^I»lll jflg^^H Ai Ai — ^— o i <= Oi Ol 81 2 i 5 i 3D =^ 33 31 ^^^ > 81 =^^= -n 4 i ^ 1 = IS UNIVERSITY OF CALIFORNIA LOS ANGELES NTH, SCHOOL OF LAW LIBRARY DU liDitcO Dg E. B. LOVELL, Esq., OP THE MIDDLE TEMPLE. BARRISTER AT LAW. Each Number contains tlie Cases, Orders and Statutes issued from the first to the Last day of the Month ; is analytically arranged, and thei'efore adapted both for perusal and reference. Notice.— At the end of each Volume (12 months). Conso- lidated Indexes are given, whereby any Case, Order, or Statute of the year may be readily referred to without looking through the Number. The Volumes, when bound, are, by these Indexes, rendered permanently useful as Annual Digests. SUBSCRIBERS' NAMES RECEIVED AT THE PUBLISHERS, WILDY AND SONS, Lincoln's inn gateway, carey street. CRITICAL NOTICES of the MONTHLY DIGEST. " Indppendcnt of careful and intelligent condensation, it makes its ap- pearance monthly — an incalculable advantage — and the Editor, in epi- tomizing each case, enables the reader not only to know what has been decided, but, what is of no less importance, to ascertain the grounds of decision, and the distinction between the particular case and others to which it may seem to present analogies. We unhesitatingly recommend this Digest."— Cr'/o6e, February 'Ibtli, 1851. " Reports, without a digest of their contents, are really of very much less value than may at lirst sight appear. The practitioner cannot always carry cases in his head ; and, if his memory fails him, the reports, without a digest, are"^Imo»t a scaled book to him. We are, therefore, pleased to be able to announce a publication which promises to supply such a desideratum to an extent which, so far as we are aware, has not been equalled. The Digest to which we allude is puhlit/irti on lite 5lh of every month, at the trifling cost of one ihilliny, and contains a careful analysis of the whole of the cases reported during the previous month, together with notes of such cases decided {which at the time are not reported) during the same period as are deemed important. And, to obviate the objection that it would at the close of the year lose its value as a book of reference from the multiplicity of its num- bers, the monthly pi»rts at the end of the year are rendered permanently valuable by a " Consolidated Index of Points and Names of Cases." With Fuch claims to public attention and sup])ort, we doubt not that the Monthly Digest will soon become an inmate of almost every place where law is in any manner administered or practised."— yM*/(Cf of the Peace, August 3rd, IS50. " Reports of ca.ics, general orders nf the courts, and the principal statutes, are digested in alphabetical order. The Kditor has performed his laborious undertaking with much care, and has intro. Dillon 160 Bruce V, Bruce 28,31 Coghill, Holmes r. .. 192 Bryce, In the goods of 74 Colien, James v. .. 175 Brydges v, Chandos 186 Coke, Bunter «. 54, 141 15ryer, Smee i'. .. 76,77 Colberg, In the goods of 156 Budd V. Browning . 49 Cole V. Scott .. 182 Moore v. , , 33 Collier V. Rivaz 35 Plenty i-. . . 154 Collinson, Compton f. .. .. 67 Puillin V. Fletcher , . 177 Colman, In the goods of 88 Bunter v. Coke 54 141 C^olvin V. Frascr .. 157 BurchcM, Braham u. .. 64, 67 , 170 Compton V. Collinson 67 Burdeft, Uoe v. . . 92 Constable, Bedell 11. .. 63 Buigis, llawlins v, . . 177 Emanuel v. 129 Burgoyne v. Fox . . 141 Tufnell V. .. 47 t*! .,,1,,- .. 93 164 153 Cook V, Fountain V. Parsons .. 136 86 Puirlnnsliaw v. Gilbert liuliin V. Barry . . 49 Cooke V. Clayworth .. 48 pjyrd. In the goods of . 91 Cookson V. Hiincock Cooper, 111 the goods of ■ Bockett D. .. 94, .. 153 .. 93 164, 167 C. ■ Douglas V, Corbett V. Poelnitz Cordall's case .. lOt 68 .. 199 Campbell v. Sandys • • 59 Corder, In the goods of 81 Candy v. Cau)pbell •• 195 Corneby v. Gibbons .. 81 TABLE OF CASES. vn PAGE I'AGE Corp, Sturgis v. . 64 Doe V. Cross , , 23 Corjf V. Cory 48 V. Davies 94 Cotter V. Layer .. 143 V. Evans . . 139, 159, 176 Coxe V. Basset 8.T V. Goddard 60 Craigie v. Lewin .. 28 V. Harris .. 5'^, 147, 156 Cothay d. Sydenham 103 r. Hicks 152 Crawley's case . . .. 69 «. Hull 54 Crofi, Mud way v. . . 47 V Johnson 191 v- Pawlet . . .. 95 V. Kersey IvS Crosbie v. Macdouall . 22, 174 V. Lancashire 144 Cross, Doe v. 23 V. Lewis . . . . , . 61 V. Hudson ..192 i;. Lux ton 61 Crossley v. Goldswortliy 70 V. Manifold 87 , 88 Cubitt, Brady v. .. 144 I'. Martin 39 Culley V. Taylerson 53 V.Mills .. 134 Culluin D. Seymour .. 133 I'. Mulcaster . . 31 Ciilsha V, Clieese .,186 V. Nicholl .. 132 Cunningham, Smith v. 158 V. Palmer 165 ■ Thrustouti). .. 145 V. Perkes . . . 156 Curling v. Johnson . . 32 I,. Pott 143 Curties D. Kenrick .. 127 V. Roberts 193 Curtis V. Curtis 169 V, Staple 143 Cutler t!. Harris .. 54 i;. Teague . . i>. Vardill V. Walker 136 27 181 D. Dolman, Soar v. . , Donaldson, In the goods of 166 115 Dade, Casson v. .. 88 Douglas V. Cooper . . 104 Daines, King's Proctor v. . 23 Hurdwicke v. , . 153 Dalliousie v. Macdouall .. 3^ Munroe v. . . . 28, 32 Daniel v. Goodwin .. 103 Downton, Hills v. 53 Tvr 111 .. 171 186 Dowsing, Holdfast v. Drumiuond v. Drunmiond 129 "~^-^-^— " Vt llOCKOlGS • • Dartmouth, Howe v. , , 28 Davies, Doe v, . . Davis, Harris v. .. .. 94 197 115 153 Dutheld V. Duffield , , Davy V. Smith .. .. 87 25 Dawnay, In the goods of . 76 Dufour D. Pereira .. 21 Dawson, In the goods of .. 69 Dunch, Hall u. . . 140 Dearmer, Smith v. 172 Durham, In the goods of 176 Dempsey, In the goods of .. 69 Duppa V. Mayo . 54 149 Dening, Baker v. ■ • 74 D^er, Baxters. 141 Denn v. Roake 191, 192 Dent V. Bennett 49 Derenzy v. Turner .. 7 9 E. Devereaux, Montmorency v. 49 Devon v. Atkins .. 59 Easum v. Appleford 187 Dew V. Clark 46 Edeii, Wilson v, . . 188 Dewhurst, Price v. 26, 35 Edwards v. Astley 162 Dickenson v. Dickenson 7 V. Finchamp 95 Dillon, Coffin v. .. 160 25 V. Dillon 61 Eilbeck V. Wood 146 Dobbins, Bowman r. .. 192 Ellis, In the goods of . . 88 Doe V. Acklam 31 V. Meddlicott 160 V. Barford .. 118 V. Smith . . 73, 86 V. Beynon 139 Elwell, Wainewriglit v. 12 V. Burdett .. 92 Elwes, Duffield v. . . 25 V. Catamore .. 163 EKviii, Hanison v. .. 93 r. Clark 203 Emanuel v. Constable . . .. 129 Vlll TABLE OF CASES. PAGE Einersoii i;. Hovillc . 147 K(i>U!is r. Siuitl) . . .. 18.5 Este «;. Kste . . 112 Evans, Doe v. . 139, 139, 176 Smith r. 73 Ewer, Ross v. .. 5,85,1^^6 F. Fane, Ex parte . . Farquliar, In ibc floods of Farrar r. Wiiitcrtoii Faulds I). Jackson .. Ferraris v. Hertford Ferrier, liriiie v. Fettlplace t). Gorfies Field, In liie goods of Finclianip, Edwards v. Fisii, Longclianip v. Fisher, Morreil v. Fitch v. Weber t letclier, Miillin v. . . V. Fletcher Flint V. Warren . . Fordh.ini, Scruby v. Forrester, Goodright v. . . Forse and Hcnibling's case Forse v. Zouch . . Fors^ili, Stone v. Foster V. Banbury- V. Foster Fountain, Cook v. Fox, Burco3 lie v. Francis i'. G lover Franklin v. Hank of Engia Franks, Ex parte F'lasiT, Colvin v. Freeman, Parsons v. Freer v. Peacock Fulleck V. Allinson . Fuller V. Hooper Fulton, Casement v. G. Gale, GrifTiths v. Garland, Ledgard v. Gawen, Gove r. V. RaiDtes . . Gaze V, Gaze . . Genge, Holt v. Gibbons v. Caunt Corneby v. . , Gibson, Chapman v. Gilbert, Burtonsliaw v. 21 nd .. 71 62, 117 ., 180 91 14, 176 152 64 74 95 95 190 187 177 24 187 158 54 65,148 59 70, 103 129 159 136 141 163 11 67 157 143 47 47 22 90, 207 203 68 93 4 81 81, 82 144 81 53 158 I'AGE Giiiow t;. Bourne .. •• 152 Glascock, Shires t). .. .. 87, 88 Took V. . . • • 4 Glass, Saunderson V. .. 49 Glazier, Goodright u. .. .. 153 Glover, In the goods of . . 74 Glj'iine u. Oglander .. ..23 Goddard, Doe «. .. .. 60 Godolphin, Marlborough v. . . 59 Godricli V. Jones . . . . 49 Goldsworthy, Crossley v. . . 70 Goodrich, Sliedd(jn i'. .. 147 Goodright t). Forrester .. ..54 «. Glazier .. 153 ij. Harvvood .. .. 153 Goodiitle V. Welford .. 130 V. Otway .. .. 144 Goodwin, Danie! «. .. 103 Gordon 11. Reay .. .• 176 Gorges, Fettiphice «. •• 64 Goude, Williams «. .. 48 Gove V. Gawen . . .. .. 93 Gray u. Mansfield .. ..49 Grayson i;. Atkinson .. 73,79 Green t). Green . . .. .. 197 Hodges V. . . . . 177 Greenbank, Hearle V. .. .. 64 Greenhough t). Martin .. 160 Greening, Stone D. .. .. 190 Greenwood, Barker r. .. 198 Griffiths v. Gale .. ..203 Roe D. .. .. 143 Grindall t). Grindall .. ,.49 Grover, Francis D. .. .. 163 Gunning, In tiie goods of .. 80 H, Habcrgliam t;. Vincent .. 11,14 Hale 11. Tokelove .. 160 Hall, Dunch v. .. ..140 1'. Laver . . . . 136 Wyrall v. .. ..22 t;. Warren . . . . 44 Halliwell, In the goods of ..23 Hanibrooke y. Simmons ,. 25 Hancock, Cookson v. .. .. 153 Hand, Oldham t;. .. ..49 Hands v. James . . . . 95 Hankey. Tatnall V 106 Hannock V. liorton.. .. 191 Hardcastle, S|)arrow v 177 Haidinc, Marsh i. . . . 49, 66 Hardwicke, Beauchamp t), .. 85 V.Douglas .. .. 153 Hare v. Nasmyth ., .. 28 Harmony, The . . . . 33 TABLE OF CASES. IX Harmood i;. Oglander Harwood v. Goodright Harris v. Cutler V. Davis Doe V. . . 52 Harrison v. Elwin . . Kiiileside v. Hatfield v. Tliotp . . Hayes, In the goods of . Haynes v. Hill. Hays, Salmon v. Hawes V. Wyatt Hawkes v. flawkes Hcarle v Greenbank Hempenstall, Thompson Henfrey v. Henfrey.. Henley v. Phillips Herbert v. Herbert .. • ■ V, Torball Hertford, Ferraris v. Heveringham, Wynn v. Hick V. Mors Hicks, Doe v. Higgs, Brown v. Hilbert, 'late v. Hill, In goods of Ayrey v. Hills V. Downlon Haynes v. V. Hills Hinckley v. Simmons Hobbs V. Kniglit Hobson V, Blackburn Hodges V. Green Hodgkinson v. Wood Hodgson V. Merest Hodsden v. Lloyd . . Hogg V. Lashley Holden v. Smallbrooke Holdfast V. Dousing . . Hollbrd, Cave v. Hollings, Wargent v. . Holloway v. Clarke . . Holmes V, Coghill Holyland, l:\ parte Honnor, Webb v. Hooper, Fuller v. Tagart «. Horton v. r'amiock Howe V. Daitmouth Howell, In goods of Hudson V. Cross . D. Parker .. 81,82 Hughes V. Turner Huguenin v. Basele}' Hull, Doe V. Hume, Whicker v. Humphreys D. Humphreys. PAGE T41 .. 153 .. 54 1S>7 47, 156 93 .. 47 130 .. 115 176 .. 68 145 .. 162 64 .. 173 154 .. 107 64 .. 63 14, 176 169 .. 143 « 152 .. 186 25 .. 116 48 .. 53 176 .. 25 22 .. 156 21 .. 177 141 .. 12 71 .. 28 60 ..129 54 .. 160 146 .. 192 44 .. 191 22 23, 160 191 .. 186 76 .. 192 , 88, 91 70, 172 .. 49 54 .. 33 177 PAGE Hunt, Chapman t'. .. ..188 Hunter, Ravenscroft d. .. 73, 162 Hurluck, Jackson V. .. .. 170 Hutchinson, Bearpark V. .. 60 Marsh v. . . 32, 67 Ilchester, Ex parte .. 143,146 Ilott V. Genge . . . . 81 Ingram u. Wyatt .. .. 47 Inman, Tucker u. .. .. 71 Ireland, Churchman i>. .. 54 Irving, Maitland v. .. . . 49 Israeft). Rodon .. .. 149 Jackson, Faulds D. .. .. 91 r. Hurlock.. .. 170 D.Parker .. .. 141 James, Hands v. .. .. 95 V. Cohen .. .. 173 Jeffery, V^awser D. .. .. 145 Jenkins I'. Whitehouse . . .. 107 Jenkinson, Pecliell I). .. 168 Johnson, Bempde v. .. 28,32 Curling v. . . . . 32 Doe V. .. ..191 In the goods of . . 94 u. Johnson .. .. 202 V.Wells .. .. 146 V.Woods .. .. 1H7 Johnston V. Johnston .. 151 Jolilfe, Lowe v. .. .. 136 Jonrs, Andrews f. .. .. 206 Attorney General t). .. 24 Edwards D. .. .. 25 Godrich V. .. .. 49 D. Nicholay .. .. 23 Roe V. . . . . 53 V Selby . . . . 25 Vernon?;. .. ..140 K. Kenebel v. Scrafton .. 144 Kennedy v. Westbeech 86 Kenrick, Curteis v. .. 127 Kent, Brooke v. 165, 206 Kersey, Doe v. .. 128 Kidd V. North 8 King, Moore v. .. 90 King's Proctor v. Dailies 2S Kingscote, Pennant v. .. b 91, 93 TABLE OF CASES. PAGE Kinlcside v. Harrison . . 47 Kirbv, In llie goods of . . 81 Kirkcii(il)iit;ht i'. Kirkcudbright 175 Knight, Ulake t). • • Hobbs f. 9+ 156 L. Inking, M. Tyi'iT .. .. 139 Onslow, Lushinglon «. .. 167 Orford, Walpole v. .. 21, 173 Orr, Mower v. .. .. 203 Otway, Goodtitle D. .. .. 144 Page, Tuffnell v. Pain, In goods of Palmer, Doe v. . . Parish, Drummond v. Parker v. Brooke Hudson v. .. 81,82, Jackson r. v. Marcliant Parkin v. Bainbridge Parnther, Attorney-General v. Parsons, i^ank of England i;. Cook V. V. Freeman . Paske V. Ollatt . Passraore v. Pabsmore Pawlet, Croft v. Payne u. Trap pes Pa^'nter, Newlands v. Peach V, Pliillips Peacock, Freer v, Pcchell V, Jenkinson . . Pemberton v. Pemberton Shingler v. Penhallow, Smartle v. Pennant v. Kingscote Pennington, Bateman v, Perkes, Doe v. Perkins v. Walker Pereira, Dufour V. Perry v. Whitehead Phillips, Healey f. Peach V. Welsh V. Pliipps V. Anglesey In goods of V, Pilclier Pickering, Oldiiam v. Pidgely v. Pidgelj Piercy, In goods of Pigott V, Waller Pipun V. Pipon . Playne r. Scrivcn Plait V. Routh Plenty v. Budd . . Poelnilz, Corbelt v. Pollen V. Browne Poor, Bowles v, . . Pott, Doer. Pottinger v. Wightman Pottle, Carstairs v. Powell, Steadman v, Pralt, Winsor v. Price, Cater v. . . V. Dewluirst Prodgers, Rutland v. Prujean, Smart v. Purefoy v. Rogers PAGE 139, 157 23 .. 59 91, 93 73 156 .. 140 21 . . 53 .. 107 141 160, 175 153 115 .. 130 4, 60 .. 193 .. 95 171 .. 32 92, 159 69 154 .. 63 32 59 143 32 152 64 .. 159 .. 88 26. 35 67 .. 176 53 .. 5 78 Q. . 165 115 Quincey i'. Quincey 174 . 64 88, 91 .. 141 R. 190 162 Raitt, III goods of .. 80 47 Rains, Taylor t>. .. 102 10 Ralsbeck, Moor *;. .. 179 86 Ramtes, Gavven v. 4 143 Ravenscroft v. Hunter . 73,162 .. 49 Rawles, Cock raft D. .. 47 115 Rawlins, In goods of 82 95 .. 177 .. 173 liead. In goods of . . 33 64 Reay, Gordon v. .. 176 . 141 Reddall v. Liddlard 63 47 Reid, Moodie v. 126 .. 168 Rex t;. Bettesworlli 65, 68 TABLE OF CASES. PAGE Rex V. Wripht 48 Reynolds, Wild t). .. 20.S Rich f. Cockcll 64, 70, 104 Richards, Young v. 94, 137 RidtT V. Waper 141 Right V. Banks .. 12, 53 Ripley f. VViilerworth .. 11,59 Risley v. Haltinglass .. .. 142 Rilherdon r. Slockwell 159 Rivaz, Colliir v. . . 35 Koake v, Denn 191, 192 Roberts, Doc v. .. 193 V. Swift .. 52, 143 V. Round .. 157 Robins, Barton v. .. 50 Ullerton v. .. 176 Robinson, Mynn v. . . 49, 66 Rodon, Israel v. 149 Roe V. Jones 53 V. Griffiths 143 Marston i'. .. 145 Rogers, Purefoy v. . . 53 Rose V. Bank-It .. 188 Ross 11. Ewer 5, 85, 126 Routh, Plattu. 59 Roydon v. Malster 4 Rudall, Simmons v. 164 RushiHit, In goods of . .. 166 Rutland V. Prodgers 67 Ryan v. Ryan . . . . 28 Ryder, In goods of 135 Salmon v. Hays .. 68 Salter v. Boteler 59 Sanders v. VVipston .. 132 Sandford v. Sand ford 153 Sandys, Campbell v. 59 Sau?iderson i. Glass .. 49 Say D. Barwick .. 48 Scamnell i'. Wilkinson 71 Scott, Helfour v. .. '^8 Cole t;. 182 Scraflon, Kenebel v. .. 144 Scriven, Playne v. .. . . 92, 159 Scruby v. Fordliam .. 158 Selby, Jones v. 25 Seymour's case .. 115 Seymour, Cullum v. 133 Shadwell, In goods of 78 Shnnley v. Baker .. 186 Shardelow v. Naylor 102 Sheath v. York .. 144 Sheddoii V. Goodrich 147 Sheffield, Rlaas v. .. 65 Sheldon v. Sheldon Sherer v. Bishop Shingler v. Pemberton Shires v. Glascock Shirley, In goods of Short 'u. Smith .. Showier, Burgoyne v. Sikes V. Snaith Sill V. Worswick Simeon v. Simeon Simmons v. Hambrooke Hinckley ». . V. Rudall Sindry, Larpent v. Skinner v. Ogle Slaughter, Munday v. Smallbrooke v. Holden Smart v. Prujean Smartle v. Penhallow . Sniee v. Brjer Smith, In the goods of.. Bove J V. r. Casen V. Cunninghaiu t), Dearmer Davey v, Ellis V. Emuss V. V. Evans Short V. Wagstaff v. Snaith, Sikes v. Soar V. Dolman Sockelt V. Wray Solomons, Stokes t). Somerville v. Somerville Sparrow v. Hardcastle . . Standen v. Standen Stanley v. Bernes Lemayne v. Staple, Doe v. .. .. Sleadman v. Powell Stephens v. Tajiprell Stevens v. Bagwell Slillman r. VVeedon . . Stirling v. Lydiard Stockwell, Rilherdon v. Stokes V. Solomons Stone II. Forsyth D. Greening Stubbington, Boxley v. Slurgis V. Corp Sumniersgill, Lees t). Sutcliffe, Musto V. Swift V. Roberts .. Ward V. Sydenham, Cotbay v, . . 66 PAGE 176 . 22 23 . 87 149 . 139 3, 164 7 32 . 127 25 . 22 164 .. 33 172, 203 136 .. 60 176 .. 59 76,77 .. 207 27 .. 25 158 .. 172 87 73, 86 185 .. 73 139 .. 64 7 .. 166 64 .. 184 32 .. 177 191 .. 30 73 .. 143 64 .. 1.57 70, 103 185, 193 .. 54 159 .. 184 .. 70 190 .. 68 64 .. 129 8 52, 143 127 .. 103 TABLE OF CASES. Tagart, Bakewell v. ■ V. Hooper . . Talbot V. Talbot Tappenden v. Walsh Tapprell, Stephens y. .. Tatei). Hilbert Tatnall v. Hankey Ta}lerson, Culley v. 'Jailor V. Rains Teague, Doe v. Temple v. Walker Webb V. . . Thomas, Bibb v. Thompson, Brown v. V. Hempenstall Thomson v. Batty . , V. Morvvan Thornton, In the goods of 'J'liorold V. Thorold 'J'horp, Hatfield v. .. Thuistan i;. Tucker Thrustoiit V. Cunningliara Tokt'love, Hale r. Toiulinson v. Wilkes Tompson v. Browne Took V. Glascock . . Torball, Herbert v. Towiiley i'. Watson Trappes, Payne v. Tribe v. Tribe Tucker, Ex parte • v. Inman V, I'iiurslon Tuffnell V. Page Constable v. Turner, Brook v. Derenzey v. Hughes V. Marwood v. Ward V. Tumour, Morison v, Tyier, Onions v. U. Usticke V. Bawden Utterson v. Utterson Utlerton v. Robins Vade, Bennett v. Valpy, Lempriere v. Vandercora, Birkett v. Vardili, Birtwhistle v. Doe V. . . PAGE . 'Ho 160 146 64, 68 157 25 106 55 102 136 61 142 155 144 173 25 66 159 25 130 HO 145 160 136 24 4 63 166 173 88 104 71 140 5 47 65, 102 79 0, 172 54 25 74 139 175 169 176 141 127 71 26 27 PAGE Vawser r. JefFery .. .. 145 Venables, Matthews v. . . 143, 146 Vernon r. Jones .. .. 140 Vickers, BiJlinghurst i'. 48, 50 Vigor, Alt. Gen. v. 54, 141, 143 Vincent, Barnes v. .. . . 108 Habersham w. .. 11,14 W. Wade V. Nazer . . . . 160 Wager, Rider t). .. •• 141 Wagstaff v. Smith .. .. 64 V. Wagstaff . . ..11 Wakeford, Wright y. .. 74 Wainewright c. Elwell .. 12 Walcott, Clogstoun v. • • 23 V. Ochterlony .. 146 Walker, Doe v 181 Perkins i; 140 'JVniple V. .. .. 64 V. Walker .. .. 149 Waller, Piggot v. .. ..171 Walniesley D. Booth .. ..49 Wulpole iJ, Orford .. 21,173 Walsh, Tappenden v. . . 61, 68 Ward V. Moore . . . . 177 V. Swift .. .. 127 V. Turner . . . . 25 Warden, In goods of .. 81 Wargent r. Holiings .. 160 Waring i'. Waring . . . . 40 Warnford v Warnford . . 73 Warren, Flint d. .. .. 187 Hall V 44 Wartnaby, In goods of .. 169 Waterworth, Ripley v. .. 11, 59 Watson, Townley X). .. 166 Wauchope, Winchclsea I'. .. 87 Waugh, Ashley t). .. .. 172 Warner, Matthews v. .. 83 Walt V. Walt .. .. 104 Webb v. Honnor .. .. 191 r. Temple .. .. 112 Weber. Filch i' 187 Weedon, Stillmaa v. . . 185, 193 Welch V. Piiitlips .. 160, 175 Weld r. .Acton .. .. 15S Welford, Goodiille v. . . 130 Welles V. Middlelon . . 49 Wells V. Johnson .. .. \-l6 Westbeech v. Kennedy . . 86 Westfaling ?;. Wesifaling . . 59 Wheeler v. Alderson .. 46, 48 Whicker r. Hume .. .. 33 White, In goods of .. 77, 92 I). Trustees of British Museum 81. 84, 127 TABLE OF CASES- Wliilehead v. Perrv Whiteliouse, Jenkins v. Wiglitiiiiin, Pottingcr v, Wigston, Sanders v. Wild I'. Reynolds Wilkes, I'onilinson v. \Vilkiii50n, Senmnell v. \\'illiiiiiis V. Goude iVJajor I'. .. Willis V- Lowe Wilson V. Beddard V. Edeii Winclielsea v. Waucliope Wiiidh.ini V. Clietwynd Wiiigrove, In goods of Winsor v. Piatt ,. Winter r. Winter Wiiiteiton, Famr v. Wood, Eilbeck v. Hodgkinsoii v. PAGE PAGE 5:5 Woodley, Montgomerie v. .. 186 107 Woods, Johnson v. 187 32 Worswick, Sill t). 32 132 VVray, Sockett v. 64 203 Wright, Rex v. 48 136 V. Wakeford .. 74 71 Wj'att, Hawes v. . . 143 . 48 Ingram v. .. 47 173 W^ynn v. Heveringham 169 76 WyraiU. Hall 22 75 188 87 Y. 128 168 159 203 Yeo, Mackenzie v, . . 133 York, Sheath 1.. .. 144 Young i;. Richards 91, 137 180 146 Z. 141 Zoucli, Forse v. 59 ERRATA. Page 10, I. 21, for " pay" read " pass." 23, I. 21, for " deceased" read " testatrix." 26, I. 20, for " ix" read " xi." 41, 1. 6, between " if" and " had" insert " it. 79, 1. 5, for " Devenzy" read " Derenzey." INTRODUCTION. The Act for the Amendment of the Laws with respect to Wills received the Royal Assent on the 3rd of July, 1837; and by section 34 it is enacted, that the act shall not extend to any will made before the 1st of January, 1838, unless such will shall have been re-executed, or republished, or revived by any codicil subsequent to that time; in which case the will shall be deemed to have been made at the time when it has been so re-executed, or republished, or revived. It may, therefore, be worth while even practically, with respect to wills which do not come within the operation of the act by reason either of their date, or it may be of their subject-matter (see Cloves r. Awdry, 12Beav. 604; 1 Sugd. Pow. 369), and also with the view of better understanding the provisions of the new law, to consider briefly the state of the previous testamentary law, and so asceitain the na- ture and extent of the mischief and inconveniences which the legislature, in passing the existing law, intended to pro- vide against. There appear to have been, previous to the 1st of Execution 1TP 1 r before 1st January, 1838, no less than ten dmerent laws tor regu- januaiy, 1838. lating the execution of wills, as they were concerned with the disposition of several kinds of property. First, to pass freehold estates in fee simple by direct l- Freehold dstcilcs 111 FcG devise, either at law or in equity, or to pass equitable simple, estates in such customary freeholds as were not devisable B 2 The Wills Act. at law, the will must have been in writing, and signed and attested in the manner required by the Statute of Frauds. History of the Mr. Hargrave, in a learned note to Co. Litt. 111b, n., has posTngof Land given an account of the power of disposition over lands in by Will. j.j^jg country ; he states that the testamentary power over land was certainly in use among our Anglo-Saxon and Danish ancestors, though it seems to have been rather adopted from the remnant of the Roman laws and customs they found here, than brought from their own country ; for as Tacitus, waiting of the ancient Germans, says, § 20, " Heeredes tamen successoresque sui cuique liberi, et nul- lum testamentum. Si liberi non sunt, proximi gradus in possessione, fratres, patrui, avunculi." It does not appear that the Saxons or Danes made any distinction between real and personal property; the whole property of a man was described by the general term res, and under that denomination was subject to the same succession ab intestato, and might be given or disposed of by will. But this power of disposing by will was not allowed without restriction, for there is every reason to conclude, from the prevailing custom of the realm after- wards, that a man was restrained from totally disinheriting his children, or leaving his widow without a provision. Consistently with this supposition we find the law, with regard to the estates of intestates. Leg. Can. c. 68 : " Sive quis incuria, sive repentina morte fuerit intestatus mortuus, dominus tamen nullam rerum suarum partem, prseter cam quae jure debetur herioti nomine sibi assumito. Verum possessiones uxori, liberis, et cognatione proximis pro suo cuique jure distribuantur." (1 Reeves's Hist. E. L. 11.) After the Norman Conquest the power of devising lands ceased, except as to socage lands in some particular places, such as cities and boroughs, in which it was still preserved ; and also except as to terms for years, or chattel interests Introduction. in land, which on account of their original imbecility and insignificance were deemed personalty, and as such were ever disposable by will. This limitation of the testamentary power proceeded partly from the solemn form of trans- ferring land by livery of seisin introduced at the Conquest, which could not be comphed with in the case of a last will, partly from a jealousy of death-bed dispositions, but principally from the general restraint of alienation incident to the rigours of the feudal system as it was established, or at least perfected by the first William. (Wright's Ten. 172 ; Reeves's Hist. E. L. ch. 11.) In the reign of Edward the First the statute Quia emptores removed in great measure this latter bar to the exercise of the testamentary power, that is, in respect to all freeholders, except the king's tenants in capite. But the two former obstructions still continued to operate, though indeed this was in name and appearance only ; for soon after the statute of Quia emptores, feoffments to uses came into fashion, and last wills were enforced in chancery as good declarations of the use ; and thus, through the medium of uses, the power of devising was continually exercised in effect and in reality. But at length this practice was checked, not accidentally but designedly, by the 27 Hen. VIII., which, by trans- ferring the possession or legal estate to the use, necessarily and compulsively consolidated them into one, and so had the effect of wholly destroying all distinction between them, till the means to evade the statute, and, by a very strained construction, to make its operation dependant upon the intention of parties, were invented. However, the bent of the times was so strong in favour of every kind of aliena- tion, that the legislature in a few years after, having inter- posed to restrain an indirect mode of passing land by last wills, expressly made it devisable. This great change in the common law was effected by B 2 The Wills Act. the statutes of 32 and 34 Hen. VIII., which, taken to- gether, gave the power of devising to all having estates in fee simple, except in joint tenancy, over the whole of their socage lands, and over two-thirds of their lands holden by knight's service. The operation of these statutes was further extended by tlie conversion of knight's service into socage in the 12 Car. II. But still copyhold lands, and also, as the best opinion seems to have been, estates piir autre vie in freehold lands, remained undevisable. On the one hand they were not devisable at common law, because they came within the description of real estate. On the other hand they, or at least the former, are not within the statutes of Hen. VIII., these requiring that the tenure should be socage, which copyhold is notj and that the party should have an estate in fee simple, which is more than a tenant pur autre vie can be said to have. (See as to copyhold lands, Royden v. Malster, 2 Rolls Rep. 383 ; and as to estates pur autre vie in freehold lands, Gawen v. Ramtes, Cro. Eliz. 804; Moo. 625; I Wms. Saund. 261, 6th edit. ; notes to Took v. Glascock ; Oldham v. Pickering, 2Salk. 464.) This defect of provision in the Statutes of Wills was supplied, as to estQ.tes pur autre vie, by the 29 Car. II. c. 3, s. 12, which made them devisable in the same manner as estates in fee simple. But previous to the 55 Geo. III. c. 192, which made dispositions by will of copyhold estates effectual without previous surrender, no provision was made in respect of copyhold estates, and therefore the power of devising was indirectly exercised over these by an appli- cation of the doctrine of uses, similar to that which was anciently resorted to in respect to freehold lands; for the practice w as to surrender to the use of the owner's last will ; and on this surrender the will operated as a declaration of the use, and not as a devise of the land itself. (Att. Gen. Introduction, 5 V. Andrews, 1 Ves. 225; 2 P. Wms. 258, n. 1; TufFnell V. Page, 2 Atk. 37; Co. Litt. Ill b, n. 1.) The only form necessary to the vahdity of a will, under the Statutes of Wills, was writing ; a devise by custom, under the old law, might afterwards be made by parol. This distinction and others (Co. Litt. 111b, n. 4) was abo- lished by 29 Car. II. c.3, s. 5, which required that all wills of lands devisable by force of the statute, or by custom, shall be in writing. And the same section made three other formalities requisite to the validity of a will of freehold estates in fee simple. 1st. That it should be signed by the testator, or by some other person in his presence, and by his express direction ; 2nd. That it should be attested by three or four credible witnesses; and 3rd. That it should be subscribed by the witnesses in the presence of the testator. Sometimes it was treated as necessary, though not required by the statute, that the will should be published by the tes- tator. (Ross V. Ewer, 3 Atk. 161.)* Secondly, to pass leasehold estates, money secured on 2. Leaseholds. land, or personal property, exceeding the value of 30/., and on^Land^'^'^'^'^ belonoino; to any person other than a soldier in service, or I'ersonal Pro- , ^ ^ . . . perty above 30/. a sailor at sea, any writing, however informal, was sufficient; or such property might pass by parol, in certain cases, with the evidence required by the Statute of Frauds. Leases for terms of years were originally mere contracts Leaseholds. for the cultivation or occupation of the soil, and were usually made in consideration of the render of part of the produce, or its value. They were in the power of the free- * Iii the Appendix to the Fourth Report of the Real Property Com- missioners, p. 6, there is a very learned " inquiry into the origin, the pro- gress, the actual state and the attempted reformations of our testamentary jurisdictions, ecclesiastical and lay, " which will well repay attentive perusal. The Wills Act. Mortgages. Personal Pro- perly. holder, who might destroy them, until they were protected against such destruction, in some cases by the Statute of Gloucester, 6 Edvv. I. c. 11, and in others by the statute 21 Hen. VIII. c. 15. At a time when the greater part of the land was cultivated by villeins, who were incapable of possessing any property, it may be supposed that the few freemen, who occupied land upon contracts for terms of years, were a class but little superior to the villeins, and it is not probable that they held any freehold estates. Leasehold interests were at first merely personal to the lessees, and determined with their deaths. When leases beyond the lives of the tenants began to be upheld, they were not considered to create estates in the land, because they were not at that time of sufficient value to sustain the burthens of feudal tenure ; and on account of their insig- nificance were treated as personal property, and thereby became subject to the same power of testamentary dispo- sition as the stock on the land and other chattels. Mortgages and other securities for money, unless where an estate of freehold is conveyed to the mortgagee, have been considered to be of the same nature as the money itself; and where a mortgage is made by the conveyance of an estate of freehold, the right to the money in equity was subject to the same power of testamentary disposition as other personal property. A testamentary power over some proportion of movable and other personal property existed in very early times (ante, p. 2). It seems that formerly the owner could not dispose of more than one-third if he left a wife and children, or of more than one-half if he left a wife and no child. These restrictions continued in the city of London, the prin- cipality of Wales and the province of York, till they were abolished by the statutes 2 Geo. T. c. 18; 7 & 8 Will. III. c. 38; 4 & 5 Will. & M. c. 2; 2 & 3 Anne, c. 5; since which Introduction. the owners of personal property in any part of England have been allowed to dispose of the whole of it. Previous to the Statute of Frauds, a will of personal Statute of estate might be made by parol (2 Black. Com. 500) ; but ' the 19th section of that statute enacted, that no parol or nuncupative will should be good, when the estate thereby bequeathed exceeded the value of 30/., unless the following requisites had been complied with — 1st. That it be proved by three or more witnesses, who were present at the making; 2ndly. That it be proved that the testator at the time did bid the persons present to bear witness that such was his will ; and 3rdly. That the will was made in the last sick- ness of the testator, and in the house in which he dwelt, or in which he had been resident ten days, or that he was surprised and taken sick when absent from home, and died before his return. And the 20th section required further, in S.20. addition to these provisions, that the substance of the tes- timony be committed to writing within six days, or other- wise it was not to be received after six months ; and then by the 21st section it was provided, that the will should not be proved until fourteen days after the death of the testator, nor then until the widow or next of kin had been called upon to contest it, if they thought proper. (Lemann v. Bonsall, 1 Add. 389.) But wills of personal estate in writing might be made in any form, and without any solemnity. It was not ne- cessary that even the name of the testator should appear ; and any scrap of paper or memorandum, in ink or in pencil (Dickenson v. Dickenson, 2 Phillim. 173), mentioning an intended disposition of property, was admitted as a will, and would be valid, although written by another person, and not read over to the testator, or even seen by him, if proved to have been written in his lifetime and according to his instructions (Sikes v. Snaith, 2 Phillim. 351), and the The Wills Act. further completion of the instrument was prevented by the sudden death of the testator. Even where the will was imperfect, and it appeared upon the face of it that something more was intended to be done before it was finished, yet it would have been valid, so far as it seemed to be complete, if it was proved that the testator's intention was arrested by sickness or death. (Musto v. Sut- cliffe, SPhillim. 104.) In Kidd V. North (2 Ph. 91 ; 10 Jur. 995), the testa- mentary paper before the court had neither date, signature, nor attestation ; but it was held to be in substitution and to supersede the provisions contained in other complete instru- ments. " It is reasonable," Lord Cottenham said, in his judgment there, " to give effect to the incomplete instru- ment, if it contains within itself evidence of an intention to make an entirely new disposition, and for that purpose to undo all that had been done before ; but if the new dispo- sition applies only to part of the subject matter, the instru- ment being upon the face of it incomplete, and not applying to other parts, it is consistent with all principle to give effect to this intention, so far as it is expressed, but to con- sider the first disposition, as operative, so far as no substi- tuted disposition is provided in its place." In Montefiore v. Montefiore (2 Add. 357), and Master- man ?;. Maberly (2 Hagg. 247), Sir John Nicholl thus re- ferred to the principles which guided the court of probate in respect to unexecuted and imperfect papers:— "The legal principles as to imperfect testamentary papers of every description vary very much according to the state of ma- turity at which those papers have arrived. The presump- tion of law, indeed, is against every paper not actually exe- cuted by the testator ; and so executed, as it is to be inferred on the face of the paper, that the testator meant to execute it. But if the paper be complete in all other respects, that Introduction. 9 presumption is slight and feeble, and one comparatively easily repelled. For intentions sub modo at least need not be proved in the case ; that is, the court will presume the testator's intentions to be as expressed in such a paper, on its being satisfactorily shown that its not being executed may be justly ascribed to some other cause, and not to any abandonment of those intentions so expressed on his, the testator's, part. But where a paper is unfinished as well as unexecuted, especially where it is just begun, and contains only a few clauses or bequests, not only must its being un- finished and unexecuted be accounted for, as above, but it must also be proved, for the court will not presume it, to express the testator's intentions, in order to repel the legal presumption against its vaUdity. It must be clearly made to appear, upon a just view of all the facts and circum- stances of the case, that the deceased had come to a final resolution in respect to it as far as it goes ; so that by esta- blishing it, even in such its imperfect state, the court will give effect to and not thwart or defeat the testator's real wishes and intentions in respect to the property which it purports to bequeath in order to entitle such a paper to probate, in any case, in my judgment. "In respect to personal property, where there is final intention proved and execution prevented by the act of God, the mere want of execution does not invalidate the instrument. The disposition intended to be made has the same legal effect in regard to personal property, as if the instruments had been actually signed and attested. This non-execution does not, in law, affect the validity of these instruments as testamentary instruments applying to per- sonal property." Thirdly, personal property, when not exceeding the 3. Personal value of £30, and also any amount of personal property 30/., and Pro- belonging to a soldier in service, or a sailor at sea, what- P^rty of Soldier 00 } 'or Sailor. 10 The Wills Act. ever might be its value, with the exception of the pay, prize money, Sec, of a seaman in the navy, or marine, might pass by parol without any restriction as to evidence ; for, by the 23rd section of the Statute of Frauds, the wills of soldiers in actual military service, and of mariners at sea, which includes marines, with respect to their personal estate, were exempted from the provisions of the act; and consequently these persons might make their wills by parol; but this privilege was limited to movables, wages, and personal estate, and did not include the disposition of realty. 4. Pay, &c. Fourthly, to pass the pay, prize-money, &;c., of a war- rant officer or seaman in the navy, or non-commissioned officer of marines or marine, the forms required by the act 11 Geo. IV. & 1 Will. IV. c. 20, must have been com- plied with. (See section 12) 5. Es'ates pur Fifthly, to pass freehold estates, pur autre vie, at law, the yvill must have been executed in the same manner as wills of estates in fee simple ; but such estates appear to have been in many cases devisable in equity by a will in form sufficient for personal property. (See section 6.) 6. Money in Sixthly, to pay money in the funds by direct legal devise the will must have been attested by two witnesses : but this provision was almost nugatory ; since upon a principle similar to that by which devises of estates pur autre vie were governed, it was settled that wills with respect to money in the public funds were subject to a different testamentary disposition at law and in equity. It is de- clared by 1 Geo. I. c. 19, s. 12, and other acts of parlia- ment, that money in the funds may be devised by will in writing, attested by two or more witnesses; yet when it was bequeathed by an unattested will, it vested in the executor, and he was considered a trustee for the legatee. (Bank of England v. Moffatt, 3 Bro. C. C. 260 ; Bank of England v. Parsons, 5 Ves. 664.) Being personal property, the assent Introduction. 11 of the executor was always necessary to give effect to the bequest. And so the only difference between a will exe- cuted in the manner required by the acts of parHament, and an unattested will, with respect to such property was, that in the former case the property vested in the legatee upon the assent of the executor ; and in the latter, it vested in the executor, but the legatee could compel the executor to transfer it to him, or as he might direct. (Franklin v. The Bank of England, 1 Russ. 575; 9 B. & C. 156 ; Ripley v. Waterworth, 7 Ves. 440.) Seventhly, copyholds were not included in the Statute of 7. Copyholds. Wills, those statutes being expressly confined to lands held in socage and knights' service. Nor were wills of copy- holds required to be executed in the same manner as wills of freehold estates. The words of the 5th section of the Statute of Frauds, which section regulated devises of lands by force of any custom, appear indeed to be sufficiently comprehensive to include wills of copyholds, and they were clearly within the mischiefs which that statute intended to remove. However, it was held soon after the passing of this statute, that this provision did not extend to copyholds; and that decision was followed, although no good reason could be given in its favour, and many eminent judges expressed their disapprobation of it. (Lord Macclesfield, in Wagstaff v. Wagstaff, 2 P. Wms. 259; Lord Hardwicke, in Attorney-General v. Andrews, 1 Ves. 225 ; Lord Lough- borough, and Buller, J., in Haberghara v. Vincent, 2 Ves. jun. 237, 232.) Copyholds could not therefore be devised directly, except in a few places, where by special custom they were devisable ; but an indirect power of devising them existed by surrender to the use of the will, and the lands were considered to pass, not by the will, but by force of the surrender. 12 The Wills Act. Solemnities of any description might be required by the surrender to the use of the will, but where none were im- posed, the will might be made by any unsigned, informal, and, in some cases, imperfect writing ; and such wills being within neither theStatutes of Wills nor the Statute of Frauds, might be made by parol, when allowed by the custom of the manor ; and it is perhaps doubtful whether a parol will of a copyhold estate, when the value of it exceeded 30Z., is within the 19th section of the Statute of Frauds relating to nuncupative wills, for that section is not in terms more applicable to wills of copyholds than the 5th section, which was held not to extend to them. Equitable estates in copyholds are not properly the sub- ject of surrender ; and have been determined by courts of equity to be devisable in the same manner as the legal estate would be devisable if a surrender had been made to the use of the will. Some persons, entitled to an imperfect legal interest as well as the beneficial interest in copyholds, as a devisee or voluntary surrenderee who has not been admitted, were incapable of devising them (Wainewright v. Elwell, 1 Madd. 627) ; but it was held, that a devise could be made by an heir before admission. (Right v. Banks, 3 B. & Ad. 664. See post, sect. 3.) 8. Customary Eighthly, such customary freeholds as would pass by surrender to the use of the will could not, it was thought, be devised at law without a surrender ; but equitable estates in customary freeholds so devisable might be devised, in the same manner as equitable interests in copyholds. And there were some customary freeholds which could not be surrendered or conveyed to the use of a will, and which were not devisable at law. (Hodgson v. Merest, 9 Price, 556.) Introduction. 13 Ninthly, to appoint a guardian a will must have been 9. Appointment attested by two witnesses. The statute for abolishing the ° "^"^ '^"* military tenures, 12 Car. II. c. 24, which put an end to the Court of Wards, gave to a father by section 8, whether within the age of twenty-one years or of full age, the power of appointing a guardian by a will in writing to be executed in the presence of two credible witnesses (see post, sect, 7). And, lastly, to exercise a power of appointment by will it lo. Will under was necessary to comply with any forms which might be required by the terms of the power. The legal estate in freehold or co])yhold property, and the equitable interest in every kind of property, may be conveyed or settled for such purposes as the owner or any other person (to whom the power may be given) shall appoint by will ; and such will might be required to be executed in the presence of any number of witnesses, or with any other solemnities, at the caprice of the person by whom the power was created. A power might be reserved to be executed by a simple note in writing or by will unattested, or attested by only one or two witnesses ; and this although the subject over which it rode was real estate. (1 Sugd. Pow. 155.) Every combination of the solemnities which the law had made necessary for the due execution of wills of different descriptions, and, on the other hand, several soleamities not required by any law, are occasionally found to be prescribed by different powers of appointment, and these requirements could only be satisfied by a strictly literal and precise performance. They were incapable of admitting any substitution, because they had no spirit in them which could be otherwise satis- fied ; incapable of receiving any equivalent, because they were themselves of no value. (1 Sugd. Pow. 251.) However if a will, or a writing purporting to be a will, 14 The Wills Act. was required to be the instrument by which the power was to be exercised without saying more, a will to be a valid exercise of the powder must have been executed as a proper will under the statute ; although if the instrument creating the power was silent as to the instrument by which it was to be exercised, it might, as it seems, have been executed by a will not complying with the Statute of Frauds. (1 Sugd. Povv. 157.) But of course a man could not reserve such a power to himso'lf by his own will (Haberg- ham V. Vincent, 2 Ves. jun. 204), for that would be simply an evasion of the Statute of Frauds (1 Sugd. Povv. 157; see as to this point under the present Statute of Wills, Ferraris v. Lord Hertford, 3 Curt. 468) ; and yet the owner of freehold property might enable himself to dispose of the value of it by an unattested codicil ; as if by his will duly attested he charged his estates with legacies generally, he might by an unattested codicil give legacies which would be payable by virtue of such charge. This variety of rules led to serious inconveniences, and tended to create litigation on questions of mere form, and when there was no substantial question in dispute ; and occa- sioned mistakes, which defeated lawful and proper intentions ; thus often rendering a will void as to some property intended to be comprised in it, while the same will was valid as to other property. Nor did there appear to exist any good reason for making a distinction between the forms required for the execution of wills with respect to different descriptions of property, since it could not be urged that one description of property required greater protection than another, so far at least as the disposing of it by will was concerned, nor would the necessity for a guard vary with the nature of the interest in the same property. It seemed therefore of great importance, that as a general rule wills of every description should be required to be exe- Introduction. 15 cuted according to one simple form, which might be easily and generally understood. And the Commissioners on the Law of Real Property in their Fourth Report, April, 1833, from which this account has been chiefly taken, submitted several propositions which should, when adopted by the legislature, establish simple and definite rules for the exe- cution of wills. These propositions were : — 1. That the Statute of Frauds, so far as it relates to wills (being sections h, 6, 12, 19, 20, 21, 22 and 23), shall be re- pealed. 2. That no will of any description, except such as are mentioned in the fourth proposition, shall be valid, unless it be in writing, and signed at the foot by the testator, or some other person in his presence and by his direction ; and the signature be made or acknowledged by the testator in the presence of two or more credible witnesses, present at one time, who subscribe their names to the will. 3. That the statute 26 Geo. II. c. 6, shall be deemed to apply to such witnesses. 4. That any soldier, being in actual service, or seaman at sea, may dispose of personal estate as he may do under the present law. 5. That a will executed according to the second propo- sition shall not require any other publication. 6. That any will made in exercise of a power shall be executed in the same manner as is required for the validity of other wills, and shall be valid notwithstanding the terms of the power may require the will to be executed with additional or other solemnities, which have not been ob- served. 7. That no will made by any person under the age of twenty-one years, and no will made by a feme covert, except by virtue of a power, or, as to personal estate, with \6 The Wills Act. the consent of her husband, or for appointing an executor of a will of which she shall be executrix, shall be valid. 8. That all freehold estates, and all copyhold and custo- mary estates, including an estate pur autre vie, where there is no special occupant, and also every copyhold estate which would be devisable if the party entitled thereto had been duly admitted, and all leasehold estates and other personal property, and all estates, interests and rights therein capable of being conveyed or transferred by the testator by any act inter vivos (except estates tail and estates in quasi entail, and estates or shares of estates held by the testator in joint tenancy), and also all rights of entry, and of action or suit, to any such estates, may be devised or bequeathed by will. 9. That any freehold or other property acquired by a tes- tator, subsequently to the execution of his will, may pass by it, and a will shall be considered with reference to the pro- perty comprised in it, as speaking at the testator's death, unless a contrary intention appears. 10. That no will shall be revoked otherwise than by another will or codicil, or by some writing executed and attested in the same manner as is required for the validity of a will, or by burning, cancelling, or tearing, with the intention of revoking it, by the testator, or in his presence and by his direction. 11. That obliterations made in a will shall have no effect unless duly attested as alterations, in the same manner as is required for the execution of a will. 12. That no act done by a testator, subsequently to the execution of his will, with respect to any property comprised in it, shall operate as a revocation of any disposition thereby made of such property, except so far as a beneficial interest is conferred by such act on another person. 13. That the will of a woman shall be revoked by her Introduction. 17 marriage, and shall not be revived by the subsequent death of her husband. 14. That the will of a man shall not be revoked by his marriage, and the birth of a child or children. 47. That when any person to whom any real property shall be given by will for an estate tail or an estate in quasi tail, shall die in the lifetime of the testator, leaving issue who would be inheritable under such entail, and such issue shall be living at the death of the testator ; and also where any person being a child or other issue of the tes- tator, to whom any real or personal property shall be given by will, for any estate or interest not determinable at or before his or her death, shall die in the lifetime of the testator, leaving issue who shall be living at the death of the tes- tator, such gift shall not lapse, but shall take effect as if the death of the testator had happened before the deaths of such tenant in tail, or child, or grandchild. 48. That where the devise of any real property shall fail in consequence of the death of the devisee in the lifetime of the testator, or because it is contrary to any rule of law, or otherwise incapable of taking effect, and there shall be a residuary devise in such will, the property comprised in the devise which shall fail shall pass by the residuary devise, unless an intention to the contrary shall appear by the wilj. 49. That when any real property shall be devised to any person, who, at the time of the testator's death shall be his heir, or one of his co-heirs, such heir or co-heir shall be deemed to take as a devisee and not by descent. The remaining propositions have reference to jurisdiction, registration, &c., and do not contain any suggestions as to the form, mode of execution, or construction of the will. The present act was framed upon these propositions, but it will be observed, on reading the several provisions, that the propositions have not been all adopted by the legis- c ly The Wills Act. lutmc, although it will be evident that the legislature had in view the same objects as the Commissioners; first, that property of every description should be subject to the tes- tamentary power; secondly, that all wills, whatever might be the description of the property to be disposed of, and by whomsoever made, should be executed in one and the same manner, and with the same formalities ; and, thirdly, that the manner and formalities of execution should be as few and as simple as possible, and such as might be complied with in every case with the least inconvenience compatible with security and authentication. So far the statute has been generally, if not universally, approved of; but the rules of construction introduced by the latter sections of the statute, and the expediency of any rule of construction being imposed by the legislature, have been the subject of much criticism and doubt. THE ACT THE AMENDMENT THE LAW OF WILLS. 7 Will. IV. k 1 Vict. Cap. 26. An Act for the Amendment of the Laws luith respect to Wills. Be it enacted by the queen's most excellent majesty, by and with the advice and consent of the lords spiritual and temporal, and commons, in this pre- sent parliament assembled, and by the authority of the same, that the words and expressions hereinafter Meaning of ^ , . . . certain Words mentioned, which in their ordinary signification in this Act: have a more confined or a different meaning, shall in this act, except where the nature of the provision or the context of the act shall exclude such con- struction, be interpreted as follows ; (that is to say,) the word "Will" shall extend to a testament, and " wiii:" to a codicil, and to an appointment by will or by writing in the nature of a will in exercise of a power, and also to a disposition by will and testament or devise of the custody and tuition of any child, by virtue of an act passed in the twelfth year of the 12 Car. 2, c. 24. c2 20 The Wills Act. ' Real Estate ; reign of King Charles the Second, intituled " An Act for taking away the Court of Wards and Live- ries, and Tenures in capite and by Knights Service, and Purveyance, and for settling a Revenue upon His Majesty in lieu thereof," or by virtue of an act 14 & 15 Car. 2, passed in the parliament of Ireland in the fourteenth and fifteenth years of the reign of King Charles the Second, intituled " An Act for taking away the Court of Wards and Liveries, and Tenures in capite and by Knights Service," and to any other testa- mentary disposition ; and the words " Real Estate" shall extend to manors, advowsons, messuages, lands, tithes, rents, and hereditaments, whether freehold, customary freehold, tenant right, customary or copy- hold, 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 the words " Personal Estate" shall extend to leasehold estates and other chattels real, and also to monies, shares of government and other funds, securities for money (not being real estates), debts, choses in action, rights, credits, goods, and all other property whatso- ever which by law devolves upon the executor or administrator, and to any share or interest therein ; and every word importing the singular number only shall extend and be applied to several persons or things as well as one person or thing ; and every word importing the mascuHne gender only shall extend and be applied to a female as well as a male. Effect of The purport of this section is to bring every description of property ^Yithin the power of disposition by will, either as real " Personal Estate :" Number; Gender. 7 Will. 4 & 1 Vict. Cap. 26, s. 1. 21 or personal estate; and then, by giving the widest acceptation to the word will, make that word, as it is used in section 9, extend to all property over which the owner may have a power of disposition by testamentary instrument. This section, by referring to statutes 12 Car. II, c. 24, and 14 & 15 Car. II. (I.), in connection with section 7, deprives an infant father of the power of naming a guardian to his children by will. A testament Justinian (Inst. ii. 10) and Sir E. Coke (Ilia) Definition of a agree to be so called, because it is testatio mentis ; a derivation "° which is said to savour too much of the conceit, it being plainly derived from the word testai'i, in like manner as juramentum, incrementum, and others from the verbs. (See Menag. Jur. Civil. Amoen. c. 39.) The definition of the old Roman lawyers is much better than their etymology ; Voluntatis nostrae justa sententia de eo, quod quis post mortem suam fieri velit (Ff. 28, 1. 1); that is, the legal declaration of a man's intentions, which he wills to be performed after his death. (Swinb. on Wills, p. 1, ss. 2, 3, 4.) It is called sententia to denote the circum- spection and prudence with which it is supposed to be made; it is voluntatis nostrae sententia, because its efficacy depends on its declaring the testator's intention, whence it is in England emphatically called his will ; it is justa sententia, that is, drawn, attested and published, with all due solemnities and forms of law ; and it is de eo quod quis post mortem suam fieri velit, because a testament is of no force till after the death of the testator (2 Black. Com. 500) ; or as expressed (Co. Litt. 322b), testamentum est morte consummatum. This necessity of death to consummate the will, in other Joint or mutual words, the recognized ambulatory and revocatory character of ''*'"*• a will (Forse and Hembling's case, 4 Rep. Gl b), seems to give a good foundation for the rule, which prevails in England, against joint or mutual wills as wills, whatever effect may be given to them as contracts. (Dufour v. Pereira, 1 Dick. 419 ; 2 Harg. Juris. Exerc. 101 ; Walpole v. Lord Orford, 3 Ves. 402.) As wills they have no place in the testamentary law of this country. (Hobson v. Blackburn, 1 Add. 277.) But there is nothing to prevent two or more persons from making separate wills in favour of each other, and on the death of any one of them, his will, if otherwise unrevoked, will 22 The Wills Act. Distinction be- tween Testa- ments, Wills and Codicils. Codicil, where the Will is not found. take effect for the benefit of the survivor. Thus, in Hinckley V. Simmons (4 Ves. 160), two sisters made their wills, each giving all her fortune and everything she had power to leave to the other, and appointing the same person executrix ; and it was held, that although the marriage of one of the sisters re- voked her will, yet the will of the other, who died subsequent to the marriage aud before the death of the married sister, was to take effect. In strictness, and according to the older authorities upon ecclesiastical law, the appointment of an executor was essential to a testament, without that a will was not considered a proper testament, and by that alone the will was made a testament. (Godolp. p. i. c. i; Swinb. p. i. s. 3, pi. 19.) But this strict- ness has long ceased to exist (Wyrall v. Hall, 2 Chanc. Rep. 112); and even, according to the old authorities, an instru- ment which did not amount to a testament, because no executor was therein appointed, was obligatory on him who had the administration of the goods of the deceased. And although the Constitutions make use of both terms, testamentum and ultima voluntas, their regulations were applicable to both, without practical distinction. (Lynd. 173 h.) A codicil, the diminutive of codex, a testament, is called by Swinb. (p. i. s. 5, pi. 4) and Godolp. (p. i. c. vi. s. 2) an un- solemn last will, and defined the just sentence of our will touch- ing that which we would have done after our death, without the appointing of an executor. Now, however, the use and accep- tation of the codicil is to add to, explain or alter the former disposition or will of the testator; and it is not unfrequent in practice to find executors named in the codicil, where there are none appointed in the will. In this latter and modern sense of the word, codicils are a part of the will, all making but one testament, (Sherer'y.Bishop, 4 Br. C. C. 55; Crosbie v. Macdouall, 4 Ves. 610; and see Fuller V. Hooper, 2 Ves. sen. 242: Belt's Supp. 333.) But the codicil may be so far independent of the will as to be en- titled to probate, and take effect without the will. Where the testator, a solicitor, executed a codicil beginning with the words, " This is a codicil to the will of me R. H., and which I desire to be added to my will," and the will could not be found, pro- bate was granted of the codicil, which was independent of and 7 Will. 4 & 1 Vict. Cap. 26, s. 1. 23 capable of taking effect without the will. (In the goods of Hal- liwell, 9 Jurist, 1042.) And where a will and two codicils were made, and the testator then burnt the will, intending to make a new one, but not to affect the codicils, and died leaving the codicils, but without having made any further will, the codicils were held entitled to probate. (Clogstoun??. Walcott, 12 Jurist, 422 ; see Mcdlycott v. Assheton, 2 Add. 229 ; Tagart v. Hooper, 1 Curt. 289.) In this last case the codicil appointed no executor, and did not dispose of the residue; the Court of Exchequer allowed the next of kin to take the residue, upon giving recognizances to refund in case the will should be found. (Bakewell v. Tagart, 3 Y. & C. 173.) In deciding whether an instrument is testamentary the courts What Instru- look to the substance and not to the form of the instrument, to [^^g^iaJy '^^' the intention of the writer and not to the denomination which he affixes to the writing ; and the essential characteristics of a testa- mentary instrument derived from the definition given above are, that it should take effect at the death, and be revocable at the will of the maker, and duly executed as a will. Where the drawer of the insti'ument purposely avoided using the word will in consequence of the nervous state of the deceased, who thereby " gave, parted, transferred and set over to A. B. and C. D. all and singular the goods, chattels, monies, securities for money, and all other her personal estate and effects whatsoever, upon trust after her decease to collect and get in such parts thereof as should consist of monies or securities for money, and to sell such other parts thereof not consisting of monies or securities for money, and to stand possessed of the monies which should come to their hands upon trust in the first place, but subject always to her just debts to pay and apply, &c.;" and this instrument was not under seal, but executed as a will, probate was decreed to A. B. and C. D. as executors according to the tenor. (In the goods of Montgomery, 10 Jurist, 1063.) So a bill of exchange, drawn upon his agents and executed as a will by a man upon his death-bed, was considered a testamentary paper in Jones v. Nicholay. (14 Jurist, 675 ; see King's Proctor V. Daines, 3 Hagg. 218 ; Glynn %\ Oglander, 2 Hagg. 428; and Shingler v. Pemberton, 4 Hagg. 356.) In Doe V. Cross (8 Q. B. 714), P. executed the following instrument, attested by two witnesses, " Know all men, &c.. 24 The Wills Act. Effect of Power of Revo- cation being reserved. that I make E. my lawful attorney, for me in my name and to my use, to ask, demand, &c., or receive the possession of or produce of the rent of the freehold, &c. And I do empower her the said E. to hold and retain all proceeds of the said pro- perty for her own use until I may return to England and claim possession in person ; or in the event of my death I do liereby in my name assign and deliver to the said E. the sole claim to the before mentioned property, to be held by her during her life, and disposed of by her, as she may deem proper at the time of her death." This instrument was acted upon during the life of P., and the objection taken was, that as it was to take effect during the life of the party 'Executing it, it could not be treated as a will. But it was held, that although part was to operate immediately as a power of attorney, the other part, which was to take effect in the event of the death, might operate as a will. A voluntary covenant to pay a sum of money to A. after the death of the covenantor, will not partake of a testamentary character, except there be in the deed a power of revocation or something equivalent thereto. (Fletcher v. Fletcher, 4 Hare, 67.) In the case of the Attorney- General v. Jones (3 Price, 368) the Court of Exchequer, against the opinion of Wood, B., held that a settlement by which the grantor reserved to himself the dividends of a sum of stock for his life, with limitations to take effect upon his decease, and a power of revocation, and never parted with the deed or with any part of the pro- perty during his life, was substantially a testamentary instru- ment. This decision however, as to the effect of a power of revocation being reserved, in order to alter the character of an instrument and render it testamentary, is much shaken by the observations of Lord Cottenham, M. R., in Tompson v. Browne (3 My. & K. 32), which decided that the subsequent ratifica- tion of such a voluntary settlement by a will cannot give the settlement a testamentary operation. The present act, by requiring a particular mode of execu- tion for testamentary instruments, will probably very much diminish the number of this class of cases. Such a case as Masterman v. Maberly (2 Hagg. 235), where probate of three unexecuted drafts of bonds was granted, could not occur under 7 Will. 4&1 Vict. Cap. 26, s. 1. 25 the present law. (See Thorold v. Thorold, 1 Phillim. 1, where most of the older cases are referred to.) It may be proper, before closing the subject of the nature of Donations a testamentary instrument, to notice briefly a mode of gift which ^^^'"''^ Causa. differs from a disposition by will, and a gift inter vivos. It is derived, and has borrowed most, if not all, its properties from the Civil Law, as well as its name, Donatio mortis causa. It is defined in Inst. ii. 7 : " Mortis causa donatio est, quas propter Definition, mortis fit suspicionem, cum quis ita donat, ut, si quid humanitus ei contigisset, haberet is, qui accipit, sin autem supervixisset is, qui donavit, reciperet, vel si eum donationis pcenituisset, aut prior decesserit is, cui donatum sit.'' The cases upon this sub- ject have decided that the gift must be made by the donor in contemplation of the conceived approach of death, and the title is not complete till he is actually dead (Duffield v. Elwes, 1 Requisites. Bl. N. S. 530) ; nor must it be a present absolute gift (Tate v. Hilbert, 2 Ves. jun. 118), for if the donor intends to make an immediate and irrevocable gift, it will not be good as a donation mortis causa (Edwards v. Jones, 1 My. & C. 226); but the an- nexation of a trust or condition to the gift will not defeat it (Hills V. Hills, 8 M. & W. 401); and some species of delivery must accompany the gift (Ward v. Turner, 2 Ves. 441), which was said by Lord Eldon, in Duffield v. Elwes, to be a leading case. These gifts resemble a legacy, inasmuch as they are subject to legacy duty (36 Geo. III. c. 52, s. 7) ; are liable to debts on a deficiency of assets (Smith v. Casen, 1 P. Wms. 406) ; and may be made to the wife of the donor. (Lawson v. Lawson, 1 P. Wms. 441.) But they should not be proved in the Ecclesias- tical Court, as they take effect from delivery in the lifetime of the donor, and the title of the donee is not derived through or under, but is rather adverse to, the executors or administrators (Thomson v. Batty, 2 Str. 777; Tate v. Hilbert, 2 Ves. jun. 120); and they cannot be revoked by a subsequent will, for, on the death of the donor, they are held to take effect from the time of delivery (Jones v. Selby, Prec. Chan. 300; Hambrooke V. Simmons, 4 Russ. 25) ; though it follows, from the definition of this kind of gift, that it may be annulled by the donor's recovery from his disorder, and revoked by his resumption of the subject of the gift. 26 The Wills Act. Law by which In lookiriGj at a will for the purpose of seeing whether it be Wills aie ^^.^n executed or not, it is important to ascertain in the first instance, with respect to the real property disposed of, Avhere such property is situated; and secondly, with respect to the personal properly, what was the domicile of the deceased ; for the lex loci rei sitae will generally prevail as to real property, whilst the law of the domicile of the testator will give the rule which is to govern the instrument as to personal property. The distinction between real and personal estate is peculiar to our own policy, and is not known to any foreign system of jurisprudence that is founded on the civil law, in which the only recognised distinction was between moveable and im- moveable property. Leaseholds for years, therefore, which obviously belong to the latter denomination, though they are witli us Transmissible as personal estate, are there governed by the lex loci, and do not follow the person ; hence it is said that if an Englishman domiciled abroad dies possessed of such pro- perty, it will devolve according to the English law. (1 Jarm. on Wills, 4, n. (?').) But the property being in England, the learned editors of Jarm. Convey, vol. ix. 3rd edit. p. 15, con- tend, and it should seem with reason (see Piice v. Dewhurst, 4 My. & C. 81, 82), that the law of England must determine what part of such pi'operty is real and what personal; and the owner of the property being abroad, the lex domicilii then comes in and rules the distribution of that part of the property which the lex loci has determined to be personal, and this, in the case suggested, will of course include leaseholds for years. Distinction In Birtwhistle v. Vardill (7 CI. & Finn. 915) Lord Broug- oriRea^ and '^^™ ^^^"^ P"^^ ^^^ distinction between the two kinds of property. AVill of Per- " From the time of Hiiber downwards, from the time indeed when the distinction between real property and personal arose, the law governing the former has been generally the lex loci rei sitae, that governing the other the lex loci contractus, et domicilii." And to the same effect in Brodie v. Barry (2 Ves. & B. 131) Sir W. Grant said, "Where land and personal property are situated in different countries, governed by dif- ferent laws, and a question arises upon the combined effect of those laws, it is often very difficult to determine what portion of each law is to enter into the decision of the question. It is not easy to say how much is to be considered as depending on sonal Estate. 7 Will. 4 & 1 Vict. Cap. 26. s. 1. 27 the law of real property, which must be taken from the country where the land lies, and how much upon the law of personal property, which must be taken from the country of the domicile." Hence the place where a will disposing of lands happens to be made, and the lanccuage in which it is written, are wholly unimportant as affecting both its construction and the ceremonial of its execution; the locality of the devised pro- perty is alone to be considered. Thus a will made in Holland, and written in Dutch, must, in order to operate on lands in England, contain expressions which, being translated into our language, would comprise and designate the lands in question, and must be executed and attested in precisely the same manner as if the will were made in England. (Bovey v. Smith, 1 Vern. 85; Drummond v. Drummond, 3 Br. P. C. Toml. edit. GOl.) Upon a similar principle, lands in England belonging to a British subject domiciled abroad, who dies intestate, descend according to the English law. (Doe v. Vaidill, 5 B. & C. 438.) Hence if an Englishman so domiciled has real estate in England, and wishes to make a testamentary disposition of his property, he ought to make two wills, one devising such estate duly ex- ecuted and attested according to the English law, and the other bequeathing, if permitted, the personalty conformably to the foreign law. Wills made under such circumstances require more than ordinary care, in order to exclude some perplexing questions involving the application to an uncertain extent of the conflicting principles respectively governing real and personal property. (Jarm. Convey, vol. ix. 16; Lord Nelson v. Lord Bridport, 8 Beav. 547; 10 Jurist, 1043.) To return to the question of domicile. This is pi-ima facie Domicile, much more a question of fact than of law. The actual place where a person resides is prima facie to a great many purposes his domicile. You encounter that, if you show that residence is either constrained, or from the necessity of his affairs, or transitoi-y, that he is a sojourner, or you can take from it all character of permanency. So, on the other hand, if you show that the place of a man's residence is the seat of his fortune; or the place of his birth, upon which little stress is to be laid; oi' the place of his education, where he acquired all his eaily habits, friends and connections, and if all the links that attract him to society are found there; if you add to that, that he had •28 The Wills Act. no other fixed residence upon an establisliment of his own, his domicile will be where he so resides. (Benipde v. Johnson, 3 Ves. 198.) Kffect of Time It has been said b}' a very high authority upon the subject, in a « s » & Cartwnght. V. Cartwright, so far as that was founded upon the act being rational in itself, and rationally done. No reliance, according to the former case, is to be put upon the fact, that the act is exactly such as a person without mental infirmity might well do; but something more is required, — some test applied to try whether the morbid fancy does not still, though secretly, exist; the chord must be struck, before it can be known or said to be in perfect tune ; and it may admit of some doubt whether Cartwright v. Cartwright, or any similar case, would now be decided upon the principle, that the making the will was a Criterion of Insanity 46 The Wills Act. rational act, rationally done, — unless it was fully proved by further evidence of another kind, that the testatrix was free from the disorder at the time. In truth, though Waring v. Waring introduces no new principle (Wheeler v. Alderson, 3 Hagg. 599), it will very materially interfere with the advantages, which the propounders of testamentary papers derived from their containing no expressions " sounding to folly." Delusion isihe Still the question remains, what is " unsoundness," and what the test or criterion of its existence? Lord Erskine said, "in all the cases which have filled Westminster Hall witli the most complicated considerations, the lunatics, and other insane peisons who have been the subjects of them, have not only had memory, have not only had the most perfect knowledge and recollection of all the relations in which they stood towards others, and of the acts and circumstances of their lives, but have, in general, been remarkable for subtlety and acuteness. Defects in their reasonings have seldom been trace- able, the disease consisting in the delusive sources of thought; all their deductions within the scope of the malady being founded upon the immoveable assumption of matters as realities, either without any foundation whatsoever, or so distorted and dis- figured by fancy as to be almost the same thing as their creation. Delusion, therefore, Avhere there is no frenzy or raving mad- ness, is the true character of insanity. In civil cases the law voids every act of the lunatic daring the period of lunacy, although the delusion may be extremely circumscribed, although the mind may be quite sound in all that is not within the shades of the very partial eclipse ; and although the act to be voided can in no way be connected wdth the influence of the insanity." And Sir J. Nicholl, in Dew v. Clark, laid down the same prin- ciple (Haggard's Report, p. 7) : " As far as my own observa- tion and experience can direct me, aided by opinions and state- ments I have heard expressed in society, — guided also by what has occurred in these and in other courts of justice, or has been laid down by medical and legal writers, — the true criterion is, where there is delusion of mind there is insanity ; that is, where persons believe things to exist which exist only, or, at least, in that degree exist only, in their own imagination, and of the non-existence of which neither argument nor proof can con- vince them, they are of unsound mind; it is only the belief of facts which no rational person would have believed that is 7 Will. 4 & 1 Vict. Cap. 26, s. 3. 47 insane delusion. This delusion may sometimes exist on one or two particular subjects, though generally there are other con- comitant circumstances, such as eccentricity, irritability, vio- lence, suspicion, exaggeration, inconsistency, and other mai-ks and symptoms, which may tend to confiim the existence of delusion, and to establish its insane character." But although delusions may be a good test and very satis- Quaere, factory proof of insanity, it may be doubted whether ihey are ^-^^^ o7un- the only test of unsoundness of mind, and their existence the soundness, only evidence of incapacity. Delusions alone do not constitute insanity, if by that term general unsoundness is intended, though they may be symptoms of one form of the disease, which may be inferred from other circumstances, from general habits and conduct and conversation; to rest unsoundness of mind, as a cause of incapacity, upon the presence of delusion alone, and infer the absence of unsoundness from the absence of de- lusion, is to narrow too much the limits of mental incapacity, since want of memory, and other failings or diseases of the mind, will, as seems to be admitted in Waring v. Waring, con- stitute unsoundness ; but see Freer v. Peacock (1 Roberts, 448). As to extreme old age, see Kinleside v. Harrison (2 Phillini. 4G1); eccentricity (Mudway v. Croft, 3 Curt. 671); weakness of mind (Constable v. Tufnell, 4 Hagg. 465; 3 Knapp. 122); in all of which the will was pronounced for. And generally Attorney-General v. Parnther (4 Br. C. C. 409) ; Ingram v. Wyatt (1 Hagg. 384). The judgment in Ingram v. Wyatt was reversed by the Delegates, but it appears from the observations of Knight Bruce, V. C, in Cockraft v. Rawles (7 Notes of Cases), that the sentence of the court of appeal proceeded upon the evidence in the case, and did not dissent from the lavv as laid down by the court below. It is obvious that under the present statute the time of exe- cution is the time at which the testator must be capable. Fulleck V. Allinson (3 Hagg. 527), and similar cases, cannot occur in the existing state of the law. A man who is drunk is compared to a madman, and if he. Drunkenness. in that state, make a will, it is void. (Swinb. p. 2, s. 6.) But the cases of madness and drunkenness, notwithstanding their apparent similarity, are subject to some different considerations, for the madness may exist, but be latent, whilst the effects of drunkenness only subsist whilst the cause, the excitement. 48 The Wills Act. visibly lasts : there can scarcely be such a thing as latent ebricty ; and the case of a person in a state of incapacity from mere drunkenness, and yet capable to all outward appearances, can hardly be supposed. Consequently, in this last case all that requires to be shown is the absence of the excitement at the time of the act done ; at least the absence of the excitement in any such degree as would vitiate the act, for under a mere slight degree of excitement the memory and understanding may be as correct as in the total absence of any exciting cause. Whether the excitement prevailed in the requisite degree must necessarily depend upon the particular cii'curastances of each individual case, nor will the subject admit of any rule more definite than this. (See Wheeler v. Alderson, 3 Hagg. 602 ; Billinghurst v. Vickers, 1 Phillim. 191 ; Ayrey v. Hill, 2 Add. 206.) In fact, where a will has been executed by a man in a state of incapacitating drunkenness, it will almost invariably happen that the case is one of fraud, and to be classed rather under the head of an act vitiated by fraud than as the act of an incompetent person. (Cory v. Cory, 1 Ves. sen. 19; Cooke v. Clay worth, 18 Ves. 12; Say v. Barwick, 1 V. & B.195; Rex V. Wright, 2 Burr. 1099.) Undue In- Closely connected with the subject of mental capacity, but fluence; depending upon somewhat different principles, is the necessity '^''^""' imposed by law that wills should be the act of a free agent, that *^'^' there shall be in all cases the liber animus testandi. (2 Blackst. Com. 497.) Thus wills are liable to be set aside if they can be proved to have been pi'ocured by means of undue influence, fraud or foi'ce. What Influ- I' i=^ obvious that all influence is not undue, and will not ence is undue, furnish ground for setting aside a will, or other instrument; but such a dominion or influence must be acquired over a mind of sufficient sanity and of sufficient soundness and discretion for general purposes, as to prevent the exercise of such discretion. (Mountain y. Bennett, 1 Cox, 353.) And this must be something more than the influence of affection and attachment, or the acting upon a desire of gratifying the wishes of another, and should amount to something like force and coercion destroying free agency, of unfair importunity to induce the act. (Williams V. Goude, 1 Hagg. 577.) From this it is obvious that undue influence and fi'aud are 7 Will. 4 & 1 Vict. Cap. 26, s. 3. 49 very similar; each case will depend upon its own circum- stances ; nor is it possible to lay down any rule more general than this, that the free agency must be shown to be destroyed before the act can be vitiated. These cases will frequently depend upon the relation in which the maker of the will or other instrument may be placed with reference to the person exercising the influence or practising the fraud. Thus as be- Husband and "tween husband and wife, although considerable latitude may ^'^• be there allowed for confidence and affection (Marsh v. Harding, 2 Hagg. 84, appealed, but compromised ; Mynn v. Robinson, 2 Hagg. 179 ; Baker v. Bait, 1 Curt. 125) ; in the two last cases the husbands, who failed in obtaining probate of the wife's will, were condemned in the costs. And see Walmesley v. Booth Attorney and (2 Atk. 25) ; Saunderson v. Glass (2 Atk. 297) ; Gray v. ^''^"'• Mansfield (1 Ves. 379); Oldham v. Hand (2 Ves. 259); Welles V. Middleton (1 Cox, 112) ; Montmorency v. Deve- reux (7 CI. & Finn. 188) ; Paske v. Ollat (2 Phillim. 323), as to undue influence on the part of solicitors: Huguenin Spiritual Ad- V. Baseley (14 Ves. 273), in which Sir S. Romilly made his ^'^^r. celebrated reply ; where a voluntary settlement by a widow upon a clergyman and his family was set aside: Dent v. Medical at- Bennett (4 My. & C. 269), in which the parties were patient p^^^^l ""'^ and surgeon: Maitland v. Irving (10 Jurist, 1025), guardian Guardian and and ward being the parties concerned. And see Grindall v. Ward. Grindall (4 Hagg. 10) ; Godrich f. Jones (5 Moo. P.C. C. 16) ; Butlin V. Barry (1 Curt. 614 ; 2 Moo. P. C. C. 480) ; Brown- ing V. Budd (6 Moo. P. C. C. 430). By the Code Civil, (tit. 2. chap. ii. s. 909), the medical and spiritual attendants of a' person are prevented from taking any benefit by gift inter vivos or will made during the last illness of such person, if they have been in attendance upon him during such illness. In Allen v. M'Pherson (1 Phill. 133; 1 H. L. 191), the Aliens. testator had bequeathed a considerable property to A. by his M'Pherson. will and subsequent codicils, and afterwards, by a further codicil, revoked these bequests, and in lieu of them made a small pecu- niary provision in A.'s favour. A. opposed this last codicil on the ground that it was procured by false and fraudulent repre- sentations made by an illegitimate son of the testator and by his daughter the residuary legatee, as to the character and conduct of A. The Court of Probate determined that the codicil was E 50 The Wills Act. entitled to probate; and so far tliere was nothing peculiar in the case. But upon the decision of the Court of Probate, A., instead of appealing, filed a bill in chancery, alleging the same reasons against the codicil, and further, that he had not been permitted in the Court of Probate to take any objections to that codicil, except such as affected the validity of the whole instru- ment, and prayed that the executors or residuary legatee might be declared trustees or trustee for A. to the amount of the re- voked bequests. On demurrer it was held in the House of Lords by Lords Lyndhurst, Brougham and Campbell, against the opinions of Lord Cottenham and Lord Langdale, that the Court of Chancery had no jurisdiction, and that the proper Effect of the course for A. would have been by appeal. In the course of his Judgment in judo-ment, Lord Lyndhurst referred to a case (Butterfield v, Allen V. '' ° . '' . ^ MTherson. Scavven), furnished by Dr. Lushington, and also to a statement he had received from the judge of the Prerogative Court, as to the jurisdiction of the Court of Probate, to the effect that if it should appear that an old and infirm testator, who had be- queathed a legacy to A. B., had been induced by false and fraudulent representations with reference to the conduct of A. B., made to him for the purpose by C. D,, to make a sub- sequent codicil revoking that legacy and substituting for it a much smaller one, the effect of which would be to give a larger share of the residue to C. D. than he would otherwise take, probate would not be granted of such revoking codicil, it being clearly established in evidence that the act and intention were produced by the false and fraudulent representations; and he also stated it to be perfectly clear that the Court of Probate might admit a part of an instrument to pi-obate and refuse it as to the rest, relying upon Billinghurst v. Vickers (1 Phillim. 187) ; Barton v. Robins (3 Phillim. 455 n.). Allen v. M'Pher- son is therefore a leading authority for the jurisdiction of the Court of Probate in cases of fraud, and that whether the fraud affect the whole or merely part of the instrument. force. Force is the only remaining ground for invalidating a will ; and if it can be shown that actual force has been used to compel the party to make the will, there can be no doubt, that although the formalities required have been complied with, and the party were perfectly in his senses, such a will would never stand. (Mountain v. Bennett, 1 Cox, 355.) 7 Will. 4 & 1 Vict. Cap. 26, s. 3. 51 Fear is but a mode in which force is employed, and provided Fear, it be a reasonable fear, such as tlie law intends, a will procured by means of fear will be set aside. Traitors and felons from the time of their conviction are in- Legal Inca- capable of making a will, for then their goods and chattels are P^^^''^^- no longer at their disposal, but forfeited to the crown. Neither can a felo de se make a will of goods and chattels, for they are forfeited by the act and manner of his death, but he may make a devise of his lands, for they are not subjected to any forfeiture. (See 54 Geo. III. c. 145.) And it seems an outlaw for debt, as long as the outlawry subsists, is incapable of making a will of goods and chattels. (2 Black. Com. 499.) As to married women, see section 8. Although the interpretation clause, sect. 1, enacts that the 2. What may words " real estate" shall extend to manors, advowsons, mes- ^1 muT suages, lands, tithes, rents and hereditaments, whethei- freehold, customary freehold, tenant right, customary or copyhold, 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 the words " personal estate" shall extend to leasehold estates and other chattels real, and also to monies, shares of government and other funds, securities for money not being real securities, debts, choses in action, right, credits, goods and all property whatso- ever which by law devolves upon any executor or administrator, and to any share or interest therein, still there is some species of property which cannot be disposed of by will: for instance, a devise or bequest by a joint tenant of real or personal estate is necessarily void in the event of the testator dying in the life- time of his coproprietor, for jus accrescendi prififertur ultimae voluntati (Co. Litt. 185a); and the title of the survivor takes precedence of the claim of the devisee or legatee, so that no part of the property so held would, if undisposed of, devolve upon the real or personal representatives of the deceased. But under the old law there was an important distinction arising out of the nature of the property of which the testator was joint tenant; for if that property was personal, and the testator sur- vived his companion in the tenancy, the bequest became good; but if the interest was freehold, then, notwithstanding the testator became entitled to it by survivorship, the estate did not E 2 52 The Wills Act. pass, the testator not having a devisable estate when he made his will; and upon the same principle any divided share which, after the making of the will, he acquired by partition, would not pass by the will, (Swift v. Roberts, 1 Wm. Blacks. 476.) But the present section enabling the testator to dispose of all such real and personal estate as he rnay 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 (see also sect. 24), has abolished this distinction with respect to all wills coming under the statute, and it is sufficient that the testator have a devisable interest at the time of his death. Neither tenant in tail nor tenant for life can dispose of estates or pro- perty so held, since the estate or property undisposed of will not devolve upon their general, real or personal representative. The extent of testamentary power before and since the present act are fully discussed, Jarm. Wills, ch. 4. It has been already observed that copyholds were not within the Statutes of Wills or the Statute of Frauds. A. remarkable instance of the absurdity of this state of the law occurred in Doe V. Harris (6 A. & E. 209 ; 8 A. & E. 1), tried between the same parties with respect to the same will. In the former case the lands for which the ejectment was brought were freehold, in the latter they were copyhold. The facts proved in both cases were the same. That the testator was much under the influence of the devisee, but had frequent quarrels with her, often complained of her, and, on one occasion, when irritated, threw the will upon the fire; she rescued it without his knowledge, at which he expressed his displeasure when informed of it. The paper in which it was wrapped was partially bui nt, but the will itself was not affected by the fire. The devisee kept it till after the testator's death. The question in both cases was, whether what was done by the testator was an actual revocation of the will, and so intended by him. In the former case, the Court, pro- ceeding wholly on the express enactment of the Statute of Frauds, was of opinion that the will was not revoked. In the latter case the Court was of opinion that the will was revoked. And as copyholds generally could pass only by surrender to the use of the will, the want of a surrender was fatal to the devise, except where a court of equity interfered, as it would do in favour of a wife, children or creditors (Chapman v. Gibson, 7 Will. 4 & 1 Vict. Cap. 26, g. 3. 53 3 Br. C. C. 229; Hills v. Downton, 5 Ves. 557; Perry v. Whitehead, 6 Ves. 544), until the 55 Geo. III. c. 192, removed this difficulty. That act however, in sect. 3, declared that nothing in the act should be construed to render valid a devise of copyholds, which would have been invalid if a surrender had been made to the use of a will : so that the act did not apply to cases where there was no custom to surrender to the use of the will, and, being expressly limited to copyholds, it did not extend to customary freeholds. This act is repealed by the second section of the present act, and its provisions enlarged by the present section, under which the power of disposition, by duly exe- cuted will, is extended to all customary freeholds and copy- holds, though the devisor may not have surrendered the same to the use of his will, or being himself a surrenderee or devisee, he may not have been admitted at the time when he made his will, or could not have disposed of the same by will if this act had not been made, in consequence of some special custom, or in consequence of the want of a custom to devise or surrender to the use of a will or otherwise. The provision in this section enabling the heir to devise be- fore admittance was, in effect, anticipated by Right v. Banks (3 B. & Ad. 664). As to estates pur autre vie generally, see post, section 6. Contingent and executory interests and [)ossibilities, accom- panied with an interest, were descendible to the heir or trans- missible to the representatives of a person dying, or might be granted, assigned or devised by him before the contingency upon which they depended took effect. (Purefoy v. Rogers, 2 Saund. 388, n.) Where, however, the contingency, upon which the interest depends, is the endurance of the life of the party entitled to it, till a particular period, the interest itself will be extinguished by the death of the party before the period arrives, and will not be transmissible to his executors or ad- ministrators. A descendible interest was also devisable. (Roe V. Jones, 1 H. Bl. 30.) But if the devisor was not at the date of his will ascertained to be the person in whom the estate would vest, it could not pass by the devise, though the event happened subsequently. So where an estate was limited to two sisters and the survivor 54 The Wills Act. of them, and after tlie death of the survivor to such other per- son as the survivor might give it by will, while both were alive, as it could not be known which would survive, a will made by either would have failed, though the party making it afterwards became the survivor. (Lord Langdale's Speech in the House of Lords, February 23rd, 1837; cited. Lush on Wills, IL) In such cases the will would now be operative by virtue of the power given by this section, if not by virtue of the 24th section. Personal property acquired after the making of the will would pass thereby ; and, although it was at one time doubted whether this extended to leases for years (Bunter v. Coke, 1 Salk. 237), it was determined that a leasehold estate for years, or the trust thereof, passed under a will made prior to the estate being acquired. (Stirling v. Lydiard, 3 Atk. 199; Carte v. Carte, Amb. 28; Marwood v. Turner, 3 P. Wms. 163.) But a devise of lands was not good if the devisor had nothing in them at the time of makins: his will: for he could not give that which he had not, and the statute only empowered those having lands to devise them, so that if the testator had not the lands he was out of the statute. The only mitigation of this rule of law allowed by courts of equity was in certain cases to put the heir to his election. (Churchman v. Ireland, 1 Russ. & My. 250.) Generally copyhold lands purchased after making the will did not pass (Harris v. Cutler, 1 T. R. 438, n.), unless the surrender referred to the will, and the after-purchased property fell within the description, when it was considered the same as if the will had been made at the date of the surrender; or where a copyhold manor was devised, in which case copyhold premises, parcel of the manor, purchased by and surrendered • to the lord subsequent to the time of making his will, would pass. (Attorney-General v. Vigor, 8 Ves. 287; Duppa v. Mayo, 1 Saund. 277 e, notes.) A right of entry was not devisable. (Goodright v. Forrester, 8 East, 552; Doe v. Hull, 2 Dow. & R. 38; Cave v. Holford, 3 Ves. 669; Attorney-General v. Vigor, 8 Ves. 282.) But these were rights of entry which arose from the freehold estate of the party being divested, either by fine or recovery or by disseisin, or some other tortious act, which ousted him of the 7 Will. 4 & 1 Vict. Cap. 26, s. 3. 55 freeliold, and where it was necessary to make an actual entry on the land to make his title or interest available and to restore his seisin. But if he were merely dispossessed, without his seisin of freehold being taken from him, and the possession only were withheld from him, there was no necessity to make an entry on the land. Thus, if a tenant in fee demised for twenty-one years, and, after the expiration of the term, the tenant retained possession without paying rent or acknow- ledging the title of the landloi'd, and after the expiration of the lease the owner devised the estate, it might be said, in common parlance, that the owner had a light of entry, and yet he might devise it, for there was no actual disseisin of the devisor, and a mere adverse possession would not suffice. (Culley v. Tayler- son, 11 A. & E. 1008.) The present section has removed the distinctions and most of the difficulties which previously existed in respect to the exer- cise of the testamentary power over the different kinds of pro- perty, according to the nature of such property, or the time when it may have been acquired by the testator, by extending the power of disposition to all contingent, executory, or other future interests, to all rights of entry, and to property, which the testator may be entitled to at the time of his death, not- withstanding he may have become entitled to the same subse- quently to the execution of his will. (See post, section 33.) IV. Provided always, and be it further enacted, As to the Fees that where any real estate of the nature of customary able by DevY freehold or tenant right, or customary or copyhold, JomaryTnd might, by the custom of the manor of which the ggP^J^gg''* same is holden, have been surrendered to the use of a will, and the testator shall not have surrendered the same to the use of his will, no person entitled or claiming to be entitled thereto by virtue of such will shall be entitled to be admitted, except upon payment of all such stamp duties, fees, and sums of money as would have been lawfully due and pay- able in respect of the surrendering of such real £0 The Wills Act. estate to the use of the will, or in respect of present- ing, registering, or enrolling such surrender, if the same real estate had been surrendered to the use of the will of such testator : provided also, that where the testator was entitled to have been admitted to such real estate, and might, if he had been admitted thereto, have surrendered the same to the use of his will, and shall not have been admitted thereto, no person entitled or claiming to be entitled to such real estate in consequence of such will shall be enti- tled to be admitted to the same real estate by virtue thereof, except on payment of all such stamp duties, fees, fine, and sums of money as would have been lawfully due and payable in respect of the admit- tance of such testator to such real estate, and also of all such stamp duties, fees, and sums of money as would have been lawfully due and payable in re- spect of surrendering such real estate to the use of the will, or of presenting, registering, or enrolling such surrender, had the testator been duly admitted to such real estate, and afterwards surrendered the same to the use of his will ; all which stamp duties, fees, fine, or sums of money due as aforesaid shall be paid in addition to the stamp duties, fees, fine, or sums of money due or payable on the admittance of such person so entitled or claiming to be entitled to the same real estate as aforesaid. Wills of cus- V. And be it further enacted, that when any real hoWs'^andCopy- cstatc of tlic uaturc of custouiary freehold or tenant S in the^"' I'ight, or customary or copyhold, shall be disposed of Court Rolls; j^y ^^jjj ^}^g j^^,^ ^f ^^le mauor or reputed manor of and tiie Lord to "^ ' r be entitled to wliicli sucli real cstatc is holden, or his steward, or 7 Will. 4 & 1 Vict. Cap. 20, s. 6. 57 the deputy of such steward, shall cause the will by the same Fine, which such disposition shall be made, or so much Estatrs aiVnot^ thereof as shall contain the disposition of such real "s he^'wouw'^ estate, to be entered on the court rolls of such have been from ' the Heir. manor or reputed manor ; and when any trusts are declared by the will of such real estate, it shall not be necessary to enter the declaration of such trusts, but it shall be sufficient to state in the entry on the court rolls that such real estate is subject to the trusts declared by such will ; and when any such real estate could not have been disposed of by Avill if this act had not been made, the same fine, heriot, dues, duties, and services shall be paid and rendered by the devisee as would have been due from the customary heir in case of the descent of the same real estate, and the lord shall as against the devisee of such estate have the same remedy for recovering and enforcing such fine, heriot, dues, duties, and services as he is now entitled to for recovering and enforcing the same from or against the customary heir in case of a descent. VI. And be it further enacted, that if no dispo- Estates pur sition by will shall be made of any estate pur autre "" vie of a freehold nature, the same shall be charge- able in the hands of the heir, if it shall come to him by reason of special occupancy, as assets by descent, as in the case of freehold land in fee simple; and in case there shall be no special occupant of any estate pur autre vie, whether freehold or customary free- hold, tenant right, customary or copyhold, or of any other tenure, and whether a corporeal or in- corporeal hereditament, it shall go to the executor 58 The Wills Act. or administrator of the party that had the estate thereof by virtue of the grant ; and if the same shall come to the executor or administrator either by reason of a special occupancy or by virtue of this act, it shall be assets in his hands, and shall go and be applied and distributed in the same manner as the personal estate of the testator or intestate. This is the only section in the statute which provides for the case of intestacy; to understand the reason of this it may be useful to refer briefly to the legal history of tenancy pur autre vie, and general and special occupancy. Statute of Freehold estates pur autre vie were not devisable at lavv Frauds. before the passing of the Statute of Frauds, They were subject to the rules of tenure which prevented the devise of estates in fee-simple before the Statutes of Wills, and they were not com- prised in those statutes which are confined to estates in fee- simple. By the 12th section of the Statute of Frauds an express power is given to devise estates pur autre vie in the same manner and with the same solemnities as are required by the 5th section with respect to estates in fee-simple. Previously to the Statute of Frauds estates imr autre vie might be devised in equity, by vesting the legal estate in trus- tees, in like manner as estates in fee-simple might be devised before the Statute of Uses. And before the present act, though they could not be devised at law, except like fee-simple estates by a will attested by three witnesses, they were in many cases devisable in equity by an unattested will, in the same manner as personal property. Of Occupancy. When the owner of an estate pur autre vie died in the life- time of the persons for whose lives the estate was created, and no persons were named to take the estate in the event of his death, it did not descend to the heir, because it Avas not inherit- able; and the executors or administrators were not entitled to it, because it was a freehold, though the lowest or least estate of freehold which the law acknowledged. It was therefore with- out any legal owner. And in the case of a freehold corporeal hereditament the first person who entered and took possession was allowed by the law to retain it for his own benefit (2 Bl. 7 Will. 4 & 1 Vict. Cap. 26, s. 6. 59 Comm. 259) ; he was called the occupant. In the case of a copyhold hereditament the lord became entitled to it, because, as owner of the freehold, he was considered to be in possession, and therefore no other person could gain a title by occupancy. (Per Holt, C. J., Smartle v. Penhallow, 2 Ld. Raym. 1000; 1 Salk. 188; 6 Mod. 68; and see Doe v. Martin, 2 W. Black. 1150; Zouch v. Forse, 7 East, 186.) In the case of a rent or other incorporeal hereditament, the estate determined on the death of the owner, because there could be no entry, and there- fore no title by occupancy. (Co. Litt. 41b, 388a; Salter r. Boteler, Cro. Eliz. 901 ; Mo. 664; Crawley's case, Cro. Eliz. 721.) When the heirs of the owner of an estate pur autre vie were Of Special specially named to take in the event of his death, the heir be- Occupants, came entitled to the estate, and was called the special occupant, by analogy to the right of the person who became entitled when there was no special limitation, and which person, by way of distinction, was called the general occupant. There might be a special occupant of a copyhold estate (Co. Litt. 41b; Co. Cop. s. 56; Doe v. Martin, 2 W. Black. 3148), or an incor- poreal hereditament. (Bowles v. Poor, 1 Bulst. 135; Cro. Jac. 282; Bac. Abr. tit. Estate for Life and Occupancy.) An estate pur autre vie may be limited to executors or ad- Occupants, rainistrators, as special occupants of corporeal hereditaments; but whether incorporeal hereditaments can be so limited was doubted. (Duke of Devon v. Atkins, 2 P. Wms. 383; Duke of Marlborough v. Godolphin, 2 Ves. 80 ; Westfaling v. West- faling, 3 Atk. 466; Atkinson v. Baker, 4 T. R. 229; Ripley v. Waterworth, 7 Ves. 442; Campbell v. Sandys, 1 Sch. & Lef. 281 ; 1 Sugd. Pow. 233, n.) The section of the Statute of Frauds, sect. 12, which gives the power of devising estates pur autre vie, also provides, that if there shall be no devise of an estate pur autre vie it shall be chargeable in the hands of the heii", if it shall come to him by reason of special occupancy, as assets by descent; and in case there shall be no special occupant it shall go to the executors or administrators, and be assets in their hands. This clause in the statute is considered to have been passed to put an end to general occupancy, but it was doubted whether it was intended to continue estates which, when there was no special occupant, determined, because they were not liable to general occupancy. GO TiiK AViLLS Act. It does not ex- Tlie statute does not mention copyliolds or incorporeal heve- ten to Copy- Jitanients : it does not refer to executors or administrators as holds. ' special occupants ; and it makes no provision for the surplus remaining" after payment of debts. Upon the construction of the statute it was held that it did not extend to copyholds, be- cause it could not be intended to prejudice the right of the lord (Doe v. Martin, 2 W. Black. 1150; Zouch v. Forse, 7 East, 186; and see Doe v. Goddard, 1 B. & C. 528); on the contrary, with respect to rents and other incorporeal heredita- ments, it has been determined that wlicre there is no special occupant, or quasi occupant, the estate is continued during the lives for which it was granted, and may be devised; and if not devised, goes to the executors .or administrators. (Bearpark V. Hutchinson, 7 Bing. 178.) Witli respect to the surplus it was decided (Oldham v. Pickering, 2Salk. 464; Carth. 376) that the executor or administrator could not be compelled to distribute it as personal property : in consequence of that 14 060.2,0.20. decision the stat. 14 Geo. II. c. 29, was passed, which provided that such estates shall be applied and distributed in the same manner as the personal estate. With respect to estates limited to executors or administrators as special occupants, a similar rule had been adopted where the owner had left a will, on the ground that the executor or administrator was a trustee for the person to whom the testator had given his personal estate, the will being a direction to whom and in what manner to apply it. Therefore, although an estate pur autre vie, in a freehold hereditament, whether corporeal or incorporeal, could not be devised at law unless by a will attested by three witnesses; yet if there were no special occupant, or the executor or adminis- trator were the special occupant, it would pass in equity by a will, not executed according to the Statute of Frauds, to a re- siduary legatee, and even, according to the prevailing opinion, to a specific devisee ; for it was considered that the executor ought not to claim against the will, and the residuary legatee ouglit not to be entitled as against an express bequest. Where the heir was the special occupant, the devise was void in equity as well as at law, unless the requisites of the Statute of Frauds had been complied with. (See generally Holden v. Small- brooke, Vaugh. 187; 2 Black. Com. 258; Watk. Conv. 8th ed., 66.) 7 Will. 4 & 1 Vict. Cap. 26, s. 6. 61 But whatever difficulties or doubts (see Doe v. Lewis, 9 M. Effect of the & W. 662) may have existed upon these points, they are now P'^'^"' Section. removed by the present act, sections 2, 3 and 6; the first of which repealed 29 Car. II. c. 3, s. 12, and 14 Geo. II. c. 20, s. 9 ; the next extends the power of devising to all estates pur autre vie, and the present section, which provides that where an estate pur autre vie, undisposed of by the will, comes to the heir by reason of special occupancy, the same shall be charge- able in his hands as assets by descent, and if there be no special occupant of an estate pur autre vie, of whatever nature, it shall go to the executor or administrator of the grantee, and shall be assets in his hands, whether it shall have come by reason of special occupancy or by virtue of the act, and be applied and distributed in the same manner as the personal estate of the testator or intestate. A question often agitated, but never entirely settled in regard to the devising " power over estates of this description, was whether, where they were limited to the tenant pu?- autre vie and the heirs of his body, they could be devised without some act on his part to bar the entail. It was admitted, that if the pro- perty were undisposed of it would devolve to the heir special per formam doni ; it was equally clear that an alienation by deed was an effectual bar to the entail ; but the doubt was, whether the estate was devisable by will alone without any such previous alienation. The authorities on the point are few and contra- dictory. Lord Kenyon inclined to think the devise was good. (Doe V. Luxton, 6 Durnf. & East, 293.) Opposed to that are the opinions of Lord Redesdale, in Campbell v. Sandys (1 Sch. & Lef. 281), and of Lord Manners, in Dillon v. Dillon (1 Ball & Bea. 77), who held that a quasi tenant in tail of an estate pur autre vie could by devise exclude the remainder-man; and such was the impression of Sir T. Plumer, in Blake v. Luxton (Coop. 185). The present statute does not in terms dispose of this debateable point, but has, it should seem, done so in effect by the language of the third clause, which extends the de- vising power to all real estate and all personal estate which the testator shall be entitled to, either at law or in equity, at the time of his death, and which, if not so devised, bequeathed or disposed of, woidd devolve upon the heir-at-law, or customary heir of him, if he became entitled by descent of his ancestor, 62 The Wills Act. or upon his executor or adminstrator. The terms of this enact- ment evidently restrict it to cases in wliich property, in the absence of disposition, would devolve to the general, real or personal representative of the testator, as distinguished from the case now under consideration, in which the devolution would be to the heir special.'" (1 Jarm. on Wills. 55.) No Will of a VII. And be it farther enacted, that no will Person under , , i . i c • j. Age valid. made by any person under the age oi twenty-one years shall be valid. With respect to a devise of lands, the Statutes of Wills, 34 & 35 Hen. VIII. c. 5, s. 14, made all infants under the age of twenty-one intestable, except under a custom ; but with respect to personal estate, infants who had attained the age of fourteen, if males, and of twelve, if females, were considered capable of making wills, at least in the Ecclesiastical Courts, though there seems to have been an abundance of irrecon- cilable opinions elsewhere upon the point. (Co. Litt. 89b,n.6; 2 Black. Com. 497.) Mr. Reeves, in his History of English Law (p. 114), citing from Glanville, says, the son and heir of a sokeman was con- sidered as of age when he had completed his fifteenth year; the son of a burgess, or one holding burgage tenure, was esteemed of age when he could count money, and measure cloth, and do all his father's business with skill and readiness. The present section requires, in express terms, that every person shall have attained the age of twenty-one years, in order to make a valid will. But as section 11 excepts from the operation of this act the wills of soldiers in actual service, and mariners at sea, it follows that the wills of persons coming within either of these descrip- tions, though they be within the age of twenty-one years, will be valid; and so it was held, In the goods of Farquhar (Waddi- love's Digest, 327). The disability of infancy was expressly taken away, in regard to the paternal appointment of guardians, by the statute 12 Car. II. c. 24, s. 8, which enabled any father, within the full age of twenty-one years, or of full age, who should have any child under twenty-one and unmarried, by deed or will, in the 7 Will. 4 & 1 Vict. Cap. 26, s. 7. 63 presence of two witnesses, to dispose of the custody of such child or children, during such time as he or they should con- tinue under twenty-one, or any less time ; and it gave to such person the custody of the infant's estate, both real and personal, and the same actions as guardians in socage. This guardian- ship drew after it the custody of the land, which the infancy of the father would have prevented him from devising directly. (Bedell v. Constable, Vaugh. 178.) In a case which came under 26 Geo. II. c. 33, a suit was brought by the woman acting by her guardian to declare her marriage void. It appeared that the licence was granted with the consent of the testamentary guardians of the woman, but as the father's will was not attested by, nor executed in the presence of two witnesses, according to the statute, the mar- riage was held void for want of consent. (Reddall v. Liddiard, 3 Phillim. 256.) The man was also a minor at the time of the marriage, though in the affidavit to lead the licence he de- scribed himself as of full age. 12 Cai'. II. c. 24 is not repealed by the present act (see sect. 2; therefore, although the present section, taken together with section 1, abolishes the power of infant fathers to appoint guar- dians by will, the power of nominating guardians by deed remains in force; and this will go far towards preventing any practical inconvenience, which might otherwise have resulted from the abolition of the power of infant fathers to appoint guardians by will. For an account of the several kinds of guardianship see Co. Litt. s, 123, and Mr. Hargrave's notes, which exhaust the subject. In computing the age of a person for testamentary or other purposes, the day of his birth is included, and the law makes no fraction of a day. A person born on the 15th of February is of full age the 14th of February, twenty-one years after. (Herbert v. Torball, Sid. 162; Raym. 480, 1096.) VIII. Provided also, and be it further enacted, Nor of a Feme Covert that no will made by any married woman shall be valid, except such a will as might have been made by a married woman before the passing of this act. The case of coverture is widely different from that of infancy: 64 The Wills Act. an Infant is disabled from binding himself, except when it is for his benefit, for want of judgment and capacity; but a woman has not less judgment after m.arriagc than she has before. (Hearle V. Greenbank, 1 Ves. 298; Sockett v. Wray, 4 Br. C C. 486.) A Married With respect to lands married women were expressly prohi- Woman cannot ji^jfej f^.Q^^ disposing of them by will under 34 & 35 Hen. VIII.; of\ands;' but they are enabled to dispose of these and all other kinds of property by will operating as an appointment under a powei-. nor a Will of A wife has, generally speaking, no disposing power over her Chattels J chattels independent of her husband ; for all her personal chat- tels are absolutely his, and he may dispose of her chattels real, or shall have them to himself if he survives her; it would be therefore extremely inconsistent to give her a power of defeating that provision of the law, by bequeathing those chattels to another. (2 Bl. Com. 497.) And consequently a married woman's will as such simply is not entitled to probate. (Temple v. Walker, 3 Phillim. 403; Steadman v. Powell, 1 unless it be of Add. 58.) Fettiplace v. Gorges (1 Ves. jun. 46) established Property settled ^j p,.inciple, that personal property, settled upon a feme covert for her separate ' ' ' * i • i n • • • i Use; for her separate use, is to be enjoyed with all its incidents ; and that as the jus disponendi is one of them, she may, although there is no express power of disposition given to her, dispose of such property, either by act inter vivos or by will. (Rich v. Cockell, 9 Ves. 369; WagstafF v. Smith, 9 Ves. 520; see Parker v. Brooke, 9 Ves. 583; Newlandsi?. Paynter, 4 My. & C. 408.) And this power extends to interests in reversion as well as in possession. (Sturgis v. Corp, 13 Ves. 190.) and its Produce And when she has such a power over the principal, that and Accretions J power extends also to the produce and accretions, as the savings of her |)in-money. (Herbert v. Herbert, Prec. Chan. 44.) And it will make no difference whether the property be given to trustees for her separate use, or to the wife herself, without the intervention of trustees, for her own separate use. (Tap- penden v. Walsh, 1 Phillim. 352; Braham v. Burchell, 3 Add. 263.) or by virtue of Where the will of a married woman is made in pursuance of a Power; ^n agreement before marriage, or of an agreement after mar- riage for consideration, it falls under the same rules as a will made in pursuance of a power. (2 Rop. H. & W. c. 19, s. 3 ; See post, sect. 10.) 7 Will. 4 & 1 Vict. Cap. 26, s. 8. 65 The husband, however, may waive the interest which the or by the , . , . , 1 • -p i 1 MI 1 Assent of the law gives him, and so empower his wiie to make a will; and Husband. this licence or assent is sufficient to repel the husband from his general right of administering his wife's effects. (2 Bl. Com. 498.) But a general consent that the wife may make a will is not sufficient, it must be shown that he has assented to the particular will. (Rex v. Bettesworth, 2 Str. 891.) This assent the husband may revoke at any time during the Husband may life of the wife, or after death before probate, though whether he ^J^g^j gt any might do so where he once assented to the will after her death time before was not free from doubt. This point was considered in a late he*has assented case. (Maas v, Sheffield, 10 Jur. 417 ; 1 Roberts, 364.) The after Wife's facts were somewhat singular. The wife made her will, and the ^'^'^^ '• husband, in testimony of his consent, attested it; at her death it came into the possession of the sole legatee therein named, from whom, and before probate, the husband obtained it upon certain alleged purposes, but at the same time giving this memorandum : — " I hereby declare that the annexed will, dated, &c., was made at that period by my wife at my express recommendation in favour of, &c., and that T have not since that period done anything to revoke it; that it continues to have my sanction, and that I now in every respect adopt it." After this he obtained letters of administration of his wife's estate, as dead intestate. In support of his right so to act, it was argued, from Swinb. pt. 2, s. 9; 1 Rop. H. & W. 170; Brook V. Turner (1 Mod. Ill), that till probate, the act of consent was not completed, and might be withdrawn. And Chiswell V. Blackwell (2 Frem. 70) was cited, but as a case of doubtful authority, which carried the doctrine contended for still further. But Sir H. Jenner Fust decided upon the modern authorities, that where the husband had consented to a particular will, after the death of the wife, he might not retract his consent, and accordingly he pronounced for the will. When the will is made in pursuance of an express agreement or consent, it is said that a little proof will be sufficient to make out the continuance of the consent after her death. (Maas v. Sheffield, 10 Jur. 417; and see Forse and Hembling's case, 4 Rep. 61 b, notes, Fraser's edit.) But if the wife survive the husband, the will made with his consent becomes inoperative, for this assent on his part is no F 6G The Wills Act. more than a waiver of his rights as her adrainistraior, and can only give validity to the instrument in the event of his being the survivor; so that if he die before the wife, her will is void against her next of kin so far as it derived its effect from his consent. (Stevens v. Bagwell, 15 Yes. 156; 1 Rop. H. & W. 170, n. e.) Hence a will made by a married woman with the consent of her husband must, upon his death, be re-executed under the present statute ; such will does not come within the operation of the 24th section, and speak and take effect as if it had been executed immediately before the death of the testatrix; for it is not in reality a will, but only something like a will, the execution of which the husband by his bond, agreement, or covenant, is bound to allow. (2 Bl. Com. 498.) In this respect the will of a married woman, made with her husband's consent, is similar to the will of a person within age, which will not become valid though the maker subsequently attains full age, but must be re-executed in compliance with section 9 ; section 24 provides only for the case of a will valid per se at the time of execution. But a will made under a settlement, or by virtue of a power, during coverture, does not require re-execution on the wife's surviving the husband. (Morwan v. Thompson, 3 Hagg. 239.) The queen consort is by the common law of England an exempt person from the king, and is capable of lands or tenements of the gift of the king, as no other feme covert is, and may sue and be sued without the king; for, says Lord Coke, the wisdom of the common law would not have the king, whose continual care and study is for the public, et circa ardua regni, to be troubled and disquieted for such private and petty causes; so as the wife of the king of England is of ability and capacity to grant and to take, and to sue and be sued, as a feme sole at the common law. (Co. Litt. 13-3 a.) And she may devise and bequeath her property by last will and testament without the concurrence of the king. (Cruise, Dig. 6, 13; or tit, 38, c. 2, sect. 1, § 3.) The will of a married woman, like the will of any other per- son, is subject to be set aside for incapacity, fraud or undue in- fluence. (See March v. Tyrell and Harding, 2 Hagg. 84; and Mynn v. Robinson, ib. 179.) 7 Will. 4 & 1 Vict. Cap. 26, s. 8. 67 The reasons, generally speaking, upon which a married woman's privileges or disabilities are founded, are her own interest, or the interest of her husband. In the latter case, the assent of the husband is required; in the former, she will be found generally to be protected from disposing of her own property without certain solemnities, which, in most cases, have been enjoined upon the supposition that she might be under the coercion of her husband. That idea, with re- spect to her testamentary capacity, has been said to have been carried full as far as reason or truth would warrant, when it was extended to all cases in which the wife lived with her husband, and was locally under his dominion. (Per Buller, J., in Compton v. Collinson, 2 Br. C. C. 387; and Sir J. NichoU's observations in Braham v. Burchell, 3 Add. 262.) Accordingly there are cases in which, though the tie of matrimony is not dissolved, the civil rights of the husband are nevertheless extinguished or suspended ; as where the man was professed (Co. Litt. 132 a), or banished. (Belknap's case, Co. Litt. 132 b; Rutland v. Prodgers, 2 Vern. 104.) And where the husband is transported for life or for years, the wife Wife of Convict will be entitled to the rights of a feme sole, and her will made ^f Years, during the term of his sentence, though he receive a con- ditional pardon, will be entitled to probate. (In the goods of Martin, 15 Jurist, 686.) Some difficulty was apprehended as to the effect of transportation for a term of years, not merely after the period had elapsed, and before the man's return to this country, but also during the term of transportation. (Marsh v. Hutchinson, 2 B. & P. 231.) But in Ex parte Franks (1 Moo. & S. 11), Tindal, L. C. J., said, that transportation of the husband, for a term of years, operated as a suspension merely of his maiital and civil rights during that period; whilst in case of banishment for life, it amounted to a total extinguish- ment of such rights. (The cases are collected 2 Rop. H. & W. 121.) And if the observations of Buller, J., and Sir J. Nicholl, already referred to, were well founded, it would seem that the husband, though the term for which he was transported had expired, would not be restored to his marital rights till he had done some act in his character of husband, or at least returned f2 GS The Wills Act. to this country. Ex parte Franks (1 Moo. & S. 1) is an autliority tliat the wife will be treated as a feme sole, though the husband has never left the country, but remained in the hulks, where she has been in the habit of visiting him. The true principle, on which the wife's right depends, seems to be, not merely that the husband is in such cases civilly dead, but that unless his rights are suspended, all the property acquired by tiie wife will become his by virtue of the marriage, and then fall to the crown as the property of a convict. (See Lord Mansfield's reasoning in Corbett v. Poelnitz, 1 T. R. 8.) Praciice of the Formerly it was the practice of the Court of Probate not to Probate grant pi'obate of a testamentary appointment of personal pro- perty by a feme covert, though made under a power given by the husband, without his concurrence. (2 Rop. H. & W. 188, note d.) But for many years that practice has been changed, and probate of the will, where made by virtue of a power, is granted to the extent of the power to the person appointed Where an executor by the will without his consent (Tappenden v. Walsh, r^dmedinthe ^ PliiHim- 352), and though the husband oppose the grant. Wile's Will, (Boxley V. Stubbington, 2 Lee, 5375 I^^x v. Bettesworth, 2 Str. 1111.) In these cases the husband is entitled to a grant caeterorura of the pi'operty not within the powder; but if a doubt exists as to whether the property is within the power or not, the probate will be so limited as to leave that question to theCourt of Con- struction. In Ledgard v. Garland (1 Curt. 286) the deceased had power to dispose by will of a certain principal sum, the interest of which she received for her separate use. At the time of her death there was at her bankers a fund, the produce of her savings out of this interest. The question was, were the executors of the wife, or the husband, entitled to this last fund. The grant was made to the executors, limited to the settled property, and all accumulations over which the deceased had a disposing power, and which she had disposed ofj thus leaving the matter open. Where an Where a feme covert made a will in respect of property over Kxecutor IS not ^v],i(.]i g^g jjaj ^ disposing power, and did not appoint an does not act, executor, the practice, so late as 1833, seems to have been to grant administration with such will annexed to the husband, and not to the legatees. (Salmon v. Hays, 4 Hagg. 382.) But since that time a different course has been introduced, and 7 Will. 4 & 1 Vict. Cap. 26, s. 8. 69 in accordance with the general rule, that the grant should follow the interest, these grants are now usually made to the persons having an interest under the will, and not to the husband. (Tn the goods of Dawson, 7 Notes of Cases, 317.) In which case, however. Sir H. J. Fust decreed the administration to the husband upon the particular circumstances of the case. Again, In the goods of Dempsey (25 Apiil, 1851), Sir H. Remarks on J. Fust decreed administration with the will annexed of a p^^pi'ice^" married woman, made in virtue of a power, to the representatives of her husband, no objection being made by the legatees, who were cited by direction of the court. Unless there are other cases, which I am not aware of, the present practice in the office cannot be said to have received any direct judicial sanction. For In the goods of Dawson Sir H. J. Fust ex- pressly avoided determining the question of practice; whilst the citing the legatees In the goods of Dempsey, and the decree being made upon their nonappearance, still leaves the point open to discussion. The modern practice is said to be founded upon the principle, that the grant should follow the interest; but that principle does not seem to apply to the case of a married woman's will, for no interest whatever passes or is affected by the grant, which merely evidences that the instrument is a will ; the adminis- trator is not even the channel through whom the property disposed of flows; he need not receive, nor pay, a fraction of it, but the persons beneficially entitled look entirely to the trustees or other persons in possession of the fund or property. (Piatt V. Routh, 7 M. & W. 756.) And consequently the fund can neither be benefited or damaged by the conduct of the person who holds the grant. This also furnishes an answer to the argument, that although the husband has no interest in the fund, yet he may have an interest adverse to those who are benefited by the will, and consequently be an unfit person to take the grant, since the question of fitness or unfitness cannot arise where there is no trust, obligation, or duty to perform. But it is said if the wife appoints an executor, you make the grant to him, even in opposition to the husband. Why should, you, on the renunciation of that executor, or in the case of no executor being named, pass over the residuary and other 70 The Wills Act. legatees? To this it may be answered, that the power of ap- pointing an executor is implied in the power of making a will ; and when the wife names an executor, she is in fact merely- exercising a power given to her, which the Court of Probate has no right to control ; but when there is no executor, the general right of the husband is entitled to a preference, and particularly as by making the grant to him, you prevent the necessity of two grants, one to the legatees with the will annexed, and the other caeterorum to him. It is to be regretted that the goods of Dawson and the goods of Derapsey did not require a decision upon this point of practice ; but it would seem, if rhe above reasoning be well founded, that the practice of making the grant to the husband proceeded upon sounder and better principles than the more modern practice, besides being supported by Salmon v. Hays; and it is to be hoped that an opportunity may soon occur, which will call for a decision, and a return to the older practice. Formerly it was not the practice of tlie courts of equity to require probate of a will by which a married woman disposed of property under a power (Goldsworthy v. Crossley, 4 Hare, 140) ; but it has long been deemed necessary that those courts should be satisfied by the judgment of the Court of Probate tliat the instrument is in the nature of a will (Rich v. Cockell, 9 Ves. 369) ; and they will not act upon such a will if it has not been proved. (Stone v. Forsyth, Dougl. 707 ; Stevens v. Bagwell, 15 Ves. 153.) And where several papers of different dates, purporting to be wills made in virtue of the power, were brought before the Court of Probate, which granted a general probate of the latter, and made a grant of administration with the earlier papers annexed, limited to proceedings in equity, disputing the execu- tion of the power by such papers, the Delegates reversed the sentence and held that the court must decide whether the later instruments revoked the earlier, and so decree probate of the former alone, or of all the papers as together containing the will. (Hughes v. Turner, 4 Hagg. 30.) Tlie Husband Where a married woman had power to dispose of certain Wi'fe s Will funds by will, and made a will disposing of those funds and generally, also of Other funds over which she had no power, and ap- 7 Will. 4 & 1 Vict. Cap. 26, s. 8. 71 pointed her husband execntor, who proved her will generally, when, as to the and not merely as to the funds over wliich she had the power, P.''operiy not " _ ^ . ' within the it was held that her will operated, as to the funds over which Power, the she had no power, as a will made ex assensu viri. (Ex parte ^^''^ operates / ^ ' as made ex Fane, 16 Sim. 406.) assensu viri. In the case of a will made by a married woman, either with the assent of her husband, or under a power, probate or admi- nistration, limited to the subject-matter of the bequest contained in such will, is the usual and proper grant; but there is no ob- jection to the husband's taking out a general administration, nor will the Court of Chancery on that account refuse to enter- tain a suit respecting any claim under the will, but that court requires, at the least, the limited administration. (Tucker v. Inman, 4 Mann. & G. 1049.) The only remaining: case is that of the will of a married Will of a woman executrix. Since the husband has no beneficial in- mamea o- man Executrix. terest in the personal estate which the wife takes in the cha- racter of executrix, and as the law permits her to take upon herself that office, it enables her to make a will, in this in- stance, without the consent of her husband (Scamnell v. Wil- kinson, 2 East, 552) ; restricted, however, to such articles to which she is entitled as executrix. The effect of such an in- strument is merely to pass, by a pure right of i-epresentation to the testator or prior owner, such of his personal assets as re- main outstanding, and no beneficial interest which the wife may have in any part of them. And with respect to the assets which may have been received by the ferae executrix during the marriage and not disposed of, they immediately become the husband's property, and are not affected by the will. (Hodsden V. Lloyd, 2 Br. C. C. 534; 1 Rop. H. & W. 188.) If the executor of a married woman's will make his will. Transmission of and appoint an executor, the chain of representation is con- Executorship, ' ' ' i . of a married tinned, and the executor of the executor will represent the on- AVoman's Will, ginal testatrix, and a grant of letters of administration of her unadministered estate will not be decreed to the residuary legatee, in opposition to such executor. (In the goods of Beer, 15 Jur. 160.) So a married woman beinof executrix continues the chain of transmission of 1 1-1 /-n- I -tr Executorship, representation by making her own executor. (Birkett v. Van- by a married dercom, 3 Hagg. 750 ; Barr v. Carter, 2 Cox, 429.) Woman Execu- of a Will. 72 The Wills Act. Every Will lo IX. And be it further enacted, that no will shall nnd"ianc'rfn t)C volid unlcss it shall be in writing, and executed the presoiKo of jj^ manucr hereinafter mentioned : (that is to say,) Iwo \\ itncsses. ^ ^ ^ it shall be signed at the foot or end thereof by the testator, or by some other person in his presence, and by his direction ; and such signature shall be made or acknowledged by the testator in the pre- sence of two or more witnesses present at the same time, and such witnesses shall attest and shall sub- scribe the will in the presence of the testator, but no form of attestation shall be necessary. EfTectofihe Four things are by this section required to the validity of Secuon. tour gyg,.y ^yj]]^ First, it must be in writing;; secondly, the signa- tliings required •■ ' . J i o to ihe validity ture of the testator, made by himself or by some other person in his presence, and by his direction, must be at the foot or end of the will ; tliirdly, such signature shall be made or acknow- ledged by the testator in the presence of two or more witnesses, present at the same time; fourthly, such witnesses shall attest and subscribe the will in the presence of the testator. The wording and requirements of the enactment do not apparently present any great difficulty, and they seem simple and intelligible enough, and capable of being easily complied with ; but such has not been the case practically, and lawyers as well as lay- men have been found to fail in attempting to comply with the terms here employed, and the requirements imposed by the legislature. The numerous decisions, which have consequently occurred upon this section, make it desirable to refer to the reasons which may be supposed to have led to the enactments, as they are stated in the Report of the Commissioners; and then ex- amine the cases in the Reports, and extract such rules or prin- ciples as these two sources of interpretation may supply; the former conveying to us, in a degree, the intention of the legis- lature, the lattei- furnishing a judicial exposition of the law enacted. And in studying the cases referred to there will frequently be reason to bear in mind, that it is a very useful rule in the 7 Will. 4 & 1 Vict. Cap. 26, s. 9. 73 construction of a statute, to adhere to the ordinary meaning of the words used, and to the grammatical construction, unless that is at variance with the intention of the legislature, which is to be collected from the statute itself, or leads to any manifest absurdity or repugnance, in which case the language may be varied or modified, so as to avoid such inconvenience, but no further, per Parke, B. (2 M. & W. 195.) It has been already observed, that writing was a requisite 1- Writing, under the Statute of Frauds, except in the case of nuncupative wills J with respect to these the Commissioners, p. 16, remark, that the power of making a nuncupative will is very rai'ely exercised, and in the present general state of education can scarcely ever be required. In fact the Statute of Frauds had provided so numerous a train of requisites in setting up a nun- cupative will, that the thing itself had long fallen into disuse, and was hardly ever heard of in Sir W. Blackstone's time (2 Com. 501). The present section has provided against this description of will, unless it can be brought within the exception in the llth section, by requiring that every will must be in wi'iting. It is however unimportant on what substance, or with what material, or in what language, the will be written, or whether the words be written at length or contracted, or the sums be in figures or not, provided there be no doubt or ambi- guity. (Masters v. Masters, 1 P. Wms. 425.) Formerly the presumption was that pencil writings, as distinguished from writings in ink, were deliberative and not final (Lavender v. Adams, 2 Add. 406; Ravensci'oft v. Hunter, 2 Hagg. 65); but where the requirements of the present section have been com- plied with, all ground for and all the effect of such presumption is done away with. (See Bateman v. Pennington, 3 Moo. P. C. C. 223, and cases there cited, and the subsequent provisions in the act, with respect to revocation.) Some doubt existed whether under the Statute of Frauds 2. Signing, sealing might not be held to amount to signing (Lemayne V. Stanley, 3 Lev. 1; Warnford v. Warnford, 2 Str. 764; Smith V. Evans, 1 Wils. 313; Grayson v. Atkinson, 2 Ves. 454; Ellis V. Smith, 1 Ves. jun. 11), where Willes, C. J., said, " I do not think sealing is to be considered as sign- ing ; and I declare so now, because if that question ever comes before me, I shall not think myself precluded from 74 The Wills Act. weifi^hing- it thoroughly, and decreeing that it is not signing, notwitlistanding the obiter dicta, which in many cases were nunquani dicta, but barely the words of the reporters." (Wright ?•. Wakef'ord, 17 Ves. 459; Morison v. Turnour, 18 Ves. 175.) Upon this point it is said (1 Sugd. Pow. 253, n.) without question, if the point should ever call for a decision, it would, in conformity to the express words of the statute and the general opinion of the profession, be holden that sealing is not signing. But the signing may be by the testator's making his mark, as well as by writing his name (In the goods of Field, 3 Curt. 752), and it need not be proved that he was unable to write (Baker r. Dening, 8 Ad. & E. 94); and it is not necessary that the name of the testator should appear upon the face of the instrument, provided it is identified as being the will of the deceased. (In the goods of Bryce, 2 Curt, 325.) So the initials of the testator would probably be held a sufficient signing, but this point is now pending. In the goods of Glover (11 Jurist, 1022), a married woman made her will by virtue of a power, in the lifetime of her second husband, and signed it, not by the name she then bore, but by the name she took from her first husband, the power being derived from the settlement made upon her second mar- riage, and this was held a good execution. Whether the legislature intended the person signing for the testator to write his own name, or that of the testator, does not appear; nor whether the person so signing may or may not be one of the subscribing witnesses. In the goods of Bailey (1 Curt. 914) the name of the testator was written by W. B., one of the subscribing witnesses, by the testator's direction, and in his presence and in the presence of the other subscribing wit- ness : it was held, that there was nothing in the act which pre- vented the person making the signature from being a witness to the will, and the execution was accordingly decided to be valid. In the goods of Clark (2 Curt. 329) the will was signed on behalf of the testator with the writer's name, and was held to be well executed, as the act did not direct that the will should be signed with the name of the testator. It would seem from these two cases that a will would be held to have been duly executed, if signed by one of the subscribing witnesses with his own name, provided such signing were made by the testator's direction, and in the testator's presence, and so made or acknow- 7 Will. 4 & 1 Vict. Cap. 26, s. 9. 75 ledged in the presence of both subscribing witnesses. But the better course would nevertheless be to have three persons em- ployed in such a case, one as the writer of the name, which should be that of the testator, and the others as attesting and subscribing witnesses A case is now pending, in which the person acting for the testator made his mark on the will. In what manner the direction of the testator shall be ex- pressed must necessarily depend upon the circumstances of each case, and be a matter of evidence. In Wilson v. Beddard (12 Sim. 33), on motion for a new trial of an issue devisavit vel non, Shadwell, V, C. E., in refusing the motion, said : — " It was contended, that what the learned judge said with re- ference to the testator's hand being guided when he made his mark to his will, was not law. The judge said that it was ne- cessary that the will should be signed by the testator, not with his name, for his mark was sufficient if made by his hand, though that hand might be guided by another person ; and, in my opinion, that proposition is correct in point of law. For the Statute of Frauds requires that a will should be signed by the testator, or by some other person in his presence and by his direction: and I wish to know if a dumb man, who could not write, were to hold out his hand for some person to guide it, and were then to make his mark, whether that vvould not be a sufficient signature of his will. In order to constitute a direc- tion, it is not necessary that anything should be said. If a tes- tator, in making his mark, is assisted by some other person, and acquiesces and adopts it, it is just the same as if he had made it without any assistance. It is observable, too, that before the mark was made, the testator made some faint strokes on each of the sheets. My opinion therefore is, that the ob- servation made by the learned judge on this part of the case was quite correct in point of law; and therefore it affords no ground for granting a new trial." Whether a will or other writing be " signed at the foot or ^} '''^ ^°°^ °i" end" or not, would, a priori, seem a very simple question, and yet the construction put upon these words has been apparently so conflicting in different instances, that perhaps there is no class of cases upon which it has been more difficult to give a deci- sive opinion with satisfaction. It becomes therefore necessary to examine shortly the principles upon which this point has 76 The Wills Act. been from time to time (letermined, and endeavonr to ascer- tain wlietlicr there is at the |)resent time any general and re- cognized governing principle as a guide for the future. The learned judge of the Prerogative Court was at first dis- ])Oscd to construe these words " foot or end" witli considei-able libeiality, and to act Tipon what was called the equity of the statute; however, a stricter construction was afterwards adopted, but the same learned person still inclining to favour the mani- fest intention of testators, thought himself at liberty to look at the contents of the will, and see whether the property was en- tirely disposed of, as by a bequesi, of the residue, or appoint- ment of executors, for the purpose of ascertaining that the will was, in its dispositive character, a completed instrument. Upon this principle the case of Ayres v. Ayres (11 Jur. 417) ■was determined. But in Willis v. Lowe (11 Jur. 807), the will was complete in form as to its dispositive part, and there was a residuary clause and the appointment of an executor, (but the signature of the deceased was half way down the third side, though the will concluded about the middle of the second side,) probate was refused in both cases. See for some obser- vations on these two cases, 11 Jur. part 2, p. 422. Soon after these cases came Smee v. Bryer (11 Jur. 103; 13 Jur. 289; 6 Moo. P. C.C. 404), which was taken up to the Judicial Com- mittee of the Privy Council; and although the opinion of their Lordships, as delivered by Lord Brougham, has often been re- ferred to as a leading case, it may fairly be doubted whether that case, even with reference to the words cited below, esta- blished any principle which can be made generally applicable. After Smee v. Bryer there were several decisions, many of which are reported in 1 Roberts (as, for example, In the goods of Howell, 1 Rob. 671), which seem to have turned on the greater or less space occurring between the conclusion of the will and the signature of the deceased; and at the beginning of last year, In the goods of Davvnay (14 Jur. 318) came before the Court, which may be taken to lay down, as the principle resulting from these cases, that the words " foot or end" may be satisfied by a common-sense construction being put upon them. Unfortunately this obvious and satisfactory construc- tion has been very much weakened by a distinction taken between those cases, in which the signature of the deceased is beneath, and on the same side with the concluding words 7 Will. 4 & 1 Vict. c. 26, s. 9. 77 of the will, and where it is not on the same side, but carried over, a distinction probably suggested by some words in Smee V. Bryer, where Lord Brougham, in describing the will in question, says, "no part of the will being immediately above it," that is, above the signature. This case (Smee v. Bryer) was of so special a kind that it cannot be made an authority for others not exactly resembling it, and this seems to have been the general opinion when the case was first de- cided in the Privy Council ; for there was an impression that their Lordships would on some future occasion lay down a general rule as a guide for the Court below. This, however, has not yet been done. A careful perusal of Lord Brougham's judgment will satisfy the reader that the words " no part of the will being immediately above it" are merely descriptive of the instrument under his Lordship's attention, and were not in- tended to lay a ground for a general principle. Still if this rule, that some part of the will must be above the signature, or on the same side with the signature, were held to apply in all cases, there would be little reason, why those who have to advise upon the point should complain of any difiiculty in forming an opinion upon the cases which may be laid before them. But a further distinction is drawn, and it is said you must look to the manner in which a will so questioned con- cludes, for all wills have not the same form of conclusion. There is the dispositive part, which of course will be found in every will; but some wills have thereto added a testimonium clause, and some an attestation clause ; others have neither of, and others again have both, these clauses. Then do these clauses, or does either, form a part of the will below which the testator may write his signature? Sometimes it would seem that such clauses are embodied with and do form part of the will, and sometimes they do not. In the goods of White (7 N. C. 543) the learned judge of the Prerogative Court said, " In some cases the testimonium clause is the conclusion of the will; in other cases the attestation clause may conclude the will, though the signature of the testator ought to be at the end of the testimonium clause." And this is made more certain, since. In the goods of Batten (7 N. C. 289), the same learned judge expressed his opinion that, " generally speaking, the sig- nature should be placed at the close of the testimonium clause." 78 The Wills Act. So far then the testimonium clause may be considered as a part of the will. Next, as to the attestation clause. In the goods of Shadwell (7 N. C. 377), the dispositive part of the will ended near the bottom of the second page, space sufficient for the signature being left on that side, and on the top of the third side were the words " signed by me, in the presence of the undersigned," and the signature followed. Probate was refused on motion. Why? Was it because these words "signed by me," &c. which were read as an attestation clause, did not follow immediately and on the same side with the conclusion of the dispositive part of the will, but after a space ample enough for the signature was left on that side, and could not, therefore, be taken as a part of the will ? If so, the attestation clause can then only be taken as part of the will where it is on the same side, or begins on the same side with, and follows immediately, and without intervening space, the conclusion of the dispositive part or the testimonium clause. And this view seems confirmed by the case of Batten, mentioned above, in which the learned judge described the attestation clause as following the testimonium clause, without a blank, and granted probate of the will, whilst In the goods of Pain (14 Jur. 1032), there was some little distance between the end of the will and the beginning of the attestation clause, and probate was refused. In the first of these cases, the page ended with the words, " Signed in the presence of us, who, at the request and in the presence of the said Amy Batten, testa- trix, and" — the rest of the clause and the signature being on the next side. In the latter case the page ended with the words, *' Signed, sealed and delivered by the above-named Mary Pain" — the rest of the clause and the signature being on the next side. The result, therefore, would appear to be, that where the tes- tator has placed his name below the dispositive part of the will, and on the same side, the signature will, generally speaking, be well placed. The same rule will apply where he has signed below, and on the same side with the testimonium clause. And lastly, that where the signature is below the attestation clause, but not on the same side with the conclusion of the dispositive part of the will, or testimonium clause, the will is not duly signed, unless the attestation clause follow the conclusion of the dispositive part or testimonium clause immediately, and with- out leaving a sufficient space for the signature of the testator. 7 Will 4 & 1 Vict. Cap. 26, s. 9. 79 These observations first appeared in a note to The goods of Anderson (15 Jur. 92), and as the decisions which have since occurred, at least in this country (for the Court of Delegates in Ireland have not taken so strict a view of this part of the section, Devengy v. Turner, referi-ed to in Lemann v. Lemann, 15 Jur. 850), seem to support the view there taken of the point, they are repeated here. It was held under the Statute of Frauds, that where it did not appear that a further signature was intended, the name of the testator written in the beginning, or any other part of a will, was a sufficient signature. (Grayson v. Atkinson, 2 Ves. 454.) But the Commissioners observed (p. 16), "It is almost the in- variable practice to sign wills, deeds, receipts, and all other written instruments, at the foot; and we think it right to require this usual form, in order to prevent questions, whether the name of the testator appearing in any other part of the will is a sufficient signature, and in order to cause wills to be made in a formal manner and to render void imperfect papers. " At present, if the testator is prevented by sickness or death from finishing the will, the gifts which appear to be perfect, so far as respects copyholds or personal estate, will be good. It appears to us that the rule which allows validity to such im- perfect instruments, is attended with more mischief than benefit. It must be impossible to ascertain what were the intentions of a testator, unless he has given full expression to them. Where a leasehold is given to the heir, the testator may have intended to give a freehold estate to a younger child ; and where a gift appears to be complete, there may have been an intention to impose some trust or condition in a subsequent part of the will. The injustice of carrying into effect part only of a general arrangement, and the danger of letting in parol evidence to prove the circumstances under which the paper was left im- perfect, appear to us to be conclusive objections against the admission of such papers." These observations seem to point out very clearly the place intended by the words " foot or end," and state the reasons why that place in particular was chosen for the signature of the testator. And, indeed, when one considers that most testators have probably been in the habit of signing letters, receipts and other papers, at the end of the writing, it is difficult to account for the ingenuity, which has been shown in case after case, in y Sic. 80 The Wills Act. missing the ordinary and proper sense of the simple words "foot or end." Perhaps the most perfect instance of compli- ance with the letter of the statute is In the goods of Raitt (14 Jur. 627), where the will ended and was signed as follows: this 24*'' day of De cember 1840, in the presence of EdW^. Woods, I , .Witnesses | j^j^^ ^[Hvt. ' Ito the undersigned,) J. D. T. Raitt. In some cases the name of the testator has been written in the attestation clause itself, as In the goods of Woodington (2 Curl. 324), where the will ended in the following manner: — Signed and Sealed as and for the will of me Catherine Elizabeth Thicknesse Woodington in the presence of us, John Hughes, Ellen Hughes. The facts as deposed to were, that the deceased wrote her name as it appeared in the paper in the presence of one witness only, but afterwards, in the presence of that and the other subscribing witness, acknowledged the will to be her will, and to have been written by her. Sir H. Jenner Fust said, " The deceased, by placing her name where it stands, seems to have intended that it should answer the purpose of a description as well as a sig- nature, and such signature being at the foot or end of the will, and the will being written by the deceased, and acknowledged by her to be her will in the presence of the two subscribing winesses, I think this is a sufficient acknowledgment of the sig- nature to the will to satisfy the provisions of this statute." In the subsequent case (In the goods of Chaplyn, 10 Jur. 210), Sir H. J. Fust, commenting upon this case, remarked, that the words were in the first person, "the will of me," whereas in Chap- lyn's case the words were, "signed by the within-named;" that the difference was material, and that he had gone as far as he could in admitting that as a good execution. Probate was refused in the latter case on other grounds also. See and com- pare In the goods of Gunning (1 Rob. 459). Wills are frequently found written on alternate sheets, as 7 Will. 4 & 1 Vict. Cap. 26, s. 9. 81 where they are written briefwise, the alternate sheets beuig left Blanks in ihe in blank, and sometimes blanks occur in the body of the writ- of*|he'vvtu ing; it has been decided that in these cases the wills are en- titled to probate. In Corneby v. Gibbons (13 Jur. 264; 1 Rob. 705), there was a large space left in blank in the dis- positive part. Dr. Lushington, sitting for Sir H. J. Fust, ad- mitted the paper to probate, observing, that he should be very unwilling to throw any obstruction in the way of establishing a will, clearly carrying out the wishes of the testator, where the legislature has been silent. (In the goods of Kirby, 1 Rob. 739; In the goods of Corder, 12 Jur. 966; 1 Rob. 669.) A bare acknowledgment of the testator's handwriting was Execution by sufficient to make the attestation and subscription of the wit- Acknowledg- ' menl oi oigna- nesses good, within the Statute of Frauds, though such acknow- ture. ledgment conveyed no intimation whatever, or means of know- ledge, either of the nature of the instrument, or the object of signing. Therefore, where the identity of the instrument was established beyond dispute, a will of lands, subscribed by three witnesses, in the presence of, and at the request of the testator, was held to be sufficiently attested, though none of the wit- nesses saw the testator's signature, and only one of them knew what the paper was. (White v. Trustees of British Museum, 6 Bingh. 310.) It has been held under the present act, that acknowledgment may be expressed in any words, which will adequately convey that idea, and if the signature be proved to be then existent, no particular form of expression is required, either by the word " acknowledge," or by the exigency of the act. It seems suf- ficient to say " that is my will," the signature being there, and visible at the time. And it is not necessary that a testator should state to the witnesses that the signature is his. (Ilott v. Genge, 3 Curt. 172; Hudson v. Parker, 1 Rob. 25.) Thus, In the goods of Warden (2 Curt. 335), the deceased, on being told that the two persons, who came into her room, had come as she requested, for the purpose of signing their names as witnesses to her will, replied, " I am very glad of it, thank God," and this was held a good acknowledgment of her signature, made some time before. " Put your names below mine" (Gaze v. Gaze, 3 Curt. 451,) was held a good acknowledgment; and so where the witnesses a 82 The Wills Act. could not depose to the fact of the signature being on the will at the time of their subscription, but there was evidence to shew, that the signature had been written some time before the witnesses subscribed, the will was held to have been well exe- cuted by acknowledgment. (In the goods of Attridge, 13 Jur. 88). But a mere request that the witnesses should sign, without saying the will or signature was the deceased's, is not suffi- cient. (In the goods of Rawlins, 2 Curt. 327). And where the witnesses saw no writing on the paper, and were not in- formed what they were witnessing, probate was refused. (Ilott V. Genge, 3 Curt. 172.) In affirming the sentence in this case, on appeal. Lord Lyndhurst said, " assuming that the will was signed by the deceased before the witnesses were called in, we are of opinion that the mere circumstance of call- ing in witnesses to sign, without giving them any explanation of the instrument they are signing, does not amount to an acknowledgment of the signature by the testator." (4 Moo. P. C. C. 271.) The words of the act, however, require, not that the will, but that the signature, should be acknowledged before the witnesses. It would seem therefore to be immate- rial whether the witnesses were aware, or not, of the character of the instrument which they were subscribing, but the signature must have been visible. Accordingly, where there was no proof that the signatui-e was affixed prior to the subscription of the witnesses, the deceased having produced the will to the witnesses, merely using words implying that the paper was his will, and had not shown them any signatuie upon the paper, which was so folded that, if there, it could not be seen, it was held that there was no acknowledgment. (Hudson v. Parker, 1 Rob. 17.) Where Dr. Lushington, who sat for Sir H. J. Fust, ob- served, p. 25, " What is the plain meaning of acknowledging a signature in the presence of witnesses ? What do the words import but this? Here is my name written, I acknowledge that name so written to be written by me, bear witness. How is it possible that the witnesses should swear that any signature was acknowledged unless they saw it. They might swear that the testator said he acknowledged a signature, but they could not depose to the fact, that there was an existing signature to be acknowledged." 7 Will. 4 & 1 Vict. Cap. 26, s. 9. 83 It seems scarcely necessary to observe, that the signature or mark of the testator, which is to be acknowledged, must be at the foot or end of the will; no acknowledgment, however formal and specific of the signature, if placed elsewhere, will make the will valid. The next point for consideration is the mode provided for Authentication the authentication of the instrument; whether any, and if any, of ^he Will, how many witnesses shall be present when the deceased signs, or acknowledges his signature to the will, and what part those witnesses, if called in at all, shall take in the transaction. This subject, which is one of chief importance, and upon which the practice of different countries varies, received deserved atten- tion from the commissioners, who, in discussing the several modes of authentication, or proof of the will, remark : — " A written instrument must be proved either by the evidence of an attesting witness, or by proof of the handwriting of the party, and other circumstances. Opinions respecting hand- writing must always be liable to error, and the superiority, in other respects, of the testimony of a person, who was actually present at the execution of the instrument, is obvious. The necessary concun-ence of disinterested persons in any transac- tion, affords some security against imposition, and a considerable chance of detecting it. Indeed the difference between the value of the two descriptions of evidence is considered so great, that the courts require every written instrument which is attested, wiiether any attestation is necessary or not, to be proved by the witness, and will not receive any other evidence, unless the witness be dead, or his attendance cannot be procured. "The practice of executing written instruments in the presence 3. signature to of witnesses, and obtaining their attestation, affords the evidence be made or ac- of experience in favour of this mode of authentication. Attes- ihe°Presence'of tation is not essential to the validity of a deed, and yet a deed. Witnesses. whether ancient or modern, is rarely found without it. Even contracts and other instruments of inferior importance are fre- quently signed in the presence of subscribing witnesses. Trans- fers, under powers of attorney, of stock in the public funds, and shares in many public companies, are not allowed to be made unless the power of attorney be attested by two witnesses ; and appointments in pursuance of powers, of real or personal pro- g2 84 The Wills Act. perty, whether hy deed or will, are usually required, by the terms of the power, to be attested by two or more witnesses. " There is no written instrument, which stands so much in need of the protection afforded by the attestation of witnesses, as a will. If it is considered expedient for deeds, it must be allowed to be much more necessary for wills. Deeds are usually made between several parties, and are acted upon im- mediately, or while the parties are alive ; they must have been executed at a time generally known, are often protected by valuable considerations and antecedent treaties, and usually affect only a part, and sometimes only a small part, of the pro- perty of the persons by whom they are made. Whereas, on the contrary, a will does not appear until after the death of the only person, who is necessarily aware of its existence ; it may by possibility have been executed at any time during the life of a testator, that a fabricator may think it most safe to fix upon, and it usually disposes of the whole property of the testator. Forgery is not the only, and far less the most usual, question affecting the validity of a will. The incapacity of the testator, or the circumstances of fraud or coercion under which a false will may have been obtained, and which may be attempted to be disproved b}' perjury, render the validity of a will one of the most complicated and perplexing subjects of litigation, and make it particularly necessary to require the protection of attesting witnesses. The attestation of witnesses secures their direct testimony in favour of the will as long as they live, and in case of theii* deaths affords the security of their handwriting. We are sensible that this protection is abridged by the case. Trustees of the British Museum v. White, (6 Bing. 310, and cases there cited), deciding that a witness to a will need not be informed of the nature of the instrument he attests, but we are unwilling, by altering the law in this respect, to add to the chances of mistake in executing wills, and to im- pose on purchasers the necessity for inquiry, as to a circum- stance necessarily difficult of proof." These considerations induced the commissioners to recom- mend that every will should be executed before witnesses; and they seem weighty enough to overbalance any supposed ad- vantage, which it is sometimes conceived would be conferred 7 Will. 4 & 1 Vict. Cap. 26, s. 9. 85 on testators, if holograph wills were admitted without attesta- tion ; particularly when we remember the just and frequent complaints of the state of things under the old law. Thus Lord Hardwicke, in Ross v. Ewer, (3 Atk. 163) : — " There is nothing that requires so little solemnity as the making of a will of personal estate according to the ecclesiastical laws of this realm ; for there is scarcely any paper writing which they will not admit as such." Lord Alvanley, in Coxe v. Basset (3 Ves. 160) : " It is now almost absolutely necessary that the legislature should come to some regulation as to the form necessary for wills of personal estate, from the habit the spi- ritual court has got into of granting probate of all the loose papers that can be found, and sending them to the Court of Chancery to be construed." Lord Loughborough, in Beau- champ V. Lord Hardwicke, (5 Ves. 285) : " It is really very unfortunate that there is no solemnity necessary for wills of per- sonal estate." And Lord Eldon, in Matthews v. Warner, (4 Ves. 208) : " If such a thing as this is to be proved as a will, it calls loudly upon the legislature to make some regulation as to the disposition of personal property, so that there should be something of solemnity, certainty, and precision, in order to give away that property, and defeat the natural right of the relations." In dealing with the next question, the number of witnesses. Number ot they considered, that where more than one witness is required, Witnesses re- 1-1 I 1 •!• 1 • -11 1 1- • quired. there is the greater probability, that a witness will be living at the death of the testator, and a greater difficulty is opposed to the fabrication of a will. If a will be forged, the same person may write the false will, and affix his own signature as a wit- ness. The protection against forgery is greatly increased by requiring a second witness, on account of the difficulty of en- gaging an accomplice, the necessity of rewarding him, and the danger to be apprehended from his giving information, or not being able to elude a discovery of the fraud by a searching cross-examination. More than two witnesses are not required, but the number is not restricted ; and as two is the ordinary number of witnesses to deeds and other instruments, the danger of mistakes may be prevented, by not requiring, for one kind of instrument, a greater number of witnesses, than is usually ob- tained for others. 86 The Wills Act. The act does not point out any place where the witnesses are to subscribe, and, in the absence of such direction, it seems that they may place their names, or marks, on any part of the will. Where the will was written, and signed by the testator on the first side of a sheet of letter paper, and there was room left for the names of the witnesses near that of the testator, but instead of putting their names near his, they wrote them beneath an indorsement on the fourth side, the subscription was held good. In the Goods of Chamney, 1 Rob. 757. 4. Attestation of For the due execution of a will according to the Statute of tlie \\ itnesses Pj-auds, it was not requisite that the witnesses should attest in in tlie I'resence ' ^ of tlie Testator the presence of each other, or that one should be seen by the and of each other. It was sufiicient if the testator acknowledged his sig- otlier. , . . . . . nature on his will at three several times to different witnesses. (Cook V. Parsons, Prec. Chan. 184; Ellis v. Smith, 1 Ves. jun. 11; Westbeech v. Kennedy, 1 Ves. & B. 362.) This construc- tion militated against the object of the statute, and has been regretted by several eminent judges. Lord C. J. Willes, in Ellis V. Smith, said in reference to this, " an inlet is made for great frauds and impositions ; but when they attest it simul et semel, they are a check on each other, and prevent such frauds." And in the same case Sir John Strange said, " I think it a dangerous determination, and destructive of those barriers the statute erected against perjury and frauds." And Lord Hard- wicke observed that the authorities go too far, and open a way to frauds. And it is evident that great additional security against forgery and fraud is obtained by requiring, that the witnesses should be present at one time. In case of forgery it is easier to get two accomplices at different times, than both together. It is important that the competency of the testator, at the time of the execution of his will, should be satisfactorily established ; and if the transaction must be witnessed by both witnesses at one time, they must then agree in the same story, and perjury will be more easily detected by cross-examination. The commissioners therefore proposed that every will should be signed by the testator in the presence of, or the signature acknowledged to, two witnesses present at one time ; and that they should subscribe their names in the presence of each other, or that one, having signed first, should acknowledge his signa- 7 Will. 4 & 1 Vict. Cap. 26, s. 9. 87 ture, and be present when the attestation was signed by the other. But they did not think it necessary to recommend that the provision of the Statute of Frauds, which required that the wit- nesses should subscribe in the presence of the testator, should be continued. For under the Statute of Frauds that had been disregarded so far, that the courts had not required that the testator should actually see the witnesses sign, but had consi- dered it sufficient if he could have seen them (Casson v. Dade, 1 Br. C. C. 99; Shires v. Glascock, 2 Salk. 688; Davy v. Smith, 3 Salk. 395) ; and yet several fair wills had been ad- judged void, where witnesses signed in an adjoining room, and even where the testator might, if he had thought proper, have seen them, merely by changing his position. (Doe v. Manifold, 1 M. & S. 294; Winchelsea v. Wauchope, 3 Russ. 441.) They deemed it important, that no long interval should elapse between the execution, and the attestation of a will, because that would afford an opportunity for the substitution of a false will, and therefore create a doubt, whether the attestation was written upon the will, which had been executed by the testator. But if it were required, that both witnesses shall be present at the time, when the will is signed, and acknowledged, and shall attest it in the presence of each other, the signature of the witnesses would usually be made either in the presence of the testator, or before they lost sight of the will. And they considered whe- ther any regulation could be made for afibrding further secu- rity in this respect, but stated, they were not able to devise any provision, which would not occasion evil, or inconvenience of more importance, than the advantage it would afford. Nor did it appear to them that the additional security, which might be obtained by requiring the witnesses to sign in the testator's presence, was of so much importance as the burthen and danger of imposing such a restriction. The legislature, however, did not altogether adopt these pro- positions; and whilst it has added to the solemnities required by the Statute of Frauds, by making it necessaiy that the sig- nature or acknowledgment should be made in the joint presence of the witnesses, has re-enacted the provision that the witnesses should subscribe the will in the presence of the testator. The Wills Act. As the language of both statutes witli respect to " presence" is the same, the decisions (Doe v. Manifold, 1 M. & S. 294; Shires v. Glascock, 2 Salk. 688; Casson v. Dade, 1 Br. C. C. 99; Cater v. Price, Dougl. 241, and others), under the Statute of Frauds, are applicable to the present act; and similar prin- ciples have guided the decisions of the Prerogative Court. (In the goods of Newman, 1 Curt. 914; In the goods of Ellis, 2 Curt. 395; In the goods of Colman, 3 Curt. 118). In Newton V. Clarke (2 Curt. 323), Sir H. J. Fust was of opinion that under the act, where a paper is executed by the deceased in the same room where the witnesses are, and they attest the paper in that room, it is an attestation in the presence of the testator, although they should not actually see him sign, nor the testator actually see the witnesses sign. In this case it appears that the testator was lying in bod with the curtains open on both sides, but closed at the foot, where the table stood at which the wit- nesses signed, so that he might have seen them sign. In Tribe v. Tribe (1 Rob. 775; 13 Jur. 793), where the attestation and subscription took place also in the same room, Newton v. Clarke was relied on; but Sir H. J. Fust took the distinction, that in the latter case the testator might have seen, whereas in Tribe v. Tribe the evidence was, that the deceased could by no possibility have seen the witnesses, and holding that she might consequently as well have been absent, he pronounced against the will upon that, as well as upon another ground. In Hudson v. Parker (1 Rob. 2-3), Dr. Lushington says on this point, — " The previous part of the clause having re- quired the signature to be affixed * at the foot of the will,' the section goes on, ' and such witnesses shall attest, and shall subscribe the will in the presence of the testator, but no form of attestation shall be necessary.' First, then, as to the plain meaning of these words, that the signature of the testator shall be made in the presence of two witnesses, will the statute be satisfied if the signature be made in their presence, if they are in ignorance of the fact ? I am of opinion, under such circumstances, that the statute is not complied with. It is obvious that the solution of this question must mainly depend on the meaning which the legislature intended to convey by the use of the word ' ipresence in this and in other clauses of the statute. \ 7 Will. 4 & 1 Vict. Cap. 26, s. 9. 89 " What could possibly be the object of the legislature, except that the witnesses should see and be conscious of the act done, and be able to prove it by their own evidence. If the witnesses are not to be mentally as well as bodily present, they might be asleep, or intoxicated, or of unsound mind. Again, how is the signature so made to be proved, except by parol evidence ? to exclude which was one great object of this statute. " In support of this view of the question, let us call to mind how the word 'presence' is received in its common acceptation. Loquendum est ut vulgus (4 Rep. 47.) If in the course of common conversation a person wishes to support the truth of a statement, does he not say, * such a one was present, and he will vouch for the truth.' If a statement be questioned, does not a person say, ' I was present, and can attest its correct- ness.' And does not the whole world understand by this, mental, not bodily, presence ? Would not a contrary construc- tion lead to absurdity, and defeat the plain intention of the statute ? " Then, if the witnesses are to be cognizant of the making of the signature, when the execution is in that form, must they not see, and be cognizant of, the signature, when the will is to be executed in the alternative form, by acknowledging the signa- ture? The alternative form of execution by acknowledgment is to answer the same purpose; it is to be equivalent in effect to actual signing ; and ought not the acknowledged signature to be proved by the same mode of evidence, namely, by the subscribing witnesses ?" We come now to the class of cases, which has decided that The witnesses the signature must be made, or acknowledged, in the joint pre- """f ®'=° '," sence of the two witnesses, before the subscription of those wit- Presence, nesses, and that the witnesses shall sign in the presence of each other, and may not acknowledge their signatures, but must make some actual mark on the paper with their own hands. One of these points was first raised on motion In the goods of Allen (2 Curt. 331). The deceased there made her mark in the presence of one witness only, who subscribed, and afterwards, on a subsequent day, the deceased acknowledged her mark in the presence of the same witness, who did not then subscribe, and of another who did. Sir H. J. Fust ob- 90 The Wills Act. served, that the natural construction of the words of the act, which are in the future tense, seemed to be, that when the sig- nature was made or acknowledged, the witnesses shall then attest it, not one at one time and one at another. In Moore v. King (3 Curt. 243), the question was more formally disposed of The testator had signed a codicil in the presence of a wit- ness (his sister), who attested and subscribed it. At a later hour on the same day he showed this paper to his medical attendant, saying, " This is a codicil to my will, signed by myself and by my sister, as you will see at the bottom of the paper; you will oblige me if you will also add your signature, two witnesses being necessary," whereupon the medical at- tendant placed the paper near the bedside of the deceased and subscribed his name. The other witness, standing beside him at the time, pointing to her name on the paper, said, " There is my signature, you see ; you had better place yours under- neath." Sir H. J. Fust held, that the act was not complied with, unless both witnesses shall attest and subscribe after the testator's signature shall have been made, or acknowledged to them when both actually present at the same time. The deci- sion of the Privy Council in Casement v. Fulton (5 Moo. P. C. C. 130) upon the corresponding clause, the seventh in the Indian Will Act, which is the same with the present sec- tion, with the omission of the words " attest and," before the word " subscribe," was to the same effect ; and the following important observations occur at p. 140 of the judgment: — " It is not, perhaps, so important that the witnesses should both sign in each others presence ; nevertheless it is of irapoil- ance, for it gives an additional security against fraud or mis- take, the signature being an act, the acknowledgment only a word. But be the reason what it may, if the law has said that the witnesses must sign in each others presence, we are bound; and there can be no reasonable doubt raised that the words of the act amount to this requisition. The testator is to sign or acknowledge in the presence of the witnesses present at the same time ; he is not to sign or acknowledge before the wit- nesses present at different times; but here he has acknow- ledged before the witnesses present at the same time. Then must the witnesses who subscribe be present at the same time? 7 Will. 4 & 1 Vict. Cap. 26, s. 9. 91 We think the words admit of no other construction, for they are 'and such witnesses shall subscribe.' Now this forms one sentence with the preceding words, ' present at the same time', and ' such' must plainly be read such present witnesses, or such witnesses so being present at the same time. ' Such' describes not merely the names of the witnesses, but all that is previously enacted respecting them. The quality of these witnesses is their being present at the same time ; therefore we cannot limit the meaning of the large word of reference, ' such,' to the mere names or persons of the witnesses ; it must embrace what had just been said of their presence — it must mean * the witnesses, &c. present at the same time.' " See Pennant v. Kingscote (3 Curt. 642), where the evidence failing, the Court refused pro- bate, and Faiilds v. Jackson, before the Privy Council in June, 1845, in which the question was, whether a witness saw the deceased's signature, and not whether the witnesses signed in the presence of each other; the evidence, howevei", seemed to show that the second witness did not sign the will until the first had left the room ; yet their Lordships, deal- ing merely with the question of the testator's signature, held the will to have been well executed, and did not notice the mode in which the witnesses signed. This case, therefore, can hardly be said to be a departure from the opinion expressed in Casement v. Fulton. The requisites of the section will not be complied with where After the Signa- the deceased signs after the subscription of the witnesses. (In l"*"® °^ the les- ® ' ^ tator IS made, the goods of Olding, 2 Curt. 865; In the goods of Byrd, 3 Curt. 117.) With respect to the words '' shall attest and shall subscribe," Dr. Lushington, in Hudson v. Parker (1 Rob. 26), made the following observations: — " Here are two things which the witnesses are to do — they are to attest and they are to sub- scribe. Mark the words shall attest and shall subscribe ; the the making or word shall is repeated; subscription alone will not do, it will ^f ^hich^thev" not satisfy the statute ; and it is a well-established rule, that shall attest, you are to give, if possible, a rational meaning to every word of a statute. Then, if attest means something more than sub- scription, what does it mean ? To attest is to bear witness to a fact. Take a common example. A notary-public attests a protest. He bears witness, not to the statements in that protest, 92 The Wills Act. but to the fact of making those statements ; so, I conceive, the witnesses in a will bear witness to all that the statute requires attesting witnesses to attest, namely, that the signature was made or acknowledged in their presence. The statute does say that no form of attestation shall be necessary; still the witnesses must attest, although the outward work of attestation may be subscription only. If more be wanted to explain the meaning of the word attest, the old form of attestation clause will show that it comprehended more than bare subscription of the will itself" In Doe v. Burdett (10 CI. & Finn. 340), Coleridge, J., defines attestation to be presence as a witness, and takinjT coo-nizance of the transaction : and Patteson, J., says, " the word attested, if it have any meaning at all, must import something more than merely being present and seeing what is done." and then make With respect to Subscription, it has been held, as we have an actual Mark jj^j already occasion to notice (p. 90), that the witness may with their own "ot acknowledge his signature ; and in Playne v. Scriven (1 Hands. Rob. 770; 13 Jur. 712), the question whether the statute was satisfied by the witness tracing over his name with a dry pen, was the point directly in issue. The deceased had duly signed her will in the presence of H. and G., who both subscribed it, but immediately afterwards, and before they left the room, she desired H. to strike out the name of G., as G. had a legacy in the will, and to fetch another witness. This was done ; and then the deceased, in the presence of H. and the new witness, acknowledged her name ; the new witness subscribed, and H. drew a dry pen over his own name. Sir H, J. Fust held that this amounted to a mere acknowledgment by K., and holding the second execution to be defective, decreed probate of the will upon the first execution. And where two persons, husband and wife, were asked to attest a will, and the husband wrote his name and also that of his wife, she being present, the attestation was held not to be in compliance with the statute. (In the goods of White, 2 Notes of Cases, 461, 1843 ; In the goods of Mead, 1 Notes of Cases, 456, 1847.) But where a will was subscribed by one witness, and he held and guided the hand of the second witness, who could neither read nor write, and this took place in the presence 7 Will. 4 & 1 Vict. Cap. 26, s. 9. 93 and at the request of the testator, the subscription was held sufficient. (Harrison v. Elwin, 3 Q. B. 117.) The commissioners were of opinion, that the law which ren- No Form of dered it unnecessary to state in the attestation, that the forms Attestation ne- required by the Statute of Frauds were complied with, should not be altered, and that a will should be sufficiently executed, if the name, or mark of the testator, and two other names, or marks, being those of the witnesses, appeared upon it, although there were no express attestation, or the attestation might be improperly expressed. However, the Prerogative Court always requires from the Practice of the subscribing witnesses, an affidavit setting out the circumstances Court of Pro- r. . , ^1 .^ ^ • 1 • • • bate where ot execution, where the attestation clause is wanting, or imper- ciauseof Attes- fect, and does not recite all the required formalities of execution. \^^^on is want- (In the goods of Cooper, 11 Jur. 1070). And here the court '"^ r e ec ive. will often have to deal with the instrument where the witnesses, 1. May be dead; 2. Absent; or, 3. Have forgotten the whole transaction ; or, 4. Be unwilling to give evidence ; or, 5. One witness may give his evidence in the affirmative, the other in the negative. The general principle applicable to these cases was considered in Burgoyne v. Showier (1 Rob. 5), where it was said that when the will upon the face of it appears to be duly executed, but the attestation clause is not in the strict form, the presumption is ovinia rite esse acta. That if the two subscribing witnesses are dead, or utterly forgetful of all the facts, the law will presume the will to be duly executed ; but if the witnesses profess to remember the transaction, and state that the will was not duly executed, and this negative evidence is not rebutted by proof of circumstances showing that the witnesses are not to be credited, or that from the facts and cii'cumstances, which they state, their recollection fails them, then the will must be pro- nounced against. Accordingly, in Pennant v. Kingscote (3 Curt. 647), where there were no circumstances on which the court could rely, and one of the attesting witnesses had a strong impression that the will was signed in his presence, but after he and his fellow witness had subscribed the will, and the other deposed that the deceased did not sign in his presence, probate was refused ; but in Gove v. Gawen (3 Curt. 157), the court relying upon the 94 The Wills Act. evidence of the drawer of the will, who was one of the subscrib- ing witnesses, held tiie will to have been duly executed, though the other witness deposed against its having been signed in their joint presence. And in Young t'. Richards (2 Curt. 371), where the subscribing witnesses differed, the court rescinded the con- clusion of the cause, for the purpose of examining other wit- nesses present at the execution. So In the goods of Attridge, (13 Jur. 88), the witnesses not remembering whether the will was signed when they subscribed, evidence was admitted to show that the deceased's name was written on the paper some time before it was produced to the witnesses. In Cooper v. Beckett (4 Moo. P. C. C. 419), ihe evidence rather inclined to show, that the testator signed after the witnesses, but the Lords of the Judicial Committee, looking to all the circumstances in the case, and having called before them, and examined a per- son accustomed to compare writings, who stated that, in his opinion the testator's signature was first w^-itten, pronounced for the will. In the goods of Johnson, (2 Curt. 341), the wit- nesses were in India ; and it was presumed by the court that the act had been complied with ; whilst In the goods of Mustow (4 N. C. 289), the will was considered valid, although the attest- ing witnesses refused to make any affidavit as to the circum- stances of execution. See Blake v. Knight (3 Curt. 547). In Doe V. Davies (9 Q. B. 648), the lessor of the plaintiff claimed under a will dated in 1828, and appearing to be attested by three witnesses : two of them were dead, and their handwriting was proved; the third witness, a marksman, could not be iden- tified. A witness of the same name was produced, who was supposed by the lessor of the plaintiff to have attested the will ; but he was in extreme old age, and had no memory on the subject. The will did not appear to have been disputed for sixteen years after the testator's death. The judge left these and other circumstances to the jury as presumptions that the will had been properly attested, and the jury accordingly so found. In delivering the judgment of the court, refusing the rule, Lord Denman said : " In this case a rule nisi to enter a nonsuit, or for a new trial, was moved for on the ground that there was no evidence to be left to the jury of a will being attested according to statute 29 Car. II. c. 3, s. 5. We are of 7 Will. 4 & 1 Vict. Cap. 26, s. 9. 95 opinion that the direction was right, and that the verdict should stand. It has been decided that direct evidence of all the requi- sites required by statute 29 Car. II. c. 3, s. 5, is not indispen- sable to prove the validity of a will, and that the attestation in the presence of the testator may be inferred from circumstances ; Croft V. Pawlet (2 Str. 1109) ; Hands v. James (2 Com. Rep. 531). And if the jury may infer the presence of the testator without direct evidence, we see no reason why they may not infer that an apparent signature was real, and not forged, also without direct evidence. If the law were otherwise, many wills might be defeated, if they should be undisputed until the direct witnesses of their validity should have been removed by time. On the other hand, it is not probable that the jury or the judge would dispense with the production of direct evidence unless the omission was satisfactorily explained." The present act does not disturb the general law as to a blind Execution of man's will. A blind man must, as far as his want of sight will ^^^J^ ^ ^''"'^ permit him, comply with the directions of the statute. He must therefore sign, or acknowledge his signature, or (if the will is signed for him by some other person in his presence and by his direction) the signature of his delegate, to the two wit- nesses present at the same time, and they must sign in his pre- sence ; and although if they are in the same room with him he cannot see them, yet as there is no exception in favour of a blind man's will, they must sign in such a position, that, if he enjoyed the organs of sight, he could see them. (In the goods of Piercy, 1 Rob. 278). But the will need not be read over to him in the presence of the witnesses ; it will be sufficient in such a case to prove, that instructions were given, and that the will executed was prepai-ed in accordance with those instructions. (Edwards v. Fincham, 4 Moo. P. C. C. 198 j 3 Curt. 63. See Longchamp v. Fish, 2 New Rep. 415). So many complaints have been made of the hardships inflicted upon legatees by this section, and the construction which its enactments have received in the courts, where they have been discussed, that it may be satisfactory to repeat here the reasons which influenced the commissioners in their recommendations, when they came to consider whether there were any wills which should be admitted without the proposed forms, as exceptions to the general rule. 96 Thk Wills Act. Reasons for re- " According to the laws of some countries, a will written to"be"executed^ entirely by the testator is received in evidence, without any according to other formality ; while a will merely signed by him requires Section 9. ^^^^^ further attestation. We must admit that the security afforded by the handwriting of the testator is very great; the danger of forgery is much diminished, because no one would attempt to imitate the handwriting of a whole will, where an imitation of the signature would be sufficient; and a guard is afforded against incapacity, because the manner in which the will is expressed, and the appearance of the writing, will show the competency or incompetency of the testator ; yet upon the whole we think the mischiefs of making this exception from the general rule would preponderate over the benefits. Any deviation from the uniformity of a rule increases the pro- bability of a mistake ; on the other hand the inconvenience of requiring the presence of two witnesses is very trifling, and it will be unnecessary to let them know that they are attesting a will. " We have thought it necessary also to consider whether there is any case in which a will should be allowed to take effect, because circumstances had rendered it impossible for a testator to execute it with the forms we have recommended. " We do not approve of the provisions of the Statute of Frauds respecting nuncupative wills. They have rendered it extremely difficult to make a valid nuncupative will of property exceeding the value of 30/., and very few have since been esta- blished. If it be proper in any case to allow a nuncupative will to be made in a practicable manner, the case ought not to de- pend on the value or nature of the property. There is no suf- ficient reason, why a will of personal estate not exceeding 30/. should be admitted, when a will of property of greater amount in the same form is excluded; or why the gift of a leasehold estate should be good, when the devise of a freehold estate is invalid. '* It appears to us, that the only cases, in which there is good reason for dispensing with the forms, generally required for the due execution of a will, are those, where a person, in his last sickness, 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 sufficient assistance to 7 Will. 4 & 1 Vict. Cap. 26, s. 9. 97 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 family of the testator; but in establishing any general rule, it is impossible to prevent all cases of indi- vidual hardship, 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 pre- tend to have been, near him at the time of his death. The temptation to crime, and the loss, and litigation, which m'ght be produced by allowing any such exception from the general rule, would probably be found to be greater evils, than the dis- appointment occasioned, in some cases, by the want of means to make a regular will." Perhaps it may not be uninteresting before passing on to the next section, to state shortly the laws which prevail in some of the continental states with respect to wills, that some idea may be formed how far our own law, when compared with that of other countries, is inconvenient, or liable to the charge of in- flicting any particular haidships in certain cases. Under the Code Civil, B. 3, T. 2, Ch. 5, s. 1, there are wills under the three kinds of wills : holograph, those made by public act, ^°^^ ^'^''* and those made, as the expression there is, " dans la forme mystique." The holograph will must be written throughout, dated, and signed by the testator, but no other formality is required. That made by public act must be, by act signed, before two notaries, in the presence of two witnesses, or before one notary, in the presence of four witnesses. In either case, the contents must be dictated by the testator, and written by a notary, and be all read over to the testator in the presence of the requisite number (two or four) of witnesses. It must be signed by the testator, or if he state that he cannot sign, there must be express mention made in the act of such his statement, and of the cause, which prevented his signing. The witnesses must also subscribe; but in country places it appears sufficient if one of the witnesses, two notaries being present, or two of the witnesses, one notary only being present, subscribe. When a testator wishes to make a will and keep its contents H 98 The Wills Act. secret, it must bo made in forme mystique; he must sign the disposition, whether he has written it himself, or caused it to be written by another The paper containing such disposition, or the envelope, if there be one, must be closed up and sealed, and the testator must present it thus closed, and sealed, to the notary, and to six witnesses at the least, or shall cause it to be closed up, and sealed, in their presence; and he shall declare that the contents of such paper are his will, written and signed by himself, or written by another, and signed by him : the notary shall thereupon draw up the act of subscription, which shall be written on the paper, or on the envelope; this act shall be signed as well by the testator, as by the notary, and the wit- nesses. All this must be done at once and without interrup- tion ; and in case the testator, by any impediment happening subsequently to the signature of the will, becomes unable to sign the act of subscription, mention must be made of his state- ment declaring that the paper contains his will, and it shall not be necessary, in such case, to add to the number of witnesses. If the testator was unable to sign the will when he caused it to be written, a seventh or additional witness must be called in to attest the act of subscription with the other witnesses, and mention shall be made in the act of the reason why such witness was called. Persons who are unable to read are not allowed to make a will in forme mystique. Where a testator cannot speak, but is able to write, he may make a will in such form, but it must be written throughout, dated and signed with his own hand, and he must tender it to the notary and to the witnesses, and at the head of the act of subscription, he shall write, in their presence, that the paper which he so tenders is his will; after which the notary writes the act of subscription, in which mention is to be made of the testator's having written these words in the presence of the notary and of the witnesses. The witnesses must be males, of full age, subjects of France, and in the enjoyment of civil rights. And where the will is made by pubic act, the witnesses must be persons, who take no benefit vmder the will, either directly to themselves, or to their relations, or connections, to the fourth degree inclusive. Nor can the clerks of the notaries employed be witnesses. 7 Will. 4 & 1 Vict. Cap. 26, s. 9. 99 With respect to Prussia, all the Rhine provinces, except a Under the small part of the government district of Coblentz and the dis- Prussian Law. trict of Greifsvvald, where the gemeines Recht, or common lavr, prevails, are under the regulations of the Code Civil with re- gard to wills. The rest of the Prussian states, including, it is believed, the conquests of Frederick, are governed by the Preussische Landrecht, the general rule of which is, that every testamentary disposition, whether verbal, in which case it is reduced into a "protocol" by the legal officer, or in writing, when it must be signed by the testator, and must be made before a public officer appointed for the district. But a testator may give his will sealed up to the officer, who then makes a " pro- tocol," which the testator subscribes, and the officer subscribes and seals the same with his official seal ; and every will must be kept in the custody of the officer of the district, an acknow- ledgment of its being so deposited being given to the testator. The public officer is bound to ascertain the identity, capacity and power of disposition of the testator. The will is not void in consequence of its being made before the wrong officer; but the officer so acting out of his jurisdic- tion is punishable. The revocation of a will is effected by withdrawing it from the public office, or on the proper execution of a new will. See Allgemeines Gesetzbuch fiir die Preussischen Staaten, and, for Austria, Eickhorn, Deutsches Privatrecht, and Mitter- maiei', Gi'undsatze des gemeinen Deutschen Privatrecht. There are four ways of making wills in Portugal, applicable Under the indifferently to real or personal estate: — Portuguese 1st. By a public instrument written by a notary public in his book of notes (i. e. a register), at the dictation of the tes- tator, before five witnesses, who must be males above fourteen, and signed by all. If the testator cannot wi-ite from infirmity, or otherwise, one of the witnesses signs for him. 2nd. The testator may write his own will, or get another to w^rite it for him ; and this being read over before five witnesses, the testator and all the witnesses must sign it. If he cannot write, he must have six witnesses, one of whom must sign for him, stating the fact. This particular instrument must be established by evidence. h2 100 Thk Wills Act. The witnesses are to he examined in the presence of the next of kin or heii-s (they are regarded alike), and agree as to the facts of execution, when the judge decrees that it is proved. If any of the witnesses have died, the survivors may prove. 3id. A testator may wiite his own will, or get another to do it, and have it certified hy a notary, who need not read it. The notary may write it as a private individual, and certify it as a public officer. This certificate must state, first, the date when and the place where it (the certificate) is made; secondly, whether the tes- tator is known to the notary, or the witnesses ; thirdly, it must contain a declaration that the testator delivered the paper to the notary before witnesses, asking him to certify it; fourthly, it must bear the signatures of the testator and of five witnesses, and of the notary and his public mark (or seal). If the testator cannot hold a pen, one of the witnesses must sign for him, stating the fact, or the notary may state it in the body of the certificate. If the testator is a marksman, a witness must also sign for him. The notary is to begin his certificate at the end of the will, if there is a blank space; if there is not, his signature and seal should be on some part of the will. The certificate being completed, the notary must attach it to the will, seal it up, and indorse it, and deliver it to the tes- tator. The notary should also enter the particulars of the certificate in his note book, and get the testator and witnesses to sign it. The notary (with the permission of the testator) may look to see if there are any interlineations or erasures. These are noticed in the certificate. Any declaration made by the testator in the certificate has the same force as if contained in a public instrument (first kind). A codicil may be ceitified in the same manner, but requires only four witnesses, male or female, besides the notary. All sign the certificate. 4th. A person dangerously ill may declare his will viva voce to six persons capable of taking an oath. If the person dies of that illness, the disposition must be re- 7 Will. 4 & 1 Vict. Cap. 26, s. 9. 101 duced to a public form (i. e. published), by the examination of the witnesses before the judge in the presence of the heirs. If he recovers, his disposition is void. A single witness may invalidate it. If the nuncupative disposition be a codicil, by which no heir is created, or disinherited, five, or sometimes three, witnesses will do. A will of the third kind may be made nuncupative by the testator at the point of death reading it, or having it read before six witnesses, and declaring it to be his last will. But a will of the third kind, invalid for want of some for- mality, is not good on account of the witnesses having heard the testator declare it to be his will. It must be read before them. The answers of a dying man to a person asking him ques- tions are not considered as a nuncupative will, although tliere may be present the requisite number of witnesses for such will. He must intend to declare his will. A codicil is defined to be a testamentary instrument dispos- ing of a single object, or directing some work to be performed. The testamentary power commences with males at fourteen, and females at twelve. Except where the male or female is living under the authority of the father, and then it commences at twenty-five. Married women may make wills as if they were sole. A gift to the medical or religious attendant of the sick person in the last illness is good. Of course it is liable to be set aside for fraud. Gifts of land in mortmain are void. Bequests of land and personalty are regarded alike, and so are descents. Husbands may bequeath to their wives, and vice versa. If a person has lineal ascendants or descendants, he cannot dispose of more than one-third of his property. X. And be it further enacted, that no appoint- Appointments ment made by will, in exercise of any power, shall executecUike^ be valid, unless the same be executed in manner other v\iiis,&c. hereinbefore required ; and every will executed in manner hereinbefore required shall, so far as re- 102 The Wills Act. Wills made in exerci.-e of a power. Formerly were not proved in the Spiritual Court. spects 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 executed with some additional or other form of execution or solemnity. It has been already observed, that, previous to the present act, the donor of the power might prescribe such ceremonies, in the execution of the power, as he thought proper, and that these ceremonies must be strictly complied with. The present section, founded upon the recommendation of the commis- sioners, has entirely changed the law in this respect ; and whatever may be the solemnities prescribed by the instrument conferring the power, a will, made in exercise of such power, will be valid, if executed in compliance with the requisites of the ninth section. Where the proj^erty is freehold, or any other than personal estate, the will does not require probate ; but where the property appointed by the will is personal, it was held in the early cases that the spiritual courts had no jurisdiction, the will being in the nature of an appointment, to be carried into execution in a court of equity, and the spiritual courts were therefore prohibited from pi'oving the will, (Brook v. Turner, 1 Mod. 211,) where it was said, "In this case the spiritual court has no jurisdiction at all. They have the probate of wills ; but a feme covert cannot make a will. If she disposeth of anything by her husband's con- sent, the property of what she so disposeth passeth from him to her legatee, and it is the gift of the husband. If the goods were given into another's hands in trust for the wife, still her will is but a declaration of the trust, and not a will properly so called; but of things in action that a feme covert has as executrix, she may make a will b}^ her husband's consent, and such a will, being properly a will in law, ought to be proved in the spiritual court" (per North, C. J.), and a prohibition was granted. And Taylor v. Rains (7 Mod. 148), Shardelow v. Naylor (1 Salk. 313; Holt, 102), where Holt, C. J:^ said, " this is not a will, neither ought the ordinary to prove it; if he does, a prohibition lies. Where a woman executrix marries, then she may make J 7 Will. 4 & 1 Vict. Cap. 26, s. 10. 103 a will, if her husband consents; otherwise she cannot. So if a woman, having debts due to her, marries, she may make a will quoad these, and the ordinary may prove it." Where the husband, antecedent to the marriage, covenanted with his in- tended wife, that she should have a power to dispose by will of her estate and effects ; subsequent to the marriage, the wife was made executrix to the last will and testament of A. ; the wife afterwards made her will of the goods and effects she had as executrix, and constituted B. executor thereof: upon a de- claration in prohibition and demurrer to the plea put into it, the question was whether the spiritual court had a power to grant a probate thereof, or whether it should not operate as an appointment, to be carried into execution by a court of equity ? And as to this point the court took this difference, where the Avill subsisted upon the agreement of the parties antecedent to the marriage, there the will is in the nature of an appointment, which is to be carried into execution by a court of equity; but where the wife is made executrix to another person, there the spii'itual court may grant a probate of her will ; for she may continue the executorship by constituting a person executor to the first testator, and she may by law make a disposition of choses in action, which she was possessed of as executrix, be- cause in auter droit ; and the spiritual court may prove such will. (Daniel v. Goodwin, Sugd. Pow. App. 589, No. 20.) Mr. Powel, in his edition of Swinburne, p. 155, says that the probate itself was not so exclusively of ecclesiastical cognizance, but that a trust might be considered as created by a will, exe- cuted under a power, and to which probate had been refused. However, it is now settled that probate is necessary, and the But now Pro- courts of equity will not read an appointment by will, until it is ^^'^ '^ neces- duly proved, as a proper will, in the spiritual court. (Stone V. Forsyth, Doug. 707 ; Cothay v. Sydenham, 2 Br. C. C. 391 ; and Stevens v. Bagwell, 15 Ves. 153) ; in which case Sir W. Grant said, " Though formerly it was held, that the will of a married woman, not only need not, but ought not, to be proved, and that the probate vvas of no authority; yet it is now settled that neither courts of law, nor courts of equity, will act upon such will, if it has not been first proved in the Ecclesiastical Court." The probate does not preclude the necessity of 104 The Wills Act. establishing the instriunent, as an appointment, upon any claim under it in a Court of Equity, for the Ecclesiastical Court can only decide that the act is testamentary, and has no jurisdic- tion to determine wliether an instrument is a good execution oi a power. (Watt v. Watt, 3 Ves. 246; Ex parte Tucker, 1 Mann, & Grang. 519.) But it is conclusive upon the ques- tion, whether the instrument is to be taken as a valid testa- mentary instrument. (Douglas v. Cooper, 3 Myl. & K. 378; 2 Sugd. Pow. 18.) The doctrine was thus stated by Lord Eldon in Rich v. Cockell (9 Ves. 376) :— " Where a feme covert had the power by will, according to the terms of the instrument requiring witnesses, to dispose of personal estate, it was necessary to prove, first, that the instrument was in the nature of a will; secondly, if so, that it was attested eo modo, in which the power required it to be attested. For the former purpose it has been hitherto deemed necessary, that this Court should be sa- tisfied by the judgment of the Ecclesiastical Court, that the Effect of Pro- instrument is in the nature of a will ; but this Court has never been contented with that judgment as to the circumstances of attestation ; for, after that pi'oof in the Ecclesiastical Court, this Court always requires the witnesses to be examined in order to prove that it is her act, and will not trust the Eccle- siastical Court with this conclusion, that, because it is her act, and in nature testamentary, therefore this Court is of necessity to hold it an appointment. Though in the terms of the power, as well as from the nature of the power, the attestation of wit- nesses is not necessary, still the question here is, whether it is her direction or appointment. Upon the point whether her signature is to be proved here, I think it ought; and I do not see the distinction, upon which, if in the case I. put, the attes- tation must be proved, the Court will not also require the fact of signature to be proved again, where the essence of the ap- pointment consists in that fact. But it does not rest there ; for if there are no witnesses, the rule of evidence requires it, if this objection is insisted on. I mention this, to intimate, that I do not acquiesce in the reasoning, upon which it is concluded to be unnecessary, that it should be proved as an appointment here." What then, it may be inquired, is the duty of the Courts of bate I 7 Will. 4 & 1 Vict. Cap. 26, s. 10. 105 Probate in respect to the wills made bv married women in Practice of the „ ..,, " £--r • / TA Woman s Will : subsequent death of her husband m her lifetime. (Doe v. Staple, 2 T. R. 695 ; Cotter v. Layer, 2 P. Wms. 624.) The will of a man was revoked by his subsequent marriage, of Man's Will and the birth of a child. This rule, which could not be recon- l>y ^Jarnage and •11-11 • • 1 n -r-< ^ 11 '"^ Birth of a ciled with the provisions of the Statute of Frauds, was well child, established. It was first introduced by the spiritual courts, and is not considered to have been settled with respect to devises of lands until the year 1771. In Christopher v. Christopher, 144 l''^'^ Will? Act. it is said to be founded on a presumption, that a testator could not intend his will should take effect after such a change had occurred in his circumstances, and has been described by a judge, Lord Kenyon, in Doe v. Lancashire, (5 T. R. 49), who extended the rule to the case of a posthumous child, as a tacit condition annexed to the will at the time of making it, that if such events happened, it should have no operation. Evidence of In- It was a very doubtful question, whether parol evidence of tention in sup- intention was admissible to support the will in such cases, with \Viii, respect to freehold estates, although it was admitted in the Courts of Probate with respect to pei-sonal property. Lord Mansfield gave a decided opinion that it must be received. (Brady v. Cubitt, Dougl. 31.) Lord Alvanley appears to have thought that the evidence must be admitted, though he disap- proved of it. (Gibbons v. Caunt, 4 Ves. 848.) Lord Ellen- borough declared that he left the question untouched, but it may be collected from his judgment, that the inclination of his opinion was in favour of the admission of the evidence. (Kenc- he\v. Scrafton, 2 East, 54L) On the other side are the opi- nions of Lord C. J. Eyre and Buller (Goodtitle v. Otway, 2 IT. Black. 522) : Lord Kenyon (Doe v. Lancashire, 5 T. R. 61) ; and Lord Rosslyn (5 Ves. 663.) and ifcircum. Evidence of circumstances, showing the revocation to be un- stances admit- necessary, was admitted, and made the foundation of several i^Ro'e whicii^" exceptions to the rule. Thus it was held that the will was not made the Ue\o- revoked where both the wife and children were provided for by oftheRuleof ^^^^ ^^''^ (Kenebel v. Scrafton, 2 East, 541); where either Law. the wife or the children were piovided for by the will (Brown V. Thompson, 1 Eq. Ca. Abr, 413 ; but see Lord C. J. Tindal's remarks upon this case in Marston v. Roe, 8 Ad. & E. 61); where the wife or children were provided for by a settlement (Ex parte Ilchester, 7 Ves. 348); where the will did not in- clude all the property, and leave thetn unprovided for (Brady V. Cubitt, Dougl. 31); or where there were children by a former marriage, one of whom was the heir, the will was not revoked as to the real estate (Sheath v. York, 1 V. & B. 390) ; for the only effect of revoking such will would be to let in the heir, to the exclusion of the after-born children, and upon no rational principle can the testator be supposed to have intended to revoke his will on account of the birth of other 7 Will. 4 & 1 Vict. Cap. 26, s. 18. 145 children, those children not deriving any benefit whatever from the revocation. But this question was finally settled in Marston v. Roe, (8 Ad. & E. 14), in the Exchequer Chamber, where the judges unanimously concurred in the opinion, that the revocation of the will took place in consequence of a rule or principle of law, independently altogether of any question of intention of the party himself, and consequently that no evidence of intention was admissible. There appears to be no provision in the Statute of Frauds Revocation of w^hich is applicable to the revocation of devises of estates pur L>evises of Es- autre vie. Sect. 5, which prescribed the mode of devising free- vie. hold estates in fee-simple, was followed by sect. 6, which regu- lated the revocation of devises. A subsequent clause, sect. 12, created the power of devising estates pur autre vie, and there was no further provision respecting revocation, except with re- spect to personal estate. It was doubted whether the revocation of wills as to estates pii7' autre vie was within the 6th section, and if the doubt were well founded, a will with respect to such estates might have been revoked by parol, in the same manner as wills with respect to other property might be revoked before the statute. But wills as to estates pur autre vie were revocable, in the same manner as other wills, by a subsequent inconsistent will or codicil, or by implication or presumption; and where the estates were limited to heirs as special occupants, the rules re- specting revocation were most similar to those relating to the revocation of devises of freehold estates in fee simple; and where the estates were not limited to the heirs, they were most similar to those relating to the revocation of wills with respect to personal property. Wills relating to copyholds and customary estates were not of Wills re- within the Statute of Frauds (Doe v. Harris, 8 A. & E. 1), lat'ng to Copy- and might be revoked by mere parol declarations. In other tomaiy Estates, respects the revocation of such wills was governed by the same rules, as the revocation of devises of estates in fee simple, except that a revocation was not implied from an alteration of the estate in some cases, where the ultimate reversion was taken back by the testator. (Thrustout v. Cunningham, 2 W. Black. 1046; Vawser v. Jeffery, 3 B. & Aid. 462.) 146 The Wills Act. Of testamentary A testamentary appointment of a guardian might also be re- of'^Guardians? voked by parol (Ex parte Ilchester, 7 Yes. 348), and by subse- quent inconsistent appointment, or by implication. Of Appoint- The revocation of appointments by will was governed by meoti by Will, the same rules as the revocation of other wills, with respect to the same description of property. And it has been decided, in conformity with the rules relating to other wills, that an ap- pointment by will was not revoked by a subsequent inconsistent appointment, which was ineffectual for want of due execution. (Eilbeck v. Wood, 1 Russ. 564; Matthews v. Venables, 2 Bing. 136.) Revocation of a The Statute of Frauds, 22nd section, enacted, "that no will Will of Per- jj^ writing concerning any ooods or chattels or personal estate sonal'v under ° o ^ s r ^ the Statute of shall be repealed, nor shall any clause, devise or bequest therem Frauds. jjg altered or changed, by any words or will by word of mouth only, except the same be in the lifetime of the testator com- mitted to writing, and after the writing thereof read unto the testator, and allowed by him and proved so to be done by three witnesses at the least." This put an end to mere parol revoca- tions of wills with respect to personal property, which could only be revoked by writing, or by a subsequent inconsistent will or codicil, or by implication from burning, cancelling, tearing or obliterating. In Walcott v. Ochterlony (1 Curt. 589), Sir H. J. Fust held that a present intention to revoke, written down at the time, approved of by the deceased, and by his direction communicated to the person in whose custody the will happened to be, was a good revocation under this section of the Statute of Frauds. The report is silent as to the proof by three witnesses. By Ademption; -^ ^'^^ of personal estate was necessarily rendered inoperative as to a specific bequest, where the testator afterwards parted with the property given, this took place by ademption of the legacy ; but the will was not revoked by a mere alteration, or intended alteration of the estate, where the testator obtained again the same property, of a Woman, by The will of a woman as to personalty was revoked by her Man"1fy !N]lr.^ marriage, and the will of a man with lespect to the same kind riageandthe of property by marriage and the birth of a child, although there were children of a prior marriage. (Holloway v. Clarke, 1 Phillim. 341.) But if the second wife and her issue were iJirthofaChild. 7 Will. 4 & 1 Vict. Cap. 26, s. 18. 147 provided for by settlement, the will was not revoked. (Tal- bot V. Talbot, 1 Hagg. 705.) So if the second wife and her issue liad property settled upon them under her father's will, and the husband knew of such will, his will in favour of children of a prior marriage was not revoked. (Johnson v. Wells, 2 Hagg. 561.) And the will of a man was not revoked by marriage alone, or by the birth of a child alone, although where there was a marriage, and a child was born, and died in the testator's life- time, it was determined in the Courts of Probate that his will was revoked. (Emerson v. Boville, 1 Phillira. 342.) This variety of rules relating to the revocation of wills, with respect to different kinds of property and purposes, was attended with inconveniences similar to those which arose from the rules requiring different modes of execution. It frequently happened that a will was revoked as to personal and copyhold property, while the revocation did not extend to estates in fee-simple, as in Doe v. Harris (8 Ad. & E. 1) ; and thereby the will became partially void, and the general arrangement intended by the testator was frustrated. (Sheddon v. Goodrich, 8 Ves. 501) (a). The reasons which the commissioners gave for proposing that the rules relating to wills, »with respect to different de- scriptions of property, should be rendered uniform in other respects, induced them to recommend that all wills should be revocable in the same manner. They proposed that no will should be expressly revoked otherwise than by another inconsistent will or codicil, or some other writing executed and attested in the same manner as should be required for the validity of a will. With respect to implied revocations, they proposed that a will might be revoked by burning, cancelling, tearing or obli- terating it, with the intention of revoking, by the testator, or in his presence and by his direction. They also recommended that the law which made the marriage of a woman a revocation of her will should be continued ; but, in the case of a man's marriage, they were of opinion, that the (a) The account above given of the law with respect to revocation, and the remarks upon the state of the law, are in great measure taken from the Fourth Report of the Real Property Commissioners. l2 148 The Wills Act. rule that marriage, and the birth of children, operated as a revocation, was inconvenient, and ought to be abolished. Thus there were four modes proposed in which a will could be revoked : — 1st. By another inconsistent will, or writing, executed in the same manner as the original will. 2ndly. By cancellation, or any other act of the same nature. 3rdly. By the disposition of the property by the testator in his lifetime. 4thly. In the case of a woman by marriage. Of these propositions the legislature adopted the first, in its full extent ; but the second was materially modified, since can- cellation is not specified as a mode of revocation of the will by the act of Victoria, and the decisions have determined that it is not an act coming within the meaning of burning, tearing, or otherwise destroying. The third proposition is, perhaps, rather to be classed as an act of ademption, than a mode of revocation And the fourth was extended to the case of a man's marriage. Revocation of a To return to the enactment in the 18th section. The principle, riaae. ^ ^ ^^' upo" which it has been said that the will of a woman was re- voked by her marriage, is, tli^t since it is in the nature of such an instrument to be ambulatory during the testator's lifetime, and marriage disables the woman from making any other will, the instrument thereby ceases to be any longer ambulatory, and must therefore be void as a will. (Forse and Hembling's case, 4 Rep. 61 b.) This reason does not apply to the case of a man's will ; yet cases of great liaidship might have been suggested, and indeed occurred, under the old law, as the consequence of the rule that a man's will remained unrevoked by his subsequent marriage. In Doe v. Barford (4 M. & S. 10), a case is men- tioned by Loi'd Eilenborough, where a sailor made his will in favour of a woman with whom he cohabited, went to the West Indies, and married a woman of considerable substance, and died, it was held that the will took every shilling of the property away from the widow. The enactment in the present section, which provides for the change in a man's position effected by marriage, and protects the wife from being injured by a disposition he may have made years before he contemplated the marriage, and which he may nage. * 7 Will. 4 & 1 Vict. Cap. 26, s. 18. 149 have forgotten, cannot but work beneficially ; nor is any hard- ship imposed upon the man, since he may the moment after his marriage re-execute any former will, or execute an entirely new will. The words of the section are so clear and express that no difBculty can occur with respect to any will made since the 1st January, 1838, for all such wills, though made in anticipation of, and expressly providing for the marriage, will be revoked by the marriage. But where the will was made previous to 1838, and the mar- Unless the Will riage took place subsequent to the 1st of January in that year, is prior to 1838. the will was held, on motion, not to be revoked, (In the goods of Shirley, 2 Curt. 657) ; where a distinction was taken as to the effect of a subsequent marriage upon a will dated before 1838, and the effect of alterations made in, or other act done to such will. Upon this point it has been remarked, that if the language When it is liable employed in the present and 34th sections were exactly and ^^^ ground°of°° strictly construed, it would seem to follow, that if a will were an Alteration of made before the 1st of January, 1838, and the testator were Circumstances. to marry after that date, the statute would not apply, and the will would not be revoked thereby ; while on the other hand such a will might be revoked by a presumption of an inten- tion, on the ground of an alteration in circumstances taking place at any time during the life of the testator, though after the 1st of January, 1838. (Duppa v. Mayo, 1 Saund. 279 b, n. e.) The principle laid down in Marston v. Roe (8 Ad. & E. 14) that a tacit condition is annexed to a will, that at the time of making that will it shall not have any effect, provided the deceased many and have a child of the marriage, was held applicable to similar cases in the Court of Probate ; (Israel v. Rodon, 2 Moo. P. C. C. 51 ; Walker v. Walker, 2 Curt. 854; Matson v. Magraih, 1 Rob. 680 ; 13 Jurist, 350) ; but the point cannot be raised under the present act. The exception preserves the will where its revocation would Extent and not be immediately beneficial to the new relations acquired by B,easonof the the marriage; " The only effect of annulling the will in a case within the exception would be, not to vest the property in the new family of the testator, but to carry it over to the person 150 The Wills Act. entitled in default of appointment. But it is not necessary that the property in default of appointment must go to the new family, if there be any, but only that it may; for if a man (and it is the same as to a woman) have a general power of appoint- ment, with a limitation, in default of appointment, to himself in fee, and having a son by his first marriage, make his will, and then marry again, his will will be revoked ', and yet if he die intestate, ths estate will descend to the son by the first marriage, in exclusion of the issue of the second. Whei-e, in default of appointment, the estate is limited to a particular class, as pur- chasers, for example, to all or any of the children of a first marriage, the second marriage will not revoke the will, because, although in default of appointment, the heir may take, yet it will not be in the character or with the quality of heir. The 19th section of the act provides, that no will shall be revoked by any presumption of an intention, on the ground of an altera- tion in circumstances. As marriage is held to be a revocation, the exclusion of other circumstances was quite pi'oper. Cases may occur of wills under powers, where the limitations, in de- fault of appointment, are such that the estate would not go to the heir, and therefore the marriage will not revoke the will under the affirmative enactment ; but if the negative clause had not been introduced, the subsequent birth of a child might, under a change of circumstances, have revoked the will under the old law." (1 Sugd. Pow. 190.) There were two cases in the Prerogative Court in 1846 (Bartholomew v. Dunboyne, and In the Goods of Starling), in which the effect of the exception in this section seemed likely to become a question, but they were both determined upon other grounds, and no case seems to have since occurred. NoWiitobe XIX. And be it further enacted, that no will Presumption, shall be revoked by any presumption of an inten- tion on the ground of an alteration in circumstances. The only events which were considered in other courts to cause such a change of circumstances, as to effect a revocation of the will, were marriage, and the birth of a child, but the Courts of Probate seem to have gone further ; since there it has been held, that a will made by a married man, having certain 7 Will. 4 & 1 Vict. Cap. 26, s. 20. 151 children, was revoked, by the subsequent birth of other chil- dren left unprovided for, aided by other circumstances, concur- ring clearly to show that it was not the intention of the de- ceased, that the will should operate. (Johnston v. Johnston, 1 Phillim. 447). The judgment reviewed the authorities, which were supposed to have held marriage to be a necessary condi- tion, and the conclusion arrived at was, that the Courts did not go beyond requiring such an alteration of circumstances, arising from new moral duties accruing subsequent to the date of the will, as by necessary implication created an intention to revoke. Hence that the birth of children, after making a will by a mar- ried man, may have imposed as strong a moral duty upon him, forming the ground-work of presumed intention, and may be accompanied by circumstances furnishing as indisputable proof of real intention, as if the will had been made previous to the marriage, and. consequently that subsequent marriage was not an essential requisite. The nineteenth section has expressly provided against such a decision for the future, and whatever changes may take place in the testator's family subsequent to the will, no revocation can thereby be effected. XX. And be it further enacted, that no will or in what Cases codicil, or any part thereof, shall be revoked other- revoked. wise 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 direction, with the intention of revoking the same. The difference between sections 5 and 6 of the Statute of Frauds was noticed p. 137, the difficulties and inconveniences, which were sometimes the consequence of that difference (Pow. Dev. 590), are removed by the present section, which requires 152 The Wills Act. Revocation by subsequent Co- dicil or Will containing no revokin" Clause. the same form of execution for a writing merely intended to revoke a will, as for the will itself. This clause of the section has also put an end to the practice of the Court of Probate, which allowed a will of personalty to be revoked by a subsequent unfinished will, which the testator was prevented, by the act of God, from completing. Thus in Carstairs u. Pottle (2 Phillim.35),Sir J. Nicholl stated the rule, "that where there is a regular will, and another paper began as a new will, which the testator has been prevented, by the act of God, from completing, the two papers may be taken toge- ther as the will of the deceased, and operation pro tanto be given to the latter paper, provided the proof of final intention be clear, but it will not wholly revoke the former paper." (Masterman v. Maberly, 2 Hagg. 235 ; Gillow v. Bourne, 4 Hagg. 192 ; Brine v. Ferrier, 7 Sim. 549 ; Blewitt v. Blewitt, 4 Hagg. 410). See ante, p. 8, as to distinction between " un- finished" and " unexecuted" papers. Where the new will contains a revoking clause, a difficulty can scarcely arise, and it is better expressly to revoke all former wills, than to leave them open to the inquiry, whether they are wholly superseded by the new one. It is safer to in- corporate the revocation in the introductory woi'ds of the will, than to leave it to be effected by a separate clause, which the draughtsman may foi'get to insert. (Jarm. Conv. vol. ix. 429, n.(&)). But where the subsequent will contains no express revoking clause, the question of revocation under the present law, as it was under the old law, will in every case be one of intention, of which evidence must be sought in the contents of the several instruments, subject to certain general principles of construc- tion. Thus where a devise in a will is clear and unambiguous, a revocation of it by codicil must be expressed in terms equally clear and unambiguous. If the devise in the will is clear, it is incumbent on those who contend it is not to take effect, by reason of a revocation in the codicil, to show that the intention to revoke is equally clear and free from doubt, as the original intention to devise; for if there is only a reasonable doubt, whether the clause of revocation was intended to include the particular devise, then such devise ought to stand. (Doe v. Hicks, 1 Moo. & So. 759 ; 1 CI. & Fin. 20). And a codicil 7 Will. 4 & 1 Vict. Cap. 26, s. 20. 153 disposing of a subject devised by the will, will be held to dis- turb the devise in the will, only so far as is necessary to give effect to the disposition in the codicil. (Duffield v. DufEeld, 3 Bligh. 344 ; Cookson v. Hancock, 2 My. & C. 606 ; Sand- ford V. Sandford, 11 Jur. 322 ; 1 De G. & S. 67.) Where, however an intention to make a new disposition can be col- lected from the codicil giving a residue, it will operate against a disposition of the residue by the will, although the gift in the codicil is of the residue not thereinbefore, or by the will, dis- posed of. (Hardwick v. Douglas, 7 CI. & Fin. 795.) But with respect to several subsisting wills, as distinguished from codicils, the character of last will belongs exclusively, as a general rule, to such one as was executed last. (Goodright V. Glazier, 4 Burr. 2512 ; Harwood v. Goodright, Cowp. 92.) But even in this case the Courts will, if possible, adopt such a construction as will give effect to both, sacrificing the earlier so far only as it is clearly irreconcilable with the latter paper. (Weld V. Acton, 2 Eq. Ca. Abr. 777, pi. 26.) And where, from the absence of every kind of evidence, it is impossible to ascertain the relative chronological position of two conflicting wills, both are necessarily held to be void ; but this vinsatisfac- tory expedient is never resorted to, until all attempts to educe, from the several papers, a scheme of disposition consistent with both have been tried in vain. (Phipps v. Earl of Anglesey, 7 Br. P. C. 443; Jarm. Wills, ch. vii.) To a considerable extent these principles are applicable to the cases which come before the Courts of Probate. In the goods of Lewis (14 Jur. 514), the testator left a will in the Court of and several codicils; upon the death of one of his sons, he had Probate, executed a codicil, in which he used the words, "Whereas I have by a former will and codicil given to my late son 80/. per annum, payable from the rents of my houses ; also the sum of 1000/., and the sumof 50/. ; I do hereby revoke such codicil, in consequence of the death of my late son, H. L.,and give to my son, F. L., the said sum of 50/.," and the former codicil con- tained other bequests than those to H. L., it was held, that it was revoked only so far as those bequests to H. L. were con- cerned. And the Courts of Probate will always incline to grant pro- bate of the several papers, if possible, that the effect of them 154 The Wills Act. may come before tlie Courts of Construction; for the mere fact of making a subsequent will is not held to work a total revo- cation of a prior one, unless the two be incapable of standing together; as where a testator left two wills, by the first he di- vided his property between his wife and another person, and appointed executors : by the second he gave everything, except a small legacy, to his wife, and appointed no executoi', and it was held that the latter paper was executed as a will, and not as a codicil, and being a perfect instrument, and disposing of all the property, it was, although without express revocation of the former will, or the appointment of executors, ex necessitate a revocation of the former will. (Henfrey v. Henfrey, 2 Curt. 468 ; 4 Moo. P. C. C. 33 ; Duppa v. Mayo, 1 Saund. 277 d, notes.) And although a partial intestacy may follow from the revocation of a prior will, yet if the testator appoints executors, and calls the subsequent paper, on the face of it, his last will, the court will hold the prior will revoked. (Plenty v. West and Budd, 9 Jur. 458 ; 1 Rob. 264.) The appoint- The appointment of executors, in a subsequent will, as effect- mentofExe- jj^„ ^ complete disposition, is a revocation of a prior will in cutors in a sub- . . ' ' sequent Will is which different executors were named. a Revocation of rphis case (Plenty v. Budd) came before Lord Langdale, and a prior Will. ,1-/- •• fi^ was sent by him, for the opmion of the Court of Common Pleas (6 C. B. 201), where it was argued at great length. The testamentary papers left by the deceased were a will of 1837, two papers dated in 1838, and a will in 1839, but this will of 1839 related entirely to real estate, and was not before the Court of Probate, which pronounced the papers of 1838 to be alone entitled to probate. The Court of Common Pleas, having to deal with these instruments, was of opinion, that the instrument executed in the year 1839 was the only instrument which had any validity, as far as the legal rights of the parties were concerned. These two decisions are consistent, for the will of 1839 began with the words, " This is the last will and tes- tament of me, relating to all my freehold and copyhold lands tenements, hereditaments, and all my real estate whatsoever," and ended with the words, " I appoint W. executor of this my will, so far as the same is necessary to the performance of the parts relating to my real estate." So that the disposition of the personal property made by the will of 1838 was untouched. 7 Will. 4 & 1 Vict. Cap. 26, s. 20. 155 The intention may be presumed, as we have seen, from the Revocation by contents of a subsequent will or codicil, but a writing, as dis- a ^V.r>''ng tje- tinguished from a will, or codicil, in order to effect a revo- tention to cation, must declare the intention to revoke. It is not likely Revoke, that a paper for this purpose will be executed, except in cases where the will to be revoked is out of the possession of the testator, but such an instrument must, it would seem, be proved. The corresponding words of the Statute of Frauds, sect. 6, were, "burning, cancelling, tearing or obliterating by the tes- tator himself, or in his presence, and by his direction and con- sent." The principle of revocation contained in these terms is thus Revocation by expanded and explained in Bibb v. Thomas (2 W. Black. 1044). Burning, &c. A revocation under the statute may be effected either by fram- ing a new will amounting to a revocation of the first, or by some act done to the instrument itself, viz., burning, tearing, cancelling or obliteration by the testator, or in his presence, and by his direction and consent. But these must be done animo revocandi, Onions v. Tyrer (1 P. Wms. 343) ; Hide v. Hide (1 Eq. Cas. Abr. 409), each must accompany the other; revocation is an act of the mind, which must be demonstrated by some outward and visible sign or symbol of revocation. The statute has specified four of these, and if these or any of them are performed in the slightest manner, this, joined with the declared intent, will be a good revocation. It is not neces- sary that the will or instrument itself be totally destroyed or consumed, burnt, or torn to pieces. The present case (the testator had called for his will, slightly torn and thrown it on the fire; but it fell off, and was put into her pocket, and pre- served by the woman who attended him ; he afterwards said he had destroyed it, believing such to be the case,) falls within two of the specific acts described by the statute. It is both a " burning and a tearing." Throwing it on the fire with an intent to burn, though it is only very slightly singed and falls off, is sufficient within the statute. But something must be done which can be considered a burning or tearing, such injury with intent to revoke as destroys the entirety of the will, so that it may be said that the instrument no longer exists as it was; and where the testator, intending to destroy his will, threw it on 156 The Wills Act. the fire, and another person snatched it off, a corner of the envelope only being burnt, and such person afterwards pre- tended to have burnt the will, and was believed by the testator to have done so, it was held that the will was not revoked. (Doe V. Harris, 6 Ad. & E. 209.) In Doe v. Perkes, (3 B. & Aid. 489), the testator had in anger torn the will twice through, when his arms were arrested by a bye-stander, and his anger mitigated by the submission of the person who had provoked him; he then proceeded no further, and after having fitted the pieces together and found that no material word had been obliterated, he said, "it is well it is no worse ;" the case was distinguished from that of a complete cancellation, and the court refused to disturb the verdict which found that there was a change of intention before the completion of the act. These cases, which were decided under the Statute of Frauds, have been considered applicable to the construction of the pre- sent statute, (Hobbs v. Knight, 1 Curt. 768) ; and In the goods of Colberg (2 Curt. 832), which was in some respects similar Or otherwise to Doe V. Perkes ; but the words " cancelling" and " oblitei'at- estroymg. ing," which occur in the former statute, are omitted in the act of Victoria, and the words " otherwise destroying " are substituted. It is therefore necessary to inquire what construc- tion these words have received, and whether cancellimg and obliterating are still modes of revocation. In Hobbs v. Knight (1 Curt. 768), the testator had cut out his signature, the will was dated before 1838, but it was held in the circumstances of the case to come within the act of Victoria, the question was whether this was a destruction ; and it was held that the signature being an essentia] part of the will, under section 9, the excision of that was a destruction, and consequently a revocation of the will. In the course of his judgment Sir H. J. Fust also intimated his opinion, that although oblitera- tion was omitted from the 20th section, yet comparing that with the 21st section, which gives effect in certain cases to obliteration, if the testator obliterated his name, so that it could not be made out, such obliteration would work a revocation of the whole will, as would also the obliteration of the names of the subscribing witnesses. But a partial obliteration of the will and signature, by strik- ing it through with a pen, and crossing out the name of the 7 Will. 4 & 1 Vict. c. 26, s. 20. 157 testator, is no revocation, since the word cancelling is omitted in the statute, and the words "otherwise destroying," point to acts ejusdem generis with burning and tearing. (Stephens v. Taprell, 2 Curt. 458 ; Bigge v. Bigge, 9 Jur. 192.) The principles to be drawn from these several decisions, ap- plicable to wills as well of personalty, asof I'ealty, appear to be these: 1st. There must be the intention to revoke ; 2ndly. Such an act done to the instrument as shall amount to burning, tear- ing, or otherwise destroying : and, Srdly. The intention and the act must be complete; if the intention only be complete, still, in accordance with Doe v. Harris, the i-evocation will not be effected ; if the act be merely inchoate, and the intention changes before the completion of the act, then Doe v. Perkes is an authority for holding that the will, though torn, is not re- voked ; whilst if in this last case the act of tearing had effected a complete destruction before the intention changed, the will so destroyed could not have been set up again, per Abbott C. J. in Doe v. Perkes, ubi sup. p. 491. Whei'e a will is executed in duplicate, and the testator keeps Effect of the one part himself, and deposits the other with some other person, p^*^''"" ^^^■^^n and destroys the part in his own custody, the modern authorities where one part have ruled that it is to be presumed he intended to revoke both '* wholly or m • part unre- (Colvin V. Fraser, 2 Hagg. 266) ; and this would seem to be yoked. applicable to the present law. Having noticed tliis presump- tion, where the testator had one part in his possession. Lord Erskine, in Pemberton v. Pemberton (13 Ves. 310,) was of opinion that if the testator himself has possession of both, the presumption holds, though weaker; and farther, that even if having both in his possession, he alters one, and then destroys that which he had altered, there is also the presumption, but still weaker. Pemberton v. Pemberton was relied on in Roberts V. Round (3 Hagg. 548), where the deceased kept both parts; one she had altered, and upon the other had written the word *■' mine ;'' Sir J. NichoU said, " what upon the face of the in- strument are the sound legal construction and presumptions? Suppose that the mutilated instrument alone had been found, and that no duplicate had ever existed: this mutilation of the first sheet, leaving the signature untouched, would not be a total revocation ; it would be a revocation of those paiticular devises only, (Larkins r. Larkins, 3 B. & P. 16) ; but there 158 The Wills Act. being two in the deceased's possession, the presumption of law would be, that, by the preservation of one duplicate entire, she did not intend a revocation of these particular devises, other- wise she would have mutilated both duplicates. The construc- tion then to be put upon this act of mutilation is, that at most it was a preparation for a projected alteration, to which she had not finally made up her mind, or which she had abandoned, and therefore she preserved entire the duplicate, which she had always retained in her possession, and on which she had written the word " mine." The unaltered part was accordingly admitted to probate. But under the present law it would seem impossible to con- tend successfully that the mere destruction of an altered part of a will, originally executed in duplicate, could have any effect at all upon the subsisting unaltered part; for the alterations, if not executed under section 21, can have no effect, and if so executed, the will thus altered becomes a new will ; and if in this new character it has revoked the unaltered part, its own destruction will not have the effect of reviving by section 22 the part which its execution has already annulled. The Revocation The principle being, that questions of revocation are all, to of'a caoable ^ some extent, questions of intention, (Smith v. Cunningham, 1 rerson, Add. 448), whether the point be raised on the construction of some subsequent instrument, which does not comprise a revok- ing clause, or upon some act of the testator in reference to the instrument itself, it follows that the act of revocation must be the act of a capable person, and must not be done under any mistake, either in respect to the paper itself, or to the circum- stances upon which the act of revocation may be founded. Hence, if the testator, in a fit of insanity, destroy his will, the will is not thereby revoked ; (Scruby v. Fordham, 1 Add. 74 ; Borlase v. Borlase, 4 Notes of Cases, 188) ; or if the revocation be brought about by force, fraud, or undue influence, so that the free agency of the testator is interfered with ; and the same principles, which in this respect apply to the incep- tion and execution of a testamentary paper, will in like manner apply to its annulling, when once completed, and notdoneby Again, if the testator, intending to put sand upon his will, mistake. should pour ink over it, so as totally to obliterate it, (Burton- shaw V. Gilbert, Cowp. 52) j or meaning to destroy some other 7 Will. 4 & 1 Vict. Cap. 26, s. 20. 159 paper, should destroy his will, (In the goods of Thornton, 2 Curt. 913) the will is unrevoked. And where the will was in the first instance duly executed, but the name of one of the subscribed witnesses, a legatee under the will, was immediately afterwards struck out, to preserve her legacy, and a second, but imperfect execution, then took place, the will was held good upon the first execution, there being no intention to revoke. (Playne v. Scriven, 1 Rob. 772; 13 Jur. 712.) The present act does not interfere with cases of dependent relative revocations, where a false impression of a fact is the foundation of the change of intention shown in a later will or codicil, and the operation of the latter is contingent upon the existence or non-existence of the fact. (Onions v. Tyrer, 1 P. Wms.345; Winsor v. Pratt, 5 Moore, 484; Doe v. Evans, 10 A. & E. 228 ; are still authorities under this head, post, p. 166.) Where a testator desires another person to destioy his will. Burning, &c. in such destruction, if not effected in the presence of the testator, , , ^!?°^^'. ' \ ' and by the Di- wiil not amount to a revocation (Ritherdon v. Stockwell, rection of tiie 12 Jur. 779), where the testator had attempted to delegate a Testator. power to destroy his will after his death. This point was directly adverted to by Shadvvell, V. C, to the effect that the de- struction of a testamentary paper, not in the testator's presence, was not a destruction of its probative quality, however it might be a destruction de facto. (Rook v. Langdon, 1844, MS. note.) A similar case to Wallcott v. Ochterlony (1 Curt. 589), cannot therefore occur under the present law; hence there will be some danger in leaving a will in the custody of another, since although such will might be easily revoked by a writing duly executed under the present section, yet in the absence of such writing, difficulty may arise in disposing of the still subsisting instrument, and this though the testator may have left written instructions for the purpose of its being destroyed. The fact of these directions must necessarily be matter of Wills lost, &c., evidence, and of course where a will has been destroyed with- "5 ^?^J^' ', , , * voked, how out the directions of the deceased, or been lost, or destroyed proved or esta- after his death, the will is not revoked. (Martin v. Laking, •^"*'>«'^- 1 Hagg. 245; Foster v. Foster, 1 Add. 465.) Where this is the case, probate will be decreed of a draft, or copy of the will, limited, if necessary, till such time as the original can be pro- duced. And lost wills of real estate may be established by IGO The Wills Act. means of a copy. (Ellis v. Medlicott, 4 Beav. 144, where see the three precediiifif cases and the following case.) But where a will is traced into the hands of the testator, and not found after his death, the presumption is that he destroyed it himself animo revocandi. (Lillie v. Lillie, 3 Hagg. 184; Wargent-y. HoUings, 4 Hagg. 245; Welch v. Phillips, 1 Moo. P. C. C. 299.) Generally the Whether the revocation of a will revokes a codicil is a ques- Reyocation of a tion involvino; considerable difficulty ; the general principle is, Will revokes Uie ° . ' o i i / Codicils to that that the will and the codicils, however numerous, constitute but ^^ '"• one instrument, and therefore the will being revoked, the codicils will fall with that on which they depend. (See Coffin v. Dillon 4 Hagg. 361.) Ill Wade V. Nazer (1 Rob 627 ; 12 Jur. 188), the testator had executed a will in 1843, revoking all former wills ; after- wards he executed a codicil, confirming his will, except as altered by the codicil. In 1846, fearing the will was not well executed, he re-executed it, but did not in any way refer to the codicil. The re-execution was held to apply to the codicil as part of the will. But there are cases in which the codicil ap- pears to be quite an independent instrument, unconnected with the will, and in such cases, though the will may have been pronounced against, the codicil has been upheld. (Tagart v. Hooper, 1 Curt. 289.) The Court of Probate will look to the intentions of the deceased, as to what instruments shall operate as and compose the will. (Greenhough v. Martin, 2 Add. 239 ; Exceptions to Hale V. Tokelove, 14 Jur. 817.) The facts in this last case the general were very complicated. The earliest testamentary paper was a will made in 1842, destroyed animo revocandi before 1846, but of which a draft remained. The next was a codicil executed in 1844, which referred to the will of 1842, not by date, but by inference, from its contents, and made a new disposition of the property, in effect completely revocatory of that will. In June, 1845, the testatrix made a second will, at which time, and sub- sequently, she declared that she had destroyed the will of 1842. But in February, 1845, a codicil had been prepared for the testatrix, which, under the advice of her solicitor, who knew nothing of the will of June in that year, she executed in January, 1846. This codicil referred to no will by date, was described as a codicil to the last will, and did refer to the 7 Will. 4& 1 Vict. Cap. 26, s. 21. 161 contents of the will of 1842, and contained the words "I con- firm my said will, except so far as the same is altered by this codicil." In March, 1846, she executed a further codicil, also described as a codicil to her last will, but containing no words from which it could be implied that the will of 1845 was re- vived, or the will of 1842 revoked. The will of 1845, and the codicils of 1846 were propounded. Dr. Lushington was of opinion that he could only construe the codicil of January, 1846, to revive and confirm the will of 1842, because to that will alone the words of the codicils referi'ed : but as that will had been destroyed animo revocandi, he thought the codicil could not, in effect, revive it. It did not follow, because the codicil was inoperative to revive the earlier, that it applied to a later will ; nor did it follow, because the later will was in existence, when the codicil was made, and the codicil was in- operative to revive the earlier will, but did not specifically re- voke the later will, that it remained unrevoked. He therefore held the codicils of 1846 alone entitled to probate. The draft of the will of 1842 was not propounded; but Dr. Lushington expressed a strong opinion against its being entitled to probate. The result of these cases seems to be, that the revocation of a will does not necessarily effect the revocation of a codicil to that will, and that a codicil may be entitled to probate apart from the will to which it refers, although by reference to such will, the codicil may have the effect of revoking a later will, whilst the reference to the earlier will shall not necessarily operate as a revival of such will. XXI. And be it further enacted, that no obhter- ^o Alteration . in a Will shall ation, interhneation, or other alteration made in have any effect uhIbss oxGCutcd any will after the execution thereof shall be valid as a win. 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 alter- ation as part thereof, shall be deemed to be duly executed, if the signature of the testator and the M 162 The Wills Act. Alterations in the Will before the present Act. Pencil Altera- tions- subscription of the witnesses be made in the margin, or on 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. The preceding section provided for the revocation of the whole instrument, the present is confined to a partial revoca- tion, or other alteration. Previous to the act of Victoria, the effect of an erasure or obliteration, as an act of revocation only, was the same in respect to realty and personalty, and the devise, or bequest, was revoked pro tanto (Larkins v. Larkins, 3 B. & P. 16, 109; Roberts v. Round, 3 Hagg. 552) ; but where the effect of such obliteration, or other alteration, was to make a new gift, there was an important distinction between realty and personalty, where the alteration was not properly executed. For in respect to property coming within the Statute of Frauds, as the new devise was not executed according to the provisions of that statute, it failed; but in regard to other property, the alteration was effectual for all purposes, since no form of execution was in that case necessary, and any writing, amounting to evidence of a new gift, was sufficient. The effect of the present clause is to put an interlineation, or other alteration, as to a bequest of personalty, on the same footing on which an interlineation as to realty stood before the act. A pencil erasure was an equivocal act, the effect of which must be judged of from the collateral facts and the nature of the alteration. It might be final, or it might be deliberative; but piima facie it was deliberative. (Parkin v. Bainbridge, 3. Phillim. 321 ; Lavender v. Adams, 1 Add. 406; Edwards v. Astley, 1 Hagg. 490; Hawkes v. Hawkes, 1 Hagg. 321; Ravenscroft v. Hunter, 2 Hagg. 65.) In Mence v. Mence (18 Ves. 348), there was a residuary clause, and a pencil line drawn through the residuary clause so far as it related to the disposition of the property, but the words descriptive of the property were left standing; and in the 7WiLL. 4&1VICT. Cap. 26, S.21. 163 margin opposite the residuary clause, the testator had written also in pencil, " This is to be particularly noted," giving as the reason, that he meant to make a different disposition of some portraits and other specific articles; and near the words in the residuary clause giving the power to apply part of the legacies for the advancement of the legatees, he had written in pencil, " This should be modified." Sir W. Grant, having the erasure and the notes before him, came to the conclusion that the testator intended to revoke the residuary bequest, and that the cancella- tion was as effectual as an express revocation. But that deci- sion was founded upon the circumstances of the case, and is not to be understood as intended to lay down any abstract rule. (Francis v. Grover, 5 Hare, 48.) The present act, by imposing certain formalities, will prevent Effect of Sec- questions of this kind from being discussed for the future, and "°°* the effect of an erasure as a revocation, and of an interlineation, will in all Sases depend not upon the material with which, or the manner in which, the erasure or interlineation is made, nor even upon the intention of the testator, but upon his compliance with the 21st section. A very material question arises with regard to the time when. Alterations pre- in the absence of direct evidence of the fact, the unexecuted al- ^een made after teration shall be presumed to have been made. In the case of Execution, deeds, interlineations are presumed to have been made before execution ; for every deed expresses the mind of the parties at tlie time of its execution, and to presume it to have been altered afterwards, would be to presume a fraudulent or criminal act. But it is not so in the case of a will; that instrument is sup- posed to indicate the mind of the testator at the time of his death, and may well be altered from time to time, as the in- tentions of the testator may change; the reason of the thing seems consequently to lead to the presumption that the alter- ations were made after execution (Doe v. Catamore, 15 Jur. 728). In the earlier cases, however, when the act had been but a short time in operation, some uncertainty existed in this respect; but the principle is now settled, since it has been held by the Judicial Committee of the Privy Council (K. Bruce, V. C, dissenting), that the inference of law is, that the alter- ations are made after the execution of the will, and conse- m2 164 The Wills Act. qucntly are invalid (Coopei- v. Bockctt, 4 Moo. P. C. C. 419; 10 Jiir. 931). In giving judgment in that case Lord Reasons for this Brougham observes, " If, indeed, we for a moment consider Presumpuon, ^^j^^ consequences of holding a contrary doctrine, we must at once be convinced how fatal this would be to the authority of documents, how entirely subversive of the rights of the parlies, and how completely abrogatory of the statute. A party might change the sums of all the legacies left in a will ; he might change the parties legatees; he might change the parcels and the devisees in a will of lands; and all this might be effected without the least knowledge on the part of the testator, who, having given one gift to one person, might be made to give another to the same, or the same to another person. Even if a testator himself made the alteration after the execution and attestation, it would be a bequest or devise not witnessed ; and it is obvious to remark that he might be of sound and dispos- ing mind at the one period, when the factum took place, and wholly incompetent when he made the alteration. The whole protection thrown round parties by the statute would thus be taken away." (See also Burgoyne v. Showier, 1 Rob. 13.) This decision was said to be founded on the strictest prin- ciple, and in sound sense, by Lord Cranworth, in Simmons t. Rudall (15 Jur. 163), and was much discussed, and fully assented to, in Doe v. Palmer (15 Jur. 836). Considering that the family of the testator, into whose hands the will usually falls after his death, are frequently his resi- duary legatees, and no fraud could be practised more easily, or with les? probability of detection, than that of striking out with a pen some of the specific legacies or devises, it certainly appears to be most convenient and safe to hold that, where a will is found with unattested obliterations, it should be consi- dered to be wholly unaltered, except that if any words could not be read, nor made out in evidence, in consequence of the obliterations, the will should take effect as if such words did not form part of it. But this presumption may of course be strengthened, or re- butted, by direct evidence ; by circumstances raising a contrary presumption, as by the context in the will itself; and by decla- rations made by the testator himself. 7 Will 4 & 1 Vict. Cap. 26, s. 21. 165 By direct evidence, where the subscribed or other witnesses which may be depose to the fact of the aheration having been made before ^e'byj^e'rby'* °^ execution, or otherwise, and this is a matter of every-day oc- direct Evidence, currence: bv circumstances raising a contrary presumption, as ^7 Circum- ' » ° . . slances, by the context, nature of the alteration, character of the writing, Declarations and so forth (In the goods of Norton, 13 Jur. 1108); and of the Testator ^ ^ IP 1 1 I r> made before lastly, by declarations of the testator himself, when made before Execution. the execution of the will. How far evidence of this kind was admissible to rebut the presumption was much considered in Doe V. Palmer (15 Jur. 836). The evidence there relied upon consisted of declarations by the testator, frequently made befoi-e, and nearly down to the time, when the will was executed, that he intended to make provision by his will for A. B., coupled with the fact, that, without the alteration, the will, which dis- posed of the whole of his property, made no provision for A. B. The will and the alteration were in the testator's handwriting. This evidence was held to be admissible, and was, in the judg- ment delivered by Campbell, L. C. J., compared with written or verbal instructions from the testator to his solicitor to pre- pare the will in its altered form, and with the production of the draft of the will, corresponding with the will in its altered form, in which case, the instructions, and the draft, would be evidence, that the alteration was made before execution. But declarations made by the testator, after the execution of the will, to the effect that the alteration was made previously, would be inad- missible. The section, however, enacts, that no obliteration, &c., made where the obli- after execution shall be valid, or have any effect, except so far terated Words as the words or effect of the will, before such alteration, shall not Evidence ad- be apparent; upon this, it has been decided, that, although the mitted to show words be so perfectly obliterated that they cannot be made out ^^^^ by inspection of the paper itself, evidence dehors the instrument may in some cases be given to show what they were, and the doctrine of dependent lelative revocations has been applied to this part of the section. Thus, in Brooke v. Kent (3 Moo. P. C. C. 334), the testator erased with a knife the word "two" and wrote the word "one" in its place, and the word " four" was also erased and " two" written instead. At the end of his will he wrote this memorandum: — "The erasure in the twenty- if other Words third line of the sixth sheet, the word ' two' taken out and the ^^^ substituted. 166 The Wills Act. word 'one' put in its place; and in the first line of the seventh sheet, the word ' four' taken out and the word 'two' put in its place; and the fifth line of the seventh sheet, the word * four' taken out and the word 'two' put in its place; By me, Wm. Brooke, June 26, 1838." The words in the will for which the words " one" and " two" respectively were substituted, were too completely effaced to be legible. Dr. Lushington, who delivered the judgment, after referring to the words of the 20th and 21st sections, said, " The first point for consideration as to this (21st) section is, whether * in- tention' must not accompany the acts mentioned in it, in the same way as intention must accompany the acts mentioned in the 20th section : unless this construction be given to the 21st section, as must necessarily be given to the 20th, some very absurd consequences would follow. Burning or tearing a will without intention would not revoke the instrument or any part, but obliteration without intention might render ineffectual the most important part of it : the legislature never could intend that intention should be indispensable to give effect to burning or tearing, and not to obliteration with ink, or something similar. '•' In all those cases under the Statute of Frauds, and this act, intention is indispensable ; under the former statute, to burn, or to tear, or to obliterate a part of a will, was altogether a nullity, if such act was done sine animo revocandi, and only for the purpose of making immediately some new disposition or altera- tion ; and if, from want of compliance with the statutory regu- lations, such new disposition or alteration could not take effect, then the burning, tearing or obliterating in no degree revoked the will, but it remained in full force, as if nothing had been done to it. Similar principles must be applied to cases arising under the present statute." Following this decision, the Prerogative Court, in the case of erasures, where one word is substituted for another, admits evi- dence dehors the instrument, to show what the original was (Soar V. Dolman, 3 Curt. 121 ; In the goods of Rushout, 13 Jur. 458). 7 Will. 4 & 1 Vict. Cap. 26, s. 21. 167 But where there is no substitution, and merely an erasure or But not where obliteration, it seems that a different principle will apply; for in J^? Erasur°or such a case the act itself is an evidence of an intention to revoke, Obliteration, and the revocation will be complete if the words be not apparent "[i['\° "h wards' on the face of the will itself. In Townley v. Watson (3 Curt. 767), the allegation pleaded the draft of the will, and the evi- dence of the solicitor, who had prepared both the draft and the will, was tendered in proof of the original words, which were so erased or obliterated that they could not be made out by per- sons accustomed to decypher, or by artificial means, from the paper itself, and the allegation was rejected ; but the Court observed, that, if it could be pleaded in the allegation that the words obliterated were capable of being distinguished on the face of the will, it would refer the allegation to proof, and then pronounce its judgment according to the testimony which might be offered at the hearing. In several cases the evidence of engravers has been admitted, for the purpose of making out the obliterated words, and for other similar purposes (Cooper v. Bockett, 4 Moo. P. C. C. 419). In Lushington v. Onslow (12 Jurist, 465), the words were made out and pleaded in the allegation, and the act of obliteration was, in argument, com- pared to cancellation, which was not a mode of revoking under the statute. Three modes are pointed out by which validity may be given Alterations ren- to the alteration, though made after execution, either by re- ^^'^^ ^^''^ ^y ' H.G*GX6CUtlOn ■ execution with the formalities required by the 9th section, or by Sit^nature of bv placine: the signature of the testator and subscription of the Jestator, and \ ^ ^. , ^ . , /^ 1 -11 • Subscription of Witnesses m the margui or other part of the will opposite to or Witnesses near near the alteration, in which case the alteration is sufiiciently Alteration, or at identified without express words of reference; or at the foot or ofMemorand um end of a memorandum referring to the alteration, and written on the Will re- , r-.i Ml ferring to Alter- on some part of the will. ^^^^^ ^ It has been sometimes suggested that the joint presence of the subscribing witnesses was not required by either of the latter modes of giving effect to an alteration; possibly the strict sense of the words may to a certain extent warrant the sug- gestion; but the reference to the ninth section immediately preceding, and the use of the definite article " the" in the ex- pression " subscription of the witnesses," point to a joint pre- sence as at least the safer course ; the signature of the testator 168 The Wills Act. may, it should seem, be acknowledged as well as made in the presence of the witnesses under this section, either in the margin or at the conclusion of the memorandum. In the goods of Wingrove (15 Jur. 91) a question of prac- tice arose under this section, as to the necessity of an affidavit from the witnesses, whose subscription was in the margin, verify- ing the time and other circumstances in reference to the altera- tion ; Sir H. J. Fust was of opinion, that no such affidavit was necessary, where the terms of the statute were strictly complied with. It may be doubted whether the same principle will apply to the case, in which the will having been signed by the name of the testator, his initials merely, and those of the witnesses, are made in the margin ; but it would seem that no affidavit ought to be required, if the attestation clause contains a memo- randum referring to the alterations, or if a separate memorandum referring to the alterations be written on some part of the will, and the signature of the testator, and subscription of the wit- nesses, be made at the foot or end of, or opposite to, such me- morandum, in accordance with the directions of the statute. (In the goods of Martin, 1 Rob. 712.) Where a will had interlineations, and a codicil executed after the interlineations were made, contained the words " It is my wish that the interlineations in my will may stand as part thereof," probate was decreed of the will, with the interlinea- tions. (In the goods of Mills, 11 Jur. 1070.) Alterations in When the alterations, or obliterations, appear in a will made Wills made before 1838, the question is, whether they were made before that before 1838. date; for if made subsequently, they would fall within the act, and be of no effect unless executed in compliance with the present section ; and in the absence of evidence that the altera- tions or obliterations were made either before or since that date, the Court will draw its conclusions from the particular circum- stances of the case. In Pechell v. Jenkinson (2 Curt. 273), probate of an unattested codicil without date was granted, there being nothing to show that it was signed after 1838, the will to which the codicil referred was dated in 1830, and the testatrix died in January, 1839. In a will of realty, dated prior to 18-38, which bore upon the face of it certain obliterations which were favourable to the heir-at-law, and the heir-at-law did not ask for an issue, K. 7 Will. 4 & 1 Vict. Cap. 26, s. 22. 169 Bruce, V. C, decreed against the obliterations, the evidence leading to the conclusion that they were not made before the execution of the will (Wynn v. Heveringham, 1 Coll. 630). In Utterson v. Utterson (3 Ves. & B. 122), the testator made an express codicil for the purjDOse of excluding his son, and interlined his will to the same effect. The interlineation he left standing, the codicil was cancelled by drawing a pen across it. Sir W. Grant, M. R., thought, independently of the evidence of reconciliation, that the act of obliteration spoke clearly a change of intention as to the exclusion, and consequently that the interlineation was cancelled by the obliteration of the codicil. Upon this case Mr. Jarman (1 Wills, 127, n. (A)) has re- marked, that testators should be dissuaded from making or altering their wills (as they are often disposed to do) under the influence of any temporary excitement, occasioned by the ill-conduct of a legatee; and, still more, from recording their resentment in their wills. This caution is the more neces- sary now, since the present section has made the alteration of a will, by striking out any part, which may have been origin- ally there, a matter requiring a great degree of care. In some cases application has been made to the Court to strike out of the will passages reflecting on the conduct of persons, but the utmost length to which the Court has gone, is, to exclude the offensive passages from the probate, and from the copy kept in the Registry. (Curtis v. Curtis, 3 Add. 33 j In the goods of Wartnaby, 1 Rob. 423.) XXII. And be it further enacted, that no will or How revoked • Will shall be codicil, or any part thereof, which shall be m any revived. manner revoked, shall be revived otherwise than by the re-execution thereof, or by a codicil executed in manner hereinbefore required, and showing an in- tention to revive the same; and when any will or codicil which shall be partly revoked, and after- wards wholly revoked, shall be revived, such re- vival shall not extend to so much thereof as shall have been revoked before the revocation of the 170 The Wills Act. whole thereof, unless an intention to the contrary shall be shown. The state of the law, and the authorities bearing upon the question of republication, previous to the year 1838, are dis- cussed very fully in the notes to Duppa and Mayo (1 Saund, 275 d; Jarm. on Wills, ch. 8 ; and Wms. Exors. pt. 1, bk. 2. ch. 4). Under the Statute of Wills, such an allowance of the will as amounted to republication, might be made by parol, though the will itself must have been in writing (Jackson v. Hurlock, Arab. 494) ; but the animus republicandi was neces- sary (Abney v. Miller, 2 Atk. 599). And this was the case with respect to wills of personalty before the act of Victoria : for where a woman made her will before marriage, and sur- vived her husband, the will was held to be republished, the deceased having, on one occasion, called for the paper, and pointing to it said, " This is my will, the will I shall abide by;" and on other occasions also, after the death of her husband, declared that she had made a will, and intended the same to operate, and that her affairs were to be settled according Express Repub- *° ^^^ directions contained in such will, which she identified lication before with the will propounded, by naming the executor therein ap- pointed, and the place where she had made the will (Long V. Aldred, 3 Add. 48; Braham v. Burchell, 3 Add. 243; Miller v. Brown, 2 Hagg. 209\ This, however, applied only to those cases where there was no revocation, and all that was required was to show adherence ; for where a testator left a will of 1819, and also a will of 1823, which contained a clause of revocation, and in his last illness produced and read before several persons the will of 1819, and declared that it was his last will, and what he wished to be carried into effect ; and after his death, the will of 1819 was found carefully deposited and locked up, and that of 1823 also at the bottom of the same drawer, soiled and crumpled, but not cancelled, amongst old and useless papers. This was considered not to be like the case of a later cancelled will, because there the very act of cancellation was a revocation, and laid a foundation for the inference, that the testator intended the former will to operate; but in the case referred to, there was a latter revocatory will entire, and in force, as a revocation of the former, though the devises and bequests might have lapsed. If it had been merely a will of realty, it the Act. 7 Will. 4 & 1 Vict. Cap. 26, s. 22. 171 clearly could not have been contended that there had been a republication of the former will, because the words of the 6th section of the Statute of Frauds are express. It was clear, also, under sect. 22 of that statute, that the latter will could not have been revoked by mere declarations, unaccompanied by some writing; but there was no declaration reduced into writing during deceased's lifetime. The will of 1823 was accordingly pronounced for. (Daniel v. Nockolds, 3 Hagg. 777). But under the Statute of Frauds, to republish a devise of lands, the paper in which such devise was contained must have been re-executed in the presence of three witnesses; and where the will itself was so republished, the case was not very doubtful; but the difficulty which arose, was in respect to a constructive republication by codicil. Upon this subject. Sir W. Grant, M.R., in Pigott v. Waller Constructive (7 Ves. 117), observes, after referring to Lytton v. Lady Falk- ^Republication, land, " A similar question arose three years afterwards, in the eleventh year of Queen Anne, in Lord Lansdown's case, which contained a strong circumstance of constructive republication, the codicil containing several references to the will ; but it was held by Lord Parker, and the whole Court of King's Bench, that since the statute, there can be no republication by implica- tions, but the will must be re-executed. In Hutton v. Simp- son, the same doctrine is recognized. Then came Acherley v. Vernon (3 Br. P. C. 107), in which the doctrine of constructive republication was introduced, for the first time, since the sta- tute. A direct republication or re-execution is an unequivocal act, making the will operate precisely as if it was executed upon the day of the republication. But a reference to the will proves only, that the devisor recognizes the existence of the will, which the act of making a codicil necessarily implies, not that he means to give it any new operation, or to do more by speaking of it, than he had already done by executing it. Why his speaking of it should make the will speak, as it is said, is not very easily discernible as a question of intention. It has not ceased to exist; therefore, if he speaks of it at all, he must speak of it as existing upon the last day as well as the first. But can that show that he means it to exist in any other form, or with any other effect, than he originally gave it?" Notwith- standing these expressions, Sir W. Grant, pressed by the con- 172 The Wills Act. venience of adhering to settled rules, and in deference to former decisions, held the codicil a republication in the case before him; and the rule, that the codicil, if not neutralized by internal evidence of a contrary intention, republished a will, to which it referred, was w^ell established. With respect to wills of personal estate, the question of re- publication was not, generally speaking, very material, for the residuary bequest embraced all the property of which the de- ceased died possessed; but in regard to wills of freehold estate, the rule, that the will operated upon such lands only as the devisor had at the time of the execution, gave a great import- ance to republication, whether express or constructive ; for since the effect of republication was to make the will speak and operate from the time of its being so republished, lands inter- mediately acquired were thus brought within the will. But the effect of a codicil to extend the devise to interme- diately acquired lands, might be negatived by the contents of the codicil itself (Bowes v. Bowes, 2 Bos. & P. 500; Hughes V. Turner, 3 Myl. & K. 666; Ashley w. Waugh, 4 Jur. 572; Monypenny v. Bristow, 2 Russ. & M. 117; Smith v. Dearmer, 3 Y. & J. 278. See section 24). The word " republish" does not occur in this section, nor elsewhere in the act, except in section 34, but *' revive" is used instead ; the distinction between the terras may not be very wide, but perhaps it is more accurate to speak of reviving, rather than republishing a revoked will (Skinner v. Ogle, 9 Revival, ex- Jur. 432). However that may be, as under the old law re- press or con- publication might be express or constructive, so under the structive, since • i , • /. , -n the Act. present act, revival may be express by re-execution of the will itself, or constructive, by a duly executed codicil, showing an intention to revive the same. Re-execution is an unequivocal act, and will depend upon precisely the same principles which govern the original execution, that is, the capacity of the testator, and compliance with the formalities required by the 9th section. It has been doubted (Lush on Wills, 45, 2nd ed.), whether the testator must not sign the will again, on the ground that an acknowledgment of the former signature, before fresh witnesses, would not be strictly a re-execution ; but since the 9th section recognizes an acknowledgment of the testator's signature, pre- viously made, as one of the modes of execution, the word re- 7 Will. 4 & 1 Vict. c. 26, s. 22. 173 execution in the present section would probably be held to be satisfied by an acknowledgment of the original signature, if made for the purpose of re-executing the will, in the presence of subscribing witnesses ; and there does not seem to be any reason why a more confined sense should be put upon the word " re-execute," in the present section, than is put upon the word " execute," in the 9th section. The cases in which the provisions of the present section have, for the most part, been the subject of discussion, are those in which a testator has left several wills, and then executed a codicil, referring to one or other of them, and the question has been, which of these wills was revived by the codicil. Upon this point it has been held, that the law is not altered, and these cases come within the principle, and are subject to the same rules of construction and of evidence, as those acted upon in Lord Walpole v. Lord Orford (3 Ves. 402), that a codicil, by expressly referring to, and recognizing a prior will, as the actual subsisting will, revokes a posterior will, and revives the prior will, and that express reference cannot be controlled by parol evidence. In the goods of Chapman (1 Rob. 1), Payne?;. Trappes (11 Jur. 854; 1 Rob. 583) ; but if the reference be not so express, and a latent ambiguity exist, evidence will be admis- sible to show which will the testator has described. Thus in Thompson v. Hempenstall (13 Jur. 814), where many of the authorities are cited, the testator, by his last will, " revoked all former wills, codicils, and testamentary dispositions, except a will bearing date the 13th December, 1831, which will relates exclusively to the reversion in fee of the Tong Castle Estate." One of his former wills bore date the 13th December, 1831, but did not relate exclusively to the reversion of the Tong Castle estate. Another former will bore date the 22nd May, 1839, and did relate exclusively to that reversion in fee : Dr. Lushington held, that the reference, taken with the whole con- text of the three wills, and with the evidence of the state of the testator's family, clearly designated the will of the 22nd of May, 1839; and that the will of the 13th December, 1831, was not entitled to probate. In another case the testator had, in 1833, made a will, the principal dispositions of which were to reserve a sum of 2000Z. to each of his three then unmarried daughters, the deceased hav- 174 The Wills Act. ing, on the marriage of each of liis other three daughters, given to each of thein a similar sum, and then to divide the residue of his property among five of his said daughters, the sixth having been otherwise provided for. In December, 1835, one of the unmarried daughters intermarried with P. M., when the tes- tator settled upon her the sum of 2000Z. ; and, on the 25th January, 1836, made a codicil to his said will, whereby he revoked the legacy of 2000/. thereby given to this daughter; and on the 14th July, 18.37, he executed a new will, placing her on the same footing as her other married sisters, in respect to her interest in the bulk of his property, and leaving his re- maining two unmarried daughters provided for as in the former will of 1833, which was not forthcoming, and which there was reason to believe was destroyed when the will of 1837 was exe- cuted. His last will was placed at his bankers', and there remained till after his death. Upon the death of his wife, in 1843, he gave his solictor instructions to prepare a codicil to his will, then stated by him to be at his bankers' ; but the codicil of January, 1836, was given to the solicitor in the pre- sence, and by the desire of the deceased, as containing the date of the said will; and accordingly, in this last codicil, which was executed on the 28th October, 1843, it was stated to be a further codicil to a will bearing date the 29th April, 183-3, instead of a codicil to the will bearing date the 14th July, 1837. The fact, that no will of the date referred to could be found, while there was a subsisting will of a different date, was con- sidered a sufficient grouud for admitting evidence of the tes- tator's intention, upon which, the will of 1837, and codicil of 184.3, were admitted to probate. (Quincey v. Quincey, 11 Jur. 111.) The latter clause of the section seems intended to provide for such a case as Crosbie v. M'Douall (4 Ves. 610). In which case the testator left a will and several codicils, the fourth codicil inter alia recited and revoked part of the will, the fifth and last codicil was made merely for the purpose of changing an exe- cutor, but concluded with the words, " I do hereby confirm my said will in all other respects." The question was, whether the fourth codicil, so far as it was inconsistent with the will, was I'evoked in consequence of the reference by the fifth to the will, and Sir R. P. Arden, M. R., observing, that if a man ratifies 7 Will. 4 & 1 Vict. Cap. 26, s. 22. 175 and confirms his last will, he ratifies and confirms it with every codicil that has been added to it, held that the revoked part of the will was not revived by the fifth codicil, the effect of the fourth codicil remaining. This section, by expressly enacting that where a will has a revoked W.ll been revoked, it can be revived only by re-execution or by B°' revived by . , , , . Destiucfion, codicil, has finally settled the question, whether the destruction &c., of revoking of a later will, which itself revoked a former will, revived such Will. former will. Swinburne and other text writers considered that a will once valid, but revoked by a subsequent will, revived on the destruction or cancellation of the revoking instrument, and it was held, that such destruction or cancellation ipso facto revived the former \vill. (Goodright v. Glazier, 4 Burr. 2512; Harwood v. Goodright, 1 Cowp. 91.) Subsequent decisions, however, modified this doctrine, and it was determined that the legal presumption was neither adverse to, nor in favour of the revival of a former uncancelled will ; (Moore v. Moore, 1 Philim. 375; Usticke v. Bawden, 2 Add. 116); and that such presumption might depend prima facie on the nature and contents of the wills themselves, exclusive of circumstances dehors the wills. If the latter will contained a disposition quite of a different character, the law might presume such a complete departure from the former intention, that the mere cancellation of the latter instrument might not lead to a re- vival of the former, but intestacy might be inferred. If, how- ever, the two wills were of the same character, with a mere trifling alteration, it might be presumed, because it was the rational probability, that when the testator destroyed the latter, he departed only from the alteration, and reverted to the former disposition, which remained uncancelled (Kirkcudbright v. Kirkcudbright, 1 Hagg. 325), or the case might turn upon parol evidence, or be determined generally from the circum- stances of each individual case. (James v. Cohen, 3 Curt. 770 ; Welch v. Phillips, 1 Moo. P. C. C. 299.) Under the present section, all presumption either in favour of, or against a revival, is done away with, and the courts have no discretion to exercise. (Major v. Williams, 3 Curt. 432.) Cases may be suggested in which it will perhaps be neces- sary to consider the 20th and 22nd sections together, where, for instance, a man makes his will, and then a codicil revoking 176 The Wills Act. a particular bequest in the will ; after which he makes a fur- ther codicil meiely affecting some other disposition in the will, and in all other respects ratifying and confirming his will. By section 20 the first codicil clearly revoked the bequest in the will, but can it be maintained that the second codicil has the effect of revoking, under section 20, the first codicil, or shows, under section 22, an intention to revive the revoked bequest in the will ? The cases already referred to, Crosbie v. M'Douall, Smith V. Cunningham, and Greenhough v. Martin, occurring indeed before the present act, tend to show that the first codicil would not, in such a state of facts, be revoked, notwithstand- ing the apparent inconsistency of submitting the will and both codicils to probate. Reference to There is a class of cases, which may perhaps be noticed and Incorpora- jj^ connexion with the revival of a revoked will, inasmuch as tion or other . . . Papers. the validity of the papers concerned is made to depend upon the execution of a subsequent instrument, and the reference to them which may be made in such subsequent instrument. As where the testator left a duly executed will and two codicils, respectively dated before 1838, subsequent to which date he wrote other codicils, which were signed by him, but not at- tested, on the same sheet of paper as the will and two former codicils ; he then duly executed a further codicil, in which were the words, " By this codicil to my will I bequeath, &c., independently of all other bequests in my said will;" this last codicil was found apart from the other papers ; it was held that the word " will " was applicable to the will and first two codicils only, and could not be extended to the unexecuted papers, and probate of the will and three codicils was thereupon granted. (Haynes v. Hill, 13 Jur. 1058 ; Utterton v. Robins, 2 Nev. & jNI. 819; Doe v. Evans, 1 Cr. & M. 42; Gordon v. Reay, 5 Sim. 274.) As to the incorporation of unexecuted testamentary papers, and other instruments, see Smart v. Prnjean (6 Ves. 561), In the goods of Lady Durham (-3 Curt. 57), Ferraris v. Lord Hert- ford (lb. 493, S.'C. on appeal, 4 Moo. P. C. C. 366). In these cases there is an important practical distinction between the right and the necessity of including the instruments referred to in the probate. The right of the paper to be incorpo- rated in no degree depends upon the validity or invalidity of such 7 Will. 4 & 1 Vict. Cap. 26, s. 23. 177 paper per se, but upon the clearness and sufficiency of the woi-ds of incorporation. On the other hand, the necessity of taking probate will depend upon the \*lalidity or invalidity of the instrument to be incorporated. For instance, if a man by will simply ratifies a deed valid per se, there is no necessity for taking probate of that deed, yet the title to probate remains ; but if the will ratifies an instrument inoperative or invalid per se, then the title and the necessity co-exist. Again, if the will referring to a valid deed directs that the property dealt with in the will shall be settled on similar trusts, and there be litigation, then the deed must form part of the probate, since a court of law will not give effect to such will, unless the instrument re- ferred to be included in the probate (Sheldon v. Sheldon, 1 Rob. 81). XXIII. And be it further enacted, that no con- when a Devise veyance or other act made or done subsequently to dered inopera- 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. Before the present statute, the estate devised must have re- mained in the same condition until the testator's death, for any the least alteration, or new modelling, of the estate, after the date of the will, was an actual revocation. (Arthurs. Bokenham, 11 Mod. 157 ; Sparrow v. Hardcastle, 3 Atk. 798 ; and see Hodges V. Green, 4 Russ. 28 ; Rawlins v. Burgis, 2 Ves. & B. 382; Ward v. Moore, 4 Madd. 368 ; Brain v. Brain, 6 Madd. 221 ; Bullin v. Fletcher, 2 My. & C. 432.) With respect to specific legacies, the only rule to be adhered to, was to see whether the subject of the specific bequest re- mained in specie at the time of the testator's death ; for if it did not, then there was an end of the bequest. (Humphries v. Humphries, 2 Cox, 185). But now a devise, or bequest of a specific subject of property will pass whatever interest in that subject may be disposable by the testator at his death. N 178 The Wills Act. Upon this section, Sir E. Sugden says (1 Vend. & P. 304, 10th ed.), " In a case like that of Arnald v. Arnald (1 Br. C. C. 401), where a testator devises his estate to trustees to sell, and pay the money to certain legatees, and afterwards sells the estate himself, which, under the old law, was an ademp- tion, the distinction would seem to be this, that if the money has not been received by the testator, it will pass to the legatees, because, notwithstanding the act done by the testator, namely, the sale, the will is still to operate on the estate, or interest in the estate, which the testator has power to dispose of by will at his death; and he has power, at that time, to dispose, by will, of the purchase money, and has a lien on the estate for it, which he can also dispose of, and the case of the legatees is rather strengthened than weakened by the 24th section. But, if the testator has received the money, the ademption appears to be beyond the reach of the statute ; the testator has no longer any interest in the property given by his will, although his general personal estate is increased by the sale, and the case does not seem to be aided by the 24th section." If the Ademp- The question, then, in each case, would seem to be, whether tion IS com- ^-^^ ^^^ done by the testator has worked a complete ademp- plete, the Uill _ • _ _ i _ ' is so far re- tion, for if the ademption is complete, and all interest has yoked. passed from the testator, the will is so far revoked. Where the testatrix devised certain freehold houses to trustees, in trust to sell the same, as soon as conveniently might be, after her decease, and directed the trustees to stand possessed of the proceeds, upon certain trusts, for the children of Mrs. Stonehouse and Mrs. Taylor, and for J. Peacock and his children, and gave the residue of her personal estate to the trustees, in trust, for B. The testatrix sold the houses after the date of her will, and conveyed them to the purchaser. But the purchaser, being unable to pay 350/., part of the pur- chase money, the testatrix consented to accept a deposit of the title deeds of the houses, as a security for the money remaining unpaid. It was argued, that, under the present sec- tion, the interest, which the testatrix had in the houses, at the time of her death, by virtue of the equitable mortgage, and the money secured by the mortgage, passed to the trustees in trust; but Shadwell, V. C, said, " It is clear that, according to any construction, which can be put upon the act of parliament, the will has been revoked, as to the devise in trust to sell. Then 7 Will. 4 & 1 Vict. Cap. 26, s. 23. 179 the act says, that no conveyance, or other act, made or done subsequently to the execution of a will, of or relating to real or personal estate, therein comprised, except an act, by which such will shall be revoked as aforesaid, shall prevent the oper- ation 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 at the time of his death. So that there is an express exception of the case, where the testator shall have revoked the will ; and on the ground of that exception, my opinion is, that the property in question is taken out of the operation of the general enactment, contained in the clause of the act, which has been relied on. That clause applies to cases where testators, having devised their estates, make conveyances of them, which are to have the same effect as fines or recoveries, or where they mortgao^e the devised estates in fee, and afterwai'ds take a re- conveyance of them to themselves, and a trustee to uses to bar dower; but the clause does not apply to cases like the present, where the thing meant to be given is gone. The will in this case, though revoked by the sale, has operation on the property in another form ; for by the sale, the testatrix changed the nature of the pi'operty from realty to personalty, and the money produced passes as part of her general personal estate. (Moor v. Raisbeck, 12 Sim. 123.) So where a testatrix devised a real estate, and afterwards sold it, but the purchase was not completed until after her death, the question was, whether the purchase money be- longed to her legal personal representatives, or to the devisees; and on behalf of the former it was contended, that by the con- tract for sale, the vendor parted with her estate, and must constructively be considered as a trustee of the estate for the purchaser, and the latter as a trustee of the purchase money for her ; that she became entitled to the purchase money, but had no beneficial interest in the estate at her death, and the statute did not apply, for by the sale the devise was adeemed, and became inoperative. The counsel for the devisees argued, that nothing but a revocation, under the 18th and 19th sections of the statute, prevented the operation of the will on a devised estate, or such estate or interest as the testator may, at his death, have power to dispose of by will. That the lien on the estate for the un- paid purchase money, was a beneficial interest in the estate, n2 180 The Wills Act. which the testatrix had the power of devising at her death, and which, therefore, passed to the devisees, and there could be no ademption, while there was an interest, upon which the will could operate. After observing that revocation, in the manner directed by the act, was not the only mode, in which a will might be rendered inoperative, Lord Langdale said, " The question depends upon the rights and interests of the testatrix, at the time of her death. What was really hers in right and equity, was not the land, but the money, of which alone she had a right to dispose; and though she had a lien upon the land, and might have refused to convey till the money was paid, yet that lien was a mere security, in or to vvhich she had no right, or interest, except for the purpose of enabling her to obtain the payment of the money. The beneficial interest in the land, which she had devised, was not at her disposition, but was by her act wholly vested in another, at the time of her death ; and the case is clearly distinguishable from cases, in which testators, notwithstanding conveyances made after the dates of their wills, have retained estates, or interests in the property, which remain subject to their disposition." He ac- cordingly held, that the deceased had no beneficial interest in the land at her disposition, that the will only passed that which was at her disposition, and the devisees of the land had no interest in the purchase money. (Farrar v. The Earl of Win- terton, 5 Beav. 1.) A Will to speak XXIV. Aiid be it further enacted, that every from the Death in . of the Testator. Will shall be coiistrued, with reference to the real estate and personal estate comprised in it, to speak and take effect as if it had been executed imme- diately before the death of the testator, unless a contrary intention shall appear by the will. The preceding section bears upon those cases, in which, not- withstanding the testator's dealing with the property, which was the subject of disposition, he still at the time of his death had some interest remaining in it; the present section extends to property, both real and personal, acquired after the making of the will. The operation of this section, as well as that of the 23rd, is 7 Will. 4 & 1 Vict. Cap. 26, s. 24. 181 in terms confined to the real and personal estate comprised in the will. Hence the enactment leaves untouched questions turning upon identity of person. So that if a testator give an estate or legacy to his son John, the gift will take effect in favour of his son of that name (if any) at the date of the will, and of him only ; and if such son should die in the testator's lifetime, and he should afterwards have another son of the same name, who should survive him, such after-born son will not be an object of the gift. The application of the principle of construction enacted by this section to specific bequests and devises, is not free from difficulty, and there is great difference of opinion on the subject. On the one hand, it has been said, that if a testator bequeath Effect of Sec- or devise property, and afterwards sells it, and purchases other a°" ",ed"pro!''' property answering the description of which he is possessed at perty in the his decease, the bequest or devise will comprise the new acqui- ^^^® ?' ^", ' i 1 _ ^ answering the sition by force of the enactment, which makes the will speak Description. from the death (1 Jarra. Wills, 289) ; whilst another learned writer (xi. Jarm. Conv. 459, n. (a) ), is of opinion, that if the subject-matter of the gift is described in a manner, which im- ports that it is, at the date of the will, in existence as a thing known to and possessed by the testator, if in short it is indi- vidualized, then it must be held that the will does show an in- tention to exclude the operation of the 24th section. " Thus a gift of ' my black horse,' or ' my house in Russell Square,' is meant to pass a single horse or house, viz. the one then possessed by the testator ; and the intent to pass that is inconsistent with an intent to pass a different one. This would be clear, if the testator, retaining the house or horse which he had at the date of the will, should afterwards acquire others ; when the gift would not, it is conceived, be void for uncertainty, but would pass that horse or house which the testator had when he made his will." The decisions upon the section, Doe v. Walker (12 M. & W. Upon after- 591); Cole v. Scott (12 Jur. 509; 16 Sim. 259, S.C, on ^^^^f^^XJSi- appeal ; 14 Jur. 25 ; 1 Mac. & Gord. 518), have but little tion to and not bearing upon the point, inasmuch as the newly-acquired pro- |ha?spectfica°ly perty in those cases was in addition to and not in substitution devised or be- of other property. In Doe v. Walker, the testator, in 1837, q^eathed. being tlien seised of lands in Great Bowderi, made his will, duly executed, and devised, inter alia, all the lands, of which 182 The Wills Act. he was seised in possession, or reversion, in Great Bowden. Afterwards, in July, 1838, he made a codicil, duly attested, referring to his will, and appointed J. C. an additional trustee and executor. He died in 1842, having, after the execution of the codicil, purchased, and had conveyed to himself in fee, two other estates in Great Bowden, of which he died seised in fee simple. The question was, whether the will and codicil to- gether passed only such estates in Great Bowden as were de- vised by the will, or such estates in that place as the testator had at his death. If the codicil, said Parke, B., who delivered the judgment of the Court, had contained nothing but the devise of all his lands in Great Bowden, &c., " and described in and devised hy the recited will" to C. as an additional trustee, we should have probably thought that the case fell within the authority of Bowes v. Bowes (7 T. R. 482 ; 2 Bos. & P. 500) ; Hughes V. James (3 My. & K. 666) ; Monypenny v, Bristow (2 Buss. & M. 117) ; and Ashley v. Waugh (4 Jur. 572), and concluded that the testator meant only to pass the same property to the three trustees which he had before given to the two. But as the testator in the codicil did not stop there, but went on to ratify and confirm his said will in all other respects than those in which he had altered it by the previous provisions in the codicil, he was considered to have made a new will of the date of the codicil, which, coming within the present act, would contain a devise of all the lands of which he was seised in Great Bowden, and be construed as speaking with respect to those lands, as if it were executed immediately before the death of the testator, and pass the property purchased after the codicil. Contrary In- ^^ q^^q v. Scott the (luestion directly raised was, whether tenlion, as . i • -r • t >> je shown by the tlie word 710W, m the expression " / am now seised, was sum- Word " now," cient indication of the testator's intention to exclude after-pur- or in some other mi mi • i ■ i • i i /• ii way in the chased estates. Ihe will m this case also contained the lollow- ^ '•'• ing clause : — " I give, &c., all such manors, messuages, &c., as well freehold as copyhold and leasehold, as are now vested in me, or, as to the said leasehold premises, as shall be vested in me at the time of my death." In support of the argument, that after-acquired estates passed. Doe v. Walker and Auther v. Auther (13 Sim. 422), were cited, and it was contended that " I am now seised" was an expression only a little more em- phatic than " I am seised." But the Vice-Chanccllor of Eng- land and Lord Cottenham, looking at the Mhole of the will, 7 Will. 4 & 1 Vict. Cap. 26, s. 24. 183 were of opinion that the intention of the deceased, in using the word now, was clearly to exclude after-purchased estates. The principle of that decision being, that, since the act provided that a certain rule should prevail, " unless a contrary intention shall appear by the will," it was not at all necessary to find that con- trary intention expressed in so many words, or in some way quite free from doubt ; but if, on the fair construction of the will in question, adopting those rules of construction which were usually adopted in construing wills, it is found that the contrary intention does appear, the result will be to take the case out of the section of the act. " The question," Lord Cottenham observed " is, whether, in the terms he has used, the testator has not used the word * now' with reference to the time he was making his will ; I think it quite clear that he has. I find this will with a date to it, showing therefore the period when it was executed, and I find that in it the testator gives * all the estates of which I am now seised or possessed.' The word 'now' has no meaning in itself; and if there is no date by which to construe it, some period must be fixed upon to which it can refer. Here, however, the date does appear, and the word now can only have reference to the time specified in the will, that time being the date of the will, namely, the 29th of April, 1843. It appears therefore to me just the same as if the testator had said, * all the freehold and leasehold estates of which I am, on this 29th of April, 1843, seised and entitled.' If those had been the words, of course there could not have been a doubt; but the words used are in eff'ect the same. What is the difference whether the date is repeated, or whether the word now shows that the date is referred to ? This is one view of the case, that is, merely referring to the very words to be found in this particular clause. But the case does not stop there ; for the testator uses the word now in two other parts of the will, in each of which he evidently and clearly alludes, not to the time the will may come into operation by his death, but to the particular period at which he is making his will. Am I, then, in taking a fair view of the expressions used in order to see what is intended, and in trying to put a fair construction on the word now, which is found in the particular clause, to disregard the same word used with reference to other gifts in other pai-ts of the will ? It would be departing from the or- dinary rules of construction to do so. It appears to me beyond 184 The Wills Act. all doubt and question, that in using the word notv, the testator meant the day on which he made liis will, and no other period. Then the case comes within the act. The act says, if the con- trary intention appears, the provision as to the death of the testator is not to apply. I am of opinion that here the con- trary intention does appear. " With reference to the question of personalty, it is as clear as can be. The act, in effect, puts the case of real and personal property on the same footing ; and though wills of mere per- sonalty, as a general rule, speak from the day of the death, and are not referable to the state of the property at the time of making the will, yet if there are expressions in the will showing it is intended to describe property with reference to the day of the date of the will, and not to the day of the death, the inten- tion so expressed will prevail. It prevails undoubtedly in cases of personalty, and by tlie act it is the same as to real estate." Applying these last observations to the case of a devise, or specific bequest, it appears that the gift will take effect, if a subject answering the description of the devise, or bequest, be the property of the testator at the time of his death, although he may have disposed of the original subject; unless by the in- troduction of the word now, or of some similar expression, or on the fair construction of the will, an intention making the description of the gift referable to the date of the will, can be shown in the will. Where there is nothing in the will controlling or confining the meaning of the general word estate, real estates subse- quently acquired will pass by the words " all my estate and effects whatsoever, and wheresoever, and of what nature or kind soever they maybe." (Stokes v. Solomons, 15 Jur. 483). Whether, when stock was specifically bequeathed, the legacy was irretrievably adeemed by the sale of that stock, and could not be revived by a new purchase of similar stock by the tes- tator, is said to have been doubtful under the old law. (1 Rop. Leg. 330, 4th ed.) That doubt is removed by the present sec- tion, which imputes to the testator an intention to make his words apply to the property possessed by him at his death. So where a testator by will disposed of all his estate and effects, and all effects due to him from the estate of the late J. H., and afterwards executed a deed settling the effects so 7 Will. 4 & 1 Vict. Cap. 26, s. 25. 185 due upon certain trusts, and in such manner as he should by any deed or deeds, instrument or instruments in writing, or by his last will or testament, or any codicil thereto, direct, limit, or appoint, and he died without executing any further instru- ment, the will was held to be a good execution of the power under the present and 27th sections. (Stillman v. Weedon, 12 Jur. 992 ; 16 Sim. 26.) But the section will not extend an express gift of a particular freehold estate to a leasehold, the fee of which is purchased by the testator after the making of the will. The testator " devised all that his freehold estate at or near, &c., which he purchased of B. with the appurtenances ;" subsequent to which he pur- chased the reversion of a small piece of land, part of the estate purchased of B., but held under a term of years. It was held that this piece of land did not pass by the devise of the free- hold estate, but formed part of the residuary freehold estates. (Emuss V. Smith, 2 De G. & Sm. 722.) This section, if extended to all specific bequests, has been considered likely to be productive of some singular results, and its operation will, it is supposed, probably be subjected to ex- ceptions tending to confine it to cases, in which, under the old law, the intention of the testator was generally defeated. (Hayes & Jarm. Forms of Wills, Introd. 33.) XXV. And be it further enacted, that, unless a what a resi- 1 n 11 •11 1 duary Devise contrary intention shall appear by the will, such shall include. real estate or interest therein as shall be comprised or intended to be comprised in any devise in such will contained, which 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 devise (if any) con- tained in such will. A residuary bequest of the personal estate operated upon every part of such property, which the testator possessed at his death, and which was not sufficiently disposed of, or the be- 186 The Wills Act. quest of which failed, or was void from lapse, or other cause. (Brown v. Higgs, 4 Ves. 708 ; Shanley v. Baker, 4 Ves. 732). And any accession to the personal estate, after the death of the testator, could be claimed by the next of kin, as undisposed of, against a general residuary disposition (4 Ves. 717, note ; Montgomerie v. Woodley, 5 Ves. 522). But as every devise of land, whether in particular or general terms, was, before the present act, of necessity specific, from the circumstance, that a man could devise only that which he had at the time of devising (Brydges v. Chandos, 2 Ves. Jr. 427) ; it was held, that a residuary devisee of land was as much a specific devisee as a particular devisee was. (Howe v. Dart- mouth, 7 Ves. 147). Hence, he could take those lands only, which were not expressed to be given by the will ; and the heir was entitled to the lands, the devise of which might have failed or be void. Effect of Sec- The present section, particularly when taken in connexion ^'°°' with the third and twenty-fourth sections, has removed this dis- tinction, and, in furtherance of one leading object of the act, assimilated the law in its application to a general or residuary devise or bequest of real and personal estate. The third sec- tion, it will be remembered, extended the devising power of a testator to all the real estate, which he should be possessed of at the time of his death ; the twenty-fourth enacted that the will, with reference to the real and personal estate comprised in it, shall speak and take effect, as if executed immediately before the testator's death; and the twenty-fifth section provides that the residuary devise shall include, unless a contrary in- tention shall appear by the will, all such real estate, or interest therein, comprised, or intended to be comprised, in any devise, which shall fail or be void. Whence it follows, as a general rule, that where a will, which can be brought within the present act, contains a general, or residuary devise, which takes effect ; such will takes from the heir every part of the real estate, though it may have been acquired since the will, or the specific devise thereof may, from any cause, be incapable of taking effect. For instance, estates, which are the subject of an in- effectual devise, will pass by the residuary devise in the will, and not go to the heir (Culsha v. Cheese, 7 Hare, 237), whose 7 Will. 4 & 1 Vict. Cap. 26, s. 26. 187 right can be saved only by an intention, appearing by tlie will, that the residuary or general devisee shall not take. This enactment, it may be presumed, will in most cases pre- vent the intention of testators from being defeated, for it can rarely happen that the testator should intend a void or lapsed devise to enure to the benefit of the heir, and prejudice of the residuary devisee, without expressing such intention in his will, and so bring the case within the exception admitted in the clause. The general rule, that a residuary clause passes a lapsed legacy, is founded upon the principle, not that the rule effects what the testator intended, since he probably contemplated nothing beyond the particular legacy taking effect, but that the residuary clause is understood to embrace every thing not other- wise effectually given; because the testator is supposed to take away from the residuary legatee only for the sake of the par- ticular legatee, and upon failure of the particular intent, effect is given to the general intent. (Easum v. Appleford, 5 My. & C. 61). This reasoning, always probably as a question of intention applicable to the case of a residuary devisee, is recognised in fact by the present enactment. See generally on this section, and questions connected with it, Jarm. Wills, Chs. 18, 19 and 20 ; Johnson v. Woods, 2 Beav. 409 ; Flint v. Warren, 12 Jur. 810 ; Fitch v. Weber, 6 Hare, 145. XXVI. And be it further enacted, that a devise what a general of the land of the testator, or of the land of the elude? testator in any place or in the occupation of any person mentioned in his will, or otherwise described in a general manner, and any other general devise which would describe a customary, copyhold, or leasehold estate if the testator had no freehold estate which could be described by it, shall be construed to include the customary, copyhold, and leasehold estates of the testator, or his customary, copyhold, and leasehold estates, or any of them, to which such description shall extend, as the case may be, tion 188 The Wills Act. as well as freehold estates, unless a contrary intention shall appear by the will. A rule as to leaseliolds was established by Rose v. Bartlett (Cro. Car. 292 ; Chapman v. Hunt, 1 Ves. sen. 270), that if a man has lands in fee and lands for years, and devises all his lands and tenements, the fee-simple lands pass only, and not the lease for years : and if a man has a lease for yeai's and no fee- simple, and devises all his lands and tenements, the lease for years passes, for otherwise the will would be merely void. This rule which was not rejected by the circumstance that the will was inopei'ative as to the freehold estates, from defect of execution, has been frequently referred to and discussed, and does not appear to have been intentionally or substantially Effect of Sec- varied; but when the words describing the subject of the devise have not been simply lands and tenements, or the tes- tator has, in addition to the words simply describing the subject of the devise, used other words descriptive of the nature or extent of his interest in the thing given, and that intei'est as described is applicable to leaseholds, or has used words plainly connecting property which was leasehold with the lands, or tenements, or hereditaments, the principal subject of the devise, the additional words have been held to warrant the conclusion that leaseholds were within the description of the thing devised. So that under the old law the presumption was against including leaseholds in a general devise : by the present section, however, the presumption will be the other way, and a general devise will include the leasehold estates of the testator, unless a contrary intention shall appear by the words of the will : gradually, therefore, the rule of construction in Rose v. Bartlett, with its various distinctions, will cease to be a subject of practical con- sideration. (1 Jarm. Wills, 627). This enactment was much considered in Wilson v. Eden (11 Beav. 237 ; S. C. 12 Jur. 488). There the subject of the devise was described as the testator's *' manors or lordships, rectories, advowsons, messuages, lands, tenements, tithes and hereditaments," situate as in the will mentioned. Lord Lang- dale inclined to think that the words " messuages and lands," forming part of the description, would, if every thing else had concurred, have been sufficient to pass leasehold lands; but 7 Will. 4 & 1 Vict. Cap. 26, s 26. 189 those words, and the sequence describing the situation, did not constitute the whole description, which the testator had £^iven of the subject of the devise; he had added to them, "all my other real estates in the counties of Durham and York and elsewhere in Great Britain, and all my estate and interest therein." The word " other," in this clause, was relative ; it had relation to the subjects or things described in the former part of the sentence; it imported that the subjects next de- scribed were additional to, and besides, and in that respect, dif- ferent from the subjects just before described. If the word "other" had been immediately followed by the woids my lands in the counties of Durham, and so on, it might perhaps have been properly held, that the word "lands," as contained in the earlier part of the sentence, meant only the subject of the de- vise, without regard to the extent of the testator's estate or interest in it, or that the word " lands" (other circumstances permitting) meant leaseholds as well as freeholds ; but the relative word " other" was immediately followed by the words " my real estates in the said counties ;" and as it was thus plain, that, by the last clause of the sentence, the testator meant only to devise real estate, because he had so expressly described it, as there was nothing to show that in the last clause he meant a subject of devise differing in nature, and quality, from the subject of devise expressed in the former part of the description, as the word "other" expressing a relation, a difference or addition, showed the connection of the two parts of the description, and was fully satisfied without the implication of any difference in quality, his lordship was (though with some reluctance in coming to a conclusion on so narrow a ground) of opinion that, upon the true construction of the testator's description of the subject of his devise, the effect was to pass real estates only, and consequently, that leasehold estates did not pass. It did not appear to him that this was effected *by the present act, (within which the will was brought by a codicil executed in 1841). According to the view which he took of the devise, it was to be considered as a devise of real estate ; it was not simply a devise of the testator's land, or of his land in a par- ticular place, or in a particular occupation, or a devise in a general manner applicable to any land, whatever might be its quality, or the testator's estate, or interest in it. Neither was 190 The Wills Act. it a devise, which would describe a leasehold estate, if the tes- tator had no freehold estate, which would be described by it. Taking it most favourably for the devisee, it was, as if the testator had devised all his land, or all his lands, farms, and messuages, and other real estate ; and in such a case, he con- ceived that the word " land," which might be thought am- biguous, and, without qualifying expressions, might be deemed to include lands, in which the testator had only a leasehold interest, would have its ambiguity removed, and by reason of the words " other real estate," would be limited to its original and proper legal meaning. (See also Stone v. Greening, 13 Sim. 390; Morrell r. Fisher, 4 Exch. Rep. 591 j Parker r. Marchant, 5 Mann. & G. 498). What a general XXA'II. And be it further enacted, that a general dude.^^" '° 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 will, 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 exe- cution of such power, unless a contrary intention shall appear by the will ; and in like manner a be- quest of the personal estate of the testator, or any bequest of personal property described in a general manner, shall be construed to include any personal estate, or any personal estate to which such descrip- tion shall exteqd (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. The rule under the old law, where the power was not referred to in the will, was, that the property, comprised in the power, 7 Will. 4 & 1 Vict. Cap. 26, s. 27. 191 must be mentioned, in order to manifest that the disposition was intended to operate upon such property ; and the donee must have done such an act, as showed that he had in view the sub- ject, of which he had the power to dispose. Hence, if there was not, on the face of the will, any reference to the power, the defect required to be supplied by very clear internal evidence of the intention to pass the property. Webb v. Honnor, (1 Jac. & W. 352), where the power was over personal estate ; and Denn v. Roake, (6 Bingh. 475), in which case freehold estates were the subject of disposition. Alexander, C. B., who deli- vered the opinion of the judges in the last case, referring to the rule of law above stated, observed, " There are many cases upon this subject, and there is hardly any subject, upon which the principles appear to have been stated with more uniformity, or acted upon with more constancy. They begin with Sir E. Clere's case in the reign of Queen Elizabeth, to be found in the Sixth Report, and are continued down to the present time ; and 1 may venture to say, that, in no one instance, has a power, or authority been considered as executed, unless by some reference to the power, or authority, or to the property, which was the subject of it, or unless the provision, made by the person in- trusted with the power, would have been ineffectual, or had nothing to operate upon, except it were considered as an execu- tion of such power, or authority." (See also Standen v. Standen, 2 Ves. Jr. 589 ; Langham v. Nenny, 3 Tes. 467 ; Bennett v. Aburrow, 8 Ves. 609 ; Doe v. Johnson, 7 Mann. & G. 1047). The present section, however, has changed the rule, by en- Effect of Sec- acting that a general devise of real estate shall extend to such ^'°°- estates as the testator may have a power to appoint, and shall operate as an execution of the power ; and a general bequest of personal property, or of personal property described in a general manner, shall include personal estate, which the testator may have power to appoint, and operate as an execution of the power, unless in either case a contrary intention shall appear by the will. In this instance, therefore, as in others already adverted to, the presumption of law and the rule of construction is reversed ; and the intentions of testators will probably be defeated less frequently than heretofore, when, as suggested in Hannock v. Horton, (7 Ves. 399), the old rules obliged the courts to act 192 The Wills Act. against wliat probably might have been the intention nine times in ten. And see Lord Wyiiford's judgment in Roake v. Denn (4 Bl. N. S. 22.) It will be observed that this section is confined to general powers, and does not extend to particular powers, which still depend upon tbe old rules. (1 Sugd. Pow. 369; Cloves v. Awdry, 12 Beav. 604). The 2'3rd and 24tb sections have a very important bearing upon the present section. If, for instance, befoi-e the present act, a testator exercised a power by will, and it happened that the power was either not well created, (Dobbins v. Bowman, 3 Atk. 408), or was defeated by the happening of a contingent event, subsequently to the will, (Cross v. Hudson, 3 Br. C. C. 30), the devisor's interest at the time of the will, although con- tingent, and not vested, was held to come in aid of his dis- position. Now, the testator's interest at the time of his death will pass by the will. (1 Sugd. Pow. 424). Again : formerly where a man had power to charge estates, which power he afterwards discharged, and a similar power was reserved to him over other estates, if the first power was executed by will before the raising of the second power, the will would not have been deemed an execution of the second power, although it had been republished subsequently to the creation of that power ; for the will spoke only of the first powei', which was as much gone as if it had never existed. (Holmes v. Coghill, 7 Ves. 499; 12 Ves. 206). And it was considered doubtful whether the second power would have been executed if it had even embraced the same estate as the first power. Now, however, the second power, if it embraced the same estate as the first power, would be deemed executed under the enactment, that every will 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 before the tes- tator's death. The words in this section, " which he may have power to appoint," are to be taken in connexion with those, which determine at what time the will speaks. And there is the further provision in section 24, that no act done subsequently to the execution of a will of, or relating to any real, or personal estate therein comprised (unless an act, amounting under the 7 Will. 4 & 1 Vict. Cap. 26, s. 28. 193 act to a revocation,) 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 death. (1 Sugd. Pow. 427 ; Stillman v. Weedon, 16 Sim. 26; 12 Jur. 992.) In Pidgely v. Pidgely (1 Coll. 255), a general bequest of personalty was held to operate as an execution of a power ; the will, however, in this case, also contained the words " direct, limit, and appoint," which showed an intention in the testator to execute the power. XXVIII. And be it further enacted, that where How a Devise . without Words any real estate shall be devised to any person with- of Limitation out any words of limitation, such devise shall be strued. construed to pass the fee simple, or other the whole estate or interest which the testator had power to dispose of by will in such real estate, unless a con- trary intention shall appear by the will. The principle upon which this clause is founded is, that a devise of real estate, without words of restriction, shall be con- strued in the most enlarged sense, unless a contrary intention be shown by the will. Proceeding upon a general axiom in English law, that no- thing shall be taken from the heir by implication, the rule of construction, previous to the act of Victoria, and still applicable to wills not within that act, was that a devise of messuages, lands, tenements, or hereditaments, without words of limitation, conferred on the devisee an estate for life only ; and this, not- withstanding the will might, in other parts, afford strong reasons for believing that the testator did not intend to give an estate for life. It is evident that such a rule of construction, founded entirely upon technical reasoning, in most cases defeated the intention ; and the Courfs adopted the principle of laying hold of any circumstances which could afford a pretext for enlarging the life estate. (See Jarm. Wills, ch. 33; and Watk. Conv. 353, n., for a list of words which have been adjudged to give an estate in fee simple to the devisee; Doe v. Roberts, 11 Ad. & E. 1000.) The present section reverses the rule, and an estate in fee, o 194 The Wills Act. or other the whole disposable estate or interest of the testator, will now pass unless a contrary intention shall appear by the will ; and the onus probandi will thus lie upon those who con- tend for the restricted construction. " This enlargement of the operation of an indefinite devise may," it is said by a writer of very great authority, " be considered as one of the most salutary of the new canons of interpretation which have emanated from the legislature. (2 Jarm. Wilis, 194.) This section applies to gifts under powers, but does not apply to the creation of powers, unless they are created by will ; where, as a general devise without words of inheritance will pass the fee, it may well be held to give the power over the fee to the person in whom a power of appointing the property is vested, although the power itself does not contain words of in- heritance, or words equivalent to them. For example : a gift by will of my house will pass the fee ; therefore a gift by will of my house to such persons generally, or to such children as A. or B. shall appoint, will give the power to B. over the fee. So a devise of my house to A. to the use of such persons gene- rally, or to such children of A. as B. shall appoint, will give the fee to A. to serve the power, and the power will be as ex- tensive as the gift, and consequently enable the appointment of the fee. (1 Sugd. Pow. 479). How the Words XXIX. And be it further enacted, that in any " die wiihout 1 • 1 f 1 1 11 Issue," or " die clevise or Dcquest 01 real or personal estate the words 7ssue°," shaYi'bf " die without issue," or " die without leaving issue," construed. ^^, u j^^^g j-^^ issuc," or any other words which may import either a want or failure of issue of any per- son in his lifetime or at the time of his death, or an indefinite failure of his issue, shall be construed to mean a want or failure of issue in the lifetime or at the time of the death of such person, and not an indefinite failure of his issue, unless a contrary in- tention shall appear by the will, by reason of such person having a prior estate tail, or of a preceding gift, being, without any implication arising from such words, a limitation of an estate tail to such 7 Will. 4 & 1 Vict. Cap. 26, s. 29. 195 person or issue, or otherwise : provided that this act shall not extend to cases where such words as afore- said import if no issue described in a preceding gift shall be born, or if there shall be no issue who shall live to attain the age or otherwise answer the de- scription required for obtaining a vested estate by a preceding gift to such issue. If a gift was made to A., and on failure of issue, or if A. died without issue then to B., such a bequest over, whether it be of real estate, or of personalty, being taken in the legal significa- tion of the terms to mean after a general failure of issue, a failure of issue at any time, was void for remoteness, and the absolute interest was given to the first taker, unless there ap- peared something in the will indicating a different intention. The proof of a different intention was cast upon the party who attempted to distort the words of the bequest from their legal signification. (Candy v. Campbell, 2 CI. & Finn. 421.) But as this rule was founded upon the policy of the law to pi'event property from being indefinitely tied up, and the legal sense of the phrase was not in accordance with the general and popular acceptation of the words, these were made to yield to a clear manifestation of intention in the context, or in other parts of the will, to use them in the restricted sense of issue living at the death ; and in respect to personalty they were held to yield more readily to expressions tending so to confine them, than when they were applied to real estate. This rule, and the anxiety of the judges to discover grounds for departing from it, and putting a restrictive and less artificial interpi-etation upon the words, led to distinctions and various exceptions, which were the occasion of considerable discussion and doubt. The present enactment is, it appears, leading to the gradual extinction of this source of litigation. See as to the doctrine of implication of estates tail, and other points of construction affected by this section, Jarm. on Wills, chs. 40, 41. It will be observed that the section contains an exception, and a proviso ; the effect of these was much considered in a o2 196 The Wills Act. recent case ; where the gift was of the residue of his property to the testator's brothers, John and James, " to be divided equally," with a request to John, that should he die without lawful issue, the property bequeathed to him should revert back to the testator's nephews, sons of his brother James. Lord Chancellor Sugden said, " the point raised is, that the words introducing the bequest over would, by implication, have given to John an estate tail in real estate, and therefore the absolute interest in personaltj"^ ; and I assume that they would have done so before the late Statute of Wills. That act, however, contains this provision : "That in any devise or bequest of real or per- sonal estate, the words 'die without issue' (which is the same thing as die without lawful issue), or * die without leaving issue,' or * have no issue,' or any other words which may import either a want or failure of issue of any person in his lifetime, or at the time of his death, or an indefinite failure of his issue, shall be construed to mean a want or failure of issue in the lifetime, or at the time of the death of such person, and not an indefinite failure of his issue. If the act had stopped there, this being a gift over in case John should die without issue, which words maj' import either of the two constructions men- tioned in the act, it is plain that they must be construed to mean a failure of issue at the time of the death of John. But then come the words, "unless a contrary intention shall appear by the will : 1st. By reason of such person having a prior estate fail; or, 2ndly. Of a preceding gift being, without any impli- cation arising from such words, a limitation of an estate tail to such person or issue ; or, 3rdly. Otherwise." If a gift is to a man in tail, and for want of issue over, there the contrary appears: for the whole line of issue is provided for by the antecedent gift ; and the words introducing the gift over must refer to the same interest ; thercfoi-e, in such a case, the words " for want of issue" mean an indefinite failure of issue. So, if upon the true construction of the will, without making use of any implication arising from the words introducing the gift over, the first taker takes an estate tail, the words will equally import an indefinite failure of issue. But we are not to infer an intention from the use of the very words ; therefore, if there be a gift to one for life, and if he die without issue over ; there a contrary intention does not appear : for in such a case, the 7 Will. 4 & 1 Vict. Cap. 26, s. 30. 197 supposed estate tail is an estate arising by implication only, from the use of those very words. In the present case, sup- posing that it were a devise of real estate, John would not take an estate tail unless by implication, arising from those very words : therefore the case does not fall within the exception in the act. Then, as to the words " or otherwise," there is nothing in this case to show " otherwise" an intention that John should take an estate tail ; for no such intention is to be collected from this will, except from the indefinite use of the words introduc- ing the gifl over, and which the act excludes from consideration." The Chancellor's opinion, therefore, was, that the children of James were interested in the moiety of the residue of the per- sonal estate bequeathed to John. (In Re O'Bierne, 1 Jones & La T. 352.) In a recent case, the testator died leaving two children, and possessing freehold and leasehold estates ; by his will he gave the residue and remainder of his estate and effects, according to the nature of the same estates respectively, in trust for all and every his child and children, in equal shares and proportions, and the several heirs of their respective bodies, and in case there shall be a failure of issue of any such children, then as to the share or shares of him, &c., whose issue shall so fail, to the use of the other, or others of them as tenants in common. It was ad- mitted that strictly speaking there could not be a bequest of personalty to a person in tail, but it was held, that, taking the intention of the testator from the whole will, and referring to the words " or otherwise" in the 29th section, one of such children was entitled in fee to half of the fi-eeholds, and absolutely to one half of the leaseholds. (Green v. Green, 14 Jur. 74 ; and see Harris v. Davis, 1 Coll. 416.) XXX. And be it further enacted, that where any no Devise to real estate (other than or not being a presentation Executors!^ex- to a church) shall be devised to any trustee or exe- p^'a^chatte/ cutor, such devise shall be construed to pass the fee interest, simple or other the whole estate or interest which the testator had power to dispose of by will in such real estate, unless a definite term of years, absolute or determinable, or an estate of freehold, shall take the Fee. 198 The Wills Act. thereby be given to him expressly or by implica- tion. Trustees under XXXI. And be it further enacted, that where an unlimited ' Devise, &c. to any real estate shall be devised to a trustee, with- out any express limitation of the estate to be taken by such trustee, and the beneficial interest in such real estate, or in the surplus rents and profits thereof, shall not be given to any person for life, or such beneficial interest shall be given to any person for life, but the purposes of the trust may continue bej^ond the life of such person, such devise shall be construed to vest in such trustee the fee sim- ple, or other the whole legal estate, which the tes- tator had power to dispose of by will in such real estate, and not an estate determinable when the purposes of the trust shall be satisfied. The object of these two clauses is to define the nature and duration of the estate, or interest, which executors or trustees under a will shall take ; and they are intended to effect a very important alteration, by excluding the construction under which an indefinite devise to trustees was held susceptible of enlarge- ment or restriction, according to the exigencies of each indi- vidual case; the general rule, previous to the present act, having been, that whenever there was a limitation to trustees, although with words of inheritance, the trustees were to take only so much of the legal estate, as the purposes of the trust required. (Barker v. Greenwood, 4 M, & W. 421.) It was said indeed that the intention of the testator, as ex- pressed in, or to be gathered from the expressions in the will, governed the application of the rule ; but the distinctions, founded upon purely technical reasoning, were so minute, that the real intentions of testators were probably more often defeated than carried out. Yet these distinctions had been so firmly established by repeated decisions, that the legislature alone appeared competent to afford a remedy by positive 7 Will. 4 & 1 Vict. Cap. 26, s. 32. 199 enactment. That some remedy was needed may well be inferred from the difficulty of application, and inconvenience of the re- cognized doctrine. By section 30, where real estate, other than a presentation to a church, is devised to a trustee, the fee-simple, or other the whole estate or interest, over which the testator has a dis- posing power by will, will pass, unless a definite term of years, absolute or determinable, or an estate of freehold shall expressly or by implication be given to him. That is, if it be the tes- tator's intention that the trustee shall take an estate or interest less than his own, he must expressly or by implication so limit the estate or interest ; and the legal inference no longer is in accordance with Cordall's case (Cro. Eliz. 316), that, whei'e the purposes of the trust can be answered by a less estate than a fee-simple, an interest greater than is sufficient to answer shall not pass to the trustees or executors, but the re- verse. Section 31, however, whilst closely resembling the preceding section, does not admit the exceptions there contained : hence one of these two sections seems to be in some respects super- fluous ; and in other respects the two sections appear repug- nant to, or qualify and control each other, and decision alone can determine the true construction to be given to the two sections taken together. See genei'ally as to this section, Jarm. Wills, ch. 34; and Sugd. Wills, 127; Sweet on 1 Vict. c. 26, p. 154. The proposition that the Statute of Uses operates as well upon uses created by will, as upon those created by deed, is assumed in these sections (1 Sugd. Pow. 171) ; and they do not affect the question whether trustees take a mere naked power, or an estate. XXXII. And be it further enacted, that where Devises of Es- 1 1 i J. 1 n T_ 1 ■ J tales Tall shall any person to whom any real estate snail be de vised ^^^ lapse. for an estate tail or an estate in quasi entail shall die in the lifetime of the testator leaving issue who would be inheritable under such entail, and any such issue shall be living at the time of the death of the testator, such devise shall not lapse, but shall 200 The Wills Act. take effect as if the death of such person had hap- pened immediately after the death of the testator, unless a contrary intention shall appear by the will. Gifts to Chii- XXXIII. And be it further enacted, that where dren or other , . i m i j1 • /* j.i j. Issue who leave any pcrsou bemg a child or otlier issue oi the tes- thrfesmo^r'f tator to whom any real or personal estate shall be Dea^h shall not (Jeviscd or bequeathed for any estate or interest not determinable at or before the death of such person shall die in the lifetime of the testator leaving issue, and any such issue of such person shall be living at the time of the death of the testator, such devise or bequest 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 in- tention shall appear by the will. These two sections are founded upon the recommendation of the Real Property Commissioners, p. 73 of the Fourth Report. The rule that gifts lapsed, if the person to whom they were made died in the lifetime of the testator, sometimes operated with great hardship, and defeated in many cases the intention of the testator. When an estate is devised to a person in tail, with remainder to another, it is manifestly the intention of the testator that the tenant in tail and his issue should take, and that the person to whom the remainder is given should not take until all the issue of the intended tenant in tail have failed, and yet if such intended tenant in tail died in the testator's life- time leaving issue, and the testator was not aware of his death, or neglected to alter his will, the issue were wholly excluded in consequence of the gift to the parent having lapsed, and the remainderman obtained the testator's estates. The hardship was very apparent in the usual case of a devise to the eldest and every other son successively, according to seniority, in tail ; if an elder son died in the testator's lifetime leaving issue, such issue were excluded, and the estate went to the younger branch of the family. In another usual case, where a testator gave his 7 Will. 4 & 1 Vict. Cap. 26, s. 33. 201 property among his children, and a daughter or other child died before him leaving a family, such family were disap- pointed. In all these cases, if the issue or family were to be- come entitled to the property given to their parent, the person to whom the remainder or residue was given would still be entitled to the property intended for him by the testator, and would have no reason to complain. It is true that the event of death might always be provided for, but it was found in prac- tice that such provision was rarely made. A testator does not contemplate that the immediate objects of his bounty, and espe- cially his children, will die before him ; he does not like to encumber his will with provisions which appear to be unne- cessary ; and he imagines that if the event should happen, he shall be able to alter his will. His legal advisers think the chance that such an event will happen, and will not be pro- vided for, is too slight an inducement foi- the trouble of insert- ing clauses to meet it; and in truth it would often be difficult to determine how far such provisions should be carried. In most cases a testator would probably prefer the families of the persons to whom he gives estates of inheritance in land, or an absolute property in personalty, to the persons entitled in re- mainder, or his residuary legatees ; and it is certain that when- ever he has a contrary intention, he can make the gifts contin- gent on the event of such persons surviving him, or revoke them in case of their death, with fewer words and greater ease than he could provide against the event of a lapse. For these reasons the commissioners proposed that devises of estates in tail to persons, who died in the lifetime of the testator, leaving issue, and devises and bequests to children and grandchildren of the testator, who died in his lifetime, leaving issue living at the time of his death, should not lapse, but should take effect as if the death of the testator had happened before the deaths of such tenants in tail, or children or grandchildren. It is in the case of an estate tail the issue should take, and in the case of a devise of real, or a bequest of personal property, the pro- perty devised or bequeathed should pass to the real or personal representatives as part of the estate of the deceased devisee or legatee. But although the existence of issue at the death of the tes- tator is necessary to prevent a lapse under the 33rd section, 202 The Wills Act. such issue will not stand in the place of the deceased devisee or legatee in respect to the subject-matter of the devise or bequest, which will fall into the general estate of the deceased devisee or legatee, and be disposable by his will, notwithstanding his death before the decease of the testator. This construction, first noticed in 1 Hayes' Introd. to Conv. 406, was put upon the words of tlie section by Sir J. Wigram, V.C., in Johnson v. Johnson (3 Hare, 157). The testator, by will dated January, 1842, gave certain real and personal property to his son, and died in August, 1842. The son, by will and codicil dated in 1841 and 1842, gave, &c., with the exception of several legacies, all his estate to his wife. He died in July, 1842, leaving his widow exe- cutrix enceinte of a daughter, on behalf of whom it was urged tliat the true construction of the section was to treat it as substi- tuting the issue for the parent, so that the legacy to the parent shall not lapse by his death. That the argument for the widow, who claimed under the will of the deceased legatee, failed, in- asmuch as that will must, under section 24, take effect as if executed immediately before his death, but he had not then any interest in this property, contingent, executory or future under section 3, and it was therefore impossible that any such interest could pass by his will. If the issue of the legatee were held not to take by way of substitution, the other and more reasonable construction would be, that the next of kin of the deceased legatee should take under the Statute of Distribu- tions. But Sir J. Wigram was of opinion, that upon the con- struction of the 33rd section taken alone, a legatee within that section would take the same provisions under his father's will, and with the samq powers and incidents of property, as if he had actually survived the testator ; and that it was not in- tended that the issue of such legatee should take the bequest independently of the legatee. The existence of the issue, he thought, was the motive of this provision of the legislature, but the issue was not the object of it. It is not necessary, in order to let in the act, that the legatee should be alive at the time when the will is made ; but it will be sufficient that the will be either made since, or brought with- in the act, and the legatee die since 1837. Where, for instance, the father, by will dated in 1833, bequeathed a share of his re- siduary estate to his son, J. W., who died in 1838, having by 7 Will. 4 & 1 Vict. Cap. 26, s. 33. 203 his will in 1824 beqiieathed all his estate, real and personal, to his wife, and appointed her executrix, and she proved his will; and in 1839 the father made a codicil, and thereby ratified his will, (see post section 34,) and died in 1843 ; it was held that the words " shall die" meant shall die after the act came into operation, and consequently that the act applied, and the gift of residue, so far as it was personal estate, passed under the son's will to his executrix ; so far as it was real estate, de- scended to the heir-at-law of the son ; his will being made before 1838, and so not passing after-acquired real estate. (Winter v. Winter, 5 Hare, 306; 11 Jur. 10; Mower v. Orr, 7 Hare, 473 ; 13 Jur. 421). In this case the will was made since 1838, and after the death of the son. (Skinner v. Ogle, 1 Rob. 363; 9 Jur. 432; Wild v. Reynolds, 5 N. C. 1.) This last case has sometimes been referred to as not in accoi'd- ance with the others, but the children there died before the act came into operation, and the decision does not therefore clash with those of Sir J. Wigram. This construction is materially assisted by the joint operation of sections 3 and 33 ; which, as we have seen, make the will of the father speak from the death of the testator; and section 33 in effeet declares that in the circumstances contemplated by that section, the child (legatee, or devisee,) shall be taken to have died on a day later than his natural death, and imme- diately after the death of the testator. (Johnson v. Johnson, ubi supra.) A child en ventre sa mere will be sufficient to satisfy the words of the statute; this was the case in Johnson v. Johnson, (ubi sup.) ; and see Doe v. Clark, (2 H. Blacks. 399.) But although the first section of the statute enacts that the word " will" shall extend to an appointment by will, or bv writing in the nature of a will, in exercise of a power, this sec- tion will not, it appears, ajjply to a testamentary appointment, since the words of the section are "devised and bequeathed," and property passing by the execution of a power is neither devised nor bequeathed. Nor could the legislature have in- tended, whilst enacting that the devise or bequest should not lapse, to vary the rights of the parties whom the donor of the power had declared to be entitled in default of appointment. (Griffiths V. Gale, 12 Sim. 327.) 204 The Wills Act. It has been suggested that the section does not toiicli the case of a gift to one of several persons as joint tenants ; for as the share of any object dying in the testator's lifetime would survive to the other or others, such event occasions no " lapse," to pre- vent which is the avowed object of both the clauses under con- sideration, the 32nd and 33rd. And that the same reasoning applied to a gift to a fluctuating class of objects, who are not ascertainable until the death of the testator, though made tenants in comm.on. Thus, suppose a testator to bequeath all his per- sonal estate to his children simply in equal shares, it should seem that the entire property would, as before the statute, be- long to the children, who survive the testator, without regard to the fact of any child having, subsequently to the date of his will, died in the testator's lifetime, leaving issue who survive him. And as gifts to the testator's children, as a class, are of frequent occurrence, their exclusion from this provision of the statute will greatly narrow its practical operation. (1 Jarm. Wills, 313.) In respect to a gift to one of several persons as joint tenants, the fact of the gift being to joint tenants, and so letting in the right of survivorship, would seem to be one of the cases in which a contrary intention would appear by the will, indepen- dent of any reasoning from the use of the word " lapse." But as the enactment does not stop with simply declaring that the devise or bequest shall not lapse, but goes on to direct that such devise or bequest shall take effect as if the death of the devisee or legatee had happened immediately after the death of the testator, it may perhaps be argued that the case of gifts to children as a class is, by the inti'oduction of these words, brought within the provisions of the act ; and the rule, which in such case formerly carried the whole property to the sur- vivors, be met or avoided by the new enactment, that the pre- deceased child shall be taken to have survived the testator. This point was not before the court in Mower v. Orr, (7 Hare, 473), but the learned judge who decided that case thought the words of the statute were large enough to take in all cases in which the issue intended to be benefited died leav- ing issue. To exclude the case of gifts to children as a class, will not merely narrow tiie practical operation of the section, but militate against the intention of the legislature, so far as 7 Will. 4 & 1 Vict. Cap. 26, s. 34. 205 that can be gathered from the recommendations of the commis- sioners, ante, p. 200. It may therefore be hoped that the enact- ment is capable of a wider construction; but see 1 Hayes' In- trod. to Conv. 406 ; and Hayes and Jarman, Concise Forms of Wills, 28. There is some difficulty in applying the same construction to the words " such issue" occurring in these two clauses. In the 32nd section the requisites of the act will be satisfied, and the lapse prevented, though the same issue do not exist at both periods, namely, at the death of the devisee, and at the death of the testator. But in the 33rd section the words " such issue," followed by the words " of such person," seem to refer exclusively to the very issue left by the deceased devisee or legatee. A liberal construction might, it is said, be adopted in this last clause by considering the word " issue" to be used as nomen collectivum, and not merely as designating the parti- cular individual or individuals living at the death of the de- visee or legatee. (1 Jarm. Wills, 312 ; and Hayes and Jarm. Concise Forms of Wills, 28.) XXXIV. And be it further enacted, that this act To what Aviiis shall not extend to any will made before the first aIji shin not '^ day of January, one thousand eight hundred and ^'''^°'^- thirty-eight, and that 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-exe- cuted, republished or revived ; and that this act shall not extend to any estate pur autre vie of any person who shall die before the first day of January, one thousand eight hundred and thirty-eight. In attempting to discover the true construction of this section there are difficulties in every view of the case. Some such provision as that in this section was absolutely necessary ; otherwise all wills made prior to the passing of the act, would immediately have been subject to its opei-ation, and a very large portion would have become null and void. Again, it 206 The Wills Act. was necessary that some time should he suffered to elapse, to give persons an opportunity of becoming acquainted with the enactments of a statute, which affected so very large a portion of the nation. Again, it might be considered a hardship to compel persons, who had already disposed of their property by will according to the existing law, or who might do so within so short a period after the passing of the statute, as to be in excusable ignorance of its provisions, to incur the trouble of republishing their wills according to the new law. But the time fixed by the legislature being the 1st of Ja- nuary, 1838, the statute having received the royal assent on the 3rd of July, 1837, the question was, whether all wills and codicils made before that date are altogether and for ever out of the operation of the act, or if not wholly, only in part, and in what part, and for how long. It is clear that all wills and codicils, made before the 1st of January, were not altogether and for ever out of the operation of the act, and to be governed by the old law, for if they were, they might be re-executed according to the old law, or republished according to the old law, or revived or altered by a codicil executed according to the old law ; but section 34 provides for the contrary ; for every will or codicil, though made before the 1st of January, if re-executed, republished or revived by codicil, shall be deemed to bear date at the time it was so re-executed, re- published or revived by codicil, and if such re-execution, re- publication or revival by codicil takes place after the 1st of January, 1838, the whole insti'ument bears date at such time, and consequently is out of the exception and within the act; and wills dated before the 1st of January, 1838, will come within the act if re-executed, republished or revived by codicil subsequent to that date. (Bi'ooke v. Kent, 3 Moo. P. C. C. 334.) In that case it was held, that obliterations and altera- tions made subsequent to the 1st of January, 1838, in a will of previous date, are within the statute, and must, to be effectual, be executed according to the provisions of the act. On the other hand, a will of lands made before 1838 and revoked, may be revived after that date by a codicil attested by only two witnesses. (Andrews v. Jones, 3 Q. B. 177; 4 Jur. 572.) The consequences of re-execution, republication or revival 7 Will. 4 & 1 Vict. Cap. 26, s. 35. 207 by codicil after 1838 of any will of anterior date, and so bringing the whole within the operation of the statute, are most important. Thus under section 10 the imperfect execu- tion of a power of appointment will be rectified; under section 18 the whole will be subject to I'evocation by marriage ; and at the same time by section 19 saved from revocation by reason of any presumption of an intention on the grounds of an alter- ation in circumstances. The heir, by section 25, will be deprived of any benefit from lapsed or void devises, which will fall to the residuary devisee, while sections 32 and 33 will operate to prevent lapses in many cases ; and many parts of the instrument will become subject to a construction totally different from that which they would have received, had the will remained under the old law. But a defective re-execution, or an imperfectly executed codicil, will not affect, nor render inoperative a previously valid will. For instance, an unattested and valid will of personalty, made before 1838, will not be brought within the act of Vic- toria, and rendered inoperative, by a codicil referring to it, or by a re-execution, since that date, either of which may be im- perfectly executed. As to the use of the word republish in this section, and the distinction between republishing and reviving a will, see ante, p. 172. XXXV. And be it further enacted, that this act Not to extend to Scotland. shall not extend to Scotland. The colonies are not bound by an act of parliament unless particularly named ; but some doubt seems to have been felt in reference to this statute in one case, which however was ulti- mately disposed of in accordance with the general principle. (In the goods of Smith, 14 Jur. 1100.) As to the law of the East Indies with respect to the execu- tion of wills, see Casement v. Fulton (5 Moo. P. C. C. 130 ) XXXVI. And be it enacted, that this act may be Act may be amended. amended, altered or repealed by any act or acts to be passed in this present session of Parliament. INDEX. A. Acknowledgment of signature, what amounts to, 81. Proof of, 82. Ademption. See Revocation, 140. Allegiance distinct from domicile, 31. Alterations in will since 1838 . . 161. Presumed to have been made after execution, 163. Presumption rebutted or confirmed, 164. Where new words are substituted, 165. Where no words are substituted, 166. How made valid. 1. By re-execution of whole instrument, 167. 2. By signature of testator and subscription of witnesses. 3. By executed memorandum on the will. In will before 1838 . . 168. In pencil before and since 1838 . . 162. In estate or interest. See Revocation, 141, 143, 177. Appointment by will, how to be executed, 101. Of guardian by will, how made before 1838 . . 13. Cannot be made by infant-father by will, 63. But may by deed, 63. See Practice ; Probate. Attestation clause not necessary, 93. Practice of Court of Probate in respect of, 93. Attesting. See Witnesses. Authentication of the will, 83. See Presence ; Signature ; Witnesses. B. Blanks in dispositive part of will, how considered, 80. Blind man's will, 95. 210 INDEX. c. Codicil, definition of, 22, Is part of the will generally, 22. But may be independent of the will, 22. Revocation of, 160. Colonies not within 1 Vict. c. 26 . . 207. Convict, wife of, may make a will, 67. Copyholds, how devised before 1838 . . 11. Creditor to prove validity or invalidity of will, 135. Customary freeholds, 12. Since 1838 . . 52. Fees and fines payable by devisees of, 55. Wills of, to be entered on Court Rolls, 56. D. Delusion the test of insanity, quaere, 47. Devise without words of limitation, construction of, 193. General, what it includes, 187. Residuary, what it includes, 185. Die without issue, or without leaving issue, construction of words, 194. Domicile, question of fact rather than law, 27. Effect of time in ascertaining, 28. Distinct from allegiance, 31. Depends upon intention and fact, 28. Not upon fact alone, 28. Not upon intention alone, 30. Law of, at the time of death, prevails, 33. Regulates wills of personalty, 26. Determines what property is real, 26. What personal, 26. Applies to testacy as well as intestacy, 31. Does not apply to real properly, 26. Donatio mortis causa, definition, 25. Requisites, 25. Where resembling and where differing from legacy, 25. Drunkenness as a testamentary incapacity, 47. E. East Indies, law of, respecting execution of wills, 207. End, 75, 80. INDEX. 211 Equitable estates in customary freeholds not devisable at law, how- passed by will before 1S38 . . 1. Since, 72, Erasures. See Alterations. Estates pur autre vie. Devise of, before the Statute of Frauds, 58. Under, 58. Under 7 Will. 4 & 1 Vict. c. 26 . . 61. How devised before 1838 . . 10. Since, 72. Estates in fee simple devised before 1838 . . 1. Since, 72. Execution of wills, ten different laws for, before 1838 . . 1. Since 1838, only one mode of, 72. See Signing; Acknowledgment, 81. Under the Code Civil, 97. The Prussian law, 99. The Portuguese law, 99. Executor a witness to prove execution or validity or invalidity of will, 135. Practice of Court of Probate before 14 & 15 Vict. c. 99 . . 136. F. Fear as invalidating a will, 51. Fees and fines payable by devisees of copyholds and customary estates, 55. Foot or end, meaning of words in section 9 . . 75, 80. Force, 50. Fraud, 48. Funds, money in, how willed before 1838 . . 10. G. General devise, what it includes, 187, 190. Gift includes any estate which the testator may have power to appoint in any manner he may think proper, 190. Unless a contrary intention appears by the will, 190. Guardian, how appointed by will before 1838 . . 13. Since, 62. p2 212 INDEX. II. Husband may revoke assent to wife's will before probate, unless he ^ has assented after her death, 65. Right to administration with will annexed, where no executor appointed by wife to will made under a power, 68. I. Incapacity to make a will, 39. Mental, 39. Infancy, 39. Insanity, 40. Partial insanity, 44. Lucid interval, 44. Test of insanity, quaere delusion, 47. Drunkenness, 47. Influence, 48. Due, undue, 48. Force, 50. Fraud, 51. Legal, 5L Traitors, felons, 51. Married women, 51. Moral, not known as such to English law, 39. Incorporation of papers in the probate, 176. Infancy as a testamentary disability before 1838, and since, 39, 62. Ceases at twenty- one, 62. Day of birth not included in computing, 63. Exception in favour of soldiers in actual service and mariners at sea, 62, 117. Insanity, partial and general, 40. Interlineations. See Alterations, 165, 167. J. Joint wills not known to testamentai-y law of England, 21. Jurisdiction of Court of Probate over wills, 40. Of personalty where part of the will only is impeached, 49. Over the wills of married women made under a power, 68, 102, 106. How limited, 111, 113. L. Lapse in the case of devises of estates tail, 199. Of gifts to children or other issue, 200. to children as a class, 202. Operation of sections 32 and 33 upon, 201. INDEX. 2^^^ Leaseholds, how passed by will before 1838 .. 5. Included in general devise, unless contrary intention shown by will, 187. Lucid interval, what it is, 44. Difficult to prove, 44. What proof Required, 44. M. Mariner at sea, who under section 11 .. 114, 117. Marriage, revocation of will by, since 1838 . . 137, 148. Married women, wills of, 64. Of property settled to separate use, 04. Under a power, 64, 102, 106, 113. By assent of husband, 65. See Husband. Must be re-executed, if she survives the husband, 65. Where husband is a convict, 67. If married woman executrix, 71. See Practice. Liability to be set aside for incapacity, &c., 06. Practice of Court of Probate respecting, 68, 102, 113. Military service, what is, under section 11 . . 115. Money in the funds, how willed before 1838 .. 10. Secured on bond, how willed before 1838 . . 6. Mutual wills not known to testamentary law of England, 21. N. " Now," efTect of the word, as controlling sect. 24 . . 182. Nuncupative wills abolished, 73. Except in the case of soldiers in actual service and mariners, &c. at sea, 114. O. Obliterations, See Alterations. P. Partial insanity in respect to wills not distinguished from general, 40. Parties to suit to give evidence, 132. Husband and wife of parties, 132. 214 INDEX. Pay, S:c. of seamen or marine, will of, before 1838 . . 10. Personal estate, meaning of the words in 1 Vict. c. 26 . . 20. Property above 30/. how willed before 1838 . . 6. Under 30/., 9. Belonging to soldier or seaman, 114. Power, will under, how executed before 1838 . . 13. Since, 101. Practice of Court of Probate. In respect to wills made under a power before 1838 . . 105. Since, 111. In respect of attestation clause, 93. Releasing witness, 132. Releasing executor, before 7 & 8 Vict. c. 85, and 14 & 15 Vict. c. 99 . . 136. As to wills of married women, 102, 113. Where an executor is appointed and acts, 68. Where executor does not act, or no executor is appointed, 68. Form of the grant in these cases, 113. Presence, meaning of the word in sect. 9 . . 86, 89. Presumption not a ground of revocation, 150. From alteration or destruction of duplicate will, 157. Probate of married woman's will, 76, Of appointment by will, 102. Formerly not required, 103. Now necessar)-, 103. Effect of, 104. Property acquired after execution of will, 181. Sect. 24. See " Now." Publication of will not requisite, 126. R. Real estate, meaning of the words in 1 Vict. c. 26 . . 20. Realty, as distinguished from personalty, governed, as to testamentary disposition thereof, by lex rei sitae, 26. Republication, express, 170. Constructive, 171 . See Revival. Residuary devise, what it includes, 185. Revival of revoked will, 169. Difference between, and republication, 1 72. INDEX. "^^ Revival, express or constructive, 172. Of revoked will not effected by destruction, &c. of revoking will, 174. Revocation, Before 1838. Of devise of lands under Statute of Frauds, 137. By subsequent will, 137. By other writing, 137. By burning, &c., 138. By ademption, 140. By alteration of estate, 141. By intention to alter estate, 143. Partial, by obliteration, &:c., 139, Of woman's will by marriage, 143. Of man's will by marriage and birth of a child, 143. Of devises of estates pur autre vie, 145. Of wills relating to copyholds and customary estates, 145. Of testamentary appointments of guardian, 146. Of appointments by will, 14G. Of wills of personalty, 147. Since 1838. By marriage of man or woman, 137, 148. Exception in section 18 . . 149. Not by presumption, 150. By subsequent will, 151. By other writing, 151. By burning, &c., 151, 155. By direction and in presence of testator, 159. Not by alteration in estate, 177. Must be act of capable person, and not done under a mistake, 158. Of will generally, revokes codicils to will, 1 60. Exceptions to general rule, 160. See Revival. Dependent relative, applies to wills since 1838 . . 138. S. Scotland not within 1 Vict. c. 26 . . 207. Sea, what is, under sect. 11 . . 117. Signature made or acknowledged in the presence of two witnesses, 83. See Witnesses. Signing, what amounts to, 73. By mark, 73. 216 INDEX. Signing by another person for testator, immaterial whether with his own or testator's name, 73. May be by one of subscribing witnesses, 73. See Foot or end. Soldier in actual service may make a will of personalty as he might before 1838 .. 114. Who, under sect. 11 . . 114. Statutes repealed — 33 Hen. 8, c. 1 ; 34 &35 Hen. 8, c. 5 ; 10 Car. 1, sess. 2, c. 2, I. ; 29 Car. 2, c. 3, ss. 5, 6, 12, 19, 20, 21, 22 ; 7 Will. 3, c. 12, 1. ; 4 & 5 Anne, c. 16, s. 14 ; 6 Anne, c. 10, 1. ; 14 Geo.2, c. 20, s. 9 ; 25 Geo. 2, c. 6 (except as to colonies) ; 25 Geo. '2, c. 11, I.; 55 Geo. 3, c. 192 ..36. Subscribing, what amounts to, 92. Must be after the signing of testator's name, 91. Immaterial, where, 86. See Witnesses ; Presence. T. Trustees, operation of sections 30 and 31 upon estates of, 197. W. Will or testament, definition of, 21. To speak from death of testator, 180. What instruments considered such, 23. By what law regulated, 36. What within 1 Vict. c. 26 . . 205. Meaning of the word in 1 Vict. c. 26 . . 19. Who may make, 39. Of copyholds and customary freeholds to be entered on court rolls, 57. Of petty officers, &c., as to their wages, &c. under 11 Geo. 4 & 1 Will. 4, c. 20 .. 118. Joint or mutual, have no place in the testamentary law of Eng- land, 21. What property may be disposed of by. Property, real and personal, including customary freeholds and copyholds, without surrender and before admittance, notwith- standing want of custom, estates pur autre vie, contingent, exe- cutory and other future interests, rights of entry and after- acquired property, 38, 51 — 55. INDEX. 217 Will, ten different laws for execution of, before 1838.. .1. 1. Estates in fee simple by direct devise at law or in equity, and equitable estates in customary freeholds, not devisable at law, 1. 2. Leaseholds, 5. Money secured on land, 6. Personal property above 30/.. .6. 3. Personal property under 30/.. .9. Or belonging to soldier or sailor, 10. 4. Pay, &c. of seaman or marine, 10. 5. Estates pur autre vie, 10. 6. Money in the funds, 10. 7. Copyholds, 11. 8. Customary freeholds, 12. 9. Appointment of guardian, 13. 10. Will under a power, 13. Since 1838 One mode of execution in all cases, 72, See Execution. Foot or End, 72, 75, 80. Of a blind man, 95. Under the Code Civd, 97. In Prussia, 99. Portugal, 99. See Revocation. Witnesses, subscribing, may sign for testator, 74. Number of, required, 85. Present together, 86. Must subscribe where testator can see them, 88. In the presence of each other, 89. Gifts to, void, 133. Competent, before 1838... 128. Credible, before 1838... 128. Under 25 Geo. 2, c. 6... 129. Since 1838...130. Incompetency by reason of interest or infamy of character, re- moved by 6 & 7 Vict. c. 85, and 14 & 15 Vict. c. 99.. .132. Creditor as a witness, 135. Executor, 135. Writing necessary for all wills, 73. Formerly in pencil deliberative, but not since 1838. ..73. LONDON: C. ROWORTH AND SONS, I'RINTERS, BELL YARD, TEMPLE BAIl. LAW LIBRARY ^ UNIVERSITY OF rAr.jpoRNIit S LOS ANG£L£S ^ AA 000 825 384 i /^f-