MAKE A VALID WILL- Continued. moHiiing of sound nnd disposing mind, fl8, 00, 121, 122. considerHtion of, in our own couils, 124-129. Swinburne's rcnmrks as to, 12f>. MISTAKES, OR ERRORS IN WILLS, clause introduced into will by niistako docs not become part of will, 23(>. but does, if will is read over to testator and is signed by liim withoni correction, 2.'$(». court cannot, after " The Wills Act, 1873," comes into force, correct error in will either of insertion or omission, 23G, 237, 254. recent case on this subject, 23(5, 237, 2r)4-26(i. may be corrected by codicil, 25(), note, if, by error, a now will should not contain a clau.se in a fonnor one of which it was intended to be a copy, probate may be granted of both instnmients, 253. MODE OF WRITING AND FORM OF WILLS, {Sec Will.) MONOMANIACS, definition of, 75. degrees of monomania vario\is, 75. will may be made by monomaniac unconnected with his infirmity, 7<). or it may be coiniected with his infirmity, 70. Green\oood\s case, 76. case of Dco} v. L'lark, l^t. judgment of Sir J. NichoU, 77 d seq. consideration of partial insanity, 77, 78- test of unsoundness of mind, 78. distinction between, and eccentricity, 78. degrees of unsoundness of mind, 78, 79. where there is delusion of mind, there is insanity, 80. opinions of medical writers, 80 ct seq. Dr. Battle's opinion as to insanity, 80. Mr. Locke's opinitm, 80. Dr. Willis' opinion, 81. distinction between sound and weak minds, 81, 82. when will oflspring of monomania, it ia void, 82, 90. 474. INDEX. 5;^ ' w :t, MONOMANIACS— Con. the Roman law, 90, 91. opinions of French writers, 91. foundati )n of power to dispose of property by will, 93, 9(». opinion oi Chancellor Kent, 94. English law as to extent of testamentary power differs from foreign law, 95. compari8(m of the English with foreign law, 9i). degree of mental power necessary to make a will, 95. law relating to unsoundness of mind from defective organization or supervening inJirmity or advancing a-'e considered, 97. American cases reviewed, 97 <;< «• Wii.lh.) MUTUAL WILIS. {Sev Will.) INDEX, 47o N. NUNCUPATIVE WILLS, definition of, 218. restricted by Statute of Frauds, 219, provisions of that Act as to, 219. provisions of 33 Geo. 3, c. 8, aa to, 220. opinion of Real Property Commissioners as to, 220. rendered invalid in England by 1 Vict. c. 2G, 221. except as to soldiers or seamen , 221 . provisions of Con. Stat. U. C. c. 16, s. 83, as to, 221. abolished by that Act, 221, except as to sfMiers or seamen, 221. provisions of "The Wills Act, 1873," as to, 221, that Act also contains exception in favour of soldiers and seaiuin. 221. are of rare occurrence, 221. meaning of term " actual military service," 221. wills of soldiers and seamen considered, 221, 222. o. OLD AGE, does not of it«elf create testamentary incapacity, 117. extreme, raises doubt of capacity, 1 18. Chancellor Kent's remarks as to, 118. consideration of, involved in consideration of mental capacity. 1 1!< example of will made during, 119, 120. ONUS PROBANDI, {See Attestation by Witnessbs ; Burden op Proof. ) ORIGIN OF LAW OF ONTARIO, as to wi)ls, 1. derived from law of England, 1. provisions of 32 Geo. 3, c. 1, 1-2. F. PRECATORY WORDS, (.See WiLW — T«.i;.sT, what wordh create.) PRESENCE OF TESTATOR AT ATTESTATION, {See ExBccTioM OP vVillh op Real Estate.) fi 470 INDKX. PRESUMPTION, arising from deafness and dnnihnuss and ))lindne88, 48, 49. sanity prosnnied till contrary is sliown, (37, 70, 71. insanity oncu established presumed to continue, 107 and note. of lucid interval, stronger in case of delirium than in case of perma- nent insanity, 100, 117. undue influence uaiuiot be presumed, 142. of due execution of will, 181 and note, 183, lfl<», 201 and note, 202, 203. of will being signed when presented to witnesses, 180. of due attestation of will, 208. against unfinished j)apers as willd. (.Scic Exe(!UTION ok Wills of Per- sonal Estate.) of testator's knowledge of the contents of his will, 251-253. of intention to revoke will by >iiarriage, Ac, 281-283. revocation not presumed in the absence of evidence, 304. is adverse to an unfinished instnuncnt as a revoking will, 311. as to )>encil writing, 158. as to pencil alterations in will written in ink, 328- as to ilate of alterations in a will, 328, 329. as to date of mutilations, 331. as to revocation of dui>licatc n-ills. (.<{»'« Revoiiation of Wills make IN UlI'Mi'ATE. ) as to revocation of ctxlicil l)y revocation of will, (Set- Ekkkct of Uevocation ok Will on ConnnL.) arising from loss or mutilation of will. (.sVi Ijost ok MtTrr.ATEU Wills.) of revcication by alteration of estate. (.sVc Revocation' by Alteha TioN OK Estate and itv Voio Conveyance.) PRESUMPTION AS TO DUE EXECUTION OF WILL, {Si'c Attestation by Witnehse.s.) PROVIMJ WILL. (See .Attestation by VVitnf.kses.) mode of, prescribed by Surrogate rules, 207, 208 PURLICATIkN of WILL, unnecessary, 185. dispensed with by " Tiio Wills Act. 1873," 185. (.Set- Execution uf Wills of Real Estate.) ]iOl| INDEX. 477 % REPUBLICATION AND REVIVAL, provisions of 1 Vict. c. 26, as to, 380. must be by re-ex' cution, or by codicil duly executed showing intention to revive, 380. provisions of "The Wills Act, 1873," same as those of 1 Vict. c. 2G, 380. republication is of two kinds, express or constnictive, 381 . ex'^* 1 republication, what is, 381. CO" uctive rcpviblication, what is, 381. mtif!., of republishing will under Statute of Frauds, 381. revoked will of personalty may be republished by parol, 381, 384. or by recognition as a valid will, 381, 384. or by mere conservation, 382. acts must be animo repriblicandi, 382. declarations not a republicaticjn of a revoked will found with later un- cancelled will, 383. effect of declarations considered, 383. case of Daniels v. Nuckolds, 3L3. codicil is a republication of a will, 386 codicil may validate invalid will, 385. but republishing effect of codicil is a question of intention, 386. republication of will amounts to a making of the will de novo, 38(5. " brings will down to date of republication, .386. revokes all wills prior in date, 387. does not set up wi'l against a codicil revoking it in part, 387. republication extends will to subjects arising between date of will and republication, 388. and to objects also, 388. will made by infant may oe repiiblished after testator ati'iains full age, so as to make it valid, 380. will made by insane person may bo republik'hed byh'm when sane, 389. will must, under now law, be ro-exocuted in order to repi?bli8h it, 380. or must bo republished by codicil duly oxocutc.i, :W!> cancellation of later revoking will held by Common Law Courts to revive revoked will ; by Ecclesiastical Courts it was held other- wise, 380. authorities referred to, 380, 300. It |!' '■%:] 478 INDEX. REPUBTJCATION AND REYIY Ah— Continued. rule stated by Jarman, 390. Sir J. NichoU's opinivjn, 391, under new Act, codicil must show " an intention to revive," 391, construction of the words "showing an intention to revive," 391-398. cases reviewed by Sir J. P, Wilde, 391-398, the intention to revive must be clearly and directly shown, 398, revival of will by codicil does not necessarily involve revival of prior codicil, 399. intention of codicil to revive cannot be shown by extrinsic evidence, 399. will which ha.s ceased to have physical and legal existence cannot be revived, 399. KEVIVAL, (Sec Republk'ATIon and Revival.) liKVOCATION OF WILLS, BY MARRIAGE AND BIRTH OF CHIL- DREN, OR MARRUGE ALONE. rules laid down in Mardon v. Fox, 280, will of unmarried man usually revoked by marriage and birth of issue, 280, but not if children are provided for, 280, nor unless ho devises all his property, 280. such revocation not prevented by provisicm for future wife only, 280. but children must bo provided for, 280. revocation not prevented by child inheriting property at father's death, 280. evidence not receivable to show that testator meant will to stand, 280. maiTiage alone was no revocation of man's will, 280. rule applies where there is a second marriage, 280, 281 . will of married man having children might be revoked by birth uf other children, aided by other circumstances, 281-284, 286. rule of revocation by marriage and birth of children considered by Sir .1. Nicholl, 281. intention is the foundation of the rule, 282. every man presumed to intend to provide for his family, 282. will of widower, though providing for children by fonner maiTiagc, was revoked by subse({uent marriage, 283. will revoked by birth of posthumrjus child, 283. will not revived by death of child during father's lifetime, 283. INDEX. 475) KEVOCATION OF WILLS BY MAHIUA(JE AND BIRTH OF CHIL- DREN, OR BY MARRIAGE AhOUE— Continued. if provision made for children before will made, or contemporaneously with it, will was not revoked by subseciuent marriage and birth of children, 28J. will no . revoked unless testator devised all his property, 283. birth of child did not revoke will made after marriage, 284. will not revoked where revocation would not benefit children Iwirn after will was made, 285. effect of aboliticm of primogeniture in this Province in connection with this rule, 286. marriage of /erne sole always revoked her will, 280. reason of this nile, 286. such a will not revived by death of husband before wife, 280. will of a manned woman made under power not revoked by marriage, 28(). provisions of 32 Vict., c. 8, as to revocation of will by luamage, 28(). marriage alone a revocation under that Act, 286. revocation by alteration of circumstances abolished by that Act, 286. similar provisions in " The Wills Act, 1873," 287. operation and etl'ect of these provisions, 287. provisions of 32 Vict. c. 8, as to revocation by marriage, apply to all wills of persons who survive 3l8t December, 1868, 287. marriage before 1 Vict. c. 26, and birth of child after that Act, revoke will made before that Act in F^ngland, 287. marriage on day of, but subsetiuent to execution of will, revokes will, 288. construction of exception contained ii~ a. 15 of '' The Wills Act, 1873," 288. KEVOCATION BY BimNINO, CANCELLINO. TEARIN(J, OBLITERA- TING, OR OTHERWISE " DE.STR(>YIN({ A WILL." provisions of Statute of F'rauds as to, 21M). 32 Vict. c. 8, as to, '2*M). " " The Wills Act, 187.%" aa to, 291. wills of persons who died before Ist .laniuiry, 1860, govoniod jih to revocation by Statute of Frauds, 2'.K>, 2'.U. new Statutes apply to wills of realty and personalty, 201. prior to now Statutes a will of (wrsonalty might be revoked by moans mentioned in the Statute of Frauds, 21M. 'k 'J 480 INDKX. \k' UKVOCATION BY IJl'UNINn, CANCKLLINO, TEARlNd, OBLITER- ATIN(J OR OTHERWISE " DESTRoYINCi A WILL"— Continued. Imt acts which were inaufticiont to rev(»ko will as to real estate, might revoke it as t<> personalty, '2'M. there must bo uuimiiH revociindi, '291, 'ZMii. tearing or mutilation by accident does not revoke, 291. evidence admitted to hIiow how mutilation (tccurred, 291. mere intention to revoke inHntiicient ; there must be snfKcient act, 291. 292. illuatrations of I'flectnal revocation, 292, 2915. alight burning auftiiient, 292. tearing oft" of signature sufticient, 292, 293. tearing of subHtantial thou<^h unnecesaary part of will sutiicient, 292. tearing oft of seal and part of word sufticient, 293. tearing oft" names of witnesses sufticient, 293. illustrations of ineft'ectual acta, 2!l3-295. mere throwing on the fire without buniing inaufticiont, 293. proposed UK-ana «if destruction muat be completed, 294. illustration of this rule, 294. cutting oft' several lines held insufticient uiuler the circumstances of the case, 295. mere deliberative act insufticient, 295. will may be partially revoked by destruction, 295, 29G. uiiimu.i and act of revocation must concur, 29<». intention to revoke wholly or in part may l)e proved by declarations of testator or may be inferred from nature and extent of act d(me, 29ft. striking out name of one of two devisees, only a revocation pro tantn. 297. worda "cancelling '' and " obliterating " omitted from new Acts, 297. words " otherwi.se destroying " substituted therefor, 297. , words " otherwise deatroyitig " in new .Vets, mean destruction ej\uidem generiit, with the other modes mentioned in the Acts, 297. cancelling or obliterating not included in those w'7/ stated, 298 301. application of doctrine in that case to 32 Vict. c. 8, and " The Wills Act, 1873," 301, note. INDKX. 4.S1 REVOCATION BY I3URNIN(J, CANOELLINU, TEARINCi, OBLITER ATIN(J, OH OTHKivWISE " I)ESTK()Y1N(J A \\ ILhr- ('ontin»-i 5th section of :?'2 Vict. c. 8, iipplii's to total but not t<> partial rro or after that dati;, 302, note, rule laid down by English cjises as to 1 Vict. c. 2(», 302, note, ciitting equivalent to tearing, 302. will cannot be revived by mere physical restoration, 302. insane peison cannot revoke his will, 303. revocation procured by compulsion iiieflectui'V 303. power to revoke cannot be exerciseil in test' .or's absence, 30;i. direction by testator that his will shall be destroyed inoperative. i;<»3. tlestruction by wife without husbatul's consent ineHectual, 303. declarations of testator that he had revoked his will, inadmissible, 303. 304. will not revoked by mere abandonment, 304. there must bo stinie uneipiivocal act, ;W4. onn.H of proof of revfication lies on those who allege it, !K)4. revocation in absence of evidence will not be presumed, '.MH. REVOCATION HY srBSEQl'ENT WILL, OR CODICIL OR OTHER WRITINCJ, prior to ".Statute of Frauds," wills were revocable by parol, 30<>, provisions of that Act as to revocation, 30(5. revocation by parol abolialuMl, 300. i provisions of .\ct as to revocation of wills of personalty, 30t), .W. provisifjns of ,32 \'ict. c. 8, 307. " "The Wills Act, 1873," 307. "the Wills Act, 1873," applies only to wills made after Ist January, 1874, 307 note, hut under 32, Vict. c. 8, the revoking will must be executed according to law, 307, note. a man may revoke his will as often as he pleases, 307, 308. mode of executing revoking will under " Statute of Frauds," 308. EE ' 482 INDKX. ! I :n :l ' 1 h- KEVOCATION BY SUBSEQUENT WILL, OR CODICIL OR OTHER WRITING -routinned. consequences of provisions of that Act, 308, loHor is sntticiont revocation iindor 22n(l section of " Statute of Frands," ;M)8. instructions nuiy bo good revoking will of personalty, 309. a revoking will of personalty may be proved by parol, 309. uuHnished will may revoke will of poi-Si nalty, 30*,>. nile laid down by Sir E. V. Williams, 3(»9, 310. rule laid down by Sir. J. Nicholl, 310. presumption i.s against untinished will disiKisingof both realty ami personalty, as a revoking will, 310. presumption adverse to untinished will, revoking regular will, 311. oral evidence cannot be received of testator's intention to adopt prior revoked will, if a subsetpient revoking will remains uncancelled, 'M\. but acts of testator, and state of his papers may be admitted as evidence, 311. incomjdete will does not revoke, 311. revocation must indicate present not future intention, 312. general revocatory clause leads to inference that testator meant t»« leave a subsisting will, ;»12. inconsistent disposition of previously devised property is a rovoca tion, 312. intention to revoke must be clearly proved, 312, 313. inconsistent wills so construed as to give etfect to both as far :i,h possible, 313. words " hist will " do not import an intention to revoke a prior will, 3i;i-317. these woi'ds are of no imp. CNmrt acts on iutriusic evidence furnished by wills to determint* respective dates, IJKi. if respective dates cannot be ascertained, both wills are void, so far ais they conflict, 'Mi). but, if po.ssible, effect wuist be given to both, 31(5. revocation of appointment to one oHice will not eti'ect revocation of appointment of Hame person to other oHicus, 317. jmivision of codicil revoke will only so far as they are inconsisten l with will, 317. doubtful exjiressions in codicil do not revoke certain gift by will, 317. effect of 8ub.se(pieut codicil on prior codicil, 317, 318. prior codicil not necessarily revoked by revocation of will, 318. revocation fiuinded on false impression of fact is ineffectual, 318. a subsetptent will may be revoked and prior will revived by a subse- quent codicil, 318, 31 i). but if prior will is destroyed, it cannot be revived, 31U. evidence of revocation by subsequent will not forthcoming must be clear, 31 i>. distinction between revoking will and a writing revoking a will, 320. former is entitled to probate, latter is not, 320. mode of e-xecuting a writing revoking a will under 32 Vict., c. 8, 320. nnist be e.vecuted us a will to revoke will of real estate, 320. but need not be to revoke will of personalty, 320. mode of executing a writing revoking a will under "The Wills Act, 1873," 320, 321. must be e.xecuted as a will, 321. KEVOCATION RY ALTERATION (»F ESTATE AND RY VOID CON VEVANCES, meaning of revocation by alteration of estate, 3t)4, 307. foundation of this revocation, 304, alienation of lands after date of will was a revocation of a devise of those lands, 3(>4. though testator accpiired same estate, 3t>4. revocation by alienation nniy be total or partial, 3G4. conveyance for mistaken or unnecessary purpt)8e was a revocation, 305. 4S4 INDEX. 1 \'i *'* ! REVOCATION BY ALTERATION OF ESTATE AND liV VOID CON- VEY ANCES—('..(i 118 til t'stiite coiitnictod for 3(>7. HgrtHMiit'iit to convey ii rovocition in tMHiity, 307. a void coiivuyance whs a lo vocation, 'MH. reason of this rule, 308. cxccptitins, 3('iH, ,'M>J(. deed void in ('<|uity hut not at iiiu iield a revocation, 3!t. lirovisions of Con Stat. U. C. c. 82, s. 11 considered, 37(V case of Ijiiutjiicail \. Kitotf, 370 374. etle t of the Act explained, 370-374. law changed hy 3-' Vict. c. 8, iivovisions of that .\ct, 374. l>rovi!*ion8 of " Tlie NVjll.s Act, 1873," 374. points decided oi, ih-j Act 1 Vict. c. liO, 374-378. deed, lieiny ttirjiis coiUiavtin, is not a revocation, 375. rule stated by the Master of the Jloljs, :t75. claim for jmrchaHc money with lien for payment not such an interest as is referred to in concluding words of 32 Vict. c. 8, s. 'J, and " The Wills Act, 1873," 8. 20. 377. REVOCATION OF WILLS MADE IN DUrLlCATE, cancellation of one will in testator's custody anitno revocatidi is a cancellation of tiie diijilicate not in his custody, 334. same presumption, th(i':j,'h weaker, where 1m >th wills in testi'.tor's cus- tody. 3;u. but in such case will may remain unrevoked, 335. erasure of one i>art of will prima fucU is alteration of diij>licate, 335. erasure in codicil j>rini(i /(uii- revocation in will, 335. presumjttion when part in testator's ciistody cannot be found at his death, 335. 8 SEAL1N(J OF WILL, unnecessary, 184-186. not a due sigimture, 178. (Nif EXKCI'TION OK WiLL.s oK ReAL EsTATE.) SEAMEN, WILLS OF, {8c<- NuNct'iATivK Wills.) /OIDCON ail interest , iiiul "Till- ucaiidi JH ii 8tP.t<>r'8CllS- iciite, 3yr». *iind iit Ilia INOKX. 485 SENILE DEMENTIA, (Sec Old Auk,) SIGNATURE OF WILL, (.See ExKrdTION OK WlLL OK UkaI, EsTATK ; ExKrUTlON OK WiLL (»K Pkkson.vi- Estatk.) SOLHIEKS, WILLS OF, (.Sir Ni'Niui'ATivK Wills.) SoLk'ITOHS, wills iliiiwii by, 111 their own faviiur, regiirdud with suspicion, 150, 151 . (Sir UnKI'K iNKLUBNi'K.) STATUTES RELATING TO WILLS, (See Api'KNIiix I,) SUBSCRIPTION, (Sei- ExKfTTioN OK Wills hk Rkal Estatk ; Attkstation by Witnkssks ) T I'EARINC;. (.S't( UkVO( ATION 1»V HllKNINd, <&«'.) TESTA iVl ENT AR V C Al^AO ITY, (iSe<- DisAiiiLiTiKs ; Unsound Mind.) TIME, Mt)DE OF OOMPUTINO, from birth tn majority. (() I'arinh will ciistu conHidortxl, 140. nil«!8 liiul down by I'rivy Council in Hnmj v. Sntliii, 14H 150. priiHinnption in chhuh whure willM nrv dntwii by puraonH intereatttd, 147. tinnn f)n>l)H)i(ti in such viuiin), 148. civil law iivoidud hucIi willn, 150. but itiir law is dillVsront. 150. pruof (if freedom from undue intluenuu necessary, 15(>. wills drawn by solicitors in their own favimr not void, 150, 151-166. I>ut such wills rei,'arde«l with suspicion, 151, wills drawn by medical attendants in tiieir own favour considered, 151-155. the rule as to ^ifts intir riiuiti wiid not to iipl)ly to yifts by will, 151, 152. iiHii.s fiiiibandi when wills are tirawn in favour of jjersons occupying fiduciary positions considered, 152-150. UNSOUND MIND. (.^V( DlSAIULITIKS IlMOCV - I N.SANITV — MoNOM ANI A — LtU:il) InTKKVALK- Dkunkbnnkss ani» Dklikh'm.) w WHAT M.W UK DKVISKI) OH HEgiEATHED, (.S «^ AUTRK VIK, EsTATBH I'l'K.) power of devising lands created by ',)2 H. 8. c. 1, and IJ4 and 36 H. 8, 0. 5, 263. jxiwer of be<|ueathing personalty of gradual growth, 263. extends to all personalty, 21)3. provisions of " The Wills Act, 1873," 264. what may be devised under piesent law, 265. interest of joint-tenant cannot be devised, 265. interest of tenant in ooiunion may, 265. executory interests devisable, 265. right to set aside conveyance devisable, 265. devise of real estate regarded aa a conveyance, 266. and, therefore, could only operate on estate of which testator waa seized when he made his will, 266, 2r WM WHAT MAY HE DEVISED OR BEQUEATHED- CmtimieU. tliiH rule adopted hy Courts i»f Eipiity rcj. i Inig ocjuitiihlti ostutos, '2i\ti uon8U(|UuiicuH of tluH doutrine, 2('>7, '2U8. provisittUH of 4 VV. 4, o. 1, h. 4'.>, 2r»7. cuiiHtruction placud on this section by our Courts, '2(i7. law altered by 32 Vict. c. 8, s. 1, 270, 271. wills under that Act speak and take etiuct as to subject nuittur of devise as if executed immediately before testator's death, unless contrnry intention is shown, 271. provisions of "The Wills Act, 1873," similar, 271. ett'ect of these provisions, 271. meaning of the wtirds " cr revokin({ another will, not entitled to probate, 1(5(5, 1(57. may consist of several distinct papers, 1(57. instructions for, how treated. (Ac iNHTHiMmoNH KOR Will.) precise lan(,'uage unnecessary in, 1(5S. precatory words in creatt^ trust, 1(58, 10'.>. rules as to precatory words in, 1(51>. may bo made by two pei-soiis jointly, 170. mutual wills, 170. agreement to leave property by, may be enforced, 170. en'or in codicil in reference U^, nmuaterifM, 171. of personal estate, unless nuneuiiative, must be in vriting, 224. clause introduced into, by accident, without testator's knowledge, doea not !)econie part of it, 2:5(5. WITNESSES TO WILL, (iSVc K.\kci;tion of Wii.lh oy Rkal Eatatk.) WlTNB^aSES TO WILL, credibility of. (N<« E.XKt"i Ti'.»N or Wii,i,H OK Rkal Estate— Cum rKTBNOY ov Witnkhhkh.) 9 3 7792 4 ary. tividenoe, urn. K aiiothur •) i24. tilgo, (loeH 1«P.H8KH.)