UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY s WILLS AND INTESTATE SUCCESSION WILLS AND INTESTATE SUCCESSION A MANUAL OF PEACTICAL LAW BY JAMES WILLIAMS, B.C.L., M.A. OF LINCOLN'S INN, BABEISTEE-AT-LAW, FELLOW OF LINCOLN COLLEGE, OXFORD LONDON ADAM AND CHARLES BLACK 1891 81 PKEFACE THE justification of the appearance of another volume on the well-worn theme of succession is the belief of the writer that there exists no work which attempts in a small compass to deal at once with the history and principles for which the student looks, and with the practical law essential to the layman, who is pretty sure at some time in his life to be a testator, an executor, or an administrator. Special features are, the notice of Scotch and Irish Law, and where the subject admits of it of the Conflict of Laws (the Statuten-Kollision of German jurists), or Private International Law, as some prefer to call it, and a list of the best authorities. The writer trusts that the statement of the law is as accurate as can be expected where limitations of space prevent that complete development of principles by cases which is the object of works of a more tech- nical nature. Cases are seldom cited unless they are of unusual interest or importance. It has not been thought necessary in a book of this character to give a reference to more than one report in which a case occurs. vi PREFACE The expectation may here be expressed that, under the present editorship, this volume will form the first of a series of similar manuals, devoted to the roost important branches of the law. It is believed these handbooks will be found of service to lawyers and laymen alike. They will be under- taken by members of the English bar who have become authorities on the subjects treated by them. Among other branches of the law it is proposed to deal with Real Property, Bankruptcy, Education, Public Health and Social Legislation, Principal and Agent, Master and Servant, Marriage and Family Relations, Railways, Insurance, Partnership and Companies, Patent and Copyright, Banking and Negotiable Instruments. J. W. 2 TUMI- COUHT, TEMPLE, December 1890. CONTENTS AUTHORITIES xi LIST OF CASES CITED xiii INTRODUCTION 1 CHAP. 1. THE HISTORY OF THE WILL IN ENGLAND ... 9 2. THE HISTORY OF INTESTATE SUCCESSION IN ENGLAND . 23 3. THE WILL IN GENERAL 28 4. THE WILL OF LANDS .39 5. THE WILL OF PERSONALTY 58 6. THE CODICIL 63 7. REVOCATION 65 8. WILLS OF A SPECIAL NATURE 70 9. THE CONSTRUCTION OF WILLS 84 10. INTESTATE SUCCESSION TO (1) REAL ESTATE .109 (2) PERSONAL ESTATE 114 (3) TITLES OF HONOUR 117 11. ADMINISTRATION IN A COURT OF PROBATE (1) PROBATE 121 (2) ADMINISTRATION 133 vni TABLE OF CONTENTS PACK 12. THE RIGHTS AND DUTIES OF EXECUTORS AND AD- MINISTRATORS (1) RIGHTS 140 (2) DUTIES 148 13. ADMINISTRATION IN A COURT OF EQUITY . . . 157 14. CRIMINAL LAW . . . . . 166 15. SUCCESSION IN ITS RELATION TO THE REVENUE (1) PROBATE DUTY 169 (2) ACCOUNT DUTY 170 (8) LEGACY DUTY 171 (4) SUCCESSION DUTY 175 (5) ESTATE DUTY 179 (6) OTHER DUTIES ...;.. 180 16. CONFLICT OF LAWS ' . .182 17. SCOTLAND . . .192 18. IRELAND . ' 204 APPENDIX 209 INDEX . 275 AUTHORITIES ELEMENTARY. Stephen, Commentaries, vols. i and ii (llth ed., 1890); Williams, Real Property (16th ed., 1887); Williams, Per- sonal Property (13th ed., 1887) ; Digby, History of the Law of Real Property, c. viii (3d ed., 1884) ; Goodeve, Modern Law of Real Property (1883) ; Goodeve, Modern Law of Personal Property (1887) ; Challis, Law of Real Property (1885). EARLY WILLS. Nicholas, Testamenta Vetusta (1826) ; Furni- vall, The Fifty Earliest English Wills in the Court of Probate, 1387-1439 (1882). EARLY PRACTICE. Swinburne, Britf Treatise on Testaments and Wills (1590). GENERAL. Jarman (4th ed., 1881) ; Theobald (3d ed., 1885). WILLS OF PERSONALTY. Flood (1887). CONSTRUCTION. Wigram, Admission of Extrinsic Evidence in Aid of the Interpretation of Wills (4th ed., 1858) ; Hawkins, Con- struction of Wills (1863) ; Stroud, Judicial Dictionary (1890). LEGACIES. Roper (4th ed., 1847). EVIDENCE OF SUCCESSION. Hubback (1844). MORTMAIN. Tudor, Law of Charities and Mortmain (3d ed., 1889) ; Tyssen, Law of Charitable Bequests (1888). PERPETUITIES. Lewis (1843, Supplement, 1849); Marsden (1883). PRIMOGENITURE. Two Essays on the Law of Primogeniture, by Kenny and Laurence (1878). PROBATE. Browne (1873) ; Dixon (2d ed., 1886) ; Tristram and Coote (10th ed., 1888). EXECUTORS AND ADMINISTRATORS. Wentworth (4th ed., 1829) ; Toller (7th ed., 1839) ; Williams (8th ed., 1879). ADMINISTRATION of ASSETS. Ram on Assets (1837) ; Eddis (1880). ORIGINATING SUMMONS. Marcy and Dodd (1889). x AUTHORITIES REVENUE. Hudson, Succession Duty Acts, etc. (4th ed., 1872); Hanson, Succession Duty Acts, etc. (3d ed., 1876) ; Hanson. Revenue Acts, 1880 and 1881 (1881) ; Trevor, Taxes on Succession (4th ed., 1881) ; Layton, Guide to the Payment of Legacy and Suc- cession Duties (8th ed., 1890). CONFLICT OF LAWS. Story, Conflict of Laws (7th ed., 1872) ; Foote, Private International Jurisprudence (1878) ; Dicey, Law of Domicil (1879) ; Fhillimore, International Law, vol. iv (3d ed., 1889) ; Nelson, Select Cases on Private International Law, notes to Doe v. Vardill, Enohin v. Wyllie, Thomson v. Advocate-General (1889). SCOTLAND. Watson, Law of Succession (1826) ; Sandford, Law of Heritable Succession (1830); M'Laren, frills and Succession (1868); Bell's Principles (8th ed., 1885); and other elementary works. IRELAND. Smith, Guide to the Practice of the Probate Division (5th ed., 1890). FORMS. Hayes and Jarman, Concise Forms of Wills (9th ed., 1883) ; Davidson, Precedents in Conveyancing, vol. iv. (3d ed., 1880); Davidson, Concise Precedents (15th ed., 1890); Prideaux, Precedents, vol. ii. (14th ed., 1889) ; Bythewood and Jarman, Precedents, vol. vii. (4th ed., 1889) ; Key and Elphinstone, / dents, vol. ii. (3d cd., 1890). For Scotland, Juridical Styles, vols. i. and ii. (5th ed., 1881, 1883). LIST OF CASES CITED Ackroyd v. Smithson, 161 Alderson v. Maddison, 36 Ancaster, Duke of, v. Mayer, 161 Atkinson v. Anderson, 190 Attorney-General v. Baxter, 53 ,, v. Ironmongers' Co., 104 v. Kent, 190 v. Stewart, 186 Aylesford, Earl of, v. Morris, 37 Aylesford's Estates, JRe Earl of 11 7 Bernina, The, 143 Beverley's Case, 81 Boyes, He, 64 Bradford v. Young, 120 Braybrooke, Lord, v. Attorney- General, 177 Breruer v. Freeman, 182 Brice v. Stokes, 144 Brodie v. Brodie, 182 Buckhurst Peerage, 119 Butter and Baker's Case, 38 Campden Charities, Re, 104 Cigala's Trusts, Ee, 190 Clergy Society, Re, 93 Clook, Re, 128 Cooper v. Stuart, 52 Cowan v. Milbourn, 55 Curtis v. Hutton, 186 Dias v. De Lievera, 73 Dixon, Re, 73 Doe v. Laming, 91 ,, v. Mills, 34 v. Vardill, 185, 191, 200 Duncan v. Lawson, 186 Egerton v. Earl Brownlow, 44,99 Enohin v. Wylie, 187 Ewing v. Orr-Ewing, 187, 188 Ferguson - Da vie v. Ferguson - Davie, 30 Fleetwood, Re, 53 Fordyce v. Bridges, 187 Fulton v. Andrew, 82 Gavelkind, Case of, 204 George III, In the goods of, 71 Goodman's Trusts, Re, 186, 191 Grant v. Grant, 93 Grove, Re, 186 Hall v. Hall, 31 Hamilton v. Dallas, 184 Hampton v. Holman, 104 Hillersdon v. Lowe, 102 Xll LIST OF CASES CITED Hog v. Lashley, 186 Incorporated Society r. Richards, 205 Jer v. McKinney, 186 Jupp, Re, 73 Landsdown v. Landsdown, 114 Leach v. Jay, 91, 106 Legat's Case, 48 Lyons, Mayor of, v. East India Co., 186 Mar Peerage, 119 Moore, Re, 100 Muggleton v. Barnett, 112, 113 Newburgh, Earl of, v. New- burgh, Countess of, 106 Occleston v. Fullalove, 95, 100 Oldenburg, In the goods of Prince, 71 Phillips v. Horafray, 152 Pinchon's Case, 21 Pinney i: Hunt, 120 Price, Re, 72 Printing, etc., Co. v. Sampson, 105 Robinson v. Ommaney, GO Shelley's Case, 61, 97, 103, 106, 199 Skottowe v. Young, 190 Smee v. Smee, 81 Smith, Re, 72 Speight v. Gaunt, 147 Sugdenr. Lord St. Leonards, 132 Tanistry, Case of, 204 Thomson v. Shakespeare, 52 Vera Cruz, The, 143 Whitbyw. Mitchell, 49 Wild's Case, 95 Williams r. Arkle, 155 ,, v. Williams, 148 Willock v. Noble, 72 Wingrove w.Wingrove, 32 Yeap Cheah v. Ong Cheng, 52, 1 87 INTRODUCTION THE place of succession in a scientific system of law is not altogether easy to determine. In the arrangement of Savigny it is classed among the legal relations (Rechts- verMltnisse) which arise from a simple change in the subject of the relation. 1 By other authorities it is classed among modes of acquiring property, by others among normal as distinct from abnormal rights. It is at least safe to say that it is a mode of acquisition of property arising from no act of the successor himself, such as a right under a contract, but from the act of another person or by mere operation of law. In Roman law succession to the estate of a deceased person was always universal (successio in universum jus quod defundus habuit), the hereditas or inheritance descending as an un- divided whole. The legatee of a particular part only took through the heres. Some modern systems, like the Scotch, draw a distinction between universal and singular succession, but this was unknown to Eoman, as it is to English, law. The conception of the hereditas as a mode of universal succession determined its place in Roman law, where it is classed among the modes of acquiring property per universitatem. The origin of succession, like that of so many other 1 System des Heutigen Romischen Rechts, vol. iii, 8 (Berlin, 1840). VOL. I 1 2 INTRODUCTION legal ideas, is probably to be traced to a religious According to the opinion of many authorities l it is derived from primitive animism, the source of the worship of the House-Spirit, always a male, generally an ances- tor. 2 The vesting of the succession in the heir, himself originally, like the House-Spirit, always a male, was necessary for the purpose of continuing the family rites and observances on which, according to primitive belief, the very existence of the family depended. Property and sacra were indissolubly combined. It was a point of family honour that the spirit of the deceased, and through him the House-Spirit, was to be propitiated by ritual observances. Such observances were neglected at the peril of the survivors, for the family was one and indivisible, the dead members were still members in a sense, and the heir was simply a co-proprietor with the deceased. 3 The theory of the unity and perpetuity of the family is in fact the key to the early rules of succes- sion. It also explains the joint liability of the kind rod, known to have existed in England until superseded by the joint liability of the hundred, 4 and the law of what has been called, perhaps not very correctly, primogeniture. Many, if not most, legal systems recognised a right in the eldest son (sometimes the eldest agnate in case of 1 See Fustel de Coulauges, La CM Antique, bk. ii, c, 7 (English translation by 8. Adams, Boston, 1874) ; Hearn, The Aryan House- hold, c.vi (1879) ; Maine, Early Law and Custom, c. iv (1883) ; Markby, Elements of Law, c. xviii (4th ed., 1889). * A survival of ancestor worship in a civilised society in historical times was the festival of the Parentalia at Rome. * This appears from some of the texts of Roman law. For instance, in Inst. iii, 1, 3, the words used are statim morte parentis quasi 'iiliintatvr domitiimn, tin- death of tin- parent was as it won- only the death of one of tin- i>:irtiirrs, nncfore. 4 The liability of the hundn-d to romjicnsate the owner "I ] : in the hundred for damage done by rioters existed up to 1SJ>6, when it was abolished by 49 and 50 Viet., c. 38. ORIGIN OF SUCCESSION 3 the infancy of the eldest son 1 ) to the succession, but in ancient law the succession was to office, in modern to property. The eldest son was the most proper person to keep up the sacra. This view of the position of the eldest son is especially noticeable in the old Hindu law-books. Athenian law recognised the TT pea fie la, or right of the eldest son to the father's house, and the Mosaic law the double portion as the birthright of the eldest son (Deut. xxii, 17). The succession of the eldest son to the father's benefice under the feudal system is a kind of link between the ancient and modern systems. It was succession to an office which carried property with it. The supreme importance of succession as a means of continuing the family was recognised even at a late stage of Roman law by the rules that a vacant inheritance might be acquired by usucapion in one year, and that torture might be applied in cases affecting the inheritance to an extent beyond that allowed in other cases. Possibly the universality of the view that the House-Spirit was a male throws light on the importance of agnatic as distinguished from cognatic relationship. The distinc- tion, though not always recognised by the Aryan nations, was at least of vast importance in Hindu and Roman law. Agnates were those who were related exclusively through males, whether the relationship were natural or artificial. An adopted son would be an agnate of the paterfamilias, a daughter's son would not be. Cognates were those related by ties of blood, whether their relationship was through males or females. The tend- ency of law has been to supersede agnatic by cognatic relationship. At Athens this was done by the legisla- 1 As in the case of the Irish tanist, p. 204. 4 INTRODUCTION tion of Solon, at Rome by the praetor in his judicial capacity. He was an officer of the state, who perhaps wished to exalt the state at the expense of the gens. In modern English law relationship is estimated purely on the cognatic basis. It might be expected from what has been said, and the expectation is confirmed by what is known of archaic law, that intestate succession is earlier in time than testate. The earliest examples of wills were probably those by which the inheritance was transferred to an artificial member of the family, made so by adoption, where there was in existence no natural member quali- fied to continue the sami. But such a creation could at first take place only during the life of the testator. As Sir Henry Maine points out, the primitive Roman will, at any rate that made by mancipatio, where a plebeian was testator, differed from the modern will in three matters of the highest importance. It took effect at once as a present conveyance, because the form of manci- patio did not originally admit of modification by any condition or limitation in point of time. It was also a public act, and it was not revocable. 1 The patrician will was equally a public irrevocable conveyance, and probably equally incapable of conditional modification. If the gens were, as seems likely, only an extended family, it is evident why the primitive Roman will made by a patrician testator could only be made in the conriJiti ciiriata, or parliament of the gen ten, and why the ffrns succeeded in default of agnates of a certain degree. The early Roman patrician will was, in fact, a local and |>crsonal act passed by the legislature ; the plebeian a conveyance inter rmw. A great step in advance was 1 Ancient Lnf t c. vi. DEFINITION OF A WILL 5 taken when the will of either kind only came into operation after death. It then began to bear the mean- ing which it bears in modern law. A will or testament may be defined as an instrument by which a person regulates the rights of others over his property or family after his death. In strictness, will, at any rate in England, is a general term, while testament applies only to dispositions of personal pro- perty. But this distinction is seldom observed, and it is a common form to head a will, "The last will and testament of A. B." " Will " is a translation of the Latin wluntas, which was a term used in the texts of Roman law to express the intention of a testator. It is curious that the abstract term has come to mean the document in which the intention is contained. The same has been the case with several other English law terms, the concrete has superseded the abstract obligation, bond, contract, are examples. "Testament" is a translation of the Latin testamentum, derived by the Romans from testatio mentis, but more correctly derived directly from testor, i.e. that which witnesses or declares an intention. In the definition of a will by Modestinus in the Digest of Justinian, testamentum is defined by means of wluntas ; it is voluntatis nostrcejusta sententia de eo quod quis post mor- tem suam fieri vdit. 1 The word " codicil " is derived from Roman law, but with a different meaning, the Roman codicilli were an informal will, the English codicil is an addition to a will. "Executor" and "administrator" are Latin words, but the Latin executor and administrator were used in signification very different from those which they suggest to an English lawyer. The former meant a prosecutor, the latter a provincial governor. 1 Digest, xxviii, 1,1. fl INTRODUCTION Strangely enough, the two words occur in the titles of two of the constitutions of Justinian in immediate sequence. 1 The Roman heres included both the English terms and more besides, in fact the lieres partook of the nature of heir, devisee, executor, administrator, and legatee, and was all or some of these according to circumstances. The conception of complete freedom of disposition by will, familiar as it is in modern England, is by no means universal In England freedom of disposition has only been attained by slow degrees, 2 in other countries it is the exception rather than the rule. Legal systems founded on Roman law, such as those of Scotland, France, and Louisiana, allow alienation of the whole property only where the deceased leaves no widow or near relations. In France this restriction has been the subject of much comment by legal and economical writers. It has been condemned by resolutions of Chambers of Commerce, and by jurists of the highest eminence. M. Troplong, for instance, holds that un peuple n'est pas libre s'U n\i pas le droit de tester, et la Iibert6 du testament est la plus grande preuve de la ItberU The will, if not purely Roman, at least owes to Roman law its complete development a development which, in 1 De Adminixtmlnribus, Novel 95 ; De Bmnrforfflm, Novel 96. " Executor," as used in the well-known passage in Shakespeare, Henry V, act i, sc. 2, differs both in meaning and accent from the legal use of the word. * A trace of the period when the issue could not be entirely dis- inherited is found in the vulgar error that it is necessary " to cut off with a shilling " a child of the testator. This is a faint survival of the rule existing at one |>eriod of Roman law, that a child could not be entirely disinherited, though he might receive nothing more than a nominal gift 3 Traiti ilex Donations mire-rift el des Ttttaments (1855). most countries, was greatly aided at a later period by ecclesiastics versed in Eoman law, in England especially by the judges of the Court of Chancery. The effect has been that, as Sir Henry Maine expresses it, " the English law of testamentary succession to personalty has become a modified form of the dispensation under which the inheritances of Roman citizens were administered." l In the Mosaic law the will, if it existed at all, was of a very rudimentary character, in spite of the assertion of Eusebius that Noah made a will disposing of the whole world. 2 In India, according to the better opinion, it was unknown before the English occupation. It was, according to Tacitus, not in use among the ancient German tribes. The will is, on the other hand, recog- nised by Rabbinical, Mohammedan, and Brehon 3 law. At Athens, under the legislation of Solon, a will could only be made where the testator left no children. Eleven out of the twelve extant orations of Isaeus are on claims to an inheritance. In some cases he argues in favour of the validity of the will, in others against it. 4 The Romans were essentially a will-making people. An immense space in the Corpus Juris is occupied with testa- mentary law. The whole of part v of the Digest (books xxviii-xxxvi) deals with the subject, and there are many constitutions in addition in the Code and Novels. In Roman law the will was a transfer of the inherit- ance as a whole; the testator must dispose of all or 1 Ancient Law, c. vi. The main differences between English and Roman law will be found summarised in Appendix E. 2 The testaments of Adam and of the Twelve Patriarchs were at one time received as of at least apocryphal authority. 3 See p. 207. 4 If an Athenian died sonless and intestate, but leaving a daughter, she became an eTriK\rjpos, or orphan heiress, and the right and duty of the nearest kinsman to marry her often became the subject of litiga- tion. See Maine, Early Law and Custom, c. iv. 8 INTRODUCTION none ; he could not (unless a soldier) die partly testate and partly intestate. The effect of the introduction of Christianity upon succession was very marked. Even before its intro- duction as the religion of the Roman State, the temples of the pagan gods had often enjoyed the right of custody of wills. This right passed to the Christian churches, and it became very common to deposit a will in a church. The influence of the priesthood was shown in both Roman and canon law by various provisions to the advantage of the Church, e.g. that the Church and not the Crown was ultimus heres to the estate of a clerk, that Church property could not be bequeathed, that gifts to the Church were not subject to the deductions necessary in other cases in favour of the wife and children, and that a will made in pias causas was valid without the usual number of witnesses. 1 The tendency of the ecclesiastical tribunals was to give a very liberal interpretation to bequests of a kind which modem English law would brand with the name of " supersti- tious uses." 1 The canon law 011 the subject is contained chiefly in Decretals, Lk. iii, cc. 26 and 27. CHAPTER I THE HISTORY OF THE WILL IN ENGLAND LIBERTY of alienation by will is found at an early date in England. The pre-Conquest will was good whether verbal or written. No definite number of witnesses seems to have been prescribed. The will after death was published in the county court, and established by its authority. Intestacy appears to have been unusual at the time of Canute, one of whose laws implies that the only causes for it must have been neglect or sudden death. 1 How far the liberty of testation extended is uncertain ; according to some authorities complete dis- position of goods by will was allowed, according to others limited rights of the widow and children were recognised, subject in either case to the lord's heriot, a kind of tax in kind upon succession. As to land, it is generally supposed that free testamentary disposition of bocland (i.e. land of private proprietors) was allowed, of folcland (i.e. land belonging to the state) only by the king's licence. Whatever be the truth as to this, it is certain that after the Conquest a distinction, the result of the change in the tenure of land introduced by that event, 1 Secular Dooms, 70. VOL. I 2 10 HISTORY OF THE WILL arose between real and personal property, or immoveables and moveables. 1 A complete history of the English will still remains to be written ; a short sketch of the more prominent events in that history is all that can be attempted in this place. Real Estate. After the Conquest direct alienation of real estate by will became impossible, as it was contrary to one of the express doctrines of feudalism, viz. that there could be no alienation without the consent of the lord. 2 Any attempt at alienation by will was an attempt to deprive the Crown or the lord of land from which feudal services were due, and so indirectly of the feudal services themselves. In fact, alienation inter viws was considerably restricted until the passing of the Statute of Quid Emptores in 1 290. There were also other reasons for restricting alienation by will one, the discouragement of death-bed gifts to the church, another, the impossi- bility of the testator giving seisin to the devisee. The effect was that between the Norman Conquest and the reign of Henry VIII lands were not directly devisable by will, with certain exceptions. These exceptions were gavelkind land (chiefly in Kent), and land situated in certain ancient boroughs or manors. 3 Of the rights 1 Immoveables and moveables, terms derived from Roman law, are seldom used as English technical terms, though they perhaps express better than any others what may be called the natural dutvMMM in the classification of property. They are not quite equivalent to real and personal property, or realty and personalty ; for instance, a leasehold estate is in its nature an immoveable, but is regarded by English law as personalty. Another division, recognised by the legislature, is into real and personal estate. It is, however, to some extent misleading, as there can be no estate properly so called in personal property. 8 This restriction seems to have applied at first only to land in- herited by the deceased, not to land purchased. But gradually the restriction appears to have included purchased as well as descended land. * In manors the distinction just noticed between land inheriti ! REAL ESTATE 11 in boroughs, that of free devise possessed by citizens of London was the most important. Though, however, direct devise was not competent, more than one mode of giving effect to an indirect devise was discovered. One was to direct the executors of the will of the deceased (in whom of course the personalty of the deceased vested at his death) to purchase land and convey it to a particular person. Another and more usual mode was to make a conveyance during life to a feoffee to hold on uses to be declared by will, the will taking the form of a declaration to uses, similar to that of a con- veyance to uses inter vivos, and not unlike the Scotch disposition and settlement. This no doubt explains why a will of lands was at one time sealed, 1 and also the law that, up to 1838, a will of lands passed only lands in the possession of the testator at the time of making it, while a will of personalty passed after- acquired property. To pass after-acquired real estate needed republication, which was practically equivalent to a new will. The same reason serves to explain why a will before 1838 could be revoked by presump- tion of an alteration in circumstances, and by a subse- quent conveyance inter vivos of land devised by the testator, even though the conveyance were void, the attempt to make it being presumed to prove an animus revocandi. The doctrine of the use of land, as dis- tinguished from its nominal ownership, would not be difficult to ecclesiastics familiar with the usufruct of and land purchased seems to have existed at least into the 14th century. Two cases of devise of terra acquisita or terra prequisita, according to the custom of the manor of King's Ripton, are recorded in 1301 (Select Pleas in Manorial Courts, published by the Selden Society, vol. ii., 125, 127). 1 See rule 6 of Lord Coke's rules, p. 37. 12 HISTORY OF THE WILL Roman law, and it was by such ecclesiastics that the doctrine of uses was probably introduced. After the passing in 1535 of the Statute of Uses (which contained an exception in favour of wills of uses made before May 1536), the alienation of land by devise of the use became impossible, as the use was in the same position with regard to devisability as the land itself, and the court had not yet construed the statute in a way not foreseen by its framers, a construction by which the trust succeeded to the legal position of the old use. 1 The restraint on alienation being found inconvenient, if not intolerable, especially when a large amount of land had come into the market after the dissolution of the monasteries, a modified power of devise was introduced by two statutes of 1540 and 1542 (32 Hen. VIII, c. 1, 34 and 35 Hen. VIII, c. 5), which are still law as to wills made before 1838. These acts were very partial in their operation, for they applied in the case of lands held by tenure of chivalry only to two-thirds of such lands, only those held in socage being wholly devisable. A reservation was made of primer seisins, reliefs, and other feudal dues, and of wardship of one-third of the lands held by knight -service. When the act of 12 Car. II, c. 24, turned all the old tenures in chivalry (with a few exceptions) into free and common socage, the whole lands of a deceased became devisable. 2 It was therefore necessary to enforce a certain amount of solemnity in the execution of wills, the acts of Henry 1 See the work on Real Property in this series. 3 The only exceptions at the present day appear to be (1) entailed estates where the entail has not teen duly barred, an entail not being barrable by will, 3 and 4 Will. IV, c. 74, s. 40 ; (2) entailed estate* granted for public services under the provisions of private Acts of Parliament, such as Blenheim and Strathfiddsaye, and rendered in- alienable by such acts. REAL ESTATE 13 VIII only exacting that the will should be in writing. Simple notes in another person's handwriting, if pub- lished by the testator as his will, were sufficient to satisfy the acts. Accordingly, by the Statute of Frauds (29 Car. II, c. 3), it was required that devises of land should be signed by the testator, or by some other person for him in his presence and by his express direction, and that they should be subscribed in his presence by three or four credible witnesses. Owing to a series of decisions of the courts on the credibility of witnesses under the act, it was enacted by 25 Geo. II, c. 6, that gifts to attesting witnesses were void, but that the witnesses still remained credible, and that creditors were credible witnesses. The Statute of Frauds still governs wills made before January 1838, now a rapidly diminishing quantity. A will of lands did not need probate, the original will being itself a document of title. Such probate, in exceptional cases, was introduced for the first time by the Court of Probate Act, 1857. It might, however, be admitted to probate, where an executor was appointed. Many technical constructions of terms used in wills were altered by the Wills Act. 1 Up to 1838 a man could make a will at fourteen, a woman at twelve. The liability of the devisee for the debts of the testator has only been established by slow degrees. In the time of Glanvill (who wrote in the reign of Henry II), the heir of a deceased person was, according to the better opinion, bound to the extent of his inherit- ance to warrant the reasonable gifts of his ancestor to the grantees and their heirs, and to pay such of the debts of his ancestor as the ancestor's estate was in- 1 See chap. ix. 14 HISTORY OF THE WILL sufficient to satisfy. But this state of the law was gradually trenched upon, partly by the courts and partly by the legislature. A rude kind of remedy was given by the Statute of Merchants in 1285 (13 Edw. I, st 3), which empowered a merchant to seize the lands of a deceased debtor under a statute-merchant, and exclude the heir until he had satisfied his debt. It became a rule of the courts, dating from about the same period, and applying to others besides merchants, that the heir was not bound (except to the Crown) unless charged by the deed of his ancestor. Where the heir was so charged by deed under seal, wherein he was expressly named (by specialty, as it was called), he was bound to the extent of the lands descended, but no further. 1 Such lands became assets in his hands, and were all in the nature of real estate that the creditors had to resort to unless the testator had charged his lands by will with payment of his debts. In such a case the lands were called equitable assets, and simple contract creditors were allowed by the Court of Chancery to rank equally with specialty creditors. Various acts were passed at different times to remedy the unjnst exclusion of all but specialty creditors, but the devisee was not liable to debts until 1691, and it was not until 1833 that lands of all persons alike became subject to all debts, but with a preference (in the absence of a charge of debts upon the land) to specialty creditors. Simple contract and specialty creditors did not rank equally until 1870. Estates pur autre vie and trust estates were first made assets by descent by the Statute of Frauds. 1 The heir of lands conveyed to uses was not so bound until the Statute of Uses. That statute for the first time made the use assets of the deceased. REAL ESTATE 15 Two subjects are of sufficient interest to demand a special notice, viz. copyholds and mortmain. Before the present Wills Act, testamentary alienation of copy- holds, which were first made devisable in 1815 by 55 Geo. Ill, c. 192, was generally made by surrender to the use of the will of the copyhold tenant. The sur- render was made into the hands of the lord, and the steward entered a presentment of the surrender (if made out of court, as it generally was) on the court rolls of the manor. After the decease of the tenant the devisee generally brought the will into court, and a presentment was made of the tenant's decease and of the terms of his will. This presentment was made unnecessary by 4 and 5 Viet., c. 35. By the Wills Act, copyholds may be devised directly like lands of any other tenure. Copyholds devised were not subject to debts until 1833, even where charged with the payment of debts, and even in favour of the Crown. A fine is generally payable on admittance of any copyholder succeeding by descent. But in many cases enfranchisement has abolished the right to the fine. The right to a heriot, either the tenant's best beast, or a pecuniary composi- tion in lieu thereof, still exists in some manors. It is said to be of Danish origin. The Mortmain Acts constitute a series of measures dictated by public policy, their object being to prevent the accumulation of real estate in the hands of corpora- tions. Lands belonging to corporations were said to be in mortud rnanu or in mortmain, because, owing to the perpetual existence of the corporation, they produced no benefit to the feudal lord by escheat or otherwise. Mortmain proper only applies to gifts to corporations, though the term is often used with regard to gifts of 16 HISTORY OF THE WILL land for any purpose where the alienation of the land would be restricted. Restraints on gifts to corporations were well known to Roman law. For instance, in the time of the Pagan emperors only certain deities could be instituted heirs, and in the time of the Christian emperors gifts to ecclesiastical corporations, such as monasteries, were bound to be duly registered. The earliest mortmain provision in England is the Constitutions of Clarendon (1164), the latest the Mortmain and Charitable Uses Act, 1888 (chiefly a consolidating act). The Constitu- tions of Clarendon by 2 enact that no gift is to be taken by the Church without the licence and assent of the Crown, the earliest mention of a licence in mortmain. Between 1164 and 1888 the law passed from a stage of absolute to one of limited disqualification, and the modern tendency is to allow testamentary gifts of personalty to charities in all cases and gifts of realty up to a limited amount to charities of a certain kind. 1 The most important act before 1888 was 9 Geo. II, c. 36, much of which is re-enacted by the act of 1888. The terms used in the two acts as to personalty savouring of realty are, however, sufficiently different to make it a question whether the law as to personalty savouring of realty has been in any way altered by the later act. There appears to be a divergence of opinion among text- writers on the subject Personalty. The history of wills of personalty to a certain extent moved in parallel lines. In both real and personal property partial preceded complete power of disposition. The opinion of the best authorities is that by the common law of England a testator could only dispose of his whole personal property if he left no wife 1 See p. 45. PERSONALTY 17 or children ; if he left either wife or children he could only dispose of one-half, and one-third if he left both wife and children. The shares of wife and children were called their pars rationabilis, which is recognised by Magna Carta. 1 At what period the right of disposition of the whole personalty superseded the old state of the law is uncertain ; that it did so is certain, and the places where the old rule still existed, the province of York, the principality of Wales, and the City of London, were regarded as exceptions. The right of bequest in these places was not assimilated to the general law until com- paratively recent times by acts passed between 1693 and 1726. At different times limited powers of dis- position over goods not alienable by will at common law were given by various Acts of Parliament, some of which are still law, though practically superseded by the larger powers of the Wills Act of 1837. Among these earlier acts are the Statute of Merton, 1235 (20 Hen. Ill, c. 2), enabling widows to bequeath the corn on their lands, and 28 Hen. VIII, c. 11. s. 4 (1535), enabling incum- bents to bequeath the profits of corn so\yn on their glebes. At one time a will of personalty was not valid unless an executor was appointed, but this rule has long been obsolete. In early wills an overseer as well as an executor was often appointed. At common law a will might be either written or verbal (otherwise called nuncupative). A written will must have been published, that is, declared in the presence of witnesses, as the -testator's last will; a nuncupative will was simply recited and might be proved by the evidence of those who had heard it. The 1 Omnia catalla cedant defuncto, salvis uxori ipsius et pueris suis rationalibus partibus suis, 26 of the Magna Carta of John. 18 HISTORY OF THE WILL Statute of Frauds provided that no nuncupative will should be good where the estate bequeathed should exceed the value of 30, unless proved by the oaths of three witnesses at least, who were present at the making thereof. There were also other restrictions, the most important perhaps being that the words of a nuncu- pative will must be committed to writing within six days. A will in writing could not be altered by word of mouth. If holograph, that is, entirely in the writing of the testator, it was valid without signature. The effect of legislation and custom combined was that before the Wills Act there were ten different ways in which a will could be made, and the Real Property Commissioners in 1833 strongly recommended uni- formity. 1 Up to 11 Geo. IV and 1 Will. IV, c. 40, the executor took for his own benefit any residue undisposed of as the general representative of the testator; since that act he holds it as trustee for the next of kin. The jurisdiction over probate of wills of personalty was until 1858 in the ecclesiastical courts. This was a relic of the old theory by which the personalty of the deceased was regarded as being primd facie a fund for providing masses for his soul. 2 The ecclesiastical juris- diction was of very ancient origin ; it is noticed by Glanvill, and is generally supposed to have been assumed after the Conquest by the prelates and their officers, in accordance with the general law of Christian Europe. The courts which had jurisdiction were those of the 1 Fourth Report, 12. 1 In pre- Reformation wills a bequest for masses is almost invariable, and by the statute of 1357 (see below), the surplus was to be n]>i>liry fixing the fees demandable in probate and administration. PROBATE 21 fined 20,000 by the Star Chamber. He afterwards obtained a pardon from Charles I. 1 The proceedings of the ecclesiastical courts, even where the judges were above suspicion, were dilatory and expensive, and the abolition of their jurisdiction in testamentary matters was regretted by few. In 1857, by the Court of Probate Act of that year, the ecclesiastical jurisdiction was transferred to the court created by the act; and in 1875, by the Supreme Court of Judicature Act, 1873, the jurisdiction of the Court of Probate was merged in that of the High Court of Justice, and specially assigned to the Probate, Divorce, and Admiralty Division of that court. Contentious jurisdiction in probate was first conferred upon the County Courts by the act of 1857. The liability of executors and legatees for the debts of the deceased seems to have been established at least as early as that of heirs and devisees. It existed in the time of Bracton, who wrote in the reign of Henry III and is treated as clear law by Lord Coke in 1612. 2 In the period of formal pleading no action could have been brought against an executor in any case in which the testator, if living, could have waged his law. 3 For that reason an action of debt on a simple contract lay against the executor only in the Court of Exchequer, where wager of law was not allowed. Power to sue for torts to the property of the deceased was first given to executors by 4 Edw. Ill, c. 7. They were allowed an action of account by 13 Edw. I, c. 23, but no 1 An account of the proceedings will be found in 2 State Trials, 1146, and in the Dictionary of National Biography, s.v. Bennet, Sir John. 2 Pinchon's Case, 9 Coke's Rep., 86. 3 That is, have sworn that he did not owe the debt, confirming his oath with that of eleven of his neighbours, who swore that they believed his denial to be true. 22 HISTORY OF THE WILL such action lay against them until 4 and 5 Anne, c. 16. All these statutes have been superseded by later acts, as will appear in a subsequent chapter. Before recent legislation a married woman was under certain testamentary disabilities. She could not at common law make a will of any property, for it was not hers to leave. Equity, however, allowed her to dispose by will (under certain restrictions) of property settled to her separate use. In some cases the husband could dispose of her property by will, in others not. A provision was often inserted in the marriage settlement where there was one enabling the wife to make an appointment disposing of personalty below a certain value. She could always make a will under a power of appointment, or, when executrix, continue the repre- sentation by appointing another executor. She could not act as executrix or take a grant of probate without her husband's concurrence. Her position was gradually ameliorated by the Married Women's Property Acts of 1870 and 1874, and still more by the act of 1882. 1 It seems to have been completely assimilated to that of the unmarried woman by the rule of the Probate Division of 29th March 1887, under which it is not necessary to recite in a grant of probate of the will of a married woman that she was entitled to separate estate. 1 See p. 71. CHAPTER II THE HISTORY OF INTESTATE SUCCESSION IN ENGLAND THE law of sucession to real estate depends on what, for want of a better word, may be called feudal principles, the law of succession to personal estate is based on that existing in the later period of Roman law, when cognatic had taken the place of agnatic relationship. As in the case of wills, it will be necessary to consider separately the history of succession to the two kinds of property. A short sketch of the history is necessary for explaining much of the significance of the existing law. Real Estate. In the pre-Conquest period land de- scended as a rule, that is, where no custom modified the general law, to all the sons equally, the rule of primo- geniture being of Norman introduction. 1 By the reign of Henry II (when Glanvill wrote) the law had become 1 Both the Mosaic and the Mohammedan law occupy a position midway between pre- and post-Conquest law in England. By the former the eldest son had a double portion for his birthright, by the latter a son had double the portion of a daughter, but the eldest son had no special privilege. In the United States the right of the eldest son has been abolished in all the States, and real and personal property generally descend in the same manner, the main differences appearing in variations of the law as to the respective rights of succession of the husband and the wife. Bills for the assimilation of the succession in real estate to that of the succession in personal estate have often been introduced into the House of Commons of the United Kingdom, but hitherto without success. 24 HISTORY OF INTESTATE SUCCESSION established in the form which still prevails. Under this law the rule as to succession of the eldest son is strict and uniform, and now applies to freeholds of all kinds (with a few exceptions to be noticed later), though in Glanvill's time affecting only military ten- ures. 1 By the time of Bracton the rule of succession of the eldest son had become established with regard to lands of socage tenure. In default of a son the rules of succession laid down by Glanvill remained unaltered until they were amended by Parliament in 1833, unless any general or local custom, such as gavelkind or borough-English, sanctioned a different mode of descent. The three main points in which the law, before the act of 1833, differed from that now prevailing were these. The descent was from the person last seised, instead of from the purchaser, in accordance with the old legal maxim Seisina facit stipitem ; after failure of issue the collaterals succeeded to the exclusion of the ancestor; the half-blood was entirely excluded. The right of the successor to the whole estate of the ancestor was limited in freeholds by relief, curtesy, and dower, and in copyholds by fine and heriot, as already mentioned. Relief was a sum of money paid to the lord on succession, consisting generally of a year's rent. A relief might be payable by special custom in succession to copy- holds. Curtesy, in full curtesy of England, was the life tenancy of a husband of the whole of the estates in posses- sion of his deceased wife, whether legal or equitable (in gavelkind lands of one-half), provided there had been issue of the marriage born alive who might by possibility have 1 Glanvill's words are, Si miles fuerii vd per miUlam tcnmi tune tecundiim j\u reyni Anylia primogenitiu JUiut patri swxrtlut ,n tolum. REAL ESTATE PERSONALTY 25 been heir to the wife. Dower was a life estate of a widow in one-third part of the lands of her deceased husband, in gavelkind lands of one-half. Rights ana- logous to curtesy and dower may exist by custom in copyholds. In the latter case the right is generally called freebench. None of these limitations of the full enjoyment of succession are now of much practical importance. Eelief is represented by a payment in ex- ceptional cases of one year's quit-rent, generally a nominal sum. It is doubtful whether tenancy by the curtesy can exist after the changes in the law made by the Married Women's Property Act, 1882. The power of barring the widow's right to dower (either by pro- vision in lieu of it, or by simple declaration in a deed or will) given by the Dower Act of 1833, has made the existence of estates in dower very rare. 1 In most cases clauses in the marriage settlement prevent any question as to curtesy or dower arising. Personalty. There is a difference of opinion as to the origin of the rights of the Church over the personal estate of an intestate. Blackstone derives it from delegated prerogative, the Crown being originally entitled to such goods as parens patrice. But whether the rights of the Church were inherent or delegated, there is no doubt that they existed in full vigour at an early date, and were recognised in the Magna Carta of John, 27 of which provides that if a free man die intestate, his chattels shall be distributed among his relations, parents, and friends per visum ecdesice, with a saving for payment of his debts. The goods of the deceased were vested in the ordinary, who was not accountable to any authority 1 Tenancy in dower is, however, still common in some of the States of the United States. VOL. I 3 26 HISTORY OF INTESTATE SUCCESSION for the mode in which he distributed them. This led to continual complaints that the Church took the whole residue (after payment of two-thirds to the widow and children) for its own benefit, leaving the debts unpaid. In fact, this became the established canon law in England. 1 To remedy this state of things numerous statutes were passed, the earliest of which was that of Westminster the Second in 1285 (13 Edw. I, c. 19), by which provision was made for payment by the ordinary of the debts of the intestate, as far as his goods extended, in the same manner as executors would have been bound to have done, had he left a will. The re- sidue after payment of debts still remained at the disposi- tion of the ordinary until 31 Edw. Ill, c. 1 1 (1357), enacted that in case of intestacy the ordinary should depute the nearest and most lawful friends of the deceased to administer his goods. 2 This was the origin of ad- ministrators in intestacy. They were merely the deputies or nominees of the ordinary, as they are now of the Probate Division. The Statute of 21 Hen. VIII, c. 5, allowed the judge to choose the widow or the next of kin as administrator at his discretion. Before the reign of Charles II, there was a difficulty in com- I>elling the administrator to make a distribution. Any bond to duly distribute among the next of kin, if entered into by the administrator before the ecclesiastical court, was held void by the temporal courts. Nor was there any statutory definition of the next of kin. In order to remedy these inconveniences the Statutes of Distribution 1 In JiritanniA tertia pars bonorum detctudenlium ah intettaio in ojms ecclesia: et pauperum ilitpauanda eft. Decretals, v. 3, 42. 9 Any debts due to the intestate and recovered by such friends were by the act still to be administered aud depended for the soul of the dead. PERSONALTY 27 were passed, under which the distribution of the surplus personal estate is to be made by the administrator to the next of kin in a certain order. 1 Administration is now wholly under the jurisdiction of the High Court or a County Court. All customary modes of administration were finally abolished by 19 and 20 Viet., c. 94. 1 See p. 134. CHAPTER III THE WILL IN GENERAL THE main authority for the law and the formalities of execution of a will is the Wills Act passed July 3, 1837, principally owing to the exertions of Lord Langdale. The whole act is still law, except s. 12, repealed by 28 and 29 Viet, c. 112, and ss. 2 and 36 by the Statute Law Revision Act, 1874. The act extends to England and Ireland, but not to Scotland. What the act did was to make certain amendments in the law, chiefly re- lating to real property, and to enforce a uniform system of formalities of execution in the case of wills of all kinds. Any differences of procedure arise subsequently ; as far as execution is concerned, the law demands the observ- ance of the same formalities, whatever be the nature of the property disposed of. In the great majority of cases a will deals with personalty only or personal and real property together, a will of lands only is comparatively rare. By the Stamp Act, 1870, wills arc exempt from stamp duty, but probates and letters of administration must be stamped, as will appear in a later chapter. The will of a living testator may by the Court of Probate Act, 1857, bo deposited for safe custody in the principal registry at Somerset House. 1 1 20 and 21 Viet, c. 77, . 91. The fee for such deposit is ten TESTAMENTARY CAPACITY 29 The requisites for the validity of a will are : (1) Testamentary capacity of the testator ; (2) Testamentary character of the instrument ; (3) Knowledge and approval of the instrument by the testator ; (4) Absence of undue influence ; (5) Due execution and attestation. These requisites depend partly on common law, partly on the Wills Act and a later act of 1852. (1) Every person of the age of twenty-one or up- wards is primd facie capable of disposing of his or her property by will. Since the Naturalisation Act, 1870, and the Married Women's Property Act, 1882, this appears to be true of the alien and of the woman married since January 1, 1883. The main, if not the only, exception to the rule as thus laid down is the case of insanity. Insanity is a question of fact, and there appears to be no presumption of sanity until the con- trary be shown. The disability of an infant is subject to certain exceptions ; a soldier in actual military service or a mariner at sea may make a valid will at fourteen, 1 and a depositor in a savings bank or member of a friendly, etc., society, may make a nomination (which has the effect of a will) at sixteen. 2 (2) Certain kinds of instruments cannot operate as wills, because they are not of a completely testamentary character. The tests for determining such character shillings. In the office of the inspector of seamen's wills there is, under the Order in Council of December 28, 1865, a depository for the wills of seamen and marines. A will deposited in a public office is the nearest approach in England to the testament mystique of the French Code Civil, 976, a will sealed and deposited with a notary. 1 See Ch. VIII, where these exceptional wills are more fully treated. 2 See p. 139. 30 THE WILL IN GENERAL appears to be whether the document in question is revocable, and whether it is intended to take effect only on the testator's death. If these tests be applied, even a document in form a deed may be in legal effect a will. Mere instructions for a will, or even orders on a banker or letters, if duly executed as a will, may take effect as such. So may a document expressly said to be tem- porary, e.g. one containing the words "until a formal will be made by a lawyer." On the other hand, in a re- cent case a document duly executed as a will but headed, " This is not meant as a legal will, but as a guide," was held not to be a valid testamentary document, and pro- bate was refused. 1 Evidence is admissible to show either that a document primti facie testamentary is not so, oc that a document primA facie not testamentary is so. There is no definition of a will in the Wills Act other than that in the interpretation clause, by which the word "will" is to extend to a testament, and 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 1 2 Car. II, c. 24, and the corresponding Irish act, and to any other testamentary disposition. 2 It is not necessary that a will should be a single document "Sometimes a testator for greater security executes his will in duplicate, retaining one part and committing the other to the custody of another person (usually an executor or trustee) ; and questions have not unfrcqucntly arisen as to the effect of his subsequently destroying one of such papers, leaving the duplicate entire. In these cases the 1 Ferguson- Davit v. Ferguson- Davi', Law Rep. 15 Probate Div., 109 (1800). * H. 1. KNOWLEDGE & APPROVAL UNDUE INFLUENCE 31 presumption generally is that the testator means by the destruction of one part to revoke the will, but the strength of the presumption depends much upon cir- cumstances." 1 Documents may be incorporated as part of the will, but they must be documents actually existing at the time of making the will, and identified by express reference in the will. A will may be contingent, that is, may depend for its validity on the happening of a future event or even on the option of another person than the testator. A will may also be joint, subject to revocation by either of the joint makers or by the survivor. Mutual wills may also be made, that is, wills remaining revocable during the joint lives of the makers, but irrevocable after the death of one of them, provided that the survivor takes advantage of the will of the deceased. (3) At the time of making the will the testator must be able to understand the nature of the business in which he is engaged, such as the effect of the document, the property intended to be left, and the persons to be benefited. In the absence of proof of fraud or coercion, a will read over to a testator is presumed to have been approved by him, and this although the attesting wit- nesses, when called to give evidence in court, have no recollection of the circumstances. (4) The use of undue influence may avoid a will. What is undue influence is a question difficult to answer in the abstract. Roman law expressed it by the words, Quamvis si liber esset noluisset, tamen coactus voluit. In a case of Hall v. Hall, tried before Lord Penzance in the Court of Probate in 1868, 2 that learned judge laid down the laAv as follows. " To make a good will a man must 1 1 Jarman, c. vii. - Law Rep., 1 Probate, 481. 82 THE WILL IN GENERAL be a free agent. But all influences are not unlawful. Persuasion, appeals to the affections or ties of kindred, to a sentiment of gratitude for past services, or pity for future destitution, or the like, these are all legitimate and may be fairly pressed on a testator. On the other hand, pressure of whatever character, whether acting on the fears or the hopes, if so exerted as to overpower the volition without convincing the judgment, is a species of restraint under which no valid will can be made. Im- portunity or threats, such as the testator has not the courage to resist, moral command asserted and yielded to for the sake of peace and quiet, or of escaping from distress of mind or social discomfort, these, if carried to a degree in which the free play of the testator's judg- ment, discretion, or wishes is overborne, will constitute undue influence, though no force is either used or threatened. In a word, a testator may be led but not driven ; and his will must be the offspring of his own volition and not the record of some one else's." In a later case Sir James Hannen directed a jury that in order to establish undue influence it must be shown that the will of the testator was coerced into doing what he did not desire to do. 1 The burden of proof rests on those who assert the exercise of undue influence, and proof must be given that fraud or coercion has been exercised with regard to the will itself. It is always a suspicious circumstance that a person who prepared a will, especially if a solicitor, is greatly benefited by its pro- visions. Such a person has thrown upon him the onus of showing the righteousness of the transaction. An agreement for a reward to use influence over a testator on behalf of a particular person is void. 1 Wingrove v. Winffrove, Law Ifcp., 11 Prohntc Div., 81 (1886). EXECUTION AND ATTESTATION 33 (5) By the terms of the Wills Act no will is valid unless in writing and executed in accordance with the provisions of the act. The requisites of execution are as follows : (a) Signature at the foot or end thereof by the tes- tator or by some other person in his presence or by his direction. The signature may be in pencil, or may be by mark or by a stamp, or even in an assumed name. The will may be written on any substance capable of being written on. No sealing is necessary, and sealing alone is not a sufficient signature, unless the seal be one bearing the testator's name or initials and acknowledged by him as his hand and seal. It is usual, though not compulsory, for the testator and the witnesses to sign each sheet of a will where there are more than one, and to sign or initial all interlineations, which should also be expressly referred to in the attestation clause. In- terlineations are presumed to have been made after execution. Where only the last sheet is attested, the presumption is that the others were in the room and formed part of the will at the time of execution. Owing to some difficulties having arisen as to the interpretation of the words "at the foot or end thereof," an Act of Parliament was passed in 1852 (15 and 16 Viet., c. 24), which enacts in short that the will is to be considered valid if it be apparent that the testator intended to give effect by his signature to the writing signed as his will. (b) Signature or acknowledgment in the presence of two witnesses, both present together, before either of them attests. The requisites of attestation are as follows : (a) Capacity of the witnesses. Any one is a capable witness, even idiots and lunatics are not excluded by 34 THE WILL IN GENERAL law, though for obvious reasons testators do not make choice of such perons. An infant, if able to write, is a good witness. So is the husband or wife of the testator, an executor, or a creditor. Under the Wills Act, e. 14, a will does not become void owing to the incompetency of a witness, and by s. 15, if a will be attested by any person to whom, or to whose wife or husband, any beneficial interest be given (except a mere charge for payment of debts), the person attesting will be a good witness, but the gift of such beneficial interest to such person, or the wife or husband of such person, will be void. Under this section even a power to a solicitor, who was an attesting witness, to make professional charges was held to be void. Subsequent marriage of two attesting witnesses does not avoid a gift to either or both. A legatee benefited by a will may attest a codicil under which he takes nothing, and conversely a gift may be made by a subsequent codicil to the witness of a will. A gift to an attesting witness is void although there arc more witnesses than are necessary ; for instance, a gift to one of three attesting witnesses would be void, not- withstanding that the attestation of the others is suffi- cient for the validity of the will. 1 (y3) The sight, or opportunity of sight, by the witnesses of the signature of acknowledgment of the testator. It is sufficient if the witnesses might have seen had they looked. (7) Signature by the witnesses in the presence of the testator, though not necessarily in one another's presence. No form of attestation is prescribed. The usual form, 1 /><< v. Mills, 1 Mooily and It-iliinson's K,-p., '288 (1833). I'.ut the court will admit i-vidnirc to prove tli:it the third name wiw not signed in the capacity of wit i ATTESTATION 35 however, implies that all the three parties were present together and signed in one another's presence. (B) Intention to attest as witnesses is necessary. The witness must therefore be aware that it is a will that he attests, though he need not be informed of the contents. Initials, description, or a mark constitute a sufficient signature. By s. 21 of the act no obliteration, interlineation, or other alteration made in any will after its execution is to have any effect (except so far as the words of the will before such alteration shall not be apparent), unless such alteration be executed in the same manner as a will. The alteration may be executed and attested in the margin or on some other part of the will opposite to or near such alteration, or at the foot or end of or opposite to a memorandum referring to such altera- tion, and written at the end or some other part of the will. Unattested alterations or interlineations are pre- sumed to have been made after execution. Other sections of the Wills Act dealing with the general law (not treated under special heads) are the following : , By s. 3 all real and personal estate to which the test- ator is entitled either at law or in equity may be disposed of by will. This includes property acquired between the execution of the will and the death of the testator. 1 By s. 13 every will executed in accordance with the act is valid without republication. By s. 23 a conveyance or other act subsequent to the execution of a will (except an act of revocation) does not prevent the operation of the will over such 1 As a general rule a testator can leave by will only what he could give in life. The one exception appears to be a freehold to commence in futuro, which can legally be the subject of a devise, but not of a conveyance inter viws at common law. 36 THE WILL IN GENERAL real or personal estate as the testator has power to dispose of at his death. By s. 34 the act does not extend to wills made before January 1, 1838, and a will re-executed or re- published or revived by codicil is, for the purposes of the act, to be deemed to have been made at the time of re-execution, republication, or revival ; nor does the act extend to the estate pur autre vie of any person dying before January 1, 1838. It should be noticed that there may be a good con- tract to make a will or a devise or bequest in favour of a particular person. Such a contract has been en- forced by action for specific performance, or by action for damages against the representatives of the deceased. The contract must be valid by the Statute of Frauds where that statute requires writing. On this principle a mere verbal promise to make a will in favour of a housekeeper in reward for her services was held to give no right of action against the heir of the promisor on his dying intestate. Neither the continuance of the plaintiff in the service of the deceased after the promise, nor the execution by the latter of a document intended to operate as a will in the plaintiff's favour, but invalid for want of proper attestation, was regarded by the House of Lords as sufficient part performance to exclude the Gyra- tion of the Statute of Frauds. 1 In the case of a will olv tained by a promise to dispose of property in a particular way, the court gives effect to the verbal arrangement by affecting with a trust the projxjrty devised or bequeathed. A contract to dispose of a succession in favour of n particular person is good," subject always to the pro- 1 AWtrson T. MaddUon^ Law Rep., 7 Apixail Cases, 174 (1883). 8 By the law of France and other countries which follow the Komnn law such a contract ia invalid. CONTRACT RULES FOR TESTATORS 37 tection afforded by the courts to expectant heirs, who have been relieved from unconscionable bargains even where such bargains have been made after they have attained their majority. In one well-known case the heir-apparent to an earldom, when twenty-two years of age, had borrowed money at sixty per cent on the security of his interest in the property which would be his at his father's death. After the death of the father, the lender commenced actions on his bills, but it was held by the Court of Appeal in Chancery that the actions must be restrained and the bills delivered up on payment of the sums actually advanced with interest at five per cent. 1 A will defective in form is defective for every purpose. In some cases a court of equity will interfere to grant relief where an instrument is not duly executed, but this is never the case where the instrument is a will. The date of a will may, however, be supplied or corrected by a court having jurisdiction in probate after hearing the evidence of an attesting witness. The powers given by a will are sometimes extended by a private Act of Parliament, chiefly in the direction of increased powers of leasing and of sale of heirlooms. But there appears to be no instance where an act has given validity to a will invalid in form. In a few cases private acts have been passed for better effecting the purposes of wills, Parliament assuming to a limited extent the jurisdiction of a court of construction. The rules for the guidance of testators given by Lord Coke are still of value, and it will not be amiss to set them out at length. "1st. Make it by good advice, in your perfect memory, 1 Earl of Aylesford v. Morris, Law Kep. , 8 Chancery, 484 (1873). 38 THE WILL IN GENERAL and inform your counsel truly of the estates and tenures of your lands, and by God's grace the resolution of the judges in this case l will be a good direction to learned counsel to make your will according to law, and thereby prevent questions and controversies. " 2d. It is good, if your will concern inheritance, to make it indented, 2 and to leave one part with a friend, lest after your death it be suppressed. " 3d. At the time of the publication of the will, 3 call credible 4 witnesses to subscribe their names to it. " 4th. If it may be, let all the will be written with one and the same hand, and in one or the same parchment or paper, for fear of alteration, addition, or diminution. " 5th. Let the hand and seal 5 of the devisor be set to it. " 6th. If it be in several parts, let his hand and seal be put, and the names of the witnesses subscribed, to each \ >;i rt . " 7th. If there be any interlining or rasure in the will, let a memorandum be made of it and signed by the testator. " 8th. If you make any revocation of your will, or of any part of it, make it by writing, by good advice ; for on a revocation by word follow controversies, some of the witnesses affirming it to be in one manner, and some in another manner." 1 /;,///,, ,m,l Bakers Case, 3 Coke's Rep., 25a (1591), to the report of which these rules ore added as a note. The case dealt with the requisites of a will, and what real estate might at that time be devised. s The advice to indent the copy is a relic of the old theory of a will as a conveyance. See p. 11. A deed of grant is generally >>y indenture. * Publication is not now necessary. 4 Credibility is not a condition of valid attestation since the Wills Act. See p. 13. 6 There is no need to seal a will, though it may bo sealed if the testator please. Sealing without signing is not a sufficient execution. 6 Such revocation would not be valid in any case since the Wills Act. CHAPTER IV THE WILL OF LANDS THE law of what may be called the external and internal validity of the will of lands (under which any kind of real estate is included) depends partly on decisions of the courts, mostly on statute. The principal part of the law depending on decisions is that dealing with the internal validity of the will where questions of public policy arise. The will of lands differs fundamentally from the will of personalty in being itself evidence, while the probate copy is the only legal evidence of the will of personalty, or of the will of both lands and personalty combined. A will of lands thirty years old, coming from the proper custody, will be presumed to have been duly executed. In two cases only is probate of a will of lands granted : (1) where executors are appointed to carry out its provisions, (2) where the probate is in solemn form pursuant to the Court of Probate Act, 1857. 1 The same act provides that in any case where it would be necessary, according to the then existing law, to produce and prove an original will, in order to establish a devise or other testamentary disposition of or affecting real 1 P. 125, 40 THE WILL OF LANDS estate, the party intending to give such proof may give to the opposite party ten days at least before the trial notice of his intention to give in evidence the probate in solemn form, and such probate shall be sufficient evidence of the will, and of its validity and contents, unless the opposite party, within four days after receiving the notice, give notice that he intends to dispute the validity. 1 An action will lie in the Chancery Division to perpetuate the testimony of the attesting witnesses, where a devisee apprehends an attempt on the part of the heir to impeach the validity of the will. Where land devised by a will is in one of the register counties (Middlesex and Yorkshire), in order to give it validity as a document of title a memorial should be registered in the registry of the county or riding, containing, ///A r alia, the dates of the will and of the testator's death, the names and addresses of the witnesses, a description of the lands affected by the will, and the names of the parishes where they are situated. The Registry Acts do not apply to devises of copyholds, and the Middlesex Act does not apply to the City of London. It is pro- vided by the Vendor and Purchaser Act, 1874 (37 and 38 Viet, c. 78, s. 8), that where the will of a testator devising land in Middlesex or Yorkshire has not been registered within the period allowed by law in that behalf (in ordinary cases six months from the testator's death), an assurance of such land to a purchaser or mort- gagee by the devisee, or by some one deriving title un- der him, shall, if registered before, take precedence of and prevail over any assurance from the testator's heir-at-law. A devise by will may be either immediate or execu- tory. An executory devise is one the operation of which 1 a 64. REGISTRY ACTS EXECUTORY DEVISE 41 is postponed until a certain time after the testator's death. " To take a common instance ; a man may by his will devise lands to his son A, an infant, and his heirs ; but in case A should die under the age of twenty-one years, then to B and his heirs. In this case A has an estate in fee simple in possession, subject to an executory interest in favour of B. If A should not die under age, his estate in fee simple will continue with him unim- paired. But if he should die under that age, nothing can prevent the estate of B from immediately arising and coming into possession, and displacing for ever the estate of A and his heirs." l The difference between an executory devise and a contingent remainder is of smaller importance than it was, as by an act passed in 1877, (40 and 41 Viet., c. 33), a contingent remainder is capable of taking effect as an excutory devise in the event of the particular estate determining before the contingent remainder vests. 2 It can of course take effect only where the executory devise could take effect, and if the executory devise would be void for remoteness, the remainder will be equally void. The sections of the Wills Act affecting real estate are the following : " The words ' real estate ' shall extend to manors, advowsons, messuages, lands, tithes, rents, and heredita- ments, whether 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." S. 1. 1 Williams on Real Property, pt. ii, ch. iii, s. 1. Another example is afforded by a devise in case of death without issue as construed by s. 29 of the Wills Act. See p. 88. 2 See the work on Real Property in this series. VOL. I 4 42 TIIK WILL OF I. ANUS The power of devising real estate extends to all real estate to which the testator shall be entitled either at law or in equity at the time of his death, and which, if not so devised, would devolve upon the heir-at-law or customary heir of him, or, if he became entitled by descent, of his ancestor. It also extends to customary freeholds and copy holds without surrender and before admittance, and also to such as could not at the time of the passing of the Act have been disposed of owing to the want of a custom to devise or surrender, or to the custom that a will or surrender should continue in force for a limited time. The power also extends to estates pur attire vie 1 of whatever tenure, to contingent, executory, or other future interests, and to rights of entry. (S. 3.) This section gives the right to dispose of all kinds of real estate, whether in possession, reversion, or remainder, 'even those to which he has only a possessory title. The only exception seems to be estate of which there is a joint tenancy, for on death of one joint tenant the estate passes to the survivor or survivors, and the power of devise is confined to the last survivor. Heirlooms 2 and fixtures are, though in their nature personal, regarded by the law as real property, except as far as, in the case of fixtures, exceptions have been introduced by Act of Parliament. Where any real estate of the nature of customary f rce- 1 That is, an estate dependent on the life or lives of another, or others, called restui que vie or catuu que vie. Such estates were at one time commonly granted by certain cor|>orations, such as colleges and deans and chapters, but are now comparatively rare. An estate pur au t re vie is a freehold. 2 Heirlooms are properly such chattels as by local custom pass with the inheritance. But the term is often applied, and less correctly, to gifts of such chattels as jewels and pictures intended by the testator to devolve with land. Heirlooms of the latter kind may by leave of the court now be sold by a tenant for life under the powers given by . 37 of the Settled Land Act, 1882. THE WILLS ACT 43 hold or tenant right or customary or copyhold might have been surrendered to the use of a will, and the testator has not surrendered it to the use of his will, no person entitled thereto is to be admitted except on payment of such stamp duties and fees as are chargeable in respect of a surrender or the presenting, registering, or enrolling of such surrender. Where the testator was entitled to have been but was not admitted, the person entitled under the will is liable to the stamp duties and fees which would have been payable on admission of the testator in addi- tion to those payable on his own admission. (S. 4.) Wills or extracts of wills disposing of a customary freehold or tenant right or customary or copyhold are to be entered by the lord or steward of the manor on the court rolls ; and the lord is entitled to the same fine, heriot, dues, duties, and services from the devisee as would have been due from the customary heir had the estate descended. (S. 5.) If no disposition by will be made of an estate pur autre vie of a freehold nature, the same is chargeable, if it come to the heir by special occupancy, 1 as assets by descent ; in the absence of a special occupant of any estate pur autre vie, whether freehold or otherwise, and whether a corporeal or incorporeal hereditament, 2 it goes to the executor or administrator of the party that had the 1 The heir entering and holding possession of an estate pur autre vie granted to the grantee and his heirs is known as the special occupant, as distinguished from the personal occupant, that is, the first person entering after the death of the tenant for life of an estate pur autre vie, who until the coming into operation of the Statute of Frauds was en- titled to hold it as his own. The Statute of Frauds abolished general occupancy. " Incorporeal hereditaments, which cover much the same ground as the res incorporates of Roman law, are such property as is (to use the language of the text-books) of an intangible nature, e.g. rents, annuities, advowsons. 44 THE WILL OF LANDS estate thereof by virtue of the grant, and is assets in his hands, distributable in the same manner as the personal estate of the testator or intestate. (S. 6.) The remaining sections of the Wills Act which refer to real estate are instances of statutory construction, and will be found in the chapter on construction. Recent legislation has dealt to a considerable extent with the power of devising real estate. The interpreta- tion clause of the Settled Estates Act, 1877, includes " will " under " settlement," so that the powers of the act may be exercised over property devised by will. The same is the case with the larger powers of disposi- tion of settled land given by the Settled Land Act, 1882. The latter act also includes under "settlement" an estate or interest not disposed of by a settlement,and reverting to the settlor or descending to the testator's heir. By the Conveyancing Act, 1882, s. 10, a restriction is placnl on executory limitations. 1 It may be useful to group together certain cases in which the law from motives of public policy refuses to give validity to certain devises and bequests. Whether or not a particular devise or bequest is of this nature is a question of construction, and some part of the law will more properly fall under that head. 2 (1) Public policy in general. This would practically in- clude all cases not included under classes of a more special nature, for instance, such as Egcrton v. Earl BrownLm:' It generally comes to be considered under the head of devises upon condition. There are, however, one or two statutes restricting express devises on the ground of their being against public policy. The most interesting is perhaps 53 Geo. Ill, c. 49, forbidding devises for the 1 Se below. J P. 08. P. 99. MORTMAIN 45 purpose of multiplying votes for Parliament. This has become of comparatively small importance since recent alterations in the law have made it impossible henceforth to create forty-shilling rent-charges for the purpose of giving votes. (2) Mortmain. The law of mortmain now depends chiefly on the Mortmain and Charitable Uses Act, 1888 (51 and 52 Viet., c. 42), which partly, but not altogether, consolidates the previous law on the subject. The effect of the act is that in general real estate or personal estate " savouring of realty " l cannot be left by will for charitable purposes and that no corporation can hold land in mortmain unless by licence from the Crown or by statute, under penalty of forfeiture to the Crown or a mesne lord. No gift to a corporation or charity, in- volving the acquisition of land even indirectly, can be made unless in accordance with the terms of the act. Thus gifts of money to erect a schoolhouse, a chapel, a dispensary, etc., have all been held void under previous mortmain acts. By the present act every assurance of land or of money to be laid out in the purchase of land to or for the benefit of any charitable uses must be by deed inter vivos executed in the presence of at least two witnesses, and must, unless it be made in good faith and for valuable consideration (which may take the form of a rent or rent-charge), be made at least twelve months before the death of the assuror. If the assurance be of stock in the public funds, it must be made six months 1 Sometimes called "impure personalty." It includes leaseholds, mortgage debts, and emblements. Whether debentures and bonds in a company are pure or impure personalty depends on the remedies against the real estate of the company given to the debenture-holders and bond-holders. So strict is the rule as to impure personalty that even legacy duty on a charitable bequest given free of duty cannot be paid out of impure personalty. 48 THE WILL OF LANDS before the death of the assuror. If the assurance be of land or personal estate other than stock in the public funds, it must within six months after execution be en- rolled in the central office of the Supreme Court of Judicature. The exemptions from the provisions of the act (as far as regards the law of wills) are as follows : (a) Assurances of land by will to an extent not ex- ceeding twenty acres for a public park, and two acres for a public museum, and one acre for a schoolhouse for an elementary school, provided that a will containing such an assurance must be executed not less than twelve months before the death of the assuror, or be a reproduc- tion in substance of a devise made in a previous will in force at the time of such reproduction, which was executed not less than twelve months before the death of the assuror, and must be enrolled in the books of the Charity Commissioners within six months after the death of the testator. (5) Assurances of land or personal estate to be laid out in the purchase of land to or in trust for any of the Universities of Oxford, Cambridge, London, Durham, and the Victoria University, or any of the colleges or houses of learning within any of those universities, or in trust for any of the colleges of Eton, Winchester, and Westminster, for the better support and maintenance of the scholars only upon the foundations of those last- mentioned colleges, or to or in trust for the warden, council, and scholars of Keble College. Further exceptions from the policy of the Mortmain Act are made by numerous Acts of Parliament, many of which relate to gifts of land for Church purposes. Thus by 3 and 4 Viet., c. CO, a licence in mortmain is not re- quired in cases of endowment unless the endowment MORTMAIN 47 exceeds the clear annual value of 300. In some cases a limit of amount is fixed, in others not. 43 Geo. Ill, c. 108, empowers a testator, by will duly executed at least three months before his death, to devise land not exceeding five acres, or goods and chattels not exceeding in value 500, towards the erecting or providing any church or chapel. 1 Occasionally relief from the provisions of the Mortmain Act is given in an indirect manner, as by s. 37 of 7 and 8 Viet., c. 37, which enacts that where a grant has been made for a school site the death of the grantor within twelve months does not avoid the grant. Many of the exceptions from the Mortmain Act affect chiefly or wholly gifts by deed inter vivos. This is the case with the Church Building Acts, the New Parishes Acts, the act of 17 and 18 Viet., c. 112 (enabling grants of land to the extent of one acre to be made to literary and scientific societies), and the Com- panies Act, 1862 (enabling companies formed for art, etc., not for profit, to hold land not exceeding two acres, and more with the licence of the Board of Trade). Numerous public and charitable institutions are ex- empted by special Acts of Parliament. Among these are the British Museum, the Governors of Queen Anne's Bounty, the Ecclesiastical Commissioners, the Conserva- tors of the Thames, the Prison Commissioners, Uni- versity College, London, the Guardians of the Poor of Plymouth, and certain hospitals, as Westminster, St. George's, Greenwich, the Foundling, and Bath. In most of these cases there is a limit fixed to the amount which may be left by will. By the custom of London 1 All the law relating to such gifts, as far as they are for church building purposes, will be found in 1 Stephens's Laws Relating to the Church and Clergy, 137, s. v. "Benefactions." 48 THE WILL OF LANDS a citizen of London may still devise land in the city of London to a corporation other than a charity. A will relating to a charity may, by the Charitable Trusts Act, 1855, be enrolled by the Charity Commissioners. It should be noticed that the power of the Crown to grant licences in mortmain applies only to mortmain proper, i.e. the holding of land by a corporation, not to charit- able uses. Bequests for charitable purposes have been upheld under circumstances where they would have been void for uncertainty had the legatees been private persons. For instance, bequests for charitable and deserving objects to the poor, to the poor inhabitants of a particular parish, etc. (3) Perpetuity. The Mortmain Act deals specially with devises and bequests to corporations and charities. 1 The law which forbids property to be tied up for more than a limited period in a particular line of succession depends to a great extent on the same principles, but is the creation of the courts rather than of statute, as there appear to be only two Acts of Parliament forbid- ding perpetuity. The law, it has been said, abhors perpetuities : in the words of Lord Coke, " Perpetuities . . . were born under an unfortunate constellation, for as soon as they have been been brought in question, judgment has always been given against them, and none at any time given for them." 2 It was to conditions 1 Charities in all cases, and corporations with a licence to hold in .mortmain, either from the Crown or under an Act of Parliament, arc of course exceptions to the ordinary rules of law OH to peri>t!tuitie. Charitable uses are any of those mentioned in the preamble to 43 Eliz., c. 4. This act was rejwaled by the Mortmain Act of 1888, but it was enacted by the latter act that references to charities in Acts of Parliament within the meaning, purview, and interpretation of the act of Elizabeth, are still to be construed by reference to the preamble of that act. 1 LfyiU'i Case, 10 Coke's Kep. 113/> (1639). PERPETUITY 49 restraining tenants in tail from alienation that the term "perpetuity" was first applied. 1 Such attempts at creating perpetuity were looked upon with disfavour by the courts of common law ; and finally, in the reign of Edward IV, they allowed a tenant in tail, by suffering a common recovery a fictitious judicial proceeding, to bar the entail, in spite of the terms of the statute De Donis Conditionalibus. The tenant in tail in remainder was on coming of age enabled, with the concurrence of the tenant in tail in possession, to bar the entail by a recovery. On a similar principle it has become the rule that the latest period at which an estate limited by way of executory use can be allowed to vest is twenty-one years after the expiration of some life or lives in being at the time when the devise was made, with a further period allowed for the time of gestation, in case of a person entitled being en ventre sa mire when his right accrues. This rule forbids the tying up of an estate for a longer period than until the unborn child of some living person shall come of age. A gift to the first son of A, a living person, who shall attain the age of twenty-four, will be altogether void void for remote- ness, as it is termed, not simply void for the three years beyond the legal limit. The rule as to creation of con- tingent remainders is that no estate can be given to an unborn person for life, followed by an estate to the child of such person. No remainder, in fact, can be given to the child of a person not in existence. This is called, in old legal language, limiting a possibility upon a possibility, or a double possibility ; and the rule exists, it has been recently held, 2 independently of the rule 1 Third Report of the Real Property Commissioners, 30 (1830). 2 Whiffy v. Mitchell, Law Rep., 44 Chancery Div., 85 (1890). 50 THE WILL OF LANDS against perpetuities, though the principle of both the rules is, from the view of public policy, the same. The act of 1877, already referred to, appears not to preserve the contingent remainder if the particular estate on which it depends be defeated by its determination owing to remoteness before the remainder vests. 1 The Conveyancing Act, 1882, 2 enacts that where a person is entitled to land for an estate in fee, or for life, or a term of years absolute or determinable with life, with an executory limitation over on default or failure of issue, the executory limitation is to become void as soon as there is living any issue who has attained the age of twenty-one. This enables him to alienate with- out the concurrence (previously necessary) of those taking under the limitation. Where a question of perpetuity arises from the exercise of a power of appointment, the calculation of the time from which perpetuity is reckoned varies as the power is general or special. The donee of a general power has the same capacity of disposition as an absolute owner, therefore the date from which the perpetuity is to be reckoned is that of the exercise of the power. But where the power is special, e.g. among members of a class, such as the children of A, the appointment is not valid unless it would have been unobjectionable in point of remoteness if it had been contained in the instrument creating the power. A general power exercisablc only by will is on the same footing in this respect as a special power. As a will speaks from the death of the testator, a power created by will may bo duly exercised when it would have been too late had it been exercised by deed on 1 Lcwin on Trtwts, c. xvi, H. 12. * 46 and 46 Viet., c. 39, . 10. PERPETUITY 51 the day of the execution of the will. With regard to accumulations of income, an act passed in 1800 (39 and 40 Geo. Ill, c. 98), known as the Thellusson Act, 1 forbids the accumulation of income for any longer term than the life of the grantor or settlor, or twenty-one years from the death of the grantor, settlor, devisor, or testator, or during the minority of any person living or en venire sa mkre at the death of the grantor, etc., or during the minority only of any person who under the settlement or will would for the time being, if of full age, be entitled to the income directed to be accumu- lated. The act extends to income of both real and personal property, but not to any provision for the pay- ment of debts, or for raising portions for children, or to any direction touching the produce of timber or wood. A direction to accumulate is, if it transgress the limits named, not void altogether, like an executory devise beyond the limits allowed by law, but is valid to the extent of the time allowed by the act. Many of the cases as to perpetuity have arisen on testamentary trusts for keeping tombs in repair. A distinction has been drawn between tombs outside and tombs inside the walls of a church. A trust for the former purpose is void, but for the latter purpose good, as it is for the benefit of the congregation that it should be kept in good repair. It is a charitable gift, which the former is not, as no living person is benefited by it. One of the most interesting cases on the question 1 The act was passed in consequence of the will of a Mr. Thellus- son, the terms of which directed an accumulation of the testator's .income during the lives of all his children, grandchildren, and great- grandchildren who should be living at the time of his death, for the benefit of descendants who should be living at the time of the death of the last survivor of those named. The probable amount of the accumu- lated fund was estimated at 19,000,000. 52 THE WILL OF LANDS of perpetuity was that of which Shakespeare's house was the subject A testator bequeathed 2500 to be invested to keep the house in repair, a further sum of 2500 to form a museum there, and an annuity of 60 out of the rents of real estate for paying the wages of a keeper or guardian, among whose duties should be that of attending to visitors and offering them "a bound- up volume with pen and ink to inscribe, on certain conditions, such lines in verse or prose as the fancy of each visitant may induce him to write." It was held by the Court of Appeal in Chancery, that inasmuch as the house was private property and the museum was in- tended to be perpetual, the trust for it was void, and that the gift of 60 per annum was also void as a perpetuity. 1 The principle of perpetuity has been extended to gifts of houses in the Straits Settlements. In the case in question there was a devise of the upper story of four houses or shops as a family house for the use of two separate families, without any limitation of the period of occupation. There was also a devise of two plantations to be reserved as the family burying- place and of a house for performing religious ceremonies to the testatrix and her late husband. All these devises were held void for perpetuity. 2 Whether a grant by the Crown in England or a colony is affected by the rule against perpetuities appears to be an unsettled point 8 1 Thomson v. Shakespeare, 1 De Qex, Fisher and Jones' Rep. , 399 (1860). Had the house been public property, the result would probably have been different. 1 Yeap Cheah v. Ong Cheng, Law Rep., 6 Privy Council, 381 (1875). This case is very interesting, as showing the primitive religious conceptions which may have to be dealt with by a court or justice even in .modern times. The gift, it should be noticed, was held void on the ground of perpetuity, not on the ground of its being to superstitious uses. 1 Cooper v. Stuart, Law Rep., 14 Appeal Coses, 286 (1889). SUPERSTITIOUS USES 53 (4) Superstitious Uses. A distinction is to be drawn between superstitious uses or trusts proper and uses or trusts for the promotion of religious views forbidden by law. Under the first head come devises or bequests for the benefit of the soul of the testator. Such devises or bequests were almost a matter of course in wills before the Eeformation, and often took the form of founding chantries for a priest to sing in. They were forbidden by numerous statutes in the sixteenth century (especially by 1 Edw. VI, c. 14, which abolished chantries), and there is a considerable number of reported cases decided upon the construction of the acts. All the cases, with one or two exceptions, relate to gifts by Eoman Cathplic testators. The exceptions are gifts by Jewish testators, but the effect is the same. The promotion of the views of Joanna Southcote has been held to be not a super- stitious use. There has never been any decision in England as to the Mormon faith. In one case in the reign of Charles II, Lord Keeper North held that a gift of 600 to Richard Baxter to be distributed among sixty of the ministers ejected in 1662, and also a legacy for the purpose of publishing his Call to the Unconverted, were void as superstitious, but this decision was reversed by the Lords Commissioners. 1 As lately as 1880 a gift of 10 for masses for the soul of the testator was held void. 2 Uses or trusts for the promotion of religious views forbidden by law rest on somewhat different principles. Gifts for superstitious uses are simply void, those for unlawful religious views are applied by the Crown for the purposes of some religious purpose per- mitted by the law. Most of the cases have, arisen with 1 Attorney-General v. Baxter, 1 Vernon's Rep., 248 (1684). 2 Re Fleetwood, 15 Chancery Div., 596. 54 THE WILL OF LANDS regard to gifts to religious orders of men, which by the Roman Catholic Relief Act of 1829 (10 Geo. IV, c. 7), are illegal associations. 1 The Roman Catholic Charities Act, 1860 (23 and 24 Viet., c. 134), enacts that no gift of real or personal estate upon any lawful charitable trust for the exclusive benefit of persons professing the Roman Catholic religion shall be invalidated by reason only that the same estate has been or shall be subjected to any trust or provision deemed to be superstitious or otherwise prohibited by the laws affecting persons pro- fessing the same religion ; but in every case it shall be lawful for the Chancery Division or a judge thereof at chambers, upon the application of the Attorney-General, or of any person authorised by the Charity Commis- sioners, or for the Commissioners themselves, to apportion the estate or the annual income so that a proportion thereof may be exclusively subject to the lawful charitable trusts declared by the donor, and the residue become subject to such lawful charitable trusts for the benefit of persons professing the Roman Catholic religion, to take effect in lieu of such superstitious or prohibited trusts, as the said court or a judge or the said board may consider to be most just. In cases other than Roman Catholic cases the courts have held trusts or legacies for the benefit of dissenters valid, as long as they are not subversive of all religion and morality. A legacy for the best essay on the sufficiency of natural theology treated as a science was held void as subversive of Christianity. Although in recent prosecutions for blas- phemy a more liberal view of the liability to the criminal law of persons actively attacking Christian doctrine has 1 Nothing in the act is to extend to any order, community, or establishment of females bound by religious vows. RESTRICTION ON ALIENATION 65 been taken, it is probably still correct to affirm with the late Chief Baron Kelly that " there is abundant authority for saying that Christianity is part and parcel of the law of the land." l (5) Restriction on Alienation. It is a cardinal prin- ciple that conditions or limitations repugnant to the estate to which they are attached are void. If an estate be devised in fee simple, with a condition pro- hibiting the grantee and his heirs, or the grantee himself, from alienation, either by his own act or the act of the law, such a condition is merely void. It would also be void from its tending to create a possible perpetuity. The repugnancy of the estate is, however, the ground on which Lord Coke considers such a condition invalid. 2 A condition against alienation by act of the law, e.g. a condition that the estate of a devisee shall not be subject to the bankrupt laws, is equally void, as contrary to the policy of the law. An estate may, however, be limited until bankruptcy. The policy of the common law in respect of restriction on alienation has in some cases been adopted by statute. Thus the Settled Land Act, 1882 (45 and 46 Viet, c. 38, s. 51), enacts that any provision in a will purporting or attempting by way of direction, declaration, or otherwise, to forbid a tenant for life to exercise any power, under the act, or tending by any limitation, etc., to prohibit or prevent him from exercising, or to induce him to abstain from exercising such power, is to be deemed to be void. To the general rule against attaching conditions repugnant certain exceptions are admitted. A condition that the devisee -shall not alien to a named person appears to be valid. 1 Cowan v. Milbourn, Law Eep., 2 Exchequer, 234 (1867). 2 Coke upon Littleton, 222, 223. 56 THE WILL OF LANDS Whether a condition that he shall not alien during a particular time is valid or not appears to be uncertain, there being a conflict of authority on the question. In the case of married women an exception introduced by the Court of Chancery has long been admitted. Property devised to the separate use of a married woman may be made subject to a restraint on anticipation. In such a case any attempted disposition by her during the con- tinuance of the marriage is absolutely void. The law is not altered by the Married Women's Property Act, 1882, s. 19 of which provides that "nothing in this Act contained shall . . . interfere with or render inoperative any restriction against anticipation at present attached to, or to be hereafter attached to the enjoyment of any property or income by a woman under any . . . will." A restriction against anticipation contained in a settle- ment of a woman's own property is, by the same section, not to be valid against ante-nuptial debts, but this part of the section does not apply to a restriction on anticipa- tion contained in a will. In some cases the court has been empowered by recent legislation to exercise certain powers irrespective of a restraint on anticipation. The Settled Estates Act, 1877, s. 50, enacts that no clause or provision in any settlement ] restraining anticipation shall prevent the court from exercising, if it think fit, any of the powers given by the act. The Settled Lund Act, 1882, s. 61, provides that a restraint on anticipation in the settlement shall not prevent the exercise by a married woman of any power under the act By the Conveyancing Act, 1881, 8. 39, notwithstanding that a married woman is restrained from anticipation, 1 By the interpretation clause* of these act* " settlement " includes "will." RESTRICTION ON ALIENATION 57 the court may, if it thinks fit, where it appears to be for her benefit, by judgment or order, with her consent, bind her interest in any property. The restraint on anticipation applies only to married women ; it was at one time attempted to extend it to men, and without respect to their being married or not, but the law has long been established as it has been already stated. (6) Restraint of Marriage. This subject will be treated in a subsequent chapter. 1 (7) Indefiniteness of subject or object. This generally makes the devise void, subject to an exception in favour of charities and to explanation by extrinsic evidence of the indefmiteness in certain cases. 2 1 P. 98. 2 P. 93. VOL. I CHAPTER V THE WILL OF PERSONALTY THE only sections of the Wills Act dealing specially A\ ith personalty are the interpretation clause (s. 1) and the sections preserving the privilege of soldiers and sailors as to the disposal of their personal estate. 1 By s. 1 " the words ' personal estate ' shall extend to leasehold estates and other chattels real, and also to moneys, shares of government and other funds, securities for money (not being real estates), debts, choses in action, rights, credits, goods, and all other property whatsoever which by law devolves upon the executor or administrator." This allows the testator to make a bequest of all his personal property of whatever kind, whether in posses- sion or in action. 2 At one time, as has already been said, 3 the appointment of an executor was necessary to the validity of a will of personalty, but this rule has long been obsolete, and now, where no executor is ap- pointed, administration cum testamento annexo is granted. 1 Any personal estate left by a will is called a legacy or bequest as opposed to the devise, which is properly used only of real estate. 5 But legacy may be used of n al 1 P. 77. 2 P. 141. 8 P. 17. 4 See p. 137. 8 Originally devise and bequest were cd indiscriniinati-Iy. Tims in the Assize of Northampton (1176), 4, f/iViJw is used fora Viju.-t LEGACIES 59 estate, if there be nothing else named in the will to which it can apply. Legacies are of several kinds. A general legacy is one payable out of the general assets of the testator, such as a bequest of 100, or a bequest of the residue not already disposed of. A demonstrative legacy is a gift of a certain sum to be satisfied from a particular fund, such as a gift of 100 to be paid out of a certain sum in consols. A specific legacy is a bequest of a named sum or chattel, such as 100 now standing to the testator's credit at a particular bank, or a particular piece of jewellery, furniture, etc. General legacies are liable to abatement in case of a deficiency of assets, and the legatees may be bound, subject to the provisions of 22 and 23 Viet., c. 35, 1 to refund the whole or a part of the legacy, even after payment, should debts owing by the estate afterwards come to light. A demonstrative legacy is not liable to abatement as long as any part of the fund out of which it is payable exists. A specific legacy does not abate until after exhaustion of the general and demonstrative legacies, but it is liable to be adeemed by the testator disposing of it during his lifetime. By 3 and 4 Will. IV, c. 105, s. 12, legacies to widows in satisfaction of dower are entitled to priority over other legacies. Legacies may also be optional, substitutional, or contingent. An optional legacy is one in which the legatee has a choice between two or more chattels, or between a larger and a smaller sum. In the latter case he is entitled to the larger sum. A substitutional legacy is one given to of chattels, and in the pleas of the Manorial Court of King's Ripton (see p. 3), and in many of the wills of the fourteenth century con- tained in Sir H. Nicholas' Testamenta Vetusta, legatum is used for a devise of land. The legatum of Roman law applied to both kinds of property. x P. 146. 60 THE WILL OF PERSONALTY B in case of A, the original legatee, predeceasing the testator, in order to prevent the legacy falling by lapse into the residue, which otherwise it would do, except in the cases provided for by s. 33 of the Wills Act Lapse will not be prevented merely by the addition of the words, " and his executors, administrators, and assigns," for these words are but surplusage. A contingent legacy is one left on a condition, such as one left to the legatee if or when he shall attain the age of twenty-one, or " to A if he shall be in my service at my death." A legacy may also, like a devise, be executory, that is, may create an interest to arise at a future time, not immediately on the death of the testator. An instance would be a life interest in a term of years, or a sum of money, by annuity or otherwise, with a limitation over after the death of the original legatee. There can be no limitation of articles qua ipso usu consumuntur, such as wine. Nor can there be any entail of a chattel interest, e.g. a gift of a term of years to A and the heirs of his body confers on A the term absolutely, and on his death it goes to his personal representatives. By the Apportionment Act, 1870, all periodical payments in the nature of income are to be considered as accruing from day to day. A bequest of an annuity would fall within this rule, and on the death of the first annuitant his representatives would 1x3 entitled to so much of the income as had accrued up to his death. 1 A bequest, like a devise, must be good in law, i.e. definite in subject and object, and not made for superstitious uses, or in restraint of alienation or marriage. Executory bequests must not transgess the rule as to perpetuities, or as to 1 A legatee of chattel)* for life may be compelled to give an in- ventory to the legatee in remainder. DONATIONES MORTIS CAUSA 61 accumulation under the Thellusson Act. 1 In the exercise of powers of appointment the limits from which per- petuity is reckoned vary according as the power is general or special, i.e. confined to a particular class, as children of a particular person. In the former case the rule against perpetuities has no application until a settle- ment is executed in pursuance of the power; in the latter case the limits of perpetuity are reckoned from the date of the creation of the power. 2 The rule in Shelley's Case, though primarily laid down as to real property, has been adopted, mutatis mutandis, in the law of personal pro- perty. 3 Thus a gift of money in trust for A for life, and after his decease in trust for his executors, ad- ministrators, and assigns, confers on A the absolute interest. It seems necessary, however, that the word " assigns " should be used in order that, the rule should apply, differing in this respect from a gift of real estate. Closely connected with the subject of legacies is that of donationes mortis causa, though the gift in such cases takes effect in addition to or in spite of a will, and not, like a legacy, by virtue of a will. The law as well as the name of donationes mortis causa is founded on Eoman law. A donatio mortis causa is a gift of personalty made in contemplation of death, to be absolute only in case of the death of the giver. It could originally only have been of chattels the property in which passes by delivery. But certain exceptions have been engrafted on this state of the law, and it has been held that a debt secured by bond can be passed by delivery of the bond, and that a policy of life assurance, a banker's deposit- 1 P. 51. 2 p. 50. 3 The doctrine of a possibility upon a possibility applies, however, only to estates in land. 62 THE WILL OF PERSONALTY note, a mortgage deed, and a bill or note payable to order and unindorsed can be given mortis causft. A cheque on a banker is not a good donatio unless it be payable during the donor's lifetime. A donatio is revoc- able during life by the donor, and only takes effect in the event of his death. It is subject to his debts and to legacy duty. The assent of the executor is not necessary for the vesting of the property in the donee. An imperfect testamentary instrument cannot be made effectual by treating it as a donatio mortis causA. If not made bonA fide three months before the death of the donor, a donatio is now chargeable with account duty. 1 A legacy or donatio mortis causd cannot be sued for in the Probate Division, but must be claimed in a court of equity (or, after assent by the executor) in the Queen's Bench Division. 2 A county court has jurisdiction where the amount does not exceed .50. 3 1 P. 170. 3 51 and 52 Viet, c. 43, s. 58. 3 This is apart from its equitable jurisdiction, in which the limit is 500. See p. 164. CHAPTEK VI THE CODICIL THE English codicil has little but the name in common with the Eoman codicilli. It may be defined as an addition to a will or a supplementary will. Its usual object is to modify the effect of an antecedent will. For most purposes the law of codicils is identical with that of wills, and much of what follows in this chapter applies to wills proper as well as to codicils. The in- terpretation clause of the Wills Act (as does also that of the Conveyancing Act, the Settled Land Act, and other acts) includes codicil under will. Codicils require the same formalities of execution as wills, and are subject to the same law as to undue influence, probate, and other matters. A will may be confirmed, revived, or revoked by codicil, subject to the provisions of ss. 20 and 22 of the Wills Act. Unattested or insufficiently attested instruments may be incorporated in a codicil, and so become operative testamentary instruments. But where a codicil refers to a will duly executed and to unattested instruments, only the will is incorporated, though no doubt by express words effect could be given to any instrument. An instrument to be incorporated must be in existence at the date of the execution of the 64 THE CODICIL codicil. A testator cannot reserve to himself by will the power of making a subsequent disposition of his property by unattested paper, if such paper be intended to have a testamentary effect. A frequently occurring case of this kind is the attempt of a testator to impose a secret trust on persons primd facie taking beneficially. If a devisee or legatee be expressly on the face of the will constituted a trustee, but the trusts are not thereby declared, no trusts afterwards declared by a paper not duly attested can be binding. If the trust were not declared when the will was made, it is essential, in order to make it binding, that the devisee or legatee should have had notice of the trust in the testator's lifetime, and should have accepted the particular trust. " It may possibly be that he would be bound if the trust had been put into writing and placed in his hands in a sealed envelope, and he had engaged that he would hold the property given to him by the will upon the trust so declared, although he did not know the actual terms of the trust" 1 In case of the failure of the trust, if the trustee be obviously not intended to hold the property for his own benefit, he becomes a trustee of a resulting trust for the heir or the next of kin, according as the property is real or personal. A devisee or legatee may be compelled to disclose in a court of equity whether he takes on a secret trust for superstitious uses, or for the benefit of a Roman Catholic patron of a living who is disabled from presenting. 2 The destruction of a codicil which has revived a revoked will does not necessarily avoid that will, in the face of declarations by the testator of his desire to adhere to the will. 1 lie Boyet, Law Rep., 26 Chancery Div., 536 (1884). 8 3 Jac. I, c. 5 ; 13 Anne, c. 18. CHAPTER VII REVOCATION A WILL is always revocable or ambulatory (as it is sometimes expressed), even though the testator expressly declare it not to be so, unless, indeed, there be a con- tract not to revoke. A will is revoked in many ways, which may be divided into two great classes revoca- tion by testamentary act, and revocation by non-testa- mentary act. Revocation by testamentary act is the subject of part of s. 20 of the Wills Act, which enacts that no will or codicil, or any part thereof, shall be revoked otherwise than as aforesaid (i.e. by marriage under s. 18), or by another will or codicil executed in manner thereinbefore required, or by some writing declaring an intention to revoke the same, and executed in the manner in which a will was thereinbefore 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. In all cases revocation is a question of intention, and the will is not revoked unless -the act, prima facie one of revocation, have been done animo revocandi. Thus the presumption of intention will be rebutted by evidence that the act was done 66 REVOCATION under a mistake, such as that the will revoked was invalid or useless, or that another instrument not valid is valid. It may also be rebutted by showing that the testator was not of sound mind when the act was done, and that therefore there could have been no animus revocandi. What has been called by the somewhat cumbrous name of the doctrine of " dependent relative revocation " is this. A revocation made with the view of making or reviving another disposition can only take effect if such other disposition be effectually made or revived. The testator must consider the substitution of a valid disposition as part of the act of revocation. The original will is not revoked unless the other disposition of the property is an effective one. Evidence is always admissible in this, as in other cases of presumed revoca- tion, to prove the intention of the testator ; for instance, to prove that he destroyed a particular will in order to make a fresh will. There is no revocation unless and until a new will duly executed exists. The principle is the same where alterations have been made in the amount of a legacy ; there the original legacy remains if the alterations have not been properly executed and attested. In such a case the court will endeavour to discover if necessary, by physical means, such as magnifying glasses what the original words were. If the original bequest have been covered with a piece of paper pasted over it, on which a new bequest was written, but as to which the witnesses can give no information, the court will order probate to issue in blank as to the substituted bequest. A case of dependent relative revocation may also be raised by proper evidence in case of substitution of the name of a legatee differing from that originally written. The rules as to dependent DEPENDENT RELATIVE REVOCATION 67 relative revocation apply to similar questions arising in the Chancery Division as the court of construction, except that in the latter no external evidence is admis- sible to prove dependent relative revocation. The intention must appear on the face of the instrument. A subsequent will must revoke the former will com- pletely where both wills are in existence; if there be several wills not inconsistent with one another, they must be read together as the last will. The naming of the latest instrument the last will is not of itself suffi- cient revocation of previous ones. Considerable diffi- culty has arisen as to the effect of revival of a revoked will by a codicil. If both wills be in existence, a codicil revokes an intermediate will. If the first will have been destroyed, the question arises whether the intermediate will is revived, the one purporting to be revived having been destroyed, and there being therefore nothing on which the codicil can operate. The cases on the subject are not very easy to reconcile, but the decision seems to depend on whether the codicil does or does not contain provisions inconsistent with the intermediate will. The instrument of revocation need not be a formal will or codicil. A duly signed and attested letter requesting a friend to destroy a will is a good testamentary revoca- tion. Eevocation by non-testamentary act may be effected by marriage, s. 18 of the act, and by almost any means indicating an intention to revoke, as long as it is one of the means named in s. 20. Presumption of an alteration in circumstances is no longer sufficient to Tevoke. The act of revocation by destruction of some kind must be done, if by the testator's direction, in his presence. Thus a direction in a letter to a friend 68 REVOCATION would not be a good revocation unless executed as a will. Tearing off' or obliterating the signature of the testa- tor or the witnesses is sufficient, but it is not sufficient merely to run a pen through the names. Of course destruction by any one other than the testator, unless under his direction, is not a good revocation. In such a case evidence may be given as to the terms of the destroyed will, and the court will grant probate of it as far as they can be ascertained. When only a portion of a will is destroyed, the question to be decided is whether the destroyed part is so important as to affect the validity of the whole document, or whether it is separable and unimportant. Where a will is made in duplicate, revocation of one copy is revocation of both. There may be a good contract not to revoke a will just as there may be one to make a will. Such a con- tract will be valid if made on good consideration, e.g. as a mode of repayment of a loan. An action can be brought on such a contract or covenant, but it cannot be specifically enforced by a court of eqmty. A/ cove- nant not to revoke a will is not invalid as being in restraint of marriage. 1 On the marriage of the cove- nantor the will would of course be revoked, but an action on the covenant for any damages sustained by the revocation could be brought against the covenantor. Marriage does not revoke a will in one case, that is, by s. 18 of the act, a will made in exercise of a power of appointment 2 when the real or personal estate thereby appointed would not in default of such appoint- ment pass to the heir, customary heir, executor, or administrator, or the person entitled as next of kin 1 Itubimon v. Ommanney, Law Rep., 21 Chancery Div. 780 (1882). * For such wills see the following chapter. MARRIAGE REVIVAL 69 under the Statutes of Distribution. In all other cases marriage operates as a revocation, even though the will may have been distinctly made in view of a contemplated marriage which subsequently took place. Before the Wills Act, marriage and the birth of a child was necessary to revoke the will of a man. Marriage alone, as now, revoked that of a woman. Revival of a revoked will is the subject of s. 22 of the act, which enacts that no will or codicil or any part thereof which shall be in any manner revoked shall be revived otherwise than by the re-execution thereof, or by a codicil executed in manner thereinbefore required and showing an intention to revive the same ; and when any will or codicil which shall be partly revoked and afterwards wholly revoked shall be revived, such revival shall not extend to so much thereof as shall have been revoked before the revocation of the whole thereof, unless an intention to the contrary shall be shown. CHAPTER VIII WILLS OF A SPECIAL NATURE The King. It was resolved in Parliament in the IGth year of Richard II that the king, his heirs and suc- cessors, might lawfully make their testaments. This must no doubt be understood to include only such property as could at that date be alienated by will. In some cases parliamentary authority has been given to royal wills, in others not. The executors of Henry IV were confirmed in their office by letters -patent of Henry V, those of Henry V by Parliament. The widest testamentary powers ever conferred on an English king were given to Henry VIII by 28 Hen. VIII, c. 7, empowering him to limit and appoint the succession to the crown by letters -patent or by will, in default of children by Jane Seymour or any future wife. By a subsequent Act (35 Hen. VIII, c. 1) the princesses Mary and Elizabeth were put into the entail, but subject to such conditions as the king should appoint by will. In the exercise of this parliamentary authority, the king devised the crown in remainder, on the failure of issue of his three children, to the heirs of the body of his younger sister, the wife of Charles Brandon, Duke of Suffolk, to the exclusion of the descendants of his THE KING 71 elder sister, Margaret Queen of Scots. The reasons why the provisions of the will were not carried out are matter for the historian rather than the lawyer. By 39 and 40 Geo. Ill, c. 88, the king and his successor may devise or bequeath their private and personal property. 1 No court has, however, jurisdiction to grant probate of the will of a king. This was held by the Prerogative Court in 1822 in the case of the will of George III. 2 A queen consort had always the right of making a will denied to wives of lower position. Probate of an acte definitif of the royal family of Russia, disposing of the goods of a member of the family, was granted by Mr. Justice Butt in 1 884, the acte definitif, or family compact, superseding the will of the prince. 3 Married Women. The law as it affected married women previously to the passing of the Married Women's Act, 1882, has already been briefly stated. The in- tention of the act was no doubt to place the married woman with regard to her testamentary powers on the same level as the unmarried woman. The words of the act are very extensive. "A married woman shall, in accordance with the provisions of this act, be capable of acquiring, holding, and disposing by will or otherwise of any real or personal property as her separate property in the same manner as if she were a feme sole without the intervention of any trustee." 4 In a case, however, before Mr. Justice Pearson in 1885 he held that these words give a married woman power to dispose by will only of property of which she is seised or possessed 1 A collection of royal wills was printed for the Society of Anti- quaries by J. Nichols (1780). - 2 In the goods of His Late Majesty George III, 1 Addams's Rep., 255. 3 In the goods of Prince Oldenburgh, Law Rep., 9 Probate Div., 234. 4 45 and 46 Viet., c. 75, s. 1 (1). 72 WILLS OF A SPECIAL NATURE while she is under coverture, and that, notwithstanding s. 24 of the Wills Act, her will made under coverture is not, without re-execution after she has become discovert, effectual to dispose of property acquired during widow- hood. 1 This is practically what had been held by the House of Lords before the act. 2 In a case in 1887 Mr. Justice Stirling held that the act of 43 Geo. Ill, c. 108 (enabling persons under certain circumstances to make gifts by will of land or goods for the erection of churches, with a proviso that such a gift should not be made by a married woman without her husband), was not, as far as regarded the proviso, affected by the Married Women's Property Act. 3 These cases are sufficient to show that the act has not, owing to judicial decision, given absolute and unqualified power of disposition by will to the married women in every case, whatever the in- tention of the framers of the act may have been. Other sections of the act which affect wills arc these : " Every woman who marries after the commencement of this act (January 1, 1883) shall be entitled to have and to hold as her separate property, and to dispose of in milliner aforesaid, all real and personal property uhic-li shall belong to her at the time of marriage, or shall be acquired by or devolve upon her after marriage, in- cluding any wages, earnings, money, and property gained or acquired by her in any employment, trade, or occupation, in which she is engaged, or which she carries on separately from her husband, or by the exercise of any literary, artistic, or scientific skill." 4 "The execution of a general power by will by a 1 He Price, Law Rep., 28 Chancery Div., "09. - inv/.T/.- v. .V./A, I.MW i;,-],.. 7 lie,,, r I..,,,K :,so (187.1). A 1 -- .s'wiV/-, Law U.-ji., M Chancery liv., 589. MARRIED WOMEN 73 married woman shall have the effect of making the property appointed liable for her debts and other liabilities in the same manner as her separate estate is made liable under this act." l "Every woman married before the commencement of this act shall be entitled to have and to hold and to dispose of in manner afore- said as her separate property all real and personal property, her title to which, whether vested or contin- gent, and whether in possession, reversion, or remainder, shall accrue after the commencement of this act, in- cluding any wages, earnings, money, and property so gained and acquired by her as aforesaid." 2 Whether this section alters the old legal rule of construction, whereby, under a gift to a husband and wife and a third person jointly, the husband and wife take only one moiety, is a question which has been differently decided by Chancery judges of first instance. 3 The rule is at least as old as Bracton, who gives as its explanation that vir et uxor sunt quasi unica persona quia, caro una et sanguis unus. A married woman who is an executrix or administratrix alone or jointly may sue or be sued as if she were a feme sole. "For the purposes of this act the legal personal representative of any married woman shall, in respect of her separate estate, have the same rights and liabilities, and be subject to the 1 S. 4. 2 S. 5. It will be noticed that this section only applies to property accruing since January 1, 1883. With regard to property which accrued before that date, either the common law or the law as altered by the acts of 1870 and 1874 applies, according as the marriage was before or after 1870 or 1874. 3 Re Jupp, Law Rep. 39 Chancery Div., 148 (1888) ; Re Dixon, Law Rep., 42 Chancery Div., 306 (1889). The later decision is in favour of the wife taking as a separate person. In some of the colonies whose law is based on Roman law there is no difficulty, the husband and wife take as separate persons. This is the case in Ceylon, Dias v. De Lievera, Law Rep., 5 Appeal Cases, 123 (1879). VOL. I. 6 . 74 WILLS OF A SPECIAL NATURE same jurisdiction, as she would be if she were living. " l "The word 'contract 'in this act shall include the acceptance of any trust, or of the office of executrix or administratrix, and the provisions of this act as to the liabilities of married women shall extend to all liabili- ties by reason of any breach of trust or devastavit committed by any married woman being a trustee or executrix or administratrix either before or after her marriage, and her husband shall not be subject to such liabilities unless he has acted or intermeddled in the trust or administration." 2 The effect of the act in relation to probate and administration has been to make some changes in the practice. For instance, before the act it was usual to limit the grant of probate to such property as the married woman had a right to dispose of and had disposed of by will, a ceterorum grant being subsequently made to the hus- band, but now a general grant is issued in the ordinary form. Nor need a husband now join in the administration bond where the administratrix is a married woman. But probate of the will of a married woman is still not obtainable through an Inland Revenue officer, but must be referred to the Principal or a District Registry. By the Divorce Act, 1857 (20 and 21 Viet., c. 85), a married woman who has obtained a protection order or a judicial separation may dispose of her property in all respects as &fenie sole, and if she die intestate, it is to devolve as it would have done had her husband been then dead. 1 S. 23. 3 8. 24. The main clauses of the act dealing with "contract" are sub-sections (2), (3), and (4) of s. 1, and the effect of them is, shortly pat, that a married woman may contract as if she were a feme tole, and that the contract is to be deemed to be a contract binding her separate pro]>erty, including that afterwards acquired. For further information see the treatise on Marriage in this series. POWER OF APPOINTMENT 75 Power of Appointment. A will made under a power of appointment is not revoked by marriage when the real or personal estate thereby appointed would not, in default of appointment, pass to the testator's executor or administrator, or to the next of kin. 1 Before the Wills Act a will exercising a power of appointment was bound to conform to any special formalities named in the instrument conferring the power, but since the act the power is duly exercised if executed and attested like an ordinary will. An appointment by will insufficiently executed will not be aided by the court. In the exercise of powers given by instruments operating inter vivos, certain persons may be relieved from the effects of defective execution of a power in their favour. A will executed according to the Wills Act is a good execution of a power, though the will would be invalid by the law of the domicil of the testator. Whether the con- verse is true is uncertain, i.e. whether a testamentary appointment, good by the law of the domicil, but not fulfilling the conditions of the Wills Act, would be held valid by an English court. There are authorities on both sides. Where a will, disposing of property over part of which the testator had a power of appointment within the terms of s. 18 of the Wills Act, was revoked by sub- sequent marriage, the part of the will dealing with the property appointed still remains valid, and probate limited to that property may be granted. Ghiardianship. As a general rule wills dispose of property, but even at common law a will simply appoint- ing a guardian was good. The common law was super- seded by 12 Car. II, c. 24, under which a father, if of age, may dispose of the custody of his unmarried infant 1 Wills Act, s. 18. 76 WILLS OF A SPECIAL NATURE children by will. The Guardianship of Infants Act, 1886, extended such powers to the mother, but she can only appoint a guardian or guardians to act either (1) after the death of herself and the father of the infant or (2) jointly with the father of the infant ; and in this case the court (that is, the Chancery Division in England and Ireland, the Court of Session in Scotland) may after her death, if satisfied that the father is for any reason unfitted to be the sole guardian, confirm the appointment of the guardian or guardians, or make such other order as the court shall think fit Aliens. Before the Naturalisation Act, 1870, an alien enemy resident in England could only dispose of personal property by will with the king's licence. Real property he could not dispose of at all, as he could not hold it. By s. 2 of that act (33 Viet., c. 14) real and personal property of every description may be taken, acquired, held, and disposed of by an alien in the same manner in all respects as by a natural-born British subject, and a title to real and personal property of every description may be derived through, from, or in succession to an alien in the same manner in all respects as through, from, or in succession to a natural-born British subject. The section does not affect any estate or interest in real or personal property to which any person is or may be entitled in pursuance of any dis- position made before the passing of the act (May 12, 1870), or in pursuance of any devolution by law on the death of any person dying before the passing of the act. The act appears to apply to aliens, whether subjects of a power at peace or at war with the United Kingdom, but it does not affect the will of an alien domiciled abroad ; and in determining the validity of such a will, the ALIENS 77 principles of law existing prior to the act are still applicable, that is, put as briefly as possible, that its validity depends on the law of the domicil of the testator. Soldiers and Sailors. The Statute of Frauds and the Wills Act expressly reserved to soldiers in actual military service, and to mariners or seamen being at sea, the right of disposing of their personal estate as they might have done before the Acts. The statutes dealing with the subject, especially with exemption from probate, are numerous, and only the main provisions can be given here. The will of a soldier is, by the force of long custom, valid even if it be made by unattested or by unsigned writing, or by word of mouth, in the presence of one or more witnesses. 11 Geo. IV and 1 Will. IV, c. 41 (as amended by the Regimental Debts Act, 1863, and the Superannuation Act, 1887), enables the Secretary of State for War to pay any pension or prize- money, not exceeding 100, to the next-of-kin or re- presentatives of an officer or soldier without probate or administration. The Eegimental Debts Act, 1863, as amended by the Regulation of the Forces Act, 1881, defines certain preferential charges which, on the death of an officer or soldier, are to be paid in preference to other debts. It also provides for the collection and disposal of his effects. The personal estate of an officer or soldier dying on service in India, not exceeding 100 after the payment of preferential charges, is not liable to duty, nor need representation be taken out in the case of such a sum, but the amount due will be paid out for the benefit of the widow, children, or other persons entitled. The Pensions and Yeomanry Pay Act, 1884, extends the exemption from probate in the case of the 78 WILLS OF A SPECIAL NATURE same small amount of assets to any one who has been a soldier or officer, or the widow of such a person. By the Army Act, 1881, s. 44 (11), a soldier convicted by court-martial is not, save as provided by royal warrant, to be liable to any forfeiture under the Regimental Debts Act. The Military Savings Banks Act, 1859, enables regulations to be made concerning the retention or deposit in military savings banks of the effects of deceased soldiers, and for the payment or application thereof for the benefit of their orphans or other persons entitled. As to sailors, the Wills Act provided that the act of 11 Geo. IV and 1 Will. IV, c. 20, as to the wills of petty officers and seamen in the royal navy, and of marines, so far as related to their wages, pay, prize- money, bounty-money, and allowances, should not be affected. The Act of George IV has, however, been repealed, and the law now depends upon the Navy and Marines (Wills) Act, 1865, 28 and 29 Viet, c. 72. " Seaman or marine " is defined by the act as " a petty officer or seaman, non-commissioned officer of marines or marine, or other person forming part in any capacity of any of Her Majesty's vessels, or otherwise belonging to Her Majesty's naval or marine force, exclusive of commissioned, warrant, and subordinate officers, and assistant engineers, and of Kroomen." A will made before entry into the service is insufficient to pass wages, prize-money, bounty-money, grant, or other allowance in the nature thereof, or other money payable by the Admiralty, or any effects or money in charge of the Admiralty. A will combined with a power of attorney is invalid. The requisites for the validity of a will under the act are that (1) it should be in writing and SOLDIERS AND SAILORS 79 duly executed with the formalities of the Wills Act ; (2) where it is made on board one of Her Majesty's ships, one of the two witnesses must be a commissioned officer, chaplain, or warrant or subordinate officer ; (3) where it is made elsewhere, one of the two witnesses must be either one of those above-mentioned or the governor, agent, physician, surgeon, assistant -surgeon, or chaplain of a naval hospital, at home or abroad, or the incumbent, curate, or minister of a church or place of worship in the parish where the will is executed, or a British consular officer, or an officer of customs, or a notary public. If a seaman or marine is a prisoner of war, and the will is in writing, one witness is sufficient, provided the witness be a commissioned officer or chaplain belonging to Her Majesty's naval or marine or military force, or a warrant or subordinate officer in the navy, or the agent of a naval hospital, or a notary public. Such a will is good if it be made according to the forms required by the law of the place where it was made, or by the Wills Act. The Admiralty has a dis- cretionary power to pay over wages, etc., to any person claiming to be entitled thereto, although the act has not been complied with. Similar authority is, by the Merchant Shipping Act, 1854, s. 200, conferred upon the Board of Trade in the case of a will made by a merchant, seaman, or apprentice, and not executed under the provisions of the act. The formalities re- quired by the act are that the will must be in writing and witnessed, if made on board ship, by the master or first or only mate. If not made on board ship, two witnesses are necessary, one of whom must be a shipping master, or some minister or officiating minister or curate of the place where the will is made, or, in a place where 80 WILLS OF A SPECIAL NATURE there are no such persons, a justice of the peace, British consular officer, or officer of customs. By the Navy and Marines (Property of Deceased) Act, 1865, (28 and 29 Viet, c. Ill), provision is made for the disposal of residue standing in the books of the Admiralty to the credit of a deceased officer, seaman, or marine. Where the residue does not exceed 100, repre- sentation to the deceased need not be taken out, and the Admiralty may dispose of it to the persons entitled to it, subject (in the case of a seaman or marine) to payment of his debts. Where the residue does not exceed 100 no duty is payable. An order in council to carry out the provisions of the Act was made on 28th December 1865. By the Revenue Act, 1889 (52 and 53 Viet., c. 42), s. 30, the residue or any part thereof of the estate and effects of a deceased officer, seaman, or marine, remaining undisposed of or unappropriated for six years and a half from the date of the receipt by the Admiralty of notice of the death, is to be paid over to the Greenwich Hospital capital account. Subject to these acts, a seaman may make his will in the same way as a soldier at common law. The principal difference between the soldier and sailor and non-privileged persons, is that the old law governs the testamentary ago of the privileged class, so that a soldier or sailor may dispose of his personal property on actual military service or at sea at the ago of fourteen, and that a will is only revoked, as under the old law, by marriage and the birth of a child, not by marriage alone. In the construction of the law the following are some of the more important jwints which have been decided. The term "soldier" in s. 11 of the Wills Act includes officers and surgeons. " Actual LUNATICS 81 military service " means an expedition ; accordingly, a will made by an officer quartered at home or in barracks abroad is not within the section. " Mariner or seamen" applies to any grade in the navy or merchant service. "At sea" includes the time of the vessel's being in port, as long as the sailor is not discharged. If the will include real estate, and be ineffectual to dispose of it, it may be good as to personalty, provided that the disposition of the latter be not made dependent on that of the former. Depositors in Savings Banks, etc. Nomination is equiva- lent to a will, and may be made at the age of six- teen. 1 Lunatics. The lunatic is not capable of making a will, unless during a lucid interval. 2 The court must be satisfied that the testator had a sound disposing mind, and was capable of deciding the persons to be benefited and the manner in which his property was to be distributed. The rational character of the will, if made by the testator himself, is evidence that it was made during a lucid interval. If subject to insane delusions, his will is not necessarily invalid, unless the delusions have influenced him to make a particular dis- position which he would not otherwise have made. The burden of proving capacity to make a will rests upon those who propound the will, a fortiori when it appears that the testator was subject to delusions. The law is well illustrated by a remarkable case which came before the Probate Division in 1879. 3 The testator, though capable of transacting complicated and important busi- - l See p. 139. 2 This was laid down as law as long ago as 1603, in Beverley's Case, 4 Coke's Rep., 123. 3 Smee v. Smee, Law Rep., 5 Probate Div. , 84. 82 WILLS OF A SPECIAL NATURE ness, was under the delusion that he was a son of George IV. Sir James Hannen, having laid down the law to the jury in a summing up from which the state- ment of law as given above is mainly taken, the jury found that neither of the two contested wills was made when the testator was of sound mind. The Lunacy Regulation Act, 1853 (16 and 17 Viet, c. 70, s. 84), enacts that the Masters in Lunacy may, on being satis- fied of a lunatic's death, open and read any paper deposited with them, and purporting to be his will, for the purpose of ascertaining the executor, and whether or not it contains any directions concerning his funeral, and then deliver the same to the registrar or other proper officer of the Probate Division. Other Exceptional Cases. A will made by a testator while in a state of drunkenness is in the same legal position as one made by a lunatic. " Intoxication is, in truth, temporary insanity," according to Sir John Nicholl in one of the cases. Of course, the disability only lasts while the state of intoxication continues. Wills made by blind, deaf and dumb, and illiterate persons are as good as any others ; the only difficulty arising in such cases is one of evidence, viz., the proof that the testator thoroughly understood the nature of his intentions, and communicated those intentions in an intelligible manner to the person who wrote the will. There is no unyielding rule of law that, where it has been proved that a testator competent in mind has had a will read over to him, and has thereupon executed it, all further inquiry is shut out 1 If this apply to a testator of competent mind, it appears to apply a fortiori to cases where there is any suspicion of incompetence. 1 Fullon v. Andrew, Law Rep., 7 House of Lords, 448 (1876). EXCEPTIONAL CASES 83 In the case where the rule just cited was laid down, "habitual drunkenness and disease of the brain" was set forth as one of the particulars delivered in support of pleas as to the competency of the testator, pursuant to rule 40 of the Probate Eules of 1865. CHAPTER IX THE CONSTRUCTION OF WILLS THE construction or interpretation of wills is a subject of great difficulty, and the law depends upon a mass of cases, few of which are direct authorities except whore the same or nearly the same words are used. The difficulty is increased by the distinction drawn in English law between the court of probate and the court of construction. The Probate Division has but limited powers of construction ; its duties are almost confined to seeing that nothing but a duly executed document, made by a capable testator, is admitted to probate : the meaning of words used, the class of persons entitled to take, and similar matters fall within the jurisdiction of the court of construction, usually the Chancery Division. That court accepts the decision of the court of probate as to validity of execution, even where there is a devise of realty by the will which, as far as the realty is concerned, does not need probate. Nor can an unrevoked probate granted by the court of probate bo impeached in the court of construction, even for fraud. The court of construction has, how- ever, in some cases, by the exercise of its interpretative ingenuity, practically made null and void the provisions THE EFFECT OF CASE LAW 85 of a will which has been duly admitted to probate. 1 The effect of case law on construction is well put by Mr. Theobald in the introduction to his well-known treatise on wills, in a criticism upon the view sometimes held, that construction of a will is to be left entirely to the discretion of an individual judge, unfettered by pre- cedent and authority, or, as it has sometimes been put, that one man's nonsense affords no clue to the meaning of another man's nonsense. " The principles of law applicable to the construction of wills must be the same as those applicable to other matters. Law is no more than the expression of the mean- ing of the acts of men in their relations with one another, when viewed by the most enlightened common sense of the day. There is no abstract law to be applied like a foot-rule to facts ; but law is the facts viewed in their natural bearings with reference to each other. It follows that, if the facts are the same, the same conse- quences ought to be deduced from them. The difficulty consists in discovering whether the facts are the same or not. In one sense, no doubt, the facts never are abso- lutely identical. There must at least be a difference of time, and this in itself, considering the continual change in social life, is an important factor. But the question is not whether the facts are absolutely identical, but whether a fresh set of facts can be fairly distinguished from an earlier set. If not, judges have always con- sidered themselves bound by the interpretation put upon such facts by their predecessors ; and when there have been repeated adjudications upon similar sets of facts, l>y 1 In the exercise of its discretion the court of construction may look at the original will in order to be assisted in arriving at its mean- ing, and may correct obvious mistakes, such as " with issue " used for "without issue." 86 THE CONSTRUCTION OF WILLS a process of analysis and classification, rejecting im- material distinctions, and selecting essential points of similarity, what may be called a rule of law is estab- lished. . . . Cases of construction are so numerous, originality even in ' nonsense ' is so rare, that there will nearly always be similar cases, or at any rate cases instructive even by their distinguishability." All that can be attempted in a work of this scope is to notice some of the principal and subsidiary rules of con- struction which have been adopted, and then to proceed to a brief mention of some words and phrases which offer any points of interest. To a limited extent con- struction has already been treated in dealing with the wills of soldiers and sailors. Those who wish to pursue the subject further will find most of the words and phrases which have received judicial interpretation con- tained in alphabetical order in a recent work of much research, Stroud's Judicial Dictionary (1890). Rules of construction are mainly judicial ; only to a limited extent statutory. The statutory rules are con- tained in the Wills Act, and are as follows, omitting only the interpretation clause, which defines the senses in which the words " will," " real estate," and " personal estate " are to be taken. 1 " Every will shall be construed, with reference to the real estate and personal estate comprised in it, to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary inten- tion shall appear by the will" (S. 24.) "Unless a contrary intention shall appear by the will, such real estate or interest therein as shall be com- 1 In the United States statutory interpretation has been carried much further than in England. STATUTORY RULES 87 prised 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 in law, or other- wise incapable of taking effect, shall be included in the residuary devise (if any) contained in such will." (S. 25.) " A devise of the land of the testator, or of the land of the 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 include a customary copyhold or leasehold estate, if the testator has 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, as well as freehold estates, unless a con- trary intention shall appear by the will." (S. 26.) "A general devise of the real estate of the testator, or of the real estate of the testator in any place or in the occupation of any person mentioned in his will or otherwise described in a general manner, shall be con- strued to include any real estate, or any real estate to which such description shall extend (as the case may be), which he may have power to appoint in any manner he may think proper, and shall operate as an execution of such power, unless a contrary intention shall appear by the will ; and in like manner a bequest of the personal estate of the testator, or any bequest of personal property described in a general manner, shall be construed to in- clude any personal estate, or any personal estate to which such description shall extend (as the case may be), which he may have power to appoint in any manner 88 THE CONSTRUCTION OF WILLS he may think proper, and shall operate as an execution of such power, unless a contrary intention shall appear by the will" (S. 27.) "Where any real estate shall be devised to any person without any words of limitation, such devise shall be 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 contrary intention shall appear by the will." (S. 28.) " In any devise or bequest of real or personal estate the words 'die without 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, unless a contrary intention 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 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 description required for obtaining a vested estate by a preceding gift to such issue." (S. 29.) l ft Where any real estate (other than or not being a presentation to a church) shall be devised to any trustee 1 The effect of this section is to create, not an estate tail, as was the case before the act, but an estate in fee-simple with an executory devise over on death without issue. STATUTORY RULES 89 or executor such devise shall be construed to pass the fee -simple or other the whole estate or interest which the testator has 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 thereby be given to him expressly or by implication." (S. 30.) " Where any real estate shall be devised to a trustee without 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 trusts may continue beyond the life of such person, such devise shall be construed to vest in such trustee the fee -simple or other the whole legal estate which the testator 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." (S. 31.) "Where any person to whom real estate shall be devised for an estate tail or an estate in quasi entail x 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 take effect as if the death of such person had happened immediately after the death of the testator, unless a contrary intention shall appear by the will." (S. 32.) " Where any person, being a child or other issue of the testator, to whom any real or personal estate shall be devised or bequeathed for any estate or interest not determinable at or before the death of such person, 1 That is, an estate pur autre vie granted to a man and the heirs of his body. VOL. I 7 90 THE CONSTRUCTION OF WILLS 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 intention shall appear by the will." (S. 33.) Most, if not all, of these sections of the Wills Act have themselves become the subject of judicial interpre- tation, an interpretation of an interpretation. For instance, it has been held under s. 24 that where a testator bequeathed a leasehold house, and after the date of the will purchased the reversion and took a conveyance of the same to himself in fee, the freehold interest in the house passed by the will. Also, where a testator made a gift of " all my ready money . . . and any other property that I may now possess," it was held that in spite of the use of the word " now " personal property acquired sub- sequently to the date of the will passed by the bequest. It will be noticed that in all the sections just cited, except ss. 30 and 31, the statutory construction is only to prevail in the absence of a contrary intention appearing by the will. In the excepted sections the statutory construction may be cut down by the gift of a definite term of years or an express limitation of the estate taken by the trustee. The general principles which, apart from statute, govern the construction of wills are thus laid down by Mr. F. V. Hawkins. 1 (1) In construing a will, the object of the courts is to ascertain, not the intention simply, but the expressed intentions of the testator, i.e. the intention which the 1 A Concise Treatue on the Construction of Will* (1863). NON-STATUTORY RULES 91 will itself, either expressly or by implication, declares ; or (which is the same thing) the meaning of the words, the meaning, that is, which the words of the will, properly interpreted, convey. 1 (2) In construing a will, the words and expressions used are to be taken in their ordinary, proper, and grammatical sense ; unless, upon so reading them in con- nection with the entire will, or upon applying them to the facts of the case, an ambiguity or difficulty of construction in the opinion of the court arises ; in which case the primary meaning of the words may be modified, extended, or abridged, and words and ex- pressions supplied or rejected, in accordance with the presumed intention, so far as to remove or avoid the difficulty or ambiguity in question, but no further. It follows from (1) that in every case the words used must be capable of bearing the meaning sought to be put upon them. (3) As a corollary to, or part of, the last proposition, technical words and expressions must be taken in their technical sense, unless a clear intention can be collected to use them in another sense, and that other sense can be ascertained. 2 (4) Notwithstanding the last two propositions, the intention of the testator, which can be collected with reasonable certainty from the entire will, with the aid of extrinsic evidence of a kind properly admissible, must have effect .given to it, beyond, and even against, the literal sense of particular words and expressions. 1 The rule that the intention of the testator is to be observed is, in Lord Coke's words, the pole star to guide the judges, or, in the words of Lord Chief Justice Wilmot, the pole star for the direction of devises, Doe v. Laming, 2 Burrows' Rep., 1112 (1760). 2 See Leach v. Jay, cited below. 92 THE CONSTRUCTION OF WILLS The intention, when legitimately proved, is competent not only to fix the sense of ambiguous words, but to control the sense even of dear words, and to supply the place of express words, in cases of difficulty or am- biguity. With regard to the explanation of the intention, this may be done in two ways, first by presumption, second by extrinsic evidence. There are certain presumptions which the law makes rebuttable by evidence, but in the absence of evidence conclusive. Among such presump- tions are those that a debt is satisfied by a legacy of equal or larger amount, that legacies of an equal amount given in the same instrument are merely repe- titions, and that legacies of unequal amount in the same instrument, or of equal amount in different instru- ments are primA facie cumulative. Another example is the presumption against double portions ; when a parent or person in loco parentis has covenanted to pay a portion to a child and afterwards gives a legacy of the same or a larger amount to that child, the legacy is primd facie a satisfaction of the portion, and if of a smaller amount than the portion it is a satisfaction pro tanto. The donee is bound by the rules of equity to elect which of the two gifts he will take; he cannot take both. Where there is a gift by will, and after the making of the will and before death a gift to the child is made, the legacy is adeemed pro tanto. It is a revocable gift, and has been revoked by the conduct of the testator. The presumption against satisfaction or ademption does not arise in the case of strangers. As to evidence to explain intention, a distinction is drawn between direct evidence of intention and evidence of circumstances (such as foreign words, nicknames, local EVIDENCE OF INTENTION 93 custom), from which the court may conclude what the intention must have been. The latter is commonly admissible, the former appears to be admissible only when the evidence given as to circumstances has raised an ambiguity by disclosing the existence of more than one subject or object to which the words are applicable. Further, a distinction is drawn between latent and patent ambiguity, first drawn, it is supposed, by Lord Bacon, who gives as an example of patent ambiguity a grant of land to /. D. et J. S. et heredibus. 1 Such a gift is void for uncertainty, whether the uncertainty be in the sub- ject or the object of the gift. An instance of the former was " a handsome gratuity to my executors," of the latter " a gift for missionary purposes " or a bequest of " all." Latent ambiguity is, patent is not, explainable by evidence. A common case of latent ambiguity is where a description in the will applies to more than one person, or partly to one and partly to another. Thus in a gift to " my nephew Joseph Grant," on its being shown that the testator had a nephew of that name and that his wife's brother had a son of the same name, evidence was admitted to show which of the two Joseph Grants the testator had intended to benefit. 2 Where a legacy was left to "The Clergy Society," there being no society of that exact name, but several popularly called so, evidence was admitted to show which society was intended. 3 A further limitation of the admission of extrinsic evidence of intention is that it is admissible as a rule only to rebut a presump- tion or determine a latent ambiguity, not to establish 1 1 Spence, Equitable Jurisdiction, 562. 2 Grant v. Grant, Law Rep., 5 Common Pleas, 380, 727. 3 Re The Clergy Society, 2 Kay ami Johnson's Rep., 740 (1856). 4 THE CONSTRUCTION OF WILLS the contrary of a rule of construction, such as that in SMley's Case, which will be mentioned later. And even where a latent ambiguity exists, evidence is admissible only to enable the court to decide which of several persons or things was intended under an equivocal de- scription, not to show that both or all were intended to be included,' or to be used where there is a mere mis- description and no equivocation. There are numerous minor rules of construction, many of them being little more that transcriptions of the Roman law. This is what might have been expected when it is remembered that for centuries probate was in the jurisdiction of the clergy, who were, as a rule, at least, superficially acquainted with the texts of Roman law. The object of these rules is of course to assist in arriving at the " expressed intention " of the testator. Whether they do so in all cases is a question that is open to considerable doubt Among the more interesting and important of these rules are the following. In general they only apply where no contrary intention is shown. A general devise of "lands" or of "rents and profits" in- cludes emblements 1 and lands contracted to be purchased, also reversions and copyholds, and (under the Wills Act) leaseholds. It also includes incorporeal hereditaments as a rule (such as advowsons), when they are appendant or appurtenant to land, but not when they are in gross, i.e. exist independently of the tenancy of land. " Money " or " moneys " includes money at the bank on current account or on deposit, but not stock in the funds or debts due. Where there is no personal estate, 1 That is, the crops of agricultural land sown by the testator. It has been laid down as a rule of construction that although as between heir and executor the emblements go to the latter, in a general devise they pass to the devisee. PARTICULAR WORDS 95 it may include the general residue. " Eeady money " or "cash" is more restrictive, and does not include money on account current. "Estate" includes all property, real and personal; " effects " or " goods " only personal. " Children " means legitimate children, 1 and does not include grandchildren. " Issue " is a wider term and includes descendants of every degree. In a gift of real estate both " children " and "issue " may be words of limitation. Thus a devise to A and his children or issue, where there is no issue at the time of the devise, confers on A an estate tail. The weight of authority is against the application of this rule (known as the rule in Wild's Case) 2 to personalty. " Family " primd fade signifies legitimate children. "Heirs" in gifts of personalty may mean persons entitled under the Statutes of Distribution. A gift of personalty to "A or his heirs" means to the heirs by substitution if A dies before distribution. " Next of kin " means the nearest blood relations and not the next of kin according to the Statutes of Dis- tribution, so that those who would under the Statutes be entitled by representation are excluded. Immediate gifts to children as a class include primA fade those living at the testator's death. The same principle applies to grandchildren, brothers, nephews, and cousins. A gift not immediate admits others of the class coming into existence before the period of distribu- tion. Those living at the death of the testator take vested interests subject to be partially divested in favour of after-born members of the class. Where the share is 1 This must be read subject to the decision in Occleston v. Fulla- love, p. 100. 2 6 Coke's Rep., 16 (1599). 96 THE CONSTRUCTION OF WILLS made payable on attainment of a given age or marriage, attainment of the age or marriage of the first child doing so is the period of distribution. Where there are no children in existence at the period of distribution, or where the words " to be born " are used, an immediate gift becomes executory, and children born at any future date will take. " Or " is often read as " and " ; " and " as " or." Thus a gift to " A or his heirs " is a gift to A in fee. There are many rules as to incidence of charges, such as that legacies are priind fucie payable out of the personal estate and that a charge of legacies on real estate primd facie does not charge lands specifically de- vised. There are also many rules used to determine the time at which a legacy vests, and whether it is vested or contingent. Thus a legacy " to be paid " at twenty-one is vested, and if the infant die before that age it goes to his personal representatives, while if it be given "at" twenty-one or "when he attains" twenty-one, it is contingent, and on his death before that age it lapses, unless indeed interest be given in the meantime. Clauses which cannot be made to bear an intelligible meaning must be treated as though they were not inserted ; where there are two repugnant clauses which cannot by any interpretation be reconciled, the one which is the later in position is to be followed. In a deed the rule is the reverse. The above is one example of differences in the rules of construction as they relate to wills and other instru- ments. Another is the rule as to nudnm prohibitum and malum in se, which differs according as the instrument is a will or a contract. 1 Another, which has been the 1 P. 98. CONDITIONAL GIFTS 97 ground of numerous decisions, is the mode of construc- tion of executory trusts in marriage articles and in wills. In the former case the court has a clue to the intention from the nature of the contract, in the latter the court knows nothing of the object in view a priori, but must be guided to the intentions solely by the language of the instrument. Accordingly a limitation in marriage articles to the husband or wife, with remainder to the heirs of the body of either or both of them will be con- strued to mean first and other sons, and a settlement will be made upon the issue successively in tail as purchasers. 1 This is in order to prevent one or other of the parents from defeating the provision for the children by barring the estate tail. In a will, on the other hand, the same words will give an estate tail which can be barred in the ordinary way. Another difference is that in a deed an estate of inheritance can only be conferred by the words necessarj^ for a grant, such as "A and his heirs," or " A and the heirs of his body," or (since the Conveyancing Act, 1881) "A in fee simple," " A in tail male," etc., while in a will it can be conferred by many other expressions in addition to these, e.g. "A and his assigns for ever," "A and his issue." Conditional devises and bequests are subject to peculiar rules of construction. The construction varies according as the condition is precedent or subsequent and as the property left is real or personal. A condition is the addition of a declaration of intention by which the existence of a legal relation is made to depend on an uncertain event. It differs from a conditional limitation 1 Such a settlement, called a strict settlement, appears to have been decreed in every case under marriage articles, to which Shelley's Case, to be presently mentioned, does not apply. 98 THE CONSTRUCTION OF WILLS x or an executory devise or bequest in that the estate reverts to the grantor or his representatives on breach of the condition, in the other cases it is limited over to other persons. A condition precedent is one in which the performance of the condition precedes the vesting of the property. A condition subsequent is one in which the failure to perform the condition determines the continued enjoyment of property already vested. A condition precedent, whether impossible, illegal, or im- politic, if attached to a devise, must be fulfilled in order that the estate may vest in the donee. In a gift of personalty a condition precedent involving physical impossibility or malum prohibitum is invalid and leaves the gift absolute. "But where the performance of the condition is the sole motive of the bequest, or its impossibility was unknown to the testator, or the con- dition which was possible in its creation has since be- come impossible by the act of God, or where it is illegal as involving malum in se, 1 in these cases the civil agrees with the common law in holding both gift and condition void." 2 In both real and personal property a condition precedent becoming impossible by the act of the testator is discharged. Impossible, impolitic, or illegal conditions subsequent are ineffectual, whether there be a gift over or not. Most of the cases have arisen with respect to conditions in restraint of marriage. In both real and 1 The difference between malum prohibitum and malum in te, adopted from the civil law, is this. The latter is an act forbidden as being in its nature immoral, the former as an act which, if not forbidden by positive law, would not be immoral. As far as contract is con- cerned, the distinction between malum prohibitum and malum in se has long been exploded, but the citation above seems to show that it may still be of some importance in wills. * 1 Jarnian, 12. The rules of Roman law will be found, among other passages, in Digest, xxviii, 7 ; xxxv, 1 ; xxxvi, 1 ; Cafe, vi, ML CONDITIONAL GIFTS 99 personal estate, a condition attached to the gift that the donee shall not marry at all is void. A gift with a condition that it is to cease if the donee marry without consent, will cease if the gift be of real estate, but not if the gift be of personal estate, the condition being in terrorem unless there be a gift over. A condition not to dispute the will follows the same rule as one not to marry. A condition in restraint of a second marriage, e.g. that the testator's widow shall, after his death, retire into a convent, is valid. So is a condition in limited restraint of a first marriage, e.g. that the donee shall not marry a woman who is or has been a domestic servant. There seems to be no difference in the law as it affects men and women. One of the most interesting of the numerous cases which have arisen is that of Egerton v. Earl Brownlow, decided by the House of Lords in 1853. The Earl of Bridgwater devised estates to trustees to make a settle- ment according to the limitations in the will. One of the limitations was to Lord Alford for a term of ninety- nine years, with certain remainders, and with a proviso that if Lord Alford should die without having acquired the title of Duke or Marquis of Bridgwater, then the use and estate to the heirs male of his body was to cease and be absolutely void. Lord Alford entered into possession of the estates which were worth 70,000 a year but died without acquiring any of the higher titles. It was held that his heir male was entitled to the estates discharged of the condition subsequent, for it was void as being contrary to public policy. The ground of the decision was that the condition tended to induce the donee of the estates to use improper means to influence the Crown, and the Crown itself to 100 THE CONSTRUCTION OF WILLS confer a particular title on a particular person, thus fettering its discretion as the fountain of honour. 1 Another illustration of the doctrine of public policy, useful as showing what has been called the " progressive character " of English equity, is that of gifts to unborn illegitimate children. Such gifts were formerly regarded as void, but since the decision in Occleston v. Fullcdove, 2 it appears now to be a question of intention rather than of policy, whether such gifts are to stand, the only point being whether the words of the will are clear enough to include such children as objects of the benefit Only those children can take who come into existence before the death of the testator. Two curious cases have been recently decided bearing on the question of restraint of marriage. It was held in 1884 that a covenant not to revoke a will was not void as being in restraint of marriage. 3 The Court of Appeal held in 1888 that a gift to a sister of the testator "during such time as she may live apart from her husband " of a weekly sum, was a limited gift of weekly payments to be made during a period, the commence- ment and duration of which were fixed in a way which the law does not allow, and that the gift was void. 4 The decision turned on the question whether the gift was on condition subsequent, or by way of limitation ; had it been the former, the condition would have been void, but the gift good ; the court, however, held it to be the latter, and accordingly the gift was void. It is always laid down in the text-books that a condition subsequent 'is to be distinguished from a conditional 1 4 House of Lords Coses, 1. * Law Rep., 9 Chaucery AI>P., 147 (1874). 1 Robinson v. Ominanney, supra, p. 68. 4 Re Moore, Law Rep., 39 Chancery Div., 116. RESTRAINT OF MARRIAGE 101 limitation. The latter partakes of the nature of both a condition and a remainder. It is a condition in that it abridges the enjoyment of an estate, a limitation in that it passes the estate to a stranger on the occurrence of a contingency. An example of a conditional limita- tion is a gift until marriage or bankruptcy, or a gift of a personal annuity to a man and the heirs of his body. Such a gift as the last named, as it does not fall within the statute De Donis CondUionalibus (13 Edw. I, c. 1), cannot create an estate tail in the annuity, and so remains a gift on condition that the donee has heirs of the body. In the case of a conditional limitation of real estate, any estate in remainder becomes at once vested on the happening or non-happening of the con- tingency named ; in the case of a condition subsequent, the person entitled to the estate in remainder must take some means to assert his rights, as by entry. At common law a stranger could not take advantage of a condition, though a different rule obtained in courts of equity. Both at common law and in equity a conditional limita- tion could be made in favour of a stranger, that is, some one other than the grantor or his heirs, or the heirs of his body. Other rules of construction which may be shortly noticed are these, (a) Falsa demonstratio non nocet quum de corpore constat, 1 Thus " all my real estate " passes leaseholds if the testator has no real estate. But where 1 This is an example of one of those Latin maxims, so frequently occurring in English text-books, which are not classical, but have only a specious resemblance to those actually used in the texts of Roman l^w. The nearest approaches to this maxim in Roman law are falsd demonstratione legatum non perimi (Institutes, ii, 30, 20), and nihil facit error nominis quum de corpore constat (Digest, xviii, 1, 9, 1). The perils of an exclusively literal interpretation also appear in the frequently cited maxim, Qui hoeret in literd hceret in cortice. 102 THE CONSTRUCTION OF WILLS there is nothing to answer to the description the gift fails, e.g. a devise of lands in the parish of A, all the testator's property being in the parish of B. The mis- description may be of many kinds; for instance, the amount of a debt due, the property left, or (what is most common) the name of the devisee or legatee. The mis- description, as has been already stated, may generally be corrected by evidence, (b) Non accipi debent verba in demonstrationem falsam quum competunt in limitationem reram. (c) General words following specific words will be limited by the latter to things ejiisdem generis, (d) Where there are inconsistent devises or bequests, the latest governs, (e) That mode of construction is to be preferred which will prevent an intestacy, vt res magis valeat quam ])ere(U. (/) The intention, if it cannot take effect altogether, is to take effect as far as possible, (g) The heir-at-law cannot be disin- herited unless by express words or necessary implica- tion. Mere negative words are not sufficient for the purpose. The argument from absurdity is the weakest which can be urged in a question of construction. It is only to be used when all others have failed. The right of a testator to be capricious, said Vice-Chancellor Wigram, cannot be denied. 1 Weight can only be given to the absurdity of a clause if its literal interpretation would overthrow the whole scheme of the will as discoverable in other parts of it 2 One of the rules of construction, which has been the most keenly debated among jurists, is that known as the 1 IlUlendon v. Lowe, 2 Hare's Rep., 566 (1843). * At the end of the second volume of Jarnion on Wills, the learned author lays down twenty-four rules of construction, which practically cover the same ground as that taken in this chapter. SHELLEY'S CASE ios rule in Shelley' 's Case. 1 The decision was to the effect that if the ancestor take an estate of freehold and in the same gift or conveyance an estate is limited, either mediately or immediately, to his heirs or the heirs of his body, these words are words of limitation and not of purchase, the ancestor thus taking in the first case an estate in fee-simple, in the second an estate tail. The rule applies even where there is an express declaration that the estate of the ancestor is not to extend beyond his own life. In order that the rule may apply, the limitations must be in the same instrument, and must be both legal or both equitable. The construction of what are called " precatory trusts " in wills has been the subject of numerous decisions. A trust is implied from words of confidence, of request and entreaty, and even of advice and recommendation, as long as there is sufficient certainty on the property left and the persons to be benefited. The tendency of decisions is to refuse to construe doubtful expressions as importing trusts, e.g. a desire that the legatee will be kind to or do justice to a particular person. If the gift be subject to trusts, the donee takes what is not required for the purpose of the trusts. If the gift be upon trust, he is trustee of the whole and takes no part for his own benefit. The doctrine of cy-prh is an important one, and is applied in two ways. (1) Where there is, in favour of a charity, a gift which would in an ordinary case be void for uncertainty or failure of objects of the charity, the court will carry it out as nearly as may be to what it supposes would have been the testator's intention had he known that the gift could not have literal effect given 1 1 Coke's Rep., 93b (1581). 104 THE CONSTRUCTION OF WILLS to it, provided it be not contrary to law. Altered social circumstances often makes it necessary to apply old benefactions cy-prbs, as in the case of universities and public schools. A good example of the* application of the doctrine to a charity is afforded by a case decided by the Rolls Court in 1840. A testator in 1723 bequeathed a sum of money, part of the interest of which was to be applied " unto the redemption of British slaves in Turkey or Barbary." The court allowed the fund to l>e applied to the other charitable purposes men- tioned in the will, the testator being, as it were, permitted to decide for himself as to the cy-jris applica- tion of the fund when the original purpose for which it was left had ceased to exist. 1 A long continued unauthorised application of charity funds cy-prh by trustees is no ground of objection to a scheme directing a different application. 2 (2) Where there are limitations of real estate void for perpetuity, the court will make them good as far as possible, e.g. by giving an estate tail in the direction marked by the testator. The principle applicable to the doctrine, in whichever way it is applied, is, in the words of Sir George Jessel, that " when you find two intents in a will which are incon- sistent with each other, and you therefore cannot carry out both, you give effect to the general or paramount intent" 3 From one point of view the doctrine of cy-prte is one of construction, from another it is only a branch of the 1 AUorney-Oeneral v. Ironmonger's Company, 2 Beavan'a Rep., 313. * Re Campden Charities, Law Rep., 18 Chancery Dir., 310 (1881). 1 Hampton v. IMman, Law Rep., 5 Chancery Div., 183 (1877). In the states of Pennsylvania and Georgia cy-pris is the subject of statutory enactment The only example of such an enactment in Eng- land appears to be the Roman Catholic Charities Act, I860, cited p. 54. CY-PRES 105 larger doctrine of public policy. The two points of view, however, have this in common, that to a great extent what is or is not contrary to public policy depends itself on the construction put on certain words by the courts. There is no settled rule, and it by no means follows that what was held to be void as contrary to public policy a century ago would be held to be so at the present time. There is, in fact, an element of pro- gress in the doctrine of public policy, as there is in many other legal principles. On the question of the judicial meaning of the phrase "public policy," Sir Frederick Pollock writes : " That question is, in effect, whether it is at the present day open to courts of justice to hold transactions or dispositions of property void, simply because in the judgment of the court it is against the public good that they should be enforced, although the grounds of that judgment may be novel. The general tendency of modern ideas is no doubt against the continuance of such a jurisdiction. On the other hand there is a good deal of modern and even recent authority which makes it difficult to deny its continued existence." l As far as regards contract, Sir George Jessel thus expressed the modern view : " You have this paramount public duty to consider, that you are not lightly to interfere with the freedom of contract." ; A similar paramount public duty no doubt restrains the courts from indiscreet interference with testamentary freedom. In spite of the liberal interpretation given by the courts to the language of testators, care in the use of 1 Pollock on Contracts (4th ed., 1881), c. vi. (C). 2 Printing and Numerical Registering Company v. Sampson, Law Rep., 19 Equity, 462 (1875). VOL. I. 8 106 THE CONSTRUCTION OF WILLS technical terms is still to be recommended. There are dangers connected with the doctrine in Shelley's Case l and certain other doctrines where a strict meaning has been given to certain words and phrases. Technical terms are primA fade used in their technical meaning. Thus the word "seised" was construed strictly, and it was held that a devise of real estate of which the testator was seised did not pass certain estate which another person had wrongfully entered, and held at the time of the testator's death, although the testator was entitled to it 2 It should be noticed that the court of construction has no authority to rectify a mistake in a will other than an obvious slip, though the court of probate has, as has been already stated, power to omit words intro- duced per incuriam, or by fraud or mistake, or conveying reflections on the character of survivors. The words of the will are not corrected, but the intention is as far as possible carried out, in spite of difficulties arising from the use of particular words. An instinctive case on the point is Earl of Newburgh v. Countess of Newburgh? An Earl of Newburgh devised to the countess an estate for life in his real estates in the counties of Sussex and Gloucester. The word "Gloucester" was accidentally struck out by the person who drew the draft of the will, and the person who made the fair copy for the testator to execute substituted " county " for " counties." 1 The inconvenience of the rule in Xhellry's Ca-sr has led to its express abolition by the legislature in most of the states of the United States. 9 Leach v. Jay, Law Rep., 9 Chancery Div., 42 (1878). * 6 Haddock's Rep., 364 (1820). This is in accordance with the general principle of law that where any legal transaction has been put into the shape of a formal document, informal documents prelim- inary to it cannot be looked at to discover intention. PRESUMPTIONS IN THE PROBATE DIVISION 107 The testator executed the will under the impression that it contained the words both "Sussex" and "Gloucester." In a suit to rectify the will, evidence for the purpose of correcting the mistake by producing the original draft was rejected. The question of conversion, in one sense a question of construction, will be treated in a subsequent chapter. 1 In addition to the presumptions governing the decision of the court of construction, there are certain presump- tions made by the court of probate which to a certain ex- tent are rules of construction. They are fully considered in His Honour Judge Pitt Taylor's treatise on the Law of Evidence," 2 and may be shortly added here, even at the risk of some repetition. The presumptions are, with the exception of (5), rebuttable by evidence to the con- trary. They are primarily applicable only to wills of pure personalty, or of mixed personalty and realty, such as come within the jurisdiction of the Probate Division, but many of them would doubtless govern, mutatis mutandis, the construction of wills of realty only. (a) On proof of the signature of the deceased, he will be presumed to have known and approved of the con- tents of the will. (b) Where proof can be furnished that, prior to the execution of a will by a competent testator, it was read over to him or brought specially to his notice, the court will, in the absence of fraud, recognise a conclusive pre- sumption that he approved of the contents. (c) When several sheets of paper constituting a connected disposal of property are found together, the last only being duly signed and attested, the court will ] P. 161. 2 8th ed., 1885, 160-166. 108 THE CONSTRUCTION OF WILLS presume that all formed part of the will at the time of its execution. 1 (d) It is presumed that if the testator might have seen, he did see the witnesses subscribe their names. (e) Alterations, interlineations, or erasures are pre- sumed to have been made after execution, even of codicils to the will. But this does not apply to the fill ing up of blanks. (/) A will last seen in the custody of the testator, and not forthcoming at his death, is presumed to have been destroyed by him, animo cancellandi. (g) A testator is presumed to have known the value of his estate : accordingly on deficiency of assets the legacies must abate. 1 In such a case an affidavit by an attesting witness that tin- sq>arate sheets constituted the will of the testator is generally required. CHAPTER X INTESTATE SUCCESSION INTESTACY is either total or partial. Total intestacy is caused by the absence of a will, or by the invalidity of a will for any reason, such as incapacity of the testator, informality of execution, or undue influence. Partial intestacy affects only a part of the property of the deceased, and arises from his disposing of only a part of his property, from lapse not within the provisions of the Wills Act, s. 33, or from informal execution of part of the testamentary document or documents. It will be convenient to divide intestate succession as a whole into three branches succession to real estate, to personal estate, and to titles of honour. To the latter, intestate succession is the only kind of succession possible ; in the case of intestate succession to real or personal property, the rules of succession are the same whether the intestacy be total or partial; the only difference is that in the latter case they can only affect that part of the property as to which there has been an intestacy. (1) Real Estate. The rules of descent of real estate * now depend on 1 It should be remembered that not all real estate can be inherited by descent. For instance, an estate for life is real estate, but it can 110 INTESTATE SUCCESSION the common law as amended by the Inheritance Act of 1833 (3 and 4 Will. IV, c. 106), 22 and 23 Viet., c. 35 (known as Lord St. Leonards' Act), and the Conveyancing Act, 1881 (44 and 45 Viet., c. 41). The Act of 1833 does not extend to descents taking place on the death of any person dying before 1st January 1834. To such descents the old law as set out by Blackstone, and shortly noticed in Ch. II above, is still applicable. The modern rules of descent are as follows (1) In every case the descent shall bo traced from the purchaser. 1 The last owner is to be considered the purchaser unless the contrary be proved. (2) Inheritance in the first place descends to the issue of the purchaser in infinitum-. (3) The male issue is preferred to the female. (4) The eldest of the male issue of equal degree of consanguinity inherits, but the female inherit jointly as coparceners. (5) All lineal descendants in infmihtm represent the ancestor. Thus far the rules apply to the descent of estates tail as well as of estates in fee-simple. The remaining rules affect only the latter. (6) On failure of lineal descendants, the inheritance goes to the nearest lineal ancestor. (7) The father and all male paternal ancestors and obviously not be inherited. An estate tail in descendible only to n limited extent within the Ixiunds of the entail. The rules as given here are adopted, with slight alterations, from Williams' Ilnil I'ro- perty, Part I, c, iv, where a useful diagram will lie found. 1 " Purchaser" signifies any one taking otherwise than by descent. Purchase is sometimes known as conquest. The title "conqueror," applied to William I, probably only signified that he was a conqueror in the sense of not succeeding by descent. REAL ESTATE 111 their descendants are admitted before any of the female paternal ancestors. (8) Brothers and sisters do not inherit directly, but by representation of the parent. (9) The half blood takes next after the whole blood, after the issue of the kinsman of the whole blood, when the common ancestor is a male, after the common ancestor when such ancestor is a female. (10) In the admission of female paternal ancestors, the mother of the more remote male paternal ancestor and her heirs is preferred to the mother of the less remote male paternal ancestor and her heirs. The rule for the admission of female maternal ancestors is analogous. (11) Where there is a total failure of the heirs of the purchaser, or where any land is descendible as if an ancestor had been the purchaser, and there shall be a total failure of the heirs of such ancestor, then the land is to descend and the descent is to be traced from the person last entitled, as though he had been the purchaser. 1 (12) By the Conveyancing Act, 188 1, 2 real estate on the death of an intestate may pass to his personal re- presentative, but only for limited purposes, and this devolution ought perhaps not to be considered a descent in the proper sense of the word. (1 3) An estate pur autre vie passes, in the absence of a special occupant, to the executor or administrator. 3 In case of the total failure of heirs, even of the person last entitled, the Crown takes the inheritance by escheat as ultimus heres, subject to the widow's right of dower, where such right has not been barred, as it 1 22 and 23 Viet., c. 35, s. 19. 2 44 and 45 Viet., c. 41, ss. 4, 30. See p. 145. 3 P. 43. 112 INTESTATE SUCCESSION generally has been. Escheat applies, since 47 and 48 Viet, c. 71, to incorporeal as well as corporeal heredita- ments, that is to franchises, profits ivi>ion may in theory have jurisdiction to grant or revoke probate, he would not be exercising sound discretion in exercising such jurisdiction, no division but the Probate possessing the requisite machinery for dealing with business of that nature. l'imt>>/ \. Hunt, Law Rej>., 6 Chancery Div., 98, (1877); Bradford v. Young, Law Rep., 26 Chancery Div. 656 (1884). 1 There are a few exceptions which will be mentioned later. PROBATE 121 sumed. 1 With the real estate of the deceased his per- sonal representatives have (with certain exceptions, to be mentioned later) nothing to do. The devisee or heir becomes entitled, by operation of law, to the real estate immediately at the death, or presumed death, of the predecessor. Where there is a will and an executor or executors appointed, it is necessary for him or them to take out probate of the will ; where there is no will, or where there is a will with no executor or executors named therein, letters of administration must be taken out. Probate is not granted before the lapse of seven days from the death, administration before the lapse of fourteen days, and both should be applied for within six months, unless in exceptional cases. Probate and letters of administration are granted by the same authority ; the main difference in the rights conferred by them is that the executor may do certain acts before obtaining probate, which an administrator cannot do before obtaining letters of administration. The executor has an inchoate right immediately on the death, the administrator has no right at all until the grant of administration. A few exceptions to this rule exist by statute, e.g. by 3 and 4 Will. IV, c. 27, s. 6 ; for the purposes of the act (limitation of actions) the admin- istrator may claim as if there had been no interval between the death and the grant. (1) Prolate The number of executors who may be appointed is unlimited, and every person may be an executor, except those expressly forbidden. In the present state of the law there appears to be no class of persons legally 1 P. 203. VOL. I. 9 122 ADMINISTRATION IN A COURT OF FROIUTE excluded. If the king or a corporation J be appointed, the office is performed by persons named by the executor, such persons in the latter case being called syndics, and taking administration with the will annexed. A married woman, as has been already stated, can be executrix, and in such a case becomes liable to the extent of her separate estate. So can an alien. An infant, if appointed, cannot, by 38 Geo. Ill, c. 87, s. 6, act until he is of age. Where an infant is sole executor, administration duranle minorc cetate is granted. Where an executor is a bankrupt, a receiver is generally appointed by the Chancery Division ; where an idiot or lunatic, administration with the will annexed is granted to a person named by the Probate Division. The appointment of an executor may be either express or implied. An implied appointment is made by the use in the will of any words from which it can be gathered that the testator wished a certain person to act as executor. Thus a general direction to pay the debts but not a direction to pay them out of a par- ticular fund will be sufficient to constitute the person to whom the direction is given an executor, called in such a case executor according to the tenor. Where the appointment of executor applies to more than one person, evidence is admissible to show which person was intended by the testator. But where it is wholly am- biguous, such as " one of my sisters," it is too uncertain for the court to give effect to it, and administration with the will annexed is granted. An alternative executor may be substituted for one who dies or refuses to act. The office of executor may also be limited to 1 Such 0.1, for instance, the Trustees, Executors, and Securities Insurance Corporation. APPOINTMENT OF EXECUTOR 123 a certain time, or for certain parts of the estate, in the latter case by what is called a grant save and except. In order to complete the title to deal with the estate, limited administration or a cceterorum grant must be obtained for the remaining period or the remainder of the estate. A person may in one case become executor without either express or implied appointment. If any one intermeddle with the goods of the deceased, or take upon himself any of the duties attaching to the office of executor, he by so doing constitutes himself an executor de son tort, or executor of his own wrong. The executor de son tort is naturally regarded by the law in no very favourable light. He has all the responsi- bilities and none of the privileges of an executor properly constituted. Among acts which have been held to make a person executor de son tort are receiving the debts of the deceased, realising his property, and carry- ing on his trade. But offices merely of kindness and charity do not render a stranger liable as executor de son tort. Such acts are locking up the goods of the deceased for safety, giving directions for and paying for his funeral, and feeding his cattle. Up to the time of applying for probate an executor may renounce, provided that he has done no act showing an intention to carry out the will of the testator. The renunciation must be in writing, and may be in either the principal or a district registry of the Probate Division. It may be retracted at any time before it has been actually filed in the registry. Should the executor nominate neither accept nor renounce, a citation is issued to him from the principal registry, and in default of appearance he may be punished for contempt of court, 124 ADMINISTRATION IN A COURT OF PROBATE and the administration of the goods of the deceased, under s. 16 of the Court of Probate Act, 1858, devolves as if he had not been appointed executor. The same result follows, by s. 79 of the Court of Probate Act, 1857, where one of several executors renounces. An executor renouncing is not allowed to take repre- sentation of the deceased in any other character, such as administrator. Whether an executor renouncing can take a legacy left him is a question of construction. It depends on the words used in the will whether the legacy is made dependent on his acting as executor or not. The office is jmmA facie a gratuitous one, and if a sum of money be left to the executor, the presinn]) tion is that it is to induce him to accept an onerous office. It is also a question of construction depending on the words of the will whether an executor can in any way act in furtherance of the testator's wishes, e,g. in the selection of a charity to be benefited by the will. So far is the office considered as gratuitous, that if a solicitor bo appointed executor he cannot make the ordinary professional charges without being specially empowered to do so by the testator. An executorship cannot be transmitted or assigned inter vivos, but can pass by will. An executor of an executor (provided that ho be sole executor) through any length of series still continues the chain of repre- sentation to the testator, but where any administration occurs it breaks the chain. The administrator of an executor (and a fortiori the executor of an adminis- trator) is not a representative of the original deceased, and administration de bonis non must be taken out to the effects of such deceased. On the death of one of co-executors his interest vests in the survivor or PROBATE IN SOLEMN FORM 125 survivors and Joes not pass to his own executor or executors. The executor not having renounced, it becomes his duty to prove the will. One or more of the executors nominated in the will may prove it. Where any one nominated does not prove, power is generally reserved a memorandum of such power being inserted in the grant for any executor not proving to appear and prove at some future time, such future probate being called a double probate. Probate granted to one executor enables all to act. 1 No security is required from an executor, as it is from an administrator, the testator's confidence in the executor being shown by his appointing him. Probate is of two kinds in solemn form and in common form. The former is part of the contentious jurisdiction of the court, and is practically confined to cases where there is any opposition to the grant of probate on the ground of the alleged invalidity of the will. Before probate in solemn form a citation is issued to all persons interested, such as the widow and next of kin, who may appear as interveners. Any one interested who objects to probate in common form may prevent probate in such form by lodging a caveat in the principal or a district registry. Probate in solemn form consists in the witnesses to the will both where possible giving evidence in open court, and the formal decision of the court upon their evidence, supporting or otherwise the 1 Only the executor or executors who proved will as a rule be registered as holders of any securities, such as certificates of railway stock possessed by the testator. Where there is any discrepancy in the name or description of the testator in the will and of his name or description in any securities held by him, a statutory declaration of identity is generally required by railway companies, etc. 126 ADMINISTRATION IN A COURT OF PROBATE validity of the will. The party propounding a will, i.e. alleging its validity (generally the executor), is bound to call an attesting witness, where the attendance of such witness is obtainable, even though his evidence will be adverse. The court has power to order the production before it of any paper purporting to be testamentary, and a registrar has power to issue subpoenas to produce such papers. Probate in solemn form is one of two cases in Avhich a will devising only real property comes within the jurisdiction of the Probate Division. The other is where an executor is appointed to a will of lands. By the Court of Probate Act, 1857, it is enacted that a will affecting real estate may be proved in solemn form after duo citation of the heir and persons interested, that the probate, decree, or order made at the hearing shall ensure to the benefit of all persons interested in the real estate affected, and that the probate copy shall be conclusive evidence of the validity and contents of the will. The contentious jurisdiction of the Probate Division now depends mainly on the Probate Court Acts, 1857 and 1858; the Judicature Acts and Rules of the Supreme Court ; and the Probate Rules of 1862, as amended by subsequent rules. The Appendices to the Rules of the Supremo Court, 1883, contain forms of indorsement of writ and statements of claim and defence. As an example of practice, the writ and claim and defence in an action of probate in solemn form may be interesting. The indorsement of the writ is in this form : " The plaintiff claims to be the executor of the last will, dated the , of C. W., late of , gentleman, deceased, who died on the day of , and to have the said will established. This writ is PRECEDENTS OF PLEADING 127 issued against you as one of the next of kin of the said deceased" (or as the case may be). 1 The statement of claim runs thus : " The plaintiff is the executor appointed under the will of C. T., late of Bicester, in the county of Oxford, gentleman, who died on the 20th of January 1883, the said will bearing date the 1st of January 1875, and a codicil thereto, the 1st of October 1875. The plaintiff claims : That the Court shall decree pro- bate of the said will and codicil in solemn form of law." 2 The statutory form of a statement of defence runs thus " 1. The said will and codicil of the deceased were not duly executed according to the provisions of the statute 1 Viet., c. 26. "2. The deceased at the time the said will and codicil respectively purport to have been executed was not of sound mind, memory, and understanding. " 3. The execution of the said will and codicil was obtained by the undue influence of the plaintiff (and others acting with him, whose names are at present un- known to the defendant). " 4. The execution of the said will and codicil was obtained by the fraud of the plaintiff, such fraud, so far as is within the defendant's present knowledge, being [state the nature of the fraud]. " 5. The deceased, at the time of the execution of the said will and codicil, did not know and approve of the contents thereof [or] of the contents of the residuary clause in the said will [as the case may be]. " 6. The deceased made his true last will, dated the 1st day of January 1873, and thereby appointed the defendant sole executor thereof. 1 Appendix A, Part III, s. 5. 2 Appendix A, section III, No. 2. 128 ADMINISTRATION IN A COURT OF PKOHATE " The defendant claims " 1. That the Court will pronounce against the said will and codicil propounded by the plaintiff. " 2. That the Court will decree probate of the will of the deceased, dated the 1st of January 1873, in solemn form of law." l Trial in the Probate Division is either before the judge alone or before the judge with a common or special jury. A new trial may be granted in a proper case by the Court of Appeal. An issue may also be tried in another court by order of the Probate Division, e.g. an issue at assizes of devisavit vd non, to try the validity of a devise. An appeal on the facts as well as the law lies from the Probate Division to the Court of Ap(>cal, and thence to the House of Lords. Before the Judi- cature Acts it lay direct to the House of Lords. How far an appeal lies in non-contentious business is still uncertain : it appears to lie in some cases. 2 The general practice in the Probate Division is in accordance with that of the Queen's Bench Division. Such accordance was the evident intention of the framers of the Court of Probate Act. In one or two cases, however, special rules governing only probate practice occur in the Rules of the Supreme Court, 1883. Thus in probate actions the indorsement of the writ is to show whether the plaintiff sues as creditor, executor, administrator, residuary legatee, legatee, next of kin, heir-at-law, devisee, or in any and what other character. 8 The plaintiff in a probate action must issue his writ of summons out of the central office of the Supremo Court He cannot 1 Appendix D, section III, No. 2. s lie Clock, Law Rep., 15 Probate Div., 132 (1890). Ord. iii, r. 6. COUNTY COURT JURISDICTION 129 issue it out of a district registry. 1 The party opposing a will may with his defence give notice that he merely insists on the will being proved in solemn form, and only intends to cross-examine the witnesses produced in support of the will. 2 This is important in regard to his liability for costs. The contentious jurisdiction of the Probate Division was to a limited extent conferred on county courts by the acts of 1857 and 1858. The most important section is s. 10 of the act of 1858, which enacts that where it appears by affidavit to the satisfaction of a registrar of the principal registry that the testator in respect of whose estate a grant or revocation of a grant of probate is applied for had at the time of his death his fixed place of abode in one of the districts specified in Schedule (A) 3 to the Court of Probate Act, and that the personal estate in respect of which the probate has been granted (exclusive of what the deceased was possessed of or entitled to as a trustee, and not beneficially, but without deducting anything on account of the debts due and owing from the deceased) is under the value of 200, and that the deceased at the time of his death was not seised or entitled beneficially of or to any real estate of the value of 300 or upwards, the judge of the county court having jurisdiction in the place in which the deceased had at the time of his death his fixed place of abode shall have the contentious jurisdiction and authority of the Court of Probate. Trial in the county court is either by the judge alone or by the judge with a jury of five. The County Court Kules of 1889 (rule xlix, forms 347-351) deal with the practice in the county courts. An appeal as of right 1 Ord. v, rr. 1, 2. 2 Ord. xxi, r. 18. 3 See Appendix A.^ 130 ADMINISTRATION IN A COURT OF PR015ATE lies from the county court to a divisional court of the Queen's Bench Division of the High Court, from that Court to the Court of Appeal only by leave. In the vast majority of cases probate in common form is all that is necessary. This is a part of the non-con- tentious jurisdiction of the Probate Division, and in this part of the practice the Judicature Acts have made no change, s. 18 of the Judicature Act, 1875, specially preserving to the President of the Probate Division the power to make rules in non-contentious and common form business. In order to prove a will in common form the executor in person 1 or by his solicitor applies at (1) the principal registry ; (2) a district registry, where the deceased had at the time of his death a fixed place of abode within the district in which the application is made ; (3) a proper officer of Inland Revenue, where the personal estate does not exceed 300 without deduction for debts or funeral expenses. 2 In the last case, if the will be at all defective in form, applicants are referred to a registry. The grant is not actually made by the revenue officer, but the will is forwarded by him to a registry and returned by the registry. In order to lead to a grant the executor must produce the original will (or an exemplification or office copy if it have already been proved in another court), must make oath or affirma- tion in a prescribed form (known as the executor's oath, by which he undertakes to duly administer, exhibit an inventory if necessary, pay debts and legacies, etc.), must produce an official copy of the certifiacte of death or burial of the deceased, and must fill up and swear or 1 Instructions issued by the Probate Division for the guidance of executors proving in person will be found in Appendix C. 3 A list of the places where Inland Ilcvcnue officers are empowered to undertake probate may be obtained at any Inland Revenue office. 131 affirm the truth of an account of the personal estate of the deceased, a schedule of debts and funeral expenses, and the Inland Eevenue affidavit as to the value of the estate. An inventory is not usually required, but may be called for by any person interested. All the necessary documents are supplied at the registry or Inland Revenue office. Should there be any alterations or interlineations in the will or no attestation clause, or should the will be on detached sheets, further affidavits of execution are required from at least one attesting witness, and the will cannot be proved through an Inland Revenue officer. If the attesting witnesses be dead or abroad, or be for any other reason incapable of making an affidavit, affidavits of other persons as to the hand- writing of the deceased are accepted. An affidavit as to alterations and interlineations is only required where they are not mentioned in the attestation clause. The exe- cutor's oath or affirmation may be taken before a registrar, an Inland Revenue officer, or a commissioner of the High Court of Justice. In due time, after the completion of the preliminaries, and on payment of the probate duty, the account duty (where necessary), and the fees payable in the registry, l a probate copy of the will engrossed on parchment and sealed with the seal of the court is issued to the executor. The original will is preserved in the principal registry, where are also deposited all the wills proved in the old Prerogative Court of Canterbury, but not those proved in the bishops' courts, which are still kept in the district registries cor- responding to the diocesan registries. The probate is in general a verbatim copy of the will, with the addition of the dates of death and of grant 1 For which see Appendix B. 132 ADMINISTRATION IN A COURT OF PROBATE of probate and the sum below which the personal estate of the deceased was sworn. In some cases, however, words or phrases are omitted, such as expressions re- flecting on the character of living persons, or the name of a legatee written after the names of the attesting witnesses. Probate may also issue in blank as to a sub- stituted legacy. The probate, unless revoked, becomes evidence for all purposes, and the original will remains deposited in the registry. It sometimes happens that a will, known to have existed in the testator's lifetime, cannot be found after his death. In such a case the executor may propound the lost will, giving such evidence as he can of its con- tents. A well-known case in which such evidence was allowed to be given was that of Sugden v. Lord St. Leonards, decided by the Court of Appeal in 187G. 1 The court, acting upon the evidence of the daughter of the testator as to the terms of the will, which she had seen, and as to declarations made by him, and also upon certain documents and memoranda found among the testator's papers, granted probate of the lost will to the extent to which its terms had been proved. Probate once granted is conclusive unless revoked. But it may always be revoked for certain reasons, either on citation or on appeal The principal case of revoca- tion would be where an executor has obtained probate in common form, and being afterwards cited to prove it in solemn form fails to do so. The probate in common form would in such a case be revoked. Other onfli might arise where probate had been granted of a forged will, or where a testator, supposed to be dead, afterwards appeared. As a rule bond fide payments by 1 Law Rep., 1 Probate Div., 154. ADMINISTRATION 133 or to an executor acting under a probate afterwards revoked are valid. Such is the express enactment of the Court of Probate Act, 1857. The act further pro- vides that the abatement by revocation of any action brought by an executor is to be entered on the record, and the action is to be continued in the name of the new executor or administrator. The executor has by the same act power to retain and reimburse himself in re- spect of any payments which might have been lawfully made by the person to whom grants of probate or letters of administration were afterwards made. 1 A county court has jurisdiction to revoke a probate which has been granted by it in a case falling within the pecuniary limit which confers upon it probate jurisdiction. 2 (2) Administration. Where a person dies wholly or partially intestate, an administrator is appointed by the Probate Division. His rights and duties agree in general with those of the executor, but he is more directly an officer of the court, and his rights date from the grant of letters of adminis- tration, not from the death of the testator, as is the case for some purposes with the executor. As a rule, all persons qualified to act as executors are also qualified to act as administrators, but they must have legal capacity to execute the administration bond required by the court. Accordingly, infants, lunatics, or idiots cannot be administrators. If an infant be next of kin, administration durante minore cetate is granted to another person. If a bankrupt be appointed, additional security, known as "justifying security," is required. Adminis- 1 20 and 21 Viet., c. 77, ss. 76-78. 2 P. 129. 134 ADMINISTRATION IN A COURT OF PROIUTE tratorship is seldom a joint office, as is executorship. A corporation or society is not usually allowed to act as administrator. One of the few examples of the appoint- ment of several persons is the appointment of a board of guardians where a pauper has died intestate and entitled to personal property. 1 Administration is usually granted in a certain order, preference being given (after husband or wife) to the next of blood who is under no legal disability. The order is (a) husband or wife ; (b) child; (c) grandchild ; (d) other more remote descendant ; (e) father ; (/) mother; (g) brother or sister ; (h) grandfather or grandmother ; (t) nephew, niece, uncle, aunt, or other collateral ; (j) creditor; 2 (k) stranger; 2 (/) the Crown. Where an intestate dies without any known relations, and without a grant having been made to a creditor or stranger, the grant is made on application to the court by the Treasury Solicitor, or (in the case of the deceased being resident in the counties of Lancaster or Cornwall) 1 In the United States and in many of the colonies there is an official known as the public administrator. The nearest approach to Mich an official in England is ]H!rhaps the Treasury Solicitor. His jurisdiction is, however, confined to a very limited class of cases. 8 Such grants arc only made " by reason of the insolvency of the estate of the deceased, or other special circumstances," under a. 73 of the Court of Probate Act, 1857. ORDER OF GRANT 135 to the nominee of the Queen as Duchess of Lancaster, or of the Prince of Wales as Duke of Cornwall. The practice in grants to the Treasury Solicitor or to the solicitor to the Duchy of Lancaster is regulated by 39 and 40 Viet., c. 18, and 47 and 48 Viet., c. 71. Mis- conduct or lunacy of husband or wife will be sufficient ground for exclusion. All relations of equal degree have equal right to administer, but the court does not generally make a joint grant, and therefore chooses the person whom the majority of the equal degree select, males being as a rule preferred to females. Any of the next of kin may renounce in proper form, upon which the next in order come in. A citation may be issued, as in the case of executors, calling on those first entitled to accept or renounce. And as in the case of executors no person renouncing may take representation to the deceased in another character. In some cases the per- son claiming administration may have to bring an interest suit to establish his right. 1 Letters of administration are not issued till after the lapse of fourteen days from the death of the deceased, unless by special order of the court. If applied for after the lapse of three years, the delay must be explained. Between the time of death and grant the personal estate is vested in the President of the Probate Division. The grant is made by the Probate Division or an officer of Inland Eevenue and (in the case mentioned below) by a county court. An oath to administer and exhibit an in- ventory must betaken. The documents required from the administrator are the copy of the certificate of death or burial of the deceased, a statement of his relationship 1 A form of statement of claim in such a suit is given in Appendix C, Section III, No. 1 of the Rules of the Supreme Court, 1883. 136 ADMINISTRATION IN A COURT OF PROBATE to the applicant, the affidavit of Inland Revenue (to which is annexed an account of the property of the de- ceased), and the administration bond. The bond is for double the amount at which the estate to be administered is sworn, and two sureties are required, unless the ad- ministrator be the husband (when one is sufficient), or unless the court sees fit to dispense with sureties, as in grants to certain public officials. A married woman or a minor is not accepted as a surety. 1 The stamp on the bond is five shillings, except where the estate does not exceed 100, or where the bond is given by certain relatives of a seaman, marine, or soldier dying on service, when no stamp is required. The .papers necessary to lead to the grant, viz., the oath and the Inland Revenue affidavit having been duly executed, the grant will issue, and the administrator then proceeds to distribute to the wife and next of kin, in accordance with the Statutes of Distribution. The administration of estates of a still smaller maxi- mum value than those falling within the jurisdiction of officers of Inland Revenue is provided for in certain cases by 36 and 37 Viet., c. 52, and 38 and 39 Viet, c. 27. 2 The combined effect of these acts is that the widow and children of an intestate and the children of an intestate widow arc enabled, shoiild the whole estate of the deceased not exceed in value 100, and should they reside more than three miles from a registry, to apply to the county court within the district of which the intestate had his or her fixed place of abode at the time of death, and the registrar will fill up the forms, 1 Certain inanrance and other companies make it a part of their business to act as sureties to administration bonds. 1 This is the only administration (except administration liif) which can be granted by a county court. LIMITED ADMINISTRATION 137 administer the oath, and do all those acts for the in- tending administrator or administratrix that would be done for them at the probate registry. The county court registrar may administer oaths and affirmations. So far only general administration has been treated of. The same law applies, mutatis mutandis, to limited and special administrations, the main exception being that in such cases the Inland Revenue and county court officials would have no jurisdiction, their powers being confined to complete administrations of the simplest nature. The principal kinds of limited administration are as follows (a) Cum testamento annexo, or with the will annexed. Administration of this kind is generally granted where no executor has been named in the will. The adminis- tration is general, inasmuch as it deals with the whole of the personalty named in the will, but it differs from the ordinary general administration in that the persons benefited are determined by the will and not by the Statutes of Distribution. Such administration may also be granted to the duly constituted attorney of an executor resident abroad. (&) De bonis non administrates, often contracted into de bonis non or de bonis. This is a supplementary grant made where the administration of the goods of an intestate has not been completed by the original administrator, e.g. where the latter has died before completing title to some of the property of the intestate. (c) Durante absentid, granted in certain cases where a near relation entitled to administer is abroad. (d) Durante minore cetate, granted where an infant is sole- executor of a will. In this case, as in that of cum testamento annexo, the administrator is bound to follow the terms of the will. VOL. I 10 138 ADMINISTRATION IN A COURT OF PROBATE (e) Pendente lite, granted where there is any suit touching the validity of a will, or for obtaining, recall- ing, or revoking any probate or grant of administration. The Court of Probate Act, 1857, enables the court to appoint such administrator or any other person to be receiver of the real estate of the deceased, with a right to such reasonable remuneration as the court shall determine. 1 Limited grants are made in other cases, the Probate Division having a wide discretion in such matters. Examples are grants durante dementiA, during the lunacy of an executor or administrator; 2 ad colligenda bona defunct i, where no application is made by the next of kin or a creditor; and grants until a lost will be found, or until the will of a testator left in India could be transmitted to England. On the expiration of a limited grant, what is called a cessate grant (or a eeierorum grant, if the first grant has been limited as to amount) issues to the person who ought to have been adminis- trator in the first instance, but for the circumstance of his minority, absence, etc. Special administration is that granted under 38 Geo. Ill, c. 87, and s. 18 of the Court of Probate Act, 1858, by which the Probate Division is empowered to grant such administration after the expiration of twelve months from the death of the deceased, where the executor or the person who ought to be administrator is out of the jurisdiction. In a few cases title to the personal estate of the 1 Ss. 70-72. The court may require security by bond from a receiver of real estate (21 and 22 Viet, c. 95, s. 21 ). s On the death of tin- cniiiiiiittcc of a lunatic intestate, the judire in lunacy may order Borne fit person to transfer to a new rnnnnittee, or into court, any stock to which the limntic is entitled (:'>:! Viet, c, f, . 133). EXEMPTIONS FROM PROBATE & ADMINISTRATION 139 deceased may be made without the necessity of taking out probate or letters of administration. These cases are : (1) Soldiers and sailors. 1 (2) Members of loan societies, to an amount not exceeding 50. (3) Depositors in savings banks, to an amount not exceeding .100. (4) Members of friendly, 'industrial, and provident societies, to the same amount. (5) Persons who are servants in any public depart- ment, to the same amount. These exemptions depend on a large number of Acts of Parliament which it has not been thought necessary to set out at length. Among the more important of these acts are the Provident Nominations and Small In- testacies Act, 1883, the Savings Bank Act, 1887, and the Superannuation Act, 1887. Characteristic features of the acts are the provisions that a nomination by a depositor or member is in most cases to be equivalent to a will, and that such nomination may be made by any person otherwise entitled to make it at the age of six- teen. Letters of administration may, like probate, be re- voked. It was enacted by 21 Hen. VIII, c. 5, that they cannot be revoked unless for just cause. Such a cause would be the subsequent discovery of a duly executed will. The administrator, acting under letters of administration afterwards revoked is protected to the same extent as the executor acting under a probate after- wards revoked. 1 P. 77. CHAPTER XII THE RIGHTS AND DUTIES OF EXECUTORS AND ADMINISTRATORS (1) Rights. THE rights in general are the same, the exception being that the executor may do certain acts before probate, which the administrator cannot do before the grant of administration. The testator has shown his confidence in the executor's probity by nominating him to the office. There are also a few more rights of the executor only conferred by statute, among the most important of which is the right of the executor (not of the administrator), given by s. 37 of the Conveyancing Act, 1881, to pay or allow any debt or claim on any evidence that he may think sufficient, and to accept any composi- tion or security for any debt or property claimed, and to allow time for payment of or to settle any debt. The rights of personal representatives may be conveniently grouped under the head of rights with regard to the estate and personal privileges. The rights with regard to the estate may be divided into rights over (1) per- sonal estate in possession, (2) personal estate not in |K)88Cftftioii, (3) real estate. PERSONAL ESTATE IN POSSESSION 141 (1) The personal representative is entitled to all the personal estate in possession, except the joint estate of the deceased, which passes to the surviving joint owner. Partnership estate is an exception. In the absence of any stipulation that the estate shall pass to the sur- viving partner, the representative is entitled to have the partnership wound up or continued for the benefit of the estate of the deceased according to the terms of the contract of partnership. Personal estate in possession includes (in addition to what is obviously such, e.g. money, furniture, stock in trade, etc.) farming stock and implements of husbandry, the goodwill of a business, the next presentation to a benefice (but not the advowson), emblements, or crops on the testator's lands at the time of his death, rents of land of any tenure, 1 leaseholds, policies of insurance, ships and shares in ships, proceeds of the sale of real estate contracted to be sold by the deceased, personal property over which the deceased had a general power of appointment, and the present value of reversionary property. Heirlooms and fixtures, though primd facie personal, go with the inheritance and not to the personal representative. As between heir or devisee and personal representative, the right of the latter to fixtures is more limited than in many other cases where decision or statute (e.g. 14 and 15 Viet., c. 25) has trenched upon the old common law rule that fixtures pass with the inheritance. Personal estate not in possession comprises choses in action, i.e. personal estate to which a person has a right of action, such as debts. Other choses in action are stoeks and shares (except some which, like New River 1 Including apportioned parts of any rents under the Apportion- ment Act, 1870. 142 EXECUTORS AND ADMINISTRATORS and Aire and Calder Navigation shares, are real estate), bonds, bills, promissory notes, etc. It is to be noticed that not all stocks and shares are to be included in the personal estate on which stamp duty is payable. Foreign stocks and scrip for foreign loans are assets within the jurisdiction of the court only where they pass by delivery ; Indian Government securities, by 23 Viet., c. 5, only where registered in London or enfaced in India to be so registered. Money secured on heritable property and by heritable bonds in Scotland was made chargeable with duty in England by 23 Viet, c. 15. The right to sue on a contract made by the deceased passes to his personal representative, unless the action be one that falls within the old maxim of law actio personcdis moritur cum persond. Such actions are those which depend on personal trust or confidence shown in the skill of the deceased, and actions for breach of promise of marriage. In the former class of actions the death of the deceased, though operating as a rescis- sion of the contract, does not deprive the representative of a right of action already vested in the deceased. The representative of a judgment creditor may (with leave of the court) issue a bankruptcy notice against a debtor of the deceased. The right to sue for a tort committed against the person or property of the deceased does not as a rule pass to his representative. To this rule certain excep- tions have been introduced by statute. By 4 Edw. Ill, c. 7, a remedy for trespass to the goods and chattels of a testator was given to executors. By 3 and 4 Will. IV, c. 42, s. 2, executors or administrators may bring actions for injuries to the real estate of the deceased, provided that the injury have been committed within RIGHTS OF ACTION 143 six months before his death, and that the action be brought within a year after his death. At common law no action lay for damages sustained by the death of a human being. This was altered by Lord Campbell's Act (9 and 10 Viet., c. 93), under which an action is maintainable by the executor or administrator against any person who would have been liable if death had not occurred. The action is to be for the benefit of the wife, husband, parent, or child of the deceased, and the jury are by their verdict to apportion the damages among the persons entitled. 1 If there be no executor or administra- tor, or if no action be brought within six months of the time of death, it may be brought in the names of the persons entitled to the benefit (27 and 28 Viet., c. 95). The Employers' Liability Act, 1880 (43 and 44 Viet, c. 42) enables the representative of a workman, whose in- juries have resulted in death, to bring an action in a county court against the employer in the cases provided for in the act. 2 In addition to the rights of action which he has at common law and by statute, the executor or administrator has certain rights exercisable for the benefit of the estate without action. For instance, he may endorse bills and notes, may distrain for rent, has a power of entry on real estate, generally for breach of cove- nant, and (if a representative of a last surviving or con- tinuing trustee), may appoint a new trustee or trustees. Co-executors being considered for many purposes as 1 Where the death has resulted from a collision at sea, and a suit under Lord Campbell's Act is brought in the Admiralty Division, it must be a suit in personam and not in rem. The Vera Cruz, Law Rep., 10 Appeal Cases, 59 (1884). Damages in such a case are re- coverable to the whole amount of loss suffered, although, owing to the negligence of those in charge of both vessels, only half damages would be recoverable for other purposes. The Bernina, Law Rep., 13 Appeal Cases, 1 (1888). - See the volume on Master and Servant in this series. 144 EXECUTORS AND ADMINISTRATORS one pei-son, one executor can bind another by certain acts, such as payment or release of a debt But one cannot bind the others by contract, and as a rule all must join in bringing an action. One may, however, proceed alone by originating summons. 1 The power of a single executor to bind the others has led to an important difference in the law as it affects executors and trustees. Where trustees or executors join in a receipt, priinA fade all are presumed to have received the money, but it is competent for a trustee to exoner- ate himself by showing that the money acknowledged to have been received by all was in fact received by one, and that the other joined only for conformity. An executor cannot do this, for it is not necessary for him to join in the receipt, and if he do so join, he is to bo considered as assuming a power over the fund, and therefore answerable. 2 The rights of executors in this respect have been recently extended by the Conveyancing Act, 1881, by s. 38 of which, where a power or trust is given to or vested in two or more executors or trustees jointly, then, unless the contrary is expressed in the instrument, if any, creating the power or trust, the same may be exercised or performed by the survivor or survivors of them for the time being. (3) The powers over real estate of an executor are very limited. Where real estate is converted, the executor has of course the same powers as if it had been originally personal estate. An executor may also be constituted a trustee for sale of real estate ; and when so constituted he has the necessary powers of dealing with 1 See p. 159. 2 Brice v. Mokes, 2 White and Tudor's Leading Catct in Equity, 865. POWERS OVER REAL ESTATE 145 the property, such powers being, as has just been stated, exercisable by the survivor. When a testator directs that his debts shall be paid by his executors, and also devises real estate to them, either beneficially or on trust, it is a question of intention whether the estate so devised is charged with the payment of the debts. An executor may sue for arrears of rent by 32 Hen. VIII, c. 37. As between devisee or heir and executor or admin- istrator, real estate falling within Locke King's Act is not entitled to be exonerated at the expense of the personal estate. 1 By the Court of Probate Act, 1857, an administrator may be appointed receiver of real estate. 2 The Conveyancing Act, 1881, increases the powers of personal representatives as against heirs and devisees. By s. 4 of the act, where at the death of any person there is subsisting a contract enforceable against his heir or devisee for the sale of any freehold interest, descendible to his heirs general, in any land, his personal representatives have power to convey the land for all the estate and interest vested in him at his death. By s. 30, where an estate or interest of inheritance, or limited to the heir as special occupant, in any tenements or hereditaments, corporeal or incorporeal, is vested on any trust or by way of mortgage in any person solely, the same shall on his death, notwithstanding any testa- mentary disposition, devolve to and become vested in his personal representatives or representative from time to time, in like manner as if the same were a chattel real vesting in him or them. 3 1 P. 160. 2 P. 138. 3 This section supersedes provisions to a similar effect contained in the Vendor and Purchaser Act, 1874, and the Land Transfer Act, 1875. It does not include copyhold estate vested in a tenant on trust or by way of mortgage (51 and 52 Viet., c. 73, s. 45). 146 EXECUTORS AND ADMINISTRATORS The personal privileges of an executor or adminis- trator may be divided into retainer and certain legal exemptions from liability, chiefly given by one of Lord St. Leonards' Acts. Retainer is the right of an executor (but not of an executor de son tort) to pay himself, if a creditor of the testator, in preference to other creditors of an equal degree, by retaining so much of the legal assets as his debt amounts to. He may retain even though his debt be barred by the Statute of Limitations. An executor or administrator is exempt from liability for payment in good faith in pursuance of a power of attorney if the fact of the death of the donor of the power was not known to him at" the time of payment 1 Nor is he liable in respect of rents, covenants, or agree- ments of the deceased if he have set apart a sufficient fund to answer any future claim. 2 In order to assist him in obtaining a list of creditors, as well as to release him from subsequent liability should any creditor fail to present his claim until after the assets have been divided, he is entitled to insert in the London Gazette and two daily newspapers an advertisement in a pre- scribed form, the insertion of which will entitle him to successfully defend any action brought against him by an unpaid creditor. 3 In the language of the old plead- ing such a defence was raised by a plea of plene adminis- travit or plene adminislravit prceter. 4 If he apply by peti- 1 22 and 23 Viet, c. 35, s. 26 ; since extended to persons other than trustees, executors, and administrators by R. 47 of the Convey- ancing Act, 1881. 3 '22 and 23 Viet., c. 35, ss. 27, 28. s /n trust, to sell and pay tlic pnr<-lia>i-iininey to A, and A gives notice to tin- trustees that he prefers the land, as he has a right t<> do. INSOLVENT ESTATE 163 Bankruptcy Acts, has been to deprive the doctrines of priority and marshalling of much of their former im- portance. (2) Provision is made by the Judicature Act, 1875, s. 10, for the observance in the administration of the estate of a person who dies insolvent of the same rules as to the rights of secured and unsecured creditors, and as to debts and liabilities provable, and as to the valua- tion of annuities and future and contingent liabilities as may be in force for the time being under the law of bankruptcy. The Bankruptcy Act, 1883, enables the estate of a person dying insolvent to be administered in bankruptcy. The court possessing jurisdiction in such matters is either the High Court on its bankruptcy side or a county court. By s. 125 of the act, any creditor whose debt would have been sufficient to support a bankruptcy petition against a deceased debtor, had such debtor been alive, ma}^ present to the court a petition in the prescribed form, praying for an order for the administration of the estate of the deceased debtor according to the law of bankruptcy. The section and the rules framed in accordance with it contain numerous provisions for the carrying out of the administration. There is in bankruptcy proceedings no limit of amount beyond which a county court is deprived of jurisdic- tion. 1 (3) An administration action may be brought in the Chancery Court of the County Palatine of Lancaster where a defendant in the action or the property the subject of the action is within the jurisdiction of the court. The jurisdiction is not exclusive, but concurrent with that of the Chancery Division of the High Court. 1 See the work on Bankruptcy in this series. 164 ADMINISTRATION IN A COURT OF EQUITY There is no limit of amount. The practice is in general accordance with that of the High Court (4) Equitable jurisdiction was first given to the county courts in 1865 by 28 and 29 Viet, c. 99, the provisions of which have been since superseded by the County Courts Act, 1888. By s. 67 of that Act, a county court is to exercise all the powers of the High Court in actions or matters by creditors, legatees (whether specific, pecuniary, or residuary), devisees (whether in trust or otherwise), heirs-at-law, or next of kin, in which the personal or real or personal and real estate against or for an account or administra- tion of which the demand may be made shall not exceed in amount or value the sum of 500. Sections 68 and 69 provide for the transfer of actions or matters from a county court to the High Court, and from the High Court to a county court By s. 75 proceedings for the administration of the assets of a deceased person arc to be taken in the court within the district of which the deceased person had his last place of abode in England, or in which the executors or administrators, or any one of them, shall have had their or his place of abode. The district courts of the metropolis are, by s. 84, to be treated as one district Proceedings by originating summons are not competent in the county court; but a practically identical method of obtaining the decision of that court is provided by the County Court Rules, 1889. 1 Under those rules the plaintiff may renounce his right to an order for general adminis- tration, and the judge may make an order determining only certain questions submitted. These questions are the same as those named in Ord. Iv of the Rules of the 1 Ord. vi, r. 6. COUNTY COURT APPEAL 165 Supreme Court. The judge has a general discretion as to making or refusing a general administration order. Appeals lie from the High Court and the Chancery Court of Lancaster to the Court of Appeal, and thence to the House of Lords (in bankruptcy appeals only with leave of the Court of Appeal). From county courts the appeal lies without leave to a divisional court of the High Court of Justice, whose decision is final, unless leave to appeal be given. CHAPTER XIV CRIMINAL LAW AT common law there could be no larceny of any instru- ment concerning land. A will of lands could therefore not be stolen, but a will of personalty could. This diffi- culty no longer exists, for by 24 and 25 Viet, c. 96, s. 27, any person who shall, either during the life of the testator or after his death, steal, or for any fraudulent purpose destroy, cancel, obliterate, or conceal the whole or any part of any will, codicil, or other testamentary instrument, whether the same shall relate to real or personal estate, shall be guilty of felony, and liable on conviction to a maximum punishment of penal servitude for life. Forgery of a will with intent to defraud is a felony, making the offender liable to the same punishment, 24 and 25 Viet, c. 98. It has been held that there may be a conviction for the forgery of the will of a living person and even of an imaginary person. By 24 and 25 Viet, c. 98, s. 21, it is felony, punishable with a maximum term of fourteen years penal servitude, with intent to defraud to demand, receive, or obtain, or cause or procure to be delivered or paid to any person, any chattel, money, security for money, or other pro- CRIMINAL LAW 167 perty whatsoever, under, upon, or by virtue of any forged or altered instrument whatsoever, knowing the same to be forged or altered, or under, upon, or by virtue of any probate or letters of administration, know- ing the will, testament, codicil, or testamentary writing on which such probate or letters of administration shall have been obtained to have been forged or altered, or knowing such probate or letters of administration to have been obtained by any false oath, affirmation, or affidavit. Concealment of wills is provided for by 22 and 23 Viet., c. 35, s. 24, and 23 and 24 Viet., c. 38, s. 8. The combined effect of these sections is that any seller or mortgagor of land, or of any chattels real or personal, or choses in action conveyed or assigned to a purchaser or mortgagee, or the solicitor or agent of such seller or mortgagor, who shall conceal any will material to the title in order to induce him to accept the title offered or produced to him, with intent to defraud, shall be guilty of misdemeanor, and punishable with a maximum term of two years' imprisonment. Forgery of the seal or signature of a registrar or district registrar, or of a court or person authorised to administer oaths in the Probate Division, is by 20 and 21 Viet., c. 77, s. 28, and 21 and 22 Viet., c. 95, s. 33, a felony punishable with a maximum term of penal servi- tude for life. Taking a false oath before such a court or person is by s. 34 of the same act made perjury, and punishable as such. CHAPTER XV SUCCESSION IN ITS RELATION TO THE REVENUE THERE are five kinds of duties payable on the death of a testator or intestate, known as probate, account, legacy, succession, and estate duties. Of these the probate and account duties are payable out of the general assets of the deceased, the legacy, succession, and estate duties are payable by the persons who benefit by the legacy or the succession. The duties as a whole are sometimes known by the name of the "death-duties." 1 The law governing the incidence and collection of these duties now depends on a large number of Acts of Parlia- ment, and it is much to be desired in the interests of simplicity that a consolidating act should be passed. Probate duty was first introduced in 1694, legacy duty in 1780, succession duty in 1805, account duty in 1881, and estate duty in 1889. Up to 1880 a higher duty was payable on administration than on probate, but the Customs and Inland Revenue Act of that year (superseded as to the amount of duty by the correspond- 1 Tins term, whether introduced by Mr Gladstone or not, has become well-kuown since his adoption of it. It appears to be a trans- lation of the German Sterbgefitilc. A book has lately been i>ul>li-hf.l with the title of A Handbook to the Death Duties, by 8. Buxt.m. M . P. , and G. S. Barnes, 1800. PROBATE DUTY 169 ing act of 1881) equalised the duties in the two cases. The duties in all cases are denoted by stamps. By the Local Government Act, 1888, four-fifths of one half of the probate duties are to be distributed among county councils in relief of local taxation. 1 In addition to these five duties there are also some smaller stamp duties of a miscellaneous character. (1) Probate Duty. The probate and account duties are now regulated by the Customs and Inland Eevenue Act, 1881 (44 Viet., c. 12), as amended by the corresponding act of 1889 (52 Viet., c. 7). The stamp duties on affidavits for probates and letters of administration, in the case of persons dying domiciled in the United Kingdom, are as follows (except in cases of persons dying on and after 1st June 1881, whose whole personal estate and effects, without any deduction for debts or funeral expenses, 2 does not exceed 300, of persons falling within the Small Intestacies Acts of 1873 and 1875, and of any common seaman, marine, or soldier slain or dying in Her Majesty's service 3 ) : DUTY. Where the estate and effects At the rate of 1 for every are above the value of 100 and full sum of 50 and for any frac- not above the value of 500. tional part of 50 over any multiple of 50. 1 51 and 52 Viet., c. 41, ss. 21-23. 2 Testamentary expenses are excluded by the words of s. 28, which does not allow deductions of voluntary debts "payable under any instrument which shall not have been bond fide delivered to the donee thereof three months before the death of the deceased." Funeral expenses must be reasonable to be allowed, s. 28. By the same section debts do not include voluntary debts, or debts charged on real estate. 3 P. 77. VOL. I 12 170 REVENUE "Where such estate and effects At the rate of 1 : 5s. forevery are above the value of 500 aud full sum of 50 and for any not above the value of 1000. fractional part of 50 over any multiple of 50. Where such estate and effects At the rate of 3 for every ure above the value of 1000. full sum of 100 and for any fractional part of 100 over any multiple of 100. Provision is made for the return of duty overcharged, or the payment of further duty where it has been undercharged. Where the value of the property, after the deductions named, does not exceed 300, grants may be obtained, on application to a collector or supervisor of excise, for a uniform fee of fifteen shillings for fees of court and ex- penses. If the estate be under 1 00, no stamp duty is pay- able. If the estate exceed 100 but not 300, a stamp duty of thirty shillings in addition to the fifteen is payable. If the estate be afterwards found to have been under- estimated, full duty is payable, and no allowance is made for the fixed duty already paid. Under the acts for the relief of widows and children of intestates, 1 where the whole estate and effects of the intestate do not exceed in value 20, five shillings is the sum payable for duty ; where they exceed 20, the sum of five shillings and the further sum of one shilling for every 10 or fraction of 10 by which the value shall exceed 20. The management and collection of probate duty depend, in addition to the act of 1881, on 55 Geo. Ill, c. 184. (2) Account Duty. The account duty is at the same rate as the probate duty. It satisfies the legacy or succession duty only where the latter duty is at the rate of one per cent 1 P. 136. ACCOUNT DUTY 171 The property on which the duty is payable includes (a) a donatio mortis causa and bond fide made twelve months before the death of the deceased; (b) property volun- tarily transferred to the deceased and any other person jointly, so that a beneficial interest accrues to the latter by survivorship; (c) property passing by a voluntary settlement, with a reservation of a life interest to the settlor, or with any trust in favour of a volunteer, and whether made for valuable consideration or not; (d) money received under a policy of life assurance, whether the policy is wholly or partially kept up by the assured, for the benefit of a donee. The amount of the stamp duty (five shillings per cent) payable on the settlement is, if it have been duly paid, to be returned to the person delivering the account. The account is to be delivered by every person who, as beneficiary, trustee, or other- wise, acquires possession or assumes the management of any personal property of the foregoing description, on retaining, distributing, or disposing of the same, and in any case within six months after the death of the deceased. 1 The account must be verified by oath or affirmation. (3) Legacy Duty. Legacy duty depends mainly on 36 Geo. Ill, c. 52, 55 Geo. Ill, c. 184, and 44 Viet., c. 12. Many other gifts besides legacies proper are chargeable with the duty. Among such gifts are residue, 2 rent -charges, annuities, benefits derived from appointments under powers of money charged on real estate, and even 1 44 Viet., c. 12, ss. 38, 39, as amended by 52 Viet., c. 7, s. 11. 2 The executor is bound to deliver to the Inland Revenue a residuary account as well as legacy receipts, 172 REVENUE forgiveness of a debt due to the testator. Leaseholds fall within the Succession Duty Act. The question as to what is and what is not the subject of legacy duty is a very difficult one, and one on which there have been very numerous decisions. Legacy for the purposes of the Legacy Duty Acts is defined by 8 and 9 Viet, c. 76, s. 4, to be "every gift by any will or testamentary instrument of any person, which, by virtue of any such will or testamentary instrument," is or shall be payable or shall have effect or be satisfied out of the personal or moveable estate or effects of such person, or out of any personal or moveable estate or effects which such person hath had or shall have had power to dispose of, or which gift is or shall be payable, or shall have effect or be satisfied out of, or is or shall be charged or rendered a burden upon, the real or heritable estate of such person, or any real or heritable estate, or the rents or profits thereof, which such person hath had or shall have had any right or power to charge, burden, or affect with the payment of money, or out of or upon any moneys to arise by the sale, burden, mortgage, or other disposition of any such real or heritable estate, or any part thereof, whether such gift shall be by way of annuity or in any other form, and also every gift which shall have effect as a donation mortis causA" A sum of money subjected to a limited power of appointment by a marriage settle- ment is exempted by the section. Legacy duty attaches not only on gifts by will, but also on the devolution of shares under an intestacy. No legacy duty is payable on legacies charged on real estate, or where the whole personal estate does not amount to 100, l or where the duty of thirty shillings has been paid on estates not 1 43 Viet, c. 14, . 13. LEGACY DUTY 173 exceeding 300, or in respect of any legacy, residue, or share of residue where the one per cent duty has been paid on the affidavit or inventory or account. 1 Legacy duty is now payable on pecuniary legacies or shares under the amount or value of 20. 2 The duty becomes payable upon every retainer or other satisfaction or discharge ; so that in a legacy devolving in succession upon several persons, the duty is payable at each de- volution. The person primarily liable to pay the duty is the executor or administrator, and the commissioners of Inland Revenue have power to enforce returns from him; 3 but trustees and legatees may be called on to pay if the duty have not already been paid. The duty may be proceeded for by the attorney-general on infor- mation, or by summary proceedings under 28 and 29 Viet., c. 104, and the Crown is entitled to four per cent interest on duty in arrear. With respect to property the subject of an administration action, the court makes provision for payment jof the duty. The duties (subject to the exceptions introduced by the act of 1881) depend on the schedule to 55 Geo. Ill, c. 184. They are as follows. If the legacy accrues to a child or descendant of a child, or the father or mother, or any lineal ancestor, 1 per cent. If to a brother or sister, or any descendant of a brother or sister, 3 per cent. If to a brother or sister of the father or mother of the deceased, or any descendant of such brother or sister, 5 per cent. If to a brother or sister of a grandfather or grandmother of the deceased, or any descendant of such brother or sister, 6 per cent. * 44 Viet., c. 12, ss. 33, 41. 2 Id. s. 42. It had previously been common to make gifts of nine- teen guineas in order to avoid payment of legacy duty. 3 16 and 17 Viet., c. 51, s. 48. 174 REVENUE If to any person in any other degree of collateral con- sanguinity to the deceased, or to any stranger in blood, 10 per cent The only case in which such duties are not payable (unless where an exemption attaches) appears to be where the commissioners of Inland Revenue have, in pursuance of the power conferred on them by 44 Viet., c. 12, s. 43, accepted composition for the legacy duty payable under a will. This section affects only legacy duty payable under a will ; where it is payable under an intestacy, 36 Geo. Ill, c. 52, s. 33, seems still to apply. That section enables composition to be accepted not merely at the discretion of the commissioners, but only after the lapse of two years from the death and where it appears that it will require time to collect the effects or be difficult to ascertain the residue. Certain exemptions from the duty (irrespective of amount, with which alone the act of 1881 deals) are allowed by 36 Geo. Ill, c. 52, 39 Geo. Ill, c. 73, 55 Geo. Ill, c. 184, and 26 and 27 Viet., c. 87. These are legacies to or for the benefit of the Royal Family or for the husband or wife of the deceased, or consisting of books, prints, etc., or other specific articles given in trust for any body corporate, any of the Inns of Court, or any endowed school, not for the purposes of sale, or any fund expressly set apart for the payment of duty, or legacies bequeathed out of the estate and effects of a deceased depositor in a savings bank, where the whole of the estate and effects do not exceed 50. When the duty is paid, a proper receipt must l>o given, and any one paying the duty without taking a proper receipt is by 36 Geo. Ill, c. 52, liable to a penalty of 10. The duty must bo paid within twenty-one days of the date of the receipt If not paid within three months LEGACY DUTY 175 after date, the person neglecting to pay incurs a penalty of ten per cent on the amount or value of the legacy. An executor or administrator who shall have given notice in writing to the commissioners of Inland Revenue for any claim to legacy duty in respect of any fund in his hands which he intends to distribute, and shall have delivered all particulars, may distribute the fund after satisfaction of duty, and shall be entitled to a certificate discharging him from liability. 1 No person is under a will or administration to be liable for payment of legacy or succession duty after the expiration of six years from settlement of the account, where such account was full and true and contained all material facts ; and no executor, administrator, or trustee is to be liable after the expiration of six years, if it be proved to the satisfaction of the commissioners that the account was true to the best of his knowledge, informa- tion, and belief. 2 Where the person liable to pay legacy or succession duty resides in London, the duty is pay- able by personal application at Somerset House, where he resides elsewhere it can be paid, and the necessary forms sent, through the post. The forms can be obtained at any money-order post-office and the postage is free. (4) Succession Duty. The principal provisions of the law as to succession duty are contained in the Succession Duty Act, 1853 (16 and 17 Viet., c. 51), which imposed on succession to real and settled personal property a duty at the same rate as that attaching by the Legacy Duty Acts. By the Customs and Inland Revenue Act, 1888, legacies 1 43 Viet., c. 14, s. 12. 2 52 Viet., c. 7, s. 14. 176 REVENUE charged on real estate were made liable to succession duty, and by the same act a duty was imposed on all successions in addition to that payable under the act of 1853, viz. ten shillings per cent where the successor is the lineal issue or lineal ancestor of the predecessor, and in all other cases one pound ten shillings per cent. 1 Succession duty is payable only on property which is not subject to legacy duty ; in no case is more than one of the duties payable on the same property. The Suc- cession Duty Act is long and complicated, and has given rise to numerous decisions; its main provisions are as follows. The term " real property " includes leaseholds, the term "personal property" includes money payable under any engagement and money secured on heritable property in Scotland s. 1. Succession liable to duty under the Act is defined as " every past or future dis- position of property by reason whereof any person has or shall become beneficially entitled to any property or the income thereof upon the death of any person dying after the time appointed for the commencement of this act, 2 either immediately or after any interval, either certainly or contingently, and either originally or by way of substitutive limitation, and every devolution by law of any beneficial interest in property or the income thereof upon the death of any person dying after the time appointed for the commencement of this act to any other person, in possession or expectancy." "Successor" denotes the person entitled, "predecessor" the settler, disposer, testator, obligor, ancestor, or other person from whom the interest of the successor is derived s. 2. Joint tenants taking by survivorship are successors s. 3. General powers of appointment, extinction of determin- 1 61 Viet., c. 8, s. 21. 19th May 1853. SUCCESSION DUTY 177 able charges, dispositions accompanied by the reservation of a benefit to the grantor or any other person, and dispositions to take effect at periods depending or death, or made for the purpose of evading duty, confer successions ss. 4, 5, 7, 8. Any person chargeable with duty under this act or the Legacy Duty Acts, if married to a wife or husband of nearer consanguinity than himself or herself to the predecessor, is to pay only the rate of duty with which the wife or husband would have been chargeable s. 11. The duty is payable where the same person is successor and predecessor under a disposition made by himself, if at the date of the disposition he is entitled to the property comprised in the succession expectantly on the death of any person dying after 19th May 1853, and such person shall have died during the continuance of such disposition s. 12. 1 Only one duty is payable on each succession ; but in the case of a transmitted succession (i.e. where the interest of a successor passes by death to another successor before the first successor becomes entitled in possession), duty at the highest rate payable by either successor is payable by the ultimate successor s. 14. Successions subject to trusts for charitable or public purposes are liable to duty at the ten per cent rate s. 16. No duty is payable where the succession is under 100 in value, or in respect of property chargeable under the Legacy Duty Acts s. 18. 2 The duty is payable on the successor becoming entitled 1 The object of this section was to prevent any one with a vested estate tail in remainder from diminishing by his own act the rate of succession duty which would have been payable if he were not to deal with the estate tail until it vested in possession ; Lard SraybrooJce v. Attorney-General, 9 House of Lords Cases, 150 (1861). 2 The provision in this section exempting successions which if they were legacies under 20 would not be liable to duty has been repealed by 52 Viet., c. 7, s. 10. 178 REVENUE in possession, and in the case of outstanding interests on their determination s. 20. The interest of a successor in real property is to be considered as an annuity 1 equal to the annual value of the property, and the duty chargeable is payable in eight equal half-yearly in- stalments, the first to be paid at the expiration of twelve months after the successor has become entitled s. 2 1. 2 Eules are given for valuing land, houses, timber, advowsons, property subject to beneficial leases, manors, mines, property taken by corporations, converted pro- perty, etc. ss. 22-31. Certain allowances are made to the donee of a general power of appointment who has already paid duty on a limited interest, and also for incum- brances other than contingent incumbrances ss. 33-35. No allowance is to be made for a contingency on the happening of which the property may pass to another person, but in such a case a proportionate return of the duty is to be made s. 36. Allowances are also made for duty payable on a succession paid by mistake, etc., or on property relinquished ss. 37, 38 (52 Viet, c. 7, s. 10). The commissioners of Inland Revenue may compound for duties, or receive them in advance, or com- mute future duties ss. 39-41. The duty is a first charge on the property s. 42. Besides the successor, a trustee (which includes an executor or administrator), 3 guardian, committee, tutor, curator, or husband is accountable for the duty, but only to the extent of the property or funds actually received or disposed of by him s. 44. Notice of succession is to be given to the commissioners 1 These annuities are calculated according to a table in the schedule* to the act. * An alternative mode of payment is provide! li\ M Viet., c. 8, s. 21, and the commissioners are emiowered to allow ilUrmint for ].:iym -nt in advance. * S. 1 SUCCESSION DUTY 179 of Inland Revenue, and a return of the property made s. 45 (52 Viet., c. 7, s. 10). The penalty for not giving notice is a sum equal to ten per cent on the amount of duty payable, and the same for not paying within twenty- one days after the amount has been ascertained s. 46. A stamped receipt must be given, and the commissioners may give a certificate of discharge on application s. 51. Such a certificate is a protection to a bond fide purchaser for valuable consideration and without notice, notwith- standing any suppression, misstatement, or insufficiency of assessment s. 52. "When any suit is pending for the administration of property chargeable with legacy or succession duty, the court is to provide for the payment of the duty s. 53. The modes of recovery of duty by the Crown are the same as those used for the recovery of legacy duty. An appeal lies from the decision of the commissioners to the Queen's Bench Division or (where the sum in dispute does not exceed 50) to a county court. The law as to certificates of discharge under 43 Viet., c. 14, s. 12, as to exemption from duty under s. 13 of the same Act and 44 Viet, c. 12, and as to cesser of liability after six years under 52 Viet., c. 7, is the same as in the case of legacy duty. The latter act also provides that a purchaser for valuable con- sideration or a mortgagee is exempt from liability to succession duty after the expiration of a period varying according to circumstances, but twelve years at most, after notice of succession given to the com- missioners of Inland Revenue. (5) Estate Duty. This duty depends on the Customs and Inland Revenue Act, 1889 (52 Viet., c. 7), and is payable in 180 REVENUE addition to the ordinary duties. It is only of temporary incidence, and attaches only to large estates. Where the estate on which probate or account duty is payable ex- ceeds in value .10,000, a statement of the value of the estate is to be delivered by the person applying for pro- bate or administration, and a duty of 1 per 100 or fraction of 100 is to be paid on such statement Where the value of any succession exceeds 10,000, and where the value of the succession alone does not exceed 10,000, but such value, together with the value of any other benefit taken by the successor under a will or intestacy, exceeds 10,000, a statement is to be delivered and duty paid at the same rate as in the last case. The estate duty is not to be chargeable in respect of the estate of any person dying on or after 1st June 1896. A penalty of double the amount of duty is incurred by neglect to deliver a statement by the person who ought to do so, and four per cent is chargeable on arrears. (6) Other Duties. These are regulated by the Stamp Act, 1870. A copy or extract of or from an original will or codicil, the probate or probate copy of a will or codicil, or any letters of administration or any confirmation of a testa- ment is chargeable, in the case of an instrument chargeable with any duty not amounting to one shilling, with the same duty as such instrument, in any other case, one shilling. A certificate of valuation of the estate by a professional valuer is required by the Inland Revenue, and the valuation must be stamped ESTATE AND OTHER DUTIES 181 with a stamp varying in amount. 1 Where the amount of the valuation does not exceed 5 the stamp is threepence. It increases gradually up to 500, beyond which sum it is eri>etuitie8," and an cnfcvil containing prohibitory, irri- MORTMAIN CONSTRUCTION 199 tant, and resolutive clauses 1 could not have been defeated until the Rutherford Act (11 and 12 Viet., c. 36). By the same act the Thellusson Act was repealed as far as related to Scotland, the act as it originally stood having extended to the whole of Great Britain. The Married Woman's Property (Scotland) Acts, 1877 and 1881, have enabled a married woman to dispose of her property by will, but to an extent much more limited than that given by the English Act of 1882. The Act of 1877 applies only to wages and earnings of a married woman, or any money or property acquired by the exercise of any literary, artistic, or scientific skill. The Act of 1881 applies only to moveables and the rents of heritable property. In these cases only is the jus mariti excluded (unless, indeed, it be excluded by express provision). Rules of construction have been of use chiefly in determining the destination of moveables or heritage, especially the latter. They are in general accordance with those recognised in English law, but there are of course some special ones depending on the technicalities of the Scotch system. Thus before the distinction be- tween fees of heritage and fees of conquest was abolished by the Conveyancing- Act, 1874, a destination to "A and his heirs of line " carried the property to the heir of heritage to the exclusion of the heir of conquest. " Heirs female " carries the estate to a son's daughter rather than to a daughter. In "heirs and children" heirs is the ruling term, and the estate goes to the eldest son. The rule in Shelley's Case does not apply in Scotland. Jus accrescendi is always a question of intention. That is, it 1 A clause authorising registration in the Register of Entails is now equivalent to these clauses. 200 SCOTLAND depends on the intention of the testator to be gathered from his disposition whether, when a gift is provided to a class and one of the class dies, his share is to go to the sur- vivors or to his personal representatives. The doctrine of radical right is an important rule of construction. It is to the effect that, where the trust does not exhaust the estate, the truster retains the radical title. It has been a question, often difficult of decision what words give the beneficial interest to the grantee and what words on the other hand make him simply a trustee. In some cases rules of construction depend on statute. An example is s. 28 of the act of 1874, enacting that where no term of entry is stated in a conveyance, the entry shall be at the first term of Whitsunday or Martinmas. The doctrine of cy-prh is recognised in Scotland. The principles of its exercjse are in effect the same as those acknowledged in England. The law of intestate succession differs in many respects from that in use in England ; the right, how ever, of the eldest son to succeed to heritable property is the same in both systems. A distinction is drawn in Scotland between universal and singular succes- sion, the former being the succession of the heir, like that of the Roman heres, to the whole inherit- ance ; the latter the succession of a disponee by title of purchase, such as a legatory. The law regulating intes- tate succession depends partly on common law, partly on statute, and is different with regard toheritables and move- ables. In heritables (which include leaseholds) the succes- sion opens first in favour of descendants, the eldest son, 1 if 1 It should be noticed that by the Scotch doctrine of Irgilimatio prr tuhtfqurns matrimoniiim an eldest son might become heir who would not tw entitli-d to .su<-<-<-i 24 ' 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 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 u & 15 Court of Wards and Liveries, and Tenures in capite and ^\' 2> 210 WILLS ACT by Knights Service, and to any other Testamentary Dis- "Rai position; and the Words "Real Estate" shall extend to Manors, Advowsons, Messuages, Lands, Tithes, Rents, and Hereditaments, whether 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 " Per- Words " Personal Estate " shall extend to Leasehold Estates Estate:" 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 whatsoever which by Law devolves upon the Executor or Administrator, and to any Share or Interest therein ; and every Word importing the Number : Singular Number only shall extend and be applied to several Persons or Things as well as One Person or Thing ; and Gender, every Word importing the Masculine Gender only shall ex- tend and be applied to a Female as well as a Male, . . . AH Pro- HI. And be it further enacted, That it shall be lawful inny'be f r every Person to devise, bequeath, or dispose of, by his disposed Will executed in manner hereinafter required, all Real win 5 ! Estate and all Personal Estate which he shall be entitled to, either at Law or in Equity, at the Time of his Death, and which, if not so devised, bequeathed, or disposed of, would devolve upon the Heir-at-Law or Customary Heir of him, or, if he became entitled by Descent, of his Ancestor, or upon his Executor or Administrator ; and that the Power hereby fng'&u 8 " Riven shall extend to all Real Estate of the Nature of toinary Customary Freehold or Tenant Right, or Customary or houii Copyhold, notwithstanding that the Testator may not have Copy- surrendered the same to the Use of his Will, or notwith- h.it a Will or a Surrender to the Use of a Will should continue IicTucd ; in force for a limited Time only, or any other sj>ecial Custom, WILLS ACT 211 could not have been disposed of by Will according to the Power contained in this Act, if this Act had not been made ; and also to Estates pur autre vie, whether there shall or Estates shall not be any special Occupant thereof, and whether ^" ; aui the same shall be Freehold, Customary Freehold, Tenant Right, Customary, or Copyhold, or of any other other Tenure, and whether the same shall be a corporeal or incorporeal Hereditament ; and also to all contingent, executory, or other contin- future Interests in any Real or Personal Estate, whether the forests' 1 ; Testator may or may not be ascertained as the Person or One of the Persons in whom the same respectively may become vested, and whether he may be entitled thereto under the Instrument by which the same respectively were created or under any Disposition thereof by Deed or Will ; and also to all Rights of Entry for Conditions broken, and other Rights of Entry ; and also to such of the same Estates, and Pro- Interests, and Rights respectively, and other Real and Per- acquired sonal Estate, as the Testator may be entitled to at the after Fxpcii- Time of his Death, notwithstanding that he may become tion of entitled to the same subsequently to the Execution of his the WUL Will. IV. Provided always, and be it further enacted, That ^ s to th ^ where any Real Estate of the Nature of Customary Freehold Fines or Tenant Right, or Customary or Copyhold, might, by the P^ able Custom of the Manor of which the same is holden, have Devisees been surrendered to the Use of a Will, and the Testator tomary shall not have surrendered the same to the Use of his Will, and no Person entitled or claiming to be entitled thereto by virtue hold of such Will shall be entitled to be admitted, except upon Estates Payment of all such Stamp Duties, Fees, and Sums of Money as would have been lawfully due and payable in respect of the surrendering of such Real Estate to the Use of the Will, or in respect of presenting, 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 claim- ing to be entitled to siich Real Estate in consequence of such Will shall be entitled to be admitted to the same Real Estate 212 WILLS ACT 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 Admittance of such Testator to such Real Estate, and also of all such Stamp Duties, Fees, and Sums of Money as would have been law- fully due and payable in respect 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 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 afore- said. wins or V. And be it further enacted, That when any Real Estate oMvnu of the Nature of Customary Freehold or Tenant Right, or ofCus- Customary or Copyhold, shall be disposed of by Will, the K^- 17 Lord of the Manor or reputed Manor of which such Real holds and Estate is holden, or his Steward, or the Deputy of such hows to Steward, shall cause the Will by which such Disposition tered on sna ^ be ma de, or so much thereof as shall contain the Dis- the court position of such Real Estate, to be entered on the Court Rolls of such 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 Lo'iuo k e BU ffi c i ent * state i tne Entry on the Court Rolls that be en- such Real Estate is subject to the Trusts declared by such the'same ^^ > ant * when any such Real Estate could not have been Fine, &c. disposed of by Will if this Act had not been made, the same such" Fine, Heriot, Dues, Duties, and Services shall be paid and Eitate ? ren( lered by the Devisee as would have been due from the nowde- Customary Heir in case of the Descent of the same Real hewonid Es tot e, and the Lord shall, as against the Devisee of such Estate, have the same remedy for recovering and enforcing from the such Fine, Heriot, Dues, Duties, and Services as he is ^ r ^ now entitled to for recovering and enforcing the same Descent from or against the Customary Heir in case of a Descent. fflwtre VI> An(i ** il further enacted, That if no Disposition by vie. Will shall be made of any Estate pur autre vie of a Freehold Nature, the same shall be chargeable in the Hands of the WILLS ACT 213 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 Freehold, Tenant Eight, Customary or Copyhold, or of any other Tenure, and whether a corporeal or incorporeal Heredita- ment, it shall go to the Executor 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. VII. And be it further enacted, That no Will made by g a wm any Person under the Age of Twenty-one Years shall be Person valid. 2g valid; VIII. Provided also, and be it further enacted, That no nor of a Will made by any married Woman shall be valid, except covert, such a Will as might have been made by a married Woman |* n p ^ before the passing of this Act. might now be made. IX. And be in further enacted, That no Will shall be Every valid unless it shall be in Writing and executed in manner ^X b e hereinafter mentioned ; (that is to say), it shall be signed at j^^nd the Foot or End thereof by the Testator, or by some other signed by Person in his Presence and by his Direction ; and such i^tator Signature shall be made or acknowledged by the Testator in in the the Presence of Two or more Witnesses present at the same O f two Ce Time, and such Witnesses shall attest and shall subscribe the Wit - DCS S 68 Will in the Presence of the Testator, but no Form of Attesta- at one tion shall be necessary. X. And be it further enacted, That no Appointment made ^^y by Will, in exercise of any Power, shall be valid, unless the wm to same be executed in Manner hereinbefore required ; and cuted 6 every Will executed in manner hereinbefore required shall, "'ke so far as respects the Execution and Attestation thereof, be wuis, a valid execution of a Power of Appointment by Will, ^j De notwithstanding it shall have been expressly required that although a Will made in exercise of such Power should be executed required with some additional or other Form of Execution or Solemnity. Solemni- ties are not ob- served. 214 WILLS ACT soldiers XI. Provided always, and be it further enacted, That any Mariners Soldier being in actual Military Service, or any Mariner or wins e.\- Seaman being a't Sea, may dispose of his Personal Estate as he might have done before the making of this Act. . . . Pubiica- XIII. And be it further enacted, That every Will ex- to'be're 1 - ecuted in manner hereinbefore required shall be valid with- quisite. ou t an y other Publication thereof. win not XIV. And be it further enacted, That if any Person who void on shall attest the Execution of a Will shall at the time of the ofin Unt Execution thereof or at any time afterwards be incompetent compe- to be admitted a Witness to prove the Execution thereof, attesting 8UCU Will shall not on that Account be invalid. Witness. Gift* to XV. And be it further enacted, That if any Person shall ?ng a wit- a ttest the Execution of any Will to whom or to whose Wife ness to or Husband any beneficial Devise, Legacy, Estate, Interest, Gift, or Appointment, of or affecting any Real or Personal Estate, (other than and except Charges and Directions for the Payment of any Debt or Debts), shall be thereby given or made, such Devise, Legacy, Estate, Interest, Gift, or Appointment shall, so far only as concerns such Person attesting the Execution of such Will, or the Wife or Husband of such Person, or any Person claiming under such Person or Wife or Husband, be utterly null and void, and such Person so attesting shall be admitted as a Witness to prove the Execution of such Will, or to prove the Validity or Inva- lidity thereof, notwithstanding such Devise, Legacy, Estate, Interest, Gift, or Appointment mentioned in such Will. Creditor XVI. And be it further enacted, That in case by any ""be 1 '"** Will any Real or Personal Estate shall be charged with any admitted Debt or Debts, and any Creditor, or the Wife or Husband "ess. 1 f an y Creditor, whose Debt is so charged, shall attest the Execution of such Will, such Creditor, notwithstanding such Charge, shall be admitted a Witness to prove the Execu- tion of such Will, or to prove the Validity or Invalidity thereof. Executor XVII. And be it further enacted, That no Person shall, to t>c &d- mitted a on account of his being an Executor of a Will, be incompetent vitnest. to ^ adnritted a Witness to prove the Execution of such Will, or a Witness to prove the Validity or Invalidity thereof. WILLS ACT 215 XVIII. Aiid be it further enacted, That every Will made jjiu to by a Man or Woman shall be revoked by his or her Marriage voked by (except a Will made in exercise of a Power of Appointment, ^ge. when the Eeal or Personal Estate thereby appointed would not in default of such Appointment pass to his or her Heir, Customary Heir, Executor, or Administrator, or the Person entitled as his or her next of Kin, under the Statute of Distributions). XIX. And be it further enacted, That no Will shall be ^wm revoked by any Presumption of an Intention on the Ground vokedby of an Alteration in Circumstances. ^ tion. XX. And be it further enacted, That no Will or Codicil, NO win or any Part thereof, shall be revoked otherwise than as revoked aforesaid, or by another Will or Codicil executed in manner but j? y hereinbefore required, or by some Writing declaring an win or Intention to revoke the same, and executed in the Manner o^a' in which a Will is hereinbefore required to be executed, or writing by the burning, tearing, or otherwise destroying the same inf e a by the Testator, or by some Person in his Presence and by Wi ^> or his Direction, with the Intention of revoking the same. struction. XXI. And be it further enacted, That no Obliteration, NO aiter- Interlineation, or other Alteration made in any Will after win 1 " 1 * the Execution thereof shall be valid or have any Effect, sha11 except so far as the Words or Effect of the Will before such Effect J Alteration shall not be apparent, unless such Alteration executed shall be executed in like Manner as hereinbefore is required asawm. for the Execution of the Will; but the Will, with such Alteration as Part thereof, shall be deemed to be duly executed if the Signature of the Testator and the Sub- scription of the Witnesses to 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. XXII. And be it further enacted, That no Will or Win Codicil, or any Part thereof, which shall be in any Manner to be revoked, shall be revived otherwise than by the Ee-execution other^ thereof, or by a Codicil executed in manner hereinbefore wise than required, and showing an Intention to revive the same ; and execu- when any Will or Codicil which shall be partly revoked, ^odicuto revive it. 216 WILLS ACT and afterwards 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 whole thereof, unless an Intention to the contrary shall be shown. A Devise XXIII. And be it further enacted, That no Conveyance rendered* r other Act made or done subsequently to the Execution npera- of a Will of or relating to any Real or Personal Estate any sub- therein comprised, except an act by which such Will shall Convey 1 ^e rev ked as aforesaid, shall prevent the Operation of the ance or 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. A wm XXIV. And be it further enacted, That every Will shall con^ **' be construed, with reference to the Real Estate and Personal stmed to Estate comprised in it, to speak and take effect as if it had tram the been executed immediately before the Death of the Testator, th?Te f un l ess a contrary Intention shall appear by the Will tator. A Re- XXV. And be it further enacted, That, unless a contrary jJvtee y Intention shall appear by the Will, such Real Estate or shall in- Interest therein as shall be comprised or intended to be 6 comprised in any Devise in such Will contained, which shall C rised i ^ or k vo ^ ky reason f * ne Death of the Devisee in the lapsed. Lifetime of the Testator, or by reason of such Devise being Devises! 1 contrary to Law or otherwise incapable of taking effect, shall be included in the Residuary Devise (if any) contained in such Will. Agenend XXVI. And be it further enacted, That a Devise of the theTes?' Land of the Testator, or of the Land of the Testator in any |? Place or in the Occupation of any Person mentioned in his shall Will, or otherwise described in a general Manner, and any other general Devise which would describe a Customary, and Copyhold, or Leasehold Estate if the Testator had no Free- hold Estate which could be described by it, shall be construed * C U to include the Customary, Copyhold, and Leasehold Estates Lands? 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, as well as Freehold Estates, unless a contrary Intention shall appear by the Will A general XXVII. And be it further enacted, That a general Devise of the Real Estate of the Testator, or of the WILLS ACT 217 Real Estate of the Testator in any Place or in the Estates Occupation of any Person mentioned in his Will, or other- wldch wise described in a general Manner, shall be construed f h ? T i 8 " to include any Real Estate, or any Real Estate to which a general such Description shall extend (as the Case may be), which Appohit- he may have Power to appoint in any Manner he may think ment. proper, and shall operate as an Execution of such Power, unless a contrary Intention shall appear by the Will ; and in like Manner a Bequest of the Personal Estate of the Testator, or any Bequest of Personal Property described in a general Manner, shall be construed to include any Personal Estate, or any Personal Estate to which such Description shall extend (as the Case 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. XXVIII. And be it further enacted, That where any ^j Real Estate shall be devised to any Person without any any Words of Limitation, such Devise shall be construed to pass ^- the Fee Simple, or other the whole Estate or Interest which tion shall the Testator had Power to dispose of by Will in such Real struedto Estate, unless a contrary Intention shall appear by the Will. P^| S the XXIX. And be it further enacted, That in any Devise The or Bequest of Real or Personal Estate the Words " die w ^ ds without Issue," or "die without leaving Issue," or "have without no Issue," or any other Words which may import either a Jf^' or Want or Failure of Issue of any Person in his Lifetime or without at the Time of his Death, or an indefinite Failure of his issue"" Issue, shall be construed to mean a Want or Failure of j^* 1 * be Issue in the Lifetime or at the Time of the Death of such strued to Person, and not an indefinite Failure of his Issue, unless a ithcrat e contrary Intention shall appear by the Will, by reason of i. ssu ^ such Person having a prior Estate Tail, or of a preceding the""' Gift, being, without any Implication arising from such Death - Words, a Limitation of an Estate Tail to such Person or Issue, or otherwise : Provided, that this act shall not extend to Cases where such Words as aforesaid 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 Description required for obtaining a vested Estate by a preceding Gift to such Issue. VOL. i 15 218 WILLS ACT XXX. And be it further enacted, That where any Real Trustee* Estate (other than or not being a Presentation to a Church) enters, shall be devised to any Trustee or Executor, such Devise fora Pt sna ^ be construed to pass the Fee-Simple or other the whole Term or a Estate or Interest which the Testator had Power to dispose aXZ of b y Will in such Real Estate, unless a definite Term of 9"}[ ch > Years, absolute or determinate, or an Estate of Freehold, a Chattel shall thereby be given to him expressly or by Implication. Interest Trustees XXXI. And be it further enacted, That where any Real an un- Estate shall be devised to a Trustee, without any express Devise* Limitation of the Estate to be taken by such Trustee, and the beneficial Interest in such Real Estate, or in the surplus the^Trust Rgj^ an( j p r ofits thereof, shall not be given to any Person endure for Life, or such beneficial Interest shall be given to any the Life Person for Life, but the Purposes of the Trust may continue son bene- bey on d * ne ^ife ^ 8ucn Person, such Devise shall be con- strued to vest in such Trustee the Fee-Simple or other the whole legal Estate which the Testator had Power to dispose to take O f by \vill in such Real Estate, and not an Estate determin- able when the Purposes of the Trust shall be satisfied. Devises XXXII. And be it further enacted, That where any tates Tail Person to whom any Real Estate shall be devised for an Estate Tail or an Estate in quasi Entail shall die in the Lifetime of the Testator, leaving Issue who would be in- heritable 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 take effect as if the Death of such Person had happened immediately after the Death of the Testator, unless a contrary Intention shall appear by the Will. XXXIII. And be it further enacted, That where any or other Person, being a child or other Issue of the Testator, to whom Jho* an y R^l r Personal Estate shall be devised or bequeathed leave f or anv Estate or Interest not determinable at or before the living Death of such Person, shall die in the Lifetime of the Testa* Testator leaving Issue, and any such Issue of such Person < shall be living at the Time of the Death of the Testator, haunot 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 Intention shall appear by the Will. 219 XXXIV. And be it further enacted, That this Act shall Act not not extend to any Will made before the First Day January One thousand eight hundred and thirty-eight, and J n that every Will re-executed or republished, or revived by nor to any Codicil, shall for the Purposes of this Act be deemed to have been made at the Time at which the same shall be vie of so re-executed, republished, or revived ; and that this Act who'd!! 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. XXXV. And be it further enacted, That this Act shall Act not not extend to Scotland. toScotr" 1 land. WILLS ACT AMENDMENT ACT, 1852 (15 and 16 Viet., c. 24) I. Where by an Act passed in the First Year of the Reign of Her Majesty Queen Victoria, intituled An Act for i vict. c. the Amendment of the Laws with respect to Wills, it is 26 " enacted, that no Will shall be valid unless 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 : Every Will shall, so far only as regards the Position of the when Signature of the Testator, or of the Person signing for him ture'to a as aforesaid, be deemed to be valid within the said Enact- will , Sll3,ll 1)6 ment, as explained by this Act, if the Signature shall be so deemed placed at or after, or following, or under, or beside, or valid - opposite to the End of the Will, that it shall be apparent on the Face of the Will that the Testator intended to give Effect by such his Signature to the Writing signed as his Will, and that no such Will shall be affected by the Circum- stances that the Signature shall not follow or be immediately after the Foot or End of the Will, or by the Circumstance that a blank Space shall intervene between the concluding Word of the Will and the Signature, or by the circumstance that the signature shall be placed among the Words of the Testimonium Clause or of the Clause of Attestation, or shall follow or be after or under the Clause of Attestation, either with or without a blank Space intervening, or shall follow or be after, or under, or beside the Names or One of 220 COURT OF PROBATE ACT, 1857 the Names of the subscribing Witnesses, or by the Circum- stance that the Signature shall be on a Side or Page or other Portion of the Paper or Papers containing the Will whereon no Clause or Paragraph or disposing Part of the Will shall be written above the Signature, or by the Circumstance that there shall appear to be sufficient Space on or at the Bottom of the preceding Side or Page or other Portion of the same Paper on which the Will is written to contain the Signature ; and the Enumeration of the above Circumstances shall not restrict the Generality of the above Enactment ; but no Signature under the said Act or this Act shall be operative to give Effect to any Disposition or Direction which is underneath or which follows it, nor shall it give Effect to any Disposition or Direction inserted after the Signature shall be made. . . . COURT OF PROBATE ACT, 1857 (21 and 22 Viet., c. 77) interpre- II. In the Construction of this Act, unless the Context Term". ' be inconsistent with the Meaning hereby assigned "Will" shall comprehend " Testament " and all other Testamentary Instruments of which Probate may now be granted : "Administration" shall comprehend all Letters of Administration of the Effects of deceased Persons, whether with or without the Will annexed, and whether granted for general, special, or limited Purposes : " Matters and Causes Testamentary " shall comprehend all Matters and Causes relating to the Grant and Revo- cation of Probate of Wills or of Administration : 4 'Common Form Business " shall mean the Business of obtaining Probate and Administration where there is no Contention as to the Right thereto, including the passing of Probates and Administrations through the Court of Probate in contentious Cases when the Contest is terminated, and all Business of a non-con- tentious Nature to be taken in the Court in Matters of Testacy and Intestacy, not being Proceedings in COURT OF PROBATE ACT, 1857 221 any Suit, and also the Business of lodging Caveats against the Grant of Probate or Administration. III. The voluntary and contentious Jurisdiction and Testa- Authority of all Ecclesiastical, Royal Peculiar, Peculiar, Sf,"sdic- Manorial, and other Courts and Persons in England now ij 011 i of - having Jurisdiction or Authority to grant or revoke Probate asticai of Wills or Letters of Administration of the Effects of deceased cl^ts Persons, shall in respect of such Matters absolutely cease ; aboi- and no Jurisdiction or Authority in relation to any Matters IS e ' or Causes Testamentary, or to any Matter arising out of or connected with the Grant or Revocation of Probate or Administration, shall belong to or be exercised by any such Court or Person. IV. The voluntary and contentious Jurisdiction and Testa- Authority in relation to the granting or revoking Probate of jurisdic- Wills and Letters of Administration of the Effects deceased Persons now vested in or which can be exercised by a by any Court or Person in England, together with full Authority to hear and determine all Questions relating to Matters and Causes Testamentary, shall belong to and be vested in Her Majesty, and shall, except as hereinafter is mentioned, be exercised in the Name of Her Majesty in a Court to be called the Court of Probate, and to hold its ordinary Sittings and to have its Principal Registry at such Place or Places in London or Middlesex as Her Majesty in Council shall from Time to Time appoint. . . . XIII. There shall be established for each of the Districts District specified in Schedule (A) to this Act, and at the Places ^I^to respectively mentioned in such Schedule, a Public Registry be estab- attached to and under the Control of the Court of Probate, insch*- 8 hereinafter referred to as "The District Registry." . . . duie(A) XVIII. The Registrars, District Registrars, and other AstoAp- Officers of the Court of Probate, except as herein provided, S^nt'to shall be appointed by the Judge. . . . Ten es ' XIX. The Registrars and District Registrars shall hold of Office their Offices during good Behaviour, subject to be removed cera. ffl " by Order of the Lord Chancellor for some reasonable Cause to be in such Order expressed ; and the other Officers of the Court may be removed by the Judge, with the Sanction of the Lord Chancellor. ... XXIII. The Court of Probate shall be a Court 222 COURT OF PROBATE ACT, 1857 frave Record, and such Court shall have the same Powers, and its outan Grants and Orders shall have the same Effect, throughout tiufsame a ^ England, and in relation to the Personal Estates in all Powers Parts of England of deceased Persons, as the Prerogative P^Jj^a. Court of the Archbishop of Canterbury and its Grants and c ive rt Orders respectively now have in the Province of Canterbury, within or in the Parts of such Provincewithin its Jurisdiction, and in tfnce'of re l at i n t those Matters and Causes Testamentary and those canter- Effects of deceased Persons which are within the Jurisdic- bury- tion of the said Prerogative Court ; and all Duties which, by Statute or otherwise, are imposed on or should be performed by Ordinaries generally, or on or by the said Prerogative Court, in respect of Probates, Administrations, or Matters or Causes Testamentary within their respective Jurisdictions, Suits for *hall ke performed by the Court of Probate : Provided that Legacies no Suits for Legacies, or Suits for the Distribution of button 111 Residues, shall be entertained by the Court, or by any not to be Court or Person whose Jurisdiction as to Matters and tained. Causes Testamentary is hereby abolished. e^anuiie XXIV. The Court of Probate may require the Attend- wi ' ance of any Party in Person, or of any Person whom it may nesses, think fit to examine or cause to be examined in any Suit or other Proceeding in respect of Matters or Causes Testa- mentary, and may examine or cause to be examined upon Oath or Affirmation, as the Case may require, Parties and Witnesses by Word of Mouth, and may, either before or after or with or without such Examination, cause them or any of them to be examined on Interrogatories, or receive their or any of their Affidavits or solemn Affirmations, as AS to the Case may be ; and the Court may by Writ require such tion of ' Attendance, and order to be produced before itself or other- D*ed, wise any Deeds, Evidences, or Writings, in the same Form, or nearly as may be, as that in which a Writ of Subpoena ad testificandiun, or of Subpoena duces tecum, is now issued by any of Her Majesty's Superior Courts of Law at West- minster ; and every Person disobeying any such Writ shall be considered as in Contempt of the Court, and also be liable to forfeit a Sum not exceeding One Hundred Pounds. !< ," " XXV. The Court of Probate shall have the like Powers, c '"" rt to Jurisdiction, and Authority for enforcing the Attendance of Persons required by it as aforesaid, and for punishing COURT OF PROBATE ACT, 1857 223 Persons failing, neglecting, or refusing to produce Deeds- Evidences, or Writings, or refusing to appear or to be sworn, or make Affirmation or Declaration, or to give Evi- dence, or guilty of Contempt, and generally for enforcing all Orders, Decrees, and Judgments made or given by the Court under this Act, and otherwise in relation to the Matters to be inquired into and done by or under the Orders of the Court under this Act, as are by Law vested in the High Court of Chancery for such Purposes in relation to any Suit or^iMatter depending in such Court. XXVI. The Court of Probate may, on Motion or Peti- Order to tion, or otherwise, in a summary Way, whether any Suit or any i other Proceeding shall or shall not be pending in the Court st j"rt fc with respect to any Probate or Administration, order any ing to be Person to produce and bring into the Principal or any ^ District Registry, or otherwise as the Court may direct, any Paper or Writing being or purporting to be testamentary, which may be shown to be in the Possession or under the Control of such Person ; and if it be not shown that any such Paper or Writing is in the Possession or under the Control of such Person, but it shall appear that there are reasonable Grounds for believing that he has the Knowledge of any such Paper or Writing, the Court may direct such Person to attend for the Purpose of being examined in open Court, or upon Interrogatories respecting the same, and such Person shall be bound to answer such Questions or Interro- gatories, and, if so ordered, to produce and bring in such Paper or Writing, and shall be subject to the like Process of Contempt in case of Default in not attending or in not answering such Questions or Interrogatories, or not bringing in such Paper or Writing, as he would have been subject to in case he had been a Party to a Suit in the Court and had made such Default ; and the Costs of any such Motion, Petition, or other Proceeding shall be in the Discretion of the Court. XXVII. The Registrars and District Registrars shall respectively have full Power to administer Oaths ; and all totarre Persons who at the Commencement of this Act shall be Power to acting as Surrogates of any Ecclesiastical Court, and any ster other Persons whom the Judge shall, under the Seal of the Oaths ' Court, from Time to Time appoint, shall respectively have 224 COURT OF PROBATE ACT, 1857 Power to full Power to administer Oaths and perform such other also? nt> Duties in reference to Matters and Causes Testamentary as sioiiereti) mav k 6 ass '& ne( i to them from Time to Time by the Rules admini- and Orders under this Act ; and the Persons so appointed oaths 8na ll be styled " Commissioners of Her Majesty's Court of Probate : " Provided, that any Party required to be ex- amined, or any Person called as a Witness or required or desiring to make an Affidavit or Deposition under or for the Purposes of this Act, shall be permitted to make his solemn Affirmation or Declaration instead of being sworn in the Circumstances and Manner in which a Person called as a Witness or desiring to make an Affidavit or Deposition would be permitted so to do under the Common Law Pro- cedure Act, 1854, in Cases within the Provisions of that Act ; and any Person who shall wilfully give false Evidence, or who shall wilfully swear, affirm, or declare falsely in any Affidavit or Deposition before the Court of Probate, or before any Registrar, District Registrar, or Commissioner of the Court, shall be liable to the Penalties and Consequences of wilful and corrupt Perjury. Penalty XXVIII. If any Person forge the Signature of any Regis- ii'g or 8 trar, District Registrar, or Commissioner for taking Oaths, feiti n n ter or ^ or S e or counterfeit any Seal of the Court of Probate, or Seals or knowingly use or concur in using any such forged or counter- tures of fei* Signature or Seal, or tender in Evidence any Document officers, with a false or counterfeit Signature of such Registrar, Dis- trict Registrar, or Commissioner, or with a false or counter- feit seal, knowing the same signature or seal to be false or counterfeit, every such Person shall be guilty of Felony, and shall upon Conviction be liable to Penal Servitude for the Term of his Life or any Term not less than Seven Years, or to Imprisonment for any Term not exceeding Three Years, with or without Hard Labour. Practice XXIX. The Practice of the Court of Probate shall, Court except where otherwise provided by this Act, or by the Rules or Orders to be from Time to Time made under this Act, be, so far as the Circumstances of the Case will admit, according to the present Practice in the Prerogative Court. fcuie* XXX. And to the Intent and End that the Procedure Order* to and Practice of the Court may be of the most simple and COURT OF PROBATE ACT, 1857 225 expeditious Character, it shall be lawful for the Lord Chan- be made cellor, at any Time after the passing of this Act, with the [ating gu Advice and Assistance of the Lord Chief- Justice of the th S pr - (*6QUrG OI Court of Queen's Bench, or any One of the Judges of the the Superior Courts of Law to be by such Chief-Justice named Court< in that Behalf, and of the Judge of the said Prerogative Court, to make Rules and Orders, to take effect when this Act shall come into operation, for regulating the Procedure and Practice of the Court, and the Duties of the Registrars, District Registrars, and other Officers thereof, and for deter- mining what shall be deemed contentious and what shall be deemed non-contentious Business, and, subject to the express Provisions of this Act, for fixing and regulating the Time and Manner of appealing from the Decisions of the said Court, and generally for carrying the Provisions of this Act into effect ; and after the Time when this Act shall come into operation it shall be lawful for the Judge of the Court of Probate from Time to Time, with the Concurrence of the Lord Chancellor and the said Lord Chief- Justice, or any One of the Judges of the Superior Courts of Law to be by such Chief-Justice named in this Behalf, to repeal, amend, add to, or alter any such Rules and Orders as to him, with such Concurrence as aforesaid, may seem fit. XXXI. Subject to the Regulations to be established by Mode^of such Rules and Orders as aforesaid, the Witnesses, and Evidence where necessary the Parties, in all contentious Matters [g n c t o us where their Attendance can be had, shall be examined orally Matters, by or before the Judge in open Court : Provided always, that, subject to any such Regulations as aforesaid, the Parties shall be at liberty to verify their respective Cases, in whole or in part, by Affidavit, but so that the Deponent in every such Affidavit shall, on the Application of the opposite Party, be subject to be cross-examined by or on behalf of such opposite Party orally in open Court as afore- said, and after such Cross-examination may be re-examined orally in open Court as aforesaid by or on behalf of the Party by whom such Affidavit was filed. XXXII. Provided, That where a Witness in any such Court Matter is out of the Jurisdiction of the Court, or where, by 8 a Je reason of his Illness or otherwise, the Court shall not think commis- fit to enforce the Attendance of the Witness in open Court, give 226 COURT OF PROBATE ACT, 1857 Orders it shall be lawful for the Court to order a Commission to amina- ^ ssue f r the Examination of such Witness on Oath, upon tion of Interrogatories or otherwise, or if the Witness be within the nesses Jurisdiction of the Court to order the Examination of such or who' Witness on Oath, upon Interrogatories or otherwise, before are un- any Officer of the said Court, or other Person to be named attend! * n 8UC ^ Order for the Purpose ; and all the Powers given to the Courts of Law at Westminster by the Acts of the Thirteenth Year of King George the Third, Chapter Sixty- three, and of the First Year of King William the Fourth, Chapter Twenty-two, for enabling the Courts of Law at Westminster to issue Commissions and give Orders for the Examination of Witnesses in Actions depending in such Courts, and to enforce such Examination, and all the Pro- visions of the said Acts, and of any other Acts for enforcing or otherwise applicable to such Examination, and the Wit- nesses examined, shall extend and be applicable to the said Court of Probate and to the Examination of Witnesses under the Commissions and Orders of the said Court, and to the Witnesses examined, as if such Court were One of the Courts of Law at Westminster, and the Matter before it were an Action pending in such Court. Evidence XXXHI. The Rules of Evidence observed in the Superior to Coo- Courts of Common Law at Westminster shall be applicable Courte'to * ant ^ observe^ m * ne Trial of all Questions of Fact in the be ob- Court of Probate, served. common XXXIV. It shall be lawful for the Judge of the Court Judges of Probate to sit, with the Assistance of any Judge or orf&c-*' Judges f an J f the Superior Courts of Law at West- quest of minster, who, upon the Request of the Judge of the Court ' Court of Probate, may find it -convenient to attend for that Purpose. court XXXV. It shall be lawful for the Court of Probate to SUM cause any Question of Fact arising in any Suit or Proceeding tton* of un( kr thi 8 Act to be tried by a Special or Common Jury Fact to before the Court itself, or by means of an Issue to be directed by jUury to any of the Superior Courts of Common Law, in the before same Manner as an Issue may now be directed by the Court direct an of Chancery, and such Question shall be so tried by a Jury in any case where an Heir-at-Law, cited or otherwise made COURT OF PROBATE ACT, 1857 227 Party to the Suit or Proceeding, makes Application to the Court of Probate for that Purpose ; and in any other Case where all the Parties to the Suit or Proceeding concur in such an Application, and where any Party or Parties other than such Heir-at-Law make a like Application (the other Party or Parties not concurring therein), and the Court shall refuse to cause such Question to be tried by a Jury, such Refusal, of the Court shall be subject to Appeal as herein provided. . . . XXXVIII. Where the Court of Probate directs an Com* Issue, it shall be lawful for such Court to direct such Issue direct to be tried either before a Judge of Assize in any County or J^ at the Sittings for the Trial of Causes in London or Middle- shall be sex, and either by a Special or Common Jury, in like Manner tried ' as is now done by the Court of Chancery. . . . XL VI. Probate of a Will or Letters of Administration Probates may, upon Application for that Purpose to the District ^ntetra. Registry, be granted in Common Form by the District t ion ma y Registrar in the Name of the Court of Probate and under granted the Seal appointed to be used in such District Registry, if it common shall appear by Affidavit of the Person or some or One of Form by the Persons applying for the same that the Testator or In- Kegis'- * testate, as the Case may be, at the Time of his Death had if^ 8 ',^ a fixed Place of Abode within the District in which the appear by Application is made, such Place of Abode being stated in ^^the* the Affidavit, and such Probate or Letters of Administration Testator, shall have effect over the Personal Estate of the Deceased in axed* all Parts of England accordingly. XLVII. Such Affidavit shall be conclusive for the Pur- . pose of authorising the Grant, by the District Registrar, of elusive Probate or Administration ; and no such Grant of Probate au r thoriz- or Administration shall be liable to be recalled, revoked, or il i g *f raut otherwise impeached by reason that the Testator or Intes- bate. tate had no fixed Place of Abode within the District at the Time of his Death ; and every Probate and Administration granted by any such District Registrar shall effectually discharge and protect all Persons paying to or dealing with any Executor or Administrator thereunder, notwith- standing the Want of or Defect in such Affidavit, as is hereby required. 228 COURT OF PROBATE ACT, 1857 District XL VIII. The District Registrar shall not grant Probate trars*not or Administration in any Case in which there is Contention to make ^ to the Grant until such Contention is terminated or dis- here posed of by Decree or otherwise, or in which it otherwise a PP ears to him that Probate or Administration ought not to tion, &c. be granted in Common Form. AS to XLIX. Notice of every Application to any District mission Registrar for the Grant of Probate or Administration shall f A* 0t ii e k transmitted by such District Registrar to the Registrars cation of the Principal Registry by the next Post after such Ap- Granta of plication shall have been made ; and such Notice shall Probate, specify the Name and Description, or Addition (if any), of District the Testator or Intestate, the Time of his Death, and the Place of his Abode at his Decease, as stated in the Affidavit made in support of such Application, and the Name of the Person by whom the Application has been made, and such other Particulars as may be directed by Rules or Orders under this Act ; and no Probate or Administration shall be granted in pursuance of such Application until such District Registrar shall have received a Certificate, under the Hand of one of the Registrars of the Principal Registry, that no other Application appears to have been made in respect of the Goods of the same deceased Person, which Certificate the said Registrar of the Principal Registry shall forward as soon as may be to the District Registrar ; all such Notices in respect of Applications in the District Registries shall be filed and kept in the Principal Registry, and the Regis- trars of the Principal Registry shall, with reference to every such Notice, examine all Notices of such Applications which may have been received from the several other District Registries, and the Applications which may have been made for Grants of Probate or Administration at the Principal Registry, so far as it may appear necessary to ascertain whether or no Application for Probate or Administration, in respect of the Goods of the same deceased Person, may have been made in more than One Registry, and shall communi- cate with the District Registrars as Occasion may require in relation to such Applications. i; " ' L. In every Case where it appears to a District Registrar u^Slifof that it is doubtful whether the Probate or Letters of Doubt u Administration which may be applied for should or should COURT OF PROBATE ACT, 1857 229 not be granted, or where any Question arises in relation to to Grant the Grant, or Application for the Grant, of any Probate or the Administration, the District Registrar shall transmit a Statement of the Matter in question to the Registrars of the judge. Court of Probate, who shall obtain the Directions of the Judge in relation thereto, and the Judge may direct the District Registrar to proceed in the Matter of the Applica- tion according to such Instructions as to the Judge may seem necessary, or may forbid any further Proceeding by the District Registrar in relation to the Matter of such Applica- tion, leaving the Party applying for the Grant in question to make Application to the Court of Probate through its Principal Registry, or, if the Case be within its Jurisdiction, to a County Court. LI. On the First Thursday of every Month, or oftener District if required by any Rules or Orders to be made in that tranfto Behalf, every District Registrar shall transmit to the transmit Registrars of the Principal Registry a List, in such Form probates and containing such Particulars as may be from Time to ^,4^- Time required by the Court of Probate, or by any Rules or tions, Orders under this Act, of the Grants of Probate and copies of Administration made by such District Registrar up to the wms - last preceding Saturday, and not included ia a previous Return, and also a Copy, certified by the District Registrar to be a correct Copy, of every Will to which any such Pro- bate or Administration relates. LII. Every District Registrar shall file and preserve all District original Wills of which Probate or Letters of Administration traf sfto with the Will annexed may be granted by him, in the Public ^f^Jf Registry^ of the District, subject to such Regulations as the wills. Judge of the Court of Probate may from Time to Time make in relation to the due Preservation thereof, and the con- venient Inspection of the same. LIII. Caveats against the Grant of Probates or Adminis- AS to trations may be lodged in the Principal Registry or in any District Registry, and (subject to any Rules or Orders under this Act) the Practice and Procedure under such Caveats in the Court of Probate shall, as near as may be, correspond with the Practice and Procedure under Caveats now in use in the Prerogative Court of Canterbury ; and immediately upon a Caveat being lodged in any District Registry, the 230 COURT OF PROBATE ACT, 1857. District Registrar shall send a Copy thereof to the Registrars to be entered among the Caveats in the Principal Registry ; and immediately upon a Caveat being entered in the Principal Registry, Notice thereof shall be given to the District Registrar of the District, if any, in which it is alleged the Deceased resided at the Time of his Decease, and to any other District Registrar to whom it may appear to the Registrar of the Principal Registry expedient to trans- mit the same. . . . Kef? ist r LV. On a Decree being made by a Judge of a County court to Court for the Grant of Revocation of a Probate or Adminis- t rat i n i n an 7 sucn Cause, the Registrar of the County cate of Court shall transmit to the District Registrar of the District forGrant which it shall have been sworn that the Deceased had at or Revo- the Time of his Decease his fixed Place of Abode a Certificate Probate, under the Seal of the County Court of such Decree having been made, and thereupon, on the Application of the Party or Parties in favour of whom such Decree shall have been made, a Probate or Administration in compliance 1 with such Decree shall be issued from such District Registry ; or, as the Case may require, the Probate or Letters of Ad- ministration theretofore granted shall be recalled or varied by the District Registrar according to the Effect of such Decree. The LVI. The Judge of any County Court before whom any "the disputed Question shall be raised relating to Matters and courtto Causes Testamentary under this Act shall, subject to the decide Rules and Orders under this Act, have all the Jurisdiction, ' f Power, and Authority to decide the same and enforce Judg- enforce ment therein, and to enforce Orders in relation thereto, as menu as if the same had been an ordinary Action in the County inother Court . LVTI. The Affidavit as to the Place of Abode and State Facu of the Property of a Testator or Intestate which is to give the'" 8 contentious Jurisdiction to the Judge of a County Court county under the previous Provisions shall, except as hereinafter provided, be conclusive for the Purpose of authorising the to be Exercise of such Jurisdiction, and the Grant or Revocation ire un- of Probate or Administration in compliance with the Decree leu di- O f gucn j u jg e j and- no such Grant of Probate or Administra- COURT OF PROBATE ACT, 1857 231 tion shall be liable to be recalled, revoked, or otherwise proved impeached by reason that the Testator or Intestate had no Matter is fixed Place of Abode within the Jurisdiction of such Judge pending, or within any of the said Districts at the Time of his Death, or by reason that the Personal Estate sworn to be under the Value of Two hundred Pounds did in fact amount to or exceed that Value, or that the Value of the Real Estate of or to which the Deceased was seised or entitled beneficially at the Time of his Death amounted to or exceeded Three hundred Pounds : Provided that, where it shall be shown to the Judge of a County Court before whom any Matter is pending under this Act that the Place of Abode or State of the Property of the Testator or Intestate in respect of whose Will or Estate he may have been applied to for Grant or Revocation of Probate or Administration has not been correctly stated in the Affidavit, and if correctly stated would not have authorised him to exercise such contentious Jurisdiction, he shall stay all further Proceedings in his Court in the Matter, leaving any Party to apply to the Court of Probate for such grant or Revocation, and making such Order as to the Costs of the Proceedings before him as he may think just. LVIII. Any Party who shall be dissatisfied with the AS to Determination of the Judge of the County Court in point of from ea S Law, or upon the Admission or Rejection of any Evidence in any Matter or Cause under this Act, may appeal from the same to the Court of Probate, in such Manner and sub- ject to such Regulations as may be provided by the Rules and Orders to be made under this Act, and the Decision of the Court of Probate on such Appeal shall be final. LIX. It shall not be obligatory on any Person to apply Not obii- for Probate or Administration to any District Registry, or fp^for through any County Court, but in every Case such Applica- Probate, tion may be made through the Principal Registry of the District Court of Probate, wherever the Testator or Intestate may at f^^ T the Time of his Death have had his fixed place of Abode : County Provided, that where in any contentious Matter arising out butmay of any such Application it is shown to the Court of Probate * n eve ry that the State of the Property and Place of Abode of the made to Deceased were such as to give contentious Jurisdiction to the Judge of a County Court, the Court of Probate may 232 COURT OF PROBATE ACT, 1857 send the Cause to such County Court, and the Judge thereof shall proceed therein as if such Application and Cause haieor of Administration, may be obtained from the Registry or **J* * District Registry where the Will has been proved or the beob- Administration granted, on the Payment of such Fees as tamed - shall be fixed for the same by the Rules and Orders under this Act. LXX. Pending any Suit touching the Validity of the ^{^ Will of any deceased Person, or for obtaining, recalling, or pendente revoking any Probate or any Grant of Administration, the hte ' Court of Probate may appoint an Administrator of the Personal Estate of such deceased Person ; and the Adminis- trator so appointed shall have all the Rights and Powers of a General Administrator, other than the Right of dis- tributing the Residue of such Personal Estate ; and every such Admistrator shall be subject to the immediate Control of the Court, and act under its Direction. 236 COURT OF PROBATE ACT, 1857 Receiver LXXI. It shall be lawful for the Court of Probate to Estate 1 appoint any Administrator appointed as aforesaid or any pemientf other Person to be Receiver of the Real Estate of any deceased Person pending any Suit in the Court touching the Validity of any Will of such deceased Person by which his Real Estate may be affected, and such Receiver shall have such Power to receive all Rents and Profits of such Real Estate, and such Powers of letting and managing such Real Estate, as the Court may Direct. ?u~ r ~ LXXII. The Court of Probate may direct that Adminis- Adminis- trators and Receivers appointed pending Suits involving pvuiente Matters and Causes Testamentary shall receive out of the lite ami Personal and Real Estate of the Deceased such reasonable en. Remuneration as the Court think fit. Power as LXXIII. Where a Person has died or shall die wholly ^,, intestate as to his Personal Estate, or leaving a Will ment of affecting Personal Estate, but without having appointed an trntor!" 8 Executor thereof willing and competent to take Probate, or where the Executor shall at the Time of the Death of such Person be resident out of the United Kingdom of Great Britain ami Ireland, and it shall appear to the Court to be necessary or convenient in any such Case, by reason of the Insolvency of the Estate of the Deceased, or other special Circumstances, to appoint some Person to be the Administrator of the Personal Estate of the Deceased, or of any Part of such Personal Estate, other than the Person who if this Act had not been passed would by Law have been entitled to a Grant of Administration of such Personal Estate, it shall not be obligatory upon the Court to grant Administration of the Personal Estate of such deceased Person to the Person who if this Act had not been passed would by Law have been entitled to a Grant thereof, but it shall be lawful for the Court, in its Discretion, to appoint such Person as the Court shall think fit to be such Admin- istrator upon his giving such Security (if any) as the Court shall direct, and every such Administration may be limited as the Court shall think fit. 880. 8. c. LXXIV. The Provisions of an Act passed in the Thirty - 2dto eighth Year of His late Majesty King George the Third, A renounces Probate of the Will of which he is nouncing appointed Executor or One of the Executors, the Rights of tocease 8ucn Person in respect of the Executorship shall wholly as if he cease, and the Representation to the Testator and the been Administration of his Effects shall and may, without any the n vn!!! f ur t ner Renunciation, go, devolve, and be committed in like Manner as if such Person had not been appointed Executor. sureties LXXX. So much of an Act passed in the Twenty-first ministra- Year of King Henry the Eighth, Chapter Five, and of an Bonds -^ passed i Q the Twenty-Second and Twenty-third Years of King Charles the Second, Chapter Ten, and of an Act passed in the First Year of King James the Second, Chapter Seventeen, as requires any Surety, Boud, or other Security to be taken from a Person to whom Administration shall be committed, shall be repealed. Persons LXXXI. Every Person to whom any grant of Admin- Grant'"" istration shall be committed shall give Bond to the Judge ^rations of the Court of Prooate to enure for tue Benefit of the shall be Judge for the Time being, and, if the Court of Probate or muted O n tn e Case f a Grant from the District Registry) the shaiigive District Register shall require, with One or more Surety or Sureties, conditioned for duly collecting, getting in, and administering the Personal Estate of the Deceased, which Bond shall be in such Form as the Judge shall from Time to Time by any general or special Order direct : Provided that it shall not be necessary for the Solicitor for the Affairs of the Treasury or the Solicitor of the Duchy of Lancaster applying for or obtaining Administration to the Use or Benefit of Her Majesty to give any such Bond as aforesaid. Penalty LXXXII. Such Bond shall be in a Penalty of double on Bond. the Amount un( i er which the Estate and Effects of the Deceased shall be sworn, unless the Court or District Registrar, as the Case may be, shall in any Case think fit to direct the same to be reduced, in which Case it shall be lawful for the Court or District Registrar so to do, and the Court or District Registrar may also direct that more Bonds than One shall be given, so as to limit the Liability of any Surety to such Amount as the Court or District Registrar shall think reasonable. 239 LXXXIII. The Court may, on Application made on Power of Motion or Petition in a summary Way, and on being satisfied assign* that the Condition of any such Bond has been broken, order Bond. One of the Registrars of the Court to assign the same to some Person, to be named in such Order, and such Person, his Executors or Administrators, shall thereupon be entitled to sue on the said Bond in his own Name, both at Law and in Equity, as if the same had been originally given to him instead of to the Judge of the Court, and shall be entitled to recover thereon as Trustee for all Persons interested the full Amount recoverable in respect of any Breach of the Condition of the said Bond. . . . XCI. One or more safe and convenient Depository or AS to Depositories shall be provided, under the Control and tonesffor Directions of the Court of Probate, for all such Wills of safe living Persons as shall be deposited therein for safe Custody ; oUhe y and all Persons may deposit their Wills in such Depository ^\ I ,|t of upon Payment of such Fees and under such Regulations as Persons, the Judge shall from Time to Time by any Order direct. . . . XCIII. The Registrars of the Court of Probate shall, The Reg- within such Period as the Judge shall direct after Probate Deliver* of any Will or Letters of Administration shall have been ^jP ies of granted, deliver or cause to be delivered to the Commissioners & c . to of Inland Revenue, or their proper Officer, the following ^iss? " Documents respectively ; that is to say, in the Case of a ers of Probate or Administration with a Will annexed a Copy of Revenue, the Will and the original Affidavit, and in the case of Letters of Administration without a Will annexed such original Affi- davit, and in every Case of Letters of Administration a Copy or Extract thereof, and in every Case such Certificate or Note of the Grant as the said Commissioners may require. . . . XCV. The Lord Chancellor, with such Assistance as is Fees to hereinbefore provided as to Rules and Orders to be made in ^ y ^ n pursuance of this Act, shall, as soon as conveniently may be cers of after the passing of this Act, fix a Table or Tables of Fees anTby to be taken by the Officers of the Court of Probate, and the officers Proctors, Solicitors, and Attornies practising therein, in- County eluding the District Registrars, and the Proctors, Solicitors, Courts - and Attornies practising in District Registries, and of Fees to be taken by the Officers of the County Courts, in respect 240 COURT OF PROBATE ACT, 1857 of Business under this Act, and of Fees to be payable in respect of Searches, Inspection, and Printed and other Copies of and Extracts from Records, Wills, and other Documents in the Custody or under the Control of the Court of Probate and the Judge of the Court of Probate, with such Concurrence as is hereinbefore provided in respect of the Amendment of Rules and Orders, is hereby empowered, from Time to Time after this Act shall come into operation, to add to, reduce, alter, or amend such Table or Tables of Fees, as he may see fit : Provided that such Tables of Fees and every Alteration of the same, except so far as respects the Fees which are to be taken by District Registrars, Proctors, and others, for their own Remuneration and to their own Use, shall be subject to the Approval of the Commissioners of Her Majesty's Treasury ; and every such Table of Fees, and every Addition, Reduction, Alteration, or Amendment to, in, or of the same, shall be published in the London Gazette ; and no other Fees than those specified and allowed in such Tables of Fees shall be demanded or taken by such Officers and Proctors, Solicitors and Attornies. . . . ">t XCVII. None of the Fees payable to the Officers of the nUMa Court of Probate, or of any County Court, in respect of M..m-y, Business under this Act, except the Fees of the District sumps. Registrars (which are to be taken as their Remuneration, and for their own Use), the Fees of Proctors, Solicitors, and Attornies, and such Fees as may be authorised to be taken for their own Use by Surrogates and Commissioners for administering Oaths, shall be received in Money, but every such Fee shall be collected and received by a Stamp denoting the Amount of the Fee which otherwise would be payable. . . . NoDocu- XCIX. No Document which under this Act, and any I 1 ,,";;!. to Table of Fees for the Time being in force under this Act, ceived ought to have a Stamp in respect of such Fee iiujuvssnl unless 1 thereon or affixed thereto, shall be received or filed or be stamped. use( j j n relation to any Proceeding in the Court of Probate, or be of any Validity for any Purpose whatsoever, unless or until the same shall have the proper Stamp impressed then-oil or affixed thereto: Provided that if any Tinn it shall appear that any such Document has through Mistake or Inadvertence been received, or filed, or used without having such Stamp impressed thereon or affixed thereto, it COURT OF PROBATE ACT, 1858 241 shall be lawful for the Judge of the Court of Probate, if he think fit, to order that such stamp shall be impressed thereon or affixed thereto, and thereupon, when a Stamp shall have been impressed on such Document or affixed thereto in compliance with any such Order, such Document and every Proceeding in reference thereto shall be as valid and effectual as if such Stamp had been impressed thereon or affixed thereto in the first instance. . . . COURT OF PROBATE ACT, 1858 (21 and 22 Viet., c. 95) X. Where it appears by Affidavit to the Satisfaction of where a Registrar of the Principal Registry that the Testator or fy is m Intestate in respect of whose Estate a Grant or Revocation under of a Grant of Probate or Letters of Administration is applied county for had at the Time of his Death his fixed Place of Abode in g^f to One of the Districts specified in Schedule (A) to the said Junsdic- " Court of Probate Act," and that the Personal Estate in tlon ' respect of which such Probate or Letters of Administra- tion are to be or have been granted, exclusive of what the Deceased may have been possessed of or entitled to as a Trustee, and not beneficially, but without deducting any- thing on account of the Debts due and owing from the Deceased, was at the Time of his Death under the Value of Two hundred Pounds, and that the Deceased at the Time of his Death was not seised or entitled beneficially of or to any Real Estate of the Value of Three hundred Pounds or upwards, the Judge of the County Court having Jurisdiction in the Place in which the Deceased had at the Time of his or her Death a fixed Place of Abode shall have the con- tentious Jurisdiction and Authority of the Court of Probate in respect of Questions as to the Grant and Revocation of Probate of the Will or Letters of Administration of the Effects of such deceased Person, in case there be any Contention in relation thereto. . . . XII. The said Court of Probate Act, Section Fifty-nine, ^| 9 21 shall, so far as the County Courts or a Judge thereof are yict. c. concerned, apply to an Application for the Revocation of a a p p y to Grant of Probate or Administration as well as to an Applica- Appiica- , . ~ , r* tions for tion for any such Grant. Revoca- tion of Grants. 242 COURT OF PROBATE ACT, 1868 Power to XIII. The Power and Authority to make Rules and Rules Orders for regulating the Proceedings of the County Courts "Jjj shall extend and be applicable to all Proceedings in the and County Courts under this Act, and also to framing a Scale scales f Costs and Charges to be paid to Counsel, Proctors, of Fees Solicitors, and Attornies, in respect of Proceedings in County County Courts, under the said Court of Probate Act or this Court*. Act. . . . An Exe- XVI. Whenever an Executor appointed in a Will survives not act- the Testator, but dies without having taken Probate, and iiiRornot whenever an Executor named in a Will is cited to take Pro- ing to a bate, and does not appear to such Citation, the Right of sucu P ereon i Q respect of the Executorship shall wholly treated cease, and the Representation to the Testator and the ha,i re* Administration of his Effects shall and may, without any nounced. further Renunciation, go, devolve, and be committed in like Manner as if such Person had not been appointed Executor. . . . Between XIX. From and after the Decease of any Person dying oUhe* 1 * intestate, and until Letters of Administration shall be deceased g 11 ^ m respect of his Estate and Effects, the Personal and the Estate and Effects of such deceased Person shall be vested pfSSJty in the Jud g e of the Court of Pirate for the Time being, in to vest in the same Manner and to the same Extent as heretofore they oniif'- gc vested in the Ordinary. ary Second XX. All Second and subsequent Grants of Probate or sequent*' Letters of Administration shall be made in the Principal Grants to Registry, or in the District Registry where the original Will where' ^ is registered or the original Grant of Letters of Administra- rina'* 1 " t ' on nas ^ >een lnat ^ e > or m the District Registry to which the win or original Will or a registered Copy thereof, or the Record of jrtna'i rl " tne original Grant of Administration, have been transmitted, ixrtten by virtue of a Requisition issued in pursuance of Section niiniVtra- Eighty-nine of " The Court of Probate Act " ; and for and d'cixia^ in respect of such Second or subsequent Grants of Probate ited. or Letters of Administration to be made in a District Registry it shall not be requisite that it should appear by Affidavit that the Testator or Intestate had a fixed Place of Abode within the District in which the Application is made. COURT OF PROBATE ACT 1858 243 XXI. It shall be lawful for the Court of Probate to The require Security by Bond, iu such Form as by any Rules and Orders shall from Time to Time be directed, with or without ma y. Sureties, from any Receiver of the Real Estate of any security deceased Person appointed by the said Court, under Section Deceiver Seventy-one of " The Court of Probate Act"; and the Court of Real may, on Application, made on Motion or in a summary Way, order One of the Registrars of the Court to assign the same to some Person to be named in such Order ; and such Person, his Executors or Administrators, shall thereupon be entitled to sue on the said Security, or put the same in force in his or their own Name or Names, both at Law and in Equity, as if the same had been originally given to him instead of to the Judge of the said Court, and shall be entitled to recover thereon, as Trustee for all Persons interested, the full Amount due in virtue thereof. . . . XXIII. It shall be lawful for a Registrar of the Principal Registrar Registry of the Court of Probate, and whether any Suit sub- or other Proceeding shall or shall not be pending in j^o"^,* the said Court, to issue a Subprena requiring any Person to Papers, produce and bring into the Principal or any District Registry, ' or otherwise, as in the said Subpoena may be directed, any Paper or Writing being or purporting to be testamentary, which may be shown to be in the Possession, within the Power, or under the Control of such Person ; and such Person, upon being duly served with the said Subpoena, shall be bound to produce and bring in such Paper or Writing, and shall be subject to the like Process of Contempt in case of Default as if he had been a Party to a Suit in the said Court, and had been ordered by the Judge of the Court of Probate to produce and bring in such Paper or Writing. XXV. Copies of Wills required to be transmitted by a Copies of District Registrar, and certified by him to be correct Copies, maybe under Section Fifty-one of the Court of Probate Act, may be certified so certified and transmitted under a Stamp provided by the stamp. District Registrar for that Purpose, and approved of by the Judge of the Court of Probate. XXVI. Certificates issued from the Principal Registry Certifi- with reference to Notices of Applications transmitted from ff m the the District Registrars under Section Forty-nine of the Principal Registry Court of Probate Act need not be under the Hand of a may be stamped. 244 COURT OF PROBATE ACT, 1858 Registrar of the Principal Registry, as required by the said Act, but may be issued under a Stamp provided for that Pur- pose, and approved of by the Judge of the Court of Probate. XXVII. Whereas Doubts have been entertained whether may*!*; a Requisition can be issued under Section Eighty-nine of issued the Court of Probate Act for the Transmission of One or Trans* more Papers only, not being all the Papers and Documents * n ^ ie Custody of the Person to whom any such Requisition single may be addressed ; Be it therefore enacted and declared, Paper, ^at the said Section shall be construed to extend to all Requisitions, whether for the Transmission of One or of more Records, Wills, Grants, Probates, Letters of Adminis- tration, Administration Bonds, Notes of Administration, Court Books, Calendars, Deeds, Processes, Acts, Proceed- ings, or other Instruments relating exclusively or principally to Matters or Causes Testamentary. p.,wer to XXVIII. The Judge of the Court of Probate, and the Decree' Registrars of the Principal Registry thereof, shall respect- ively, in any Case where an Ecclesiastical or other Court having Testamentary Jurisdiction had previously to the Eleventh Day of January One thousand eight hundred and fifty-eight made any Order or Decree in respect of Costs, have the same Power of taxing such Costs, and enforcing Payment thereof, or of otherwise carrying such Order or Decree into effect, as if the Cause wherein such Degree was made had been originally commenced and prosecuted in the said Court of Probate : Provided that in taxing any such Ooste, or any other Costs incurred in Causes depending in any such Courts before the Time aforesaid, all Fees, Charges, and Expenses shall be allowed which might have been legally made, charged, and enforced according to the Practice of the Prerogative Court of Canterbury. Lttr* XXIX. Letters of Administration granted by the Court of Probate in Ireland shall not be resealed, under Section ^ met y-fi ve f the Twentieth and Twenty-first Victoria, re- Chapter Seventy-nine, until a Certificate has been filed under *,"'*! the Hand of a Registrar of the Fourt of Probate in Ireland eaii in that Bond has been given to the Judge of the Court of imtiUiiY Probate in Ireland in a Sum sufficient in Amount to cover "b-roiu l ^ e Property m England as well as in Ireland in respect of given, which such Administration is required to be resealed. . . . JUDICATURE ACT, 1873 245 XXXI. In Cases where it is necessary to obtain Affidavits, Affida- Declarations, or Affirmations to be used in the Court of tar* e Probate from Persons residing in Foreign Parts out of Her J vhom to Majesty's Dominions, the same may be sworn, declared, or when affirmed before the Persons empowered to administer Oaths j^}* 8 , under the Act of the Sixth of George the Fourth, Chapter them re- Eighty-seven, or under the Act of the Eighteenth and Foreign Nineteenth of Victoria, Chapter Forty-two ; provided that Parts - in Places where there are no such Persons as are mentioned in the said Acts such Affidavits, Declarations, or Affirmations may be made, declared, and affirmed before any Foreign local Magistrate or other Persons having Authority to administer an Oath. XXXII. Affidavits, Declarations, and Affirmations to be Affida- used in the Court of Probate may be sworn and taken in fore' Scotland, Ireland, the Isle of Man, the Channel Islands, ^ *" or any Colony, Island, Plantation, or Place out of England under the Dominion of Her Majesty, before any Court, Judge, Notary Public, or Person lawfully authorised to administer Oaths in such Country, Colony, Island, Planta- tion, or Place respectively, or, so far as relates to the Isle of Man and the Channel Islands, before any Commissary, Ecclesiastical Judge, or Surrogate, who, at the Time of the passing of the Court of Probate Act, was authorised to administer Oaths in the Isle of Man or in the Channel Islands respectively, and all Eegistrars and other Officers of the Court of Probate shall take judicial Notice of the Seal or Signature, as the Case may be, of any such Court, Judge, Notary Public, or Person, which shall be attached, suspended, or subscribed to any such Affidavit, Declaration, or Affirm- ation, or to any other Document. SUPREME COURT OF JUDICATURE ACT, 1873 (36 and 37 Viet., c. 66) III. From and after the time appointed for the Union of commencement of this Act the several Courts herein- courts 8 aftermentioned (that is to say), . . . the Court of Probate into one . . . shall be united and consolidated together, and shall court. m constitute, under and subject to the provisions of this Act, one Supreme Court of Judicature for England. . . . 246 JUDICATURE ACT, 1875 Constitu- V. Her Majesty's High Court of Justice shall be con- Hgh f stituted as follows : The first Judges thereof shall be ... ( '" rt " f Justice. XVI. Subject as in this Act mentioned, there shall be H?gh f transferred to and vested in the said High Court of Justice court of the jurisdiction which at the commencement of this Act was vested in, or capable of being exercised by, all or any of the Courts following (that is to say) ; (6.) The Court of Probate. . . . Divisions XXXI. For the more convenient despatch of business in court 8 !* the sa ^ High Court of Justice . . . there shall be in the Justice, said High Court five l Divisions. . . . (5.) One . . . Division shall consist of two Judges, who, immediately on the commencement of this Act, shall be the existing Judge of the Court of Probate and of the Court for Divorce and Matrimonial Causes and the existing Judge of the High Court of Admiralty, unless either of them is ap- pointed an ordinary Judge of the Court of Appeal. The existing Judge of the Court of Probate shall (unless so appointed) be the President of the said Division, and subject thereto the senior Judge of the said Division, according to the order of precedence under this Act, shall be President. 2 The said five Divisions shall be called respectively . . . the Probate, Divorce, and Admiralty Division. . . . Assign- XXXIV. There shall be assigned ... to the Probate, certain Divorce, and Admiralty Division of the said High Court t<" part? (^) -^ causes and matters which would have been with- <"i:r in the exclusive jurisdiction of the Court of Probate . . . of'the " 8 if this Act had not passed. High Court, <.i.j,ct SUPREME COURT OF JUDICATURE ACT, 1875 to Kules. (38 and 39 Viet., c. 77) XVIII. All Rules and Orders of Court in force at the to Ru!U time of the commencement of this Act in the Court of ;;f it ' t >r "- Probate . . . shall remain and be in force in the High Court Divorce, of Justice . . . until they shall ... be altered or annulled by and Ad- miralty i Since reduced to three. \SSg * B y 44 and 45 Vict c - 68 > 4 the Prudent u an ex officio judge Kulf of of the Court of Appeal. CUSTOMS AND INLAND REVENUE ACT, 1881 247 . . . any Rules of Court made after the commencement of this the High A 4. Court, in Act - Substitu- The President for the time being of the Probate and tion for Divorce Division l of the High Court of Justice shall have vict., c. with regard to non-contentious or common form business in 66 > s - 70 - the Probate Court the powers now conferred on the Judge of the Probate Court by the thirtieth section of the twentieth and twenty-first years of Victoria, chapter seventy-seven, . . . and the said President shall have the powers as to the making of rules and regulations conferred by the fifty-third section of the twentieth and twenty-first years of Victoria, chapter eighty-five. CUSTOMS AND INLAND REVENUE ACT, 1881 (44 Viet., c. 12) XXVII. The duties imposed by the Customs and Inland Or&nt of Revenue Act, 1880, upon probates of wills and letters of respect administration in England and Ireland shall not be payable ^te and upon probates or letters of administration granted on and after letters of the first day of June one thousand eight hundred and eighty- fratioii*" one ; and on and after that day, in substitution for such duties, ? nd on and in lieu of the duties imposed by the said Act upon in- tones, ventories in Scotland, there shall, save as is hereinafter expressly provided, be charged and paid on the affidavit to be required and received from the person applying for the probate or letters of administration in England or Ireland, or on the inventory to be exhibited and recorded in Scotland, the stamp duties hereinafter specified ; (that is to say), "Where the estate and effects for or in respect of which the probate or letters of administration is or are to be granted, or whereof the inventory is to be exhibited and recorded, exclusive of what the deceased shall have been possessed of 1 Sic. Admiralty appears to have been temporarily forgotten by the draughtsman. 248 CUSTOMS AND INLAND REVENUE ACT, 1881 A.D. 1881. or entitled to as trustee, and not beneficially, shall be above the value of 100, and not above the value of 500 Where such estate and effects shall be above the value of 500, and not above the value of 1000 DUTY. At the rate of one pound for every full sum of 50, and for any fractional part of 50 over any multiple of 50; At the rate of one pound five shillings for every full sum of 50, and for any frac- tional part of 50 over any multiple of 50 ; Where such estate and effects shall be above the value of 1000 Power to etuity or for a term of not less than two hundred years at a fixed rental to any such 253 railway company as is mentioned in sub-section A.D. 1889. (g) either alone or jointly with any other railway company : (i) In the Debenture Stock of any railway company in India the interest on which is paid or guaranteed by the Secretary of State in Council of India : (j) In the " B " Annuities of the Eastern Bengal, the East Indian and the Scinde Punjaub and Delhi Railways, and any like annuities which may at any time hereafter be created on the purchase of any other railway by the Secretary of State in Council of India, and charged on the revenues of India, and which may be authorised by Act of Parliament to be accepted by trustees in lieu of any stock held by them in the purchased railway : (&) In the stock of any railway company in India upon which a fixed or minimum dividend in sterling is paid or guaranteed by the Secretary of State in Council of India : (I) In the Debenture or Guaranteed or Preference Stock of any company in Great Britain or Ireland, established for the supply of water for profit, and incorporated by special Act of Parliament or by Royal Charter, and having during each of the ten years last past before the date of investment paid a dividend of not less than five pounds per centum on its Ordinary Stock : (m) In nominal or inscribed stock issued, or to be issued, by the corporation of any municipal borough, having according to the returns of the last census prior to the date of investment a population exceeding fifty thousand, or by any county council, under the authority of any Act of Parliament or Provisional Order : (.) In nominal or inscribed stock issued or to be issued by any Commissioners incorporated by Act of Parliament for the purpose of supplying water, and having a compulsory power of levying rates over an area having, according to the returns of the last census prior to the date of investment, a population exceeding fifty thousand, provided that 254 TRUST INVESTMENT ACT, 1889 A.D. 1889. during each of the ten years last past before the date of investment the rates levied by such Com- missioners shall not have exceeded eighty per centum of the amount authorised by law to be levied : (o) In any of the stocks, funds, or securities, for the time being authorised for the investment of cash under the control or subject to the order of the Court : and also from time to time to vary any such investment. Purchase IV. (1.) It shall be lawful for a trustee under the powers mium r of f *hi 3 -^ to i 11 ^^ m anv f fc ne stocks, funds, shares, or redeem- securities mentioned or referred to in section three of this stocks. Act, notwithstanding that the same may be redeemable, and that the price exceeds the redemption value. (2.) Provided that it shall not be lawful for a trustee under the powers of this Act to purchase at a price exceeding its redemption value any stock mentioned or referred to in sub-sections (g), (?), (&), (1), and (774), which is liable to be redeemed within fifteen years of the date of purchase at par or at some other fixed rate, or to purchase any such stock as is mentioned or referred to in the sub-sections afores:iiii. which is liable to be redeemed at par or at some other fixed rate, at a price exceeding fifteen per centum above par or such other fixed rate. (3.) It shall be lawful for a trustee to retain until redemption any redeemable stock, fund, or security which may have been purchased in accordance with the powers of this Act. Discre- V. Every power conferred by this Act shall be exercised trustees accorf ^ n g * * ne discretion of the trustee, but subject to any consent required by the instrument (if any) creating the trust with respect to the investment of the trust funds. . . . interpre- IX. For the purpose of this Act the following terms tation. j )ave tnc mca ,,i n g 8 hereinafter respectively assigned t them, that is to say : The expression "trustee" shall include an executor or administrator. . APPENDIX B FEES IN THE PRINCIPAL AND DISTRICT PROBATE REGISTRIES OP THE HIGH COURT OF JUSTICE IN NON-CONTEN- TIOUS BUSINESS (depending chiefly on rules framed in 1874) : FOR probates or letters of administration with or with- out a will annexed, under seal, when the gross value of the personal estate does not exceed 300, and (if stamp duty is payable) a stamp of 1 : 10s. is paid upon the affidavit. A fee to cover all expenses, whether such grant is obtained on personal application or otherwise, 15s. For probates or letters of administration with will annexed, including double or cessate probates or letters of administration with will annexed, de bonis non or cessate, upon which the stamp duty is payable in respect of the value of the Personal Estate of the Testator. If the Personal Estate is sworn to be Under the value of Under the value of 5 010 6,000 .500 20 010 7,000 . 550 100 010 8,000 5 10 200 030 9,000 . 5 15 300 076 10,000 600 450 12 12,000 . 650 600 16 6 14,000 6 10 800 126 16,000 6 17 6 1,000 1 13 18,000 . 750 1,500 250 20,000 7 12 6 2,000 300 25,000 826 3,000 3 15 30,000 . 8 15 4,000 4 10 35,000 . 973 5,000 4 15 40,000 . 10 6 256 FEES Under the value of : Under the value of : 45,000 11 5 6 250,000 30 18 9 50,000 12 3 6 300,000 35 12 9 60,000 13 2 6 350,000 40 6 3 70,000 15 400,000 41 17 6 80,000 16 17 6 500,000 43 8 9 90,000 18 15 For every additional 100,000 20 12 6 100,000 or any 120,000 21 11 3 fractional jwirt of 140,000 23 8 9 100,000 a further 160,000 25 6 3 and additional fee 180,000 27 3 9 of ... 3 2 6 200,000 29 1 3 LETTERS OF ADMINISTRATION, including letters of administration de bonis non or cessate, upon which Stamp Duty is payable in respect of the personal estate of an intestate. If the personal estate is sworn to be : Under the value of : Under the value of : 5 . . 1 30,000 . 11 5 20 . . 1 35,000 . 12 3 1 50 . . 1 40,000 . 13 11 1 100 . . 1 45,000 . 15 200 . 4 6 50,000 . 16 7 6 300 . 12 60,000 . 17 6 a 450 . . 16 6 70,000 . . 20 12 o 600 . . 1 2 6 80,000 . 23 8 9 800 . 1 13 90,000 . 26 5 1,000 . 2 5 100,000 . 29 1 a 1,500 . 3 7 6 120,000 . 30 9 a 2,000 . . 4 10 140,000 . 83 5 3,000 . . 4 13 9 160,000 . 36 2 4,000 . 4 17 6 180,000 . 38 18 1 5,000 . 5 5 200,000 . 41 14 a 6,000 . . 5 12 6 250,000 . . 44 10 g 7,000 . . 6 300,000 . 46 17 a 8,000 . 6 7 6 350,000 . 49 4 6 9,000 . 6 15 400,000 . . 51 11 a 10,000 . 7 2 6 500,000 . M 18 i 12,000 . . 7 10 For every additional 14,000 . . 7 17 6 100,000 or any 16,000 . 8 8 9 fractional part of 18,000 . . 9 100,000 a furtli.-r 20,000 . . 9 11 3 and additional fee 25,000 . . 10 6 3 of 4 13 The following additional fees are to be taken in the FEES 257 principal and district probate registries in non-contentious business on personal applications : For preparing oaths of executors or adminis- trators, and affidavits for the Inland Revenue Office, for engrossing and col- lating the will (if three folios of ninety words or under) for clerks ; also for administering oaths or affirmations to executors or administrators and for preparing bonds for administrators and attesting execution of bonds, a uniform fee of . . . . . . 0:15:0 For probates or letters of administration with or with- out a will annexed under seal including double or cessate probates or letters of administration with or without a will annexed de bonis non or cessate upon which stamp duty is payable in respect of the personal estate of the testator or intestate : If the personal estate for or in respect of which stamp duty is payable is under or not exceeding : 100 200 300 450 600 800 1,000 1,500 2,000 3,000 4,000 5,000 6,000 7,000 8,000 9,000 10,000 12,000 14,000 16,000 18,000 20,000 25,000 30,000 35,000 010 40,000 5 18 3 030 45,000 676 050 50,000 6 17 080 60,000 763 11 70,000 850 15 80,000 939 120 90,000 10 2 6 1 10 100,000 11 1 3 200 120,000 11 10 9 2 10 140,000 12 9 6 300 160,000 13 8 3 326 180,000 14 7 350 200,000 15 5 9 376 250,000 16 4 6 3 10 300,000 18 11 3 3 12 6 350,000 20 18 3 3 15 400,000 21 13 9 3 17 6 500,000 22 9 6 400 And for every addi 439 tional 100,000 or 476 any fractional part 4 11 3 of 100,000, on 4 16 3 which stamp duty 525 is payable,a further 589 fee of . . . 1 11 3 258 FEES Double or cessate probate or letters of administration with the will annexed, de bonis non or cessate, upon which no stamp duty is payable, when the personal estate is under 450, are charged with the same fee as a grant under the same sum, 450 or upwards, 12s. 6d. Duplicate or triplicate probate or letters of administration with the will annexed are charged at the same rate. Exemplification of a probate or letters of administration with the will annexed or ordinary administration, 1 : Is. Codicils to wills already proved at the same rate as duplicate probates. Fees are also chargeable for registering and collating or engrossing and collating wills, for searches and inspection of wills (the fee for search and inspection, which allows inspec- tion of two wills or letters of administration, being one shil- ling), sealing, notation of domicile, office copies or extracts, collating, attendances, filing, registrar's orders, caveats, receipts for papers, deposit of wills, taxing costs, bonds, oaths, settling advertisements, alterations in grants, notations of alterations, etc., certificates, fiats, notices, perusing and settling oaths, etc. The fee on administrations upon which no stamp duty is payable is when the personal estate is under 300 the same fee as on a first grant, where it is 300 or upwards the same as in corresponding cases of probate, viz. 1 2s. 6d. APPENDIX C PERSONAL APPLICATIONS RULES, Orders, and Instructions as to Personal Applications for grants of probate or letters of administration. 1. Persons wishing to obtain grants of probate or letters of administration without the intervention of a proctor, solicitor, or attorney, must apply in person at the department for personal applications, and not by letter. 2. No such application will be received through an agent of any kind (whether paid or unpaid). 3. The applications of parties who are attended by a person acting or appearing to act as their adviser in the matter will not be entertained. 4. All fees are to be paid in advance in Probate Court 5. Applications which have in the first instance been made through a proctor, solicitor, or attorney at the prin- cipal registry or at a district registry cannot be transferred to this department. 6. Applications for grants of probate or administration in cases which have already been before the court (on motion or otherwise) will not be entertained at this department, but must be made through a proctor, solicitor, or attorney. 7. Whenever it becomes necessary, in the course of pro- ceeding with an application which has been entertained at this department, to obtain the directions of the court, the application will not be proceeded with, but must be placed in the hands of a proctor, solicitor, or attorney. 8. The papers necessary to lead to the grant applied for will be prepared in this department. An applicant is, how- 260 PERSONAL APPLICATIONS ever, at liberty to bring such papers, or any of them, filled up, but not sworn to, and the same, if correct, may be received (the usual fee for perusal being charged). All further papers which may be required will be drawn in this department. Testamentary papers once deposited in this department will not be given out unless under special circum- stances and by permission of one of the registrars. 9. When it is necessary to administer an oath or take an affirmation, the party shall be sworn or affirmed before some proper authority of the principal registry or of a district registry unless otherwise permitted by one of the registrars. 10. Every applicant for a first grant of probate or letters of administration must produce a certificate of the death or burial of the deceased, or give a reason to the satisfaction of one of the registrars for the non-production thereof. 11. Every applicant must be prepared with a reference to some person of position or character to establish his or her identity. 12. The engrossment of wills and testamentary papers will be made in the registry. 13. Every applicant for a grant of probate or letters of administration shall give under his or her hand a schedule of the property to be affected by the grant in the form hereunto annexed, marked A. (The necessary forms will be provided in the registry.) 14. Legal advice is not to be given to applicants, either with respect to the property to be included in the above- mentioned schedule, or upon any other matter connected with the application, and the clerks in this department are only to be held responsible for embodying in a proper form the instructions given to them ; but they will as far as practicable assist applicants by giving them information and directions as to the course which they must pursue. 15. A receipt or acknowledgment of each application will be handed to the applicant, and the production of such receipt will be required of the person who attends to obtain the grant when completed. 16. No clerk or officer of this department is to become surety to any administration bond. 17. All administration bonds in cases of personal ap- PERSONAL APPLICATIONS 261 plications are to be executed in this department or in a district registry. If executed in this department the bond must be attested by the chief clerk or senior clerk in attendance. (A) An Account of the Personal Estate and Effects of deceased. (No deductions to be made on account of debts owing by deceased.) Price of Stocks. Actual Value. Cash in the House and at the Bankers' Household Goods, Linen, Wearing Apparel, Books, Plate, Jewels, Carriages, Horses, &c., valued at . a. d. Stocks or Funds of Great Britain transferable at the Bank or elsewhere in England, viz. Dividends thereon Foreign Stocks or Funds transferable in Eng- land, viz. . Dividends thereon .... Leasehold Property Value per annum Ground Rent on do. per annum . Length of unexpired term Rents of Real or Leasehold Property due at the death of the Deceased Do. of Leasehold Property due since the death of the Deceased .... Proprietary Shares or Debentures of Public Companies, viz. ..... Dividends or Interest thereon Money out on Mortgage and other Securities Dividends or Interest thereon Book Debts ...... Bonds and Bills ...... Notes . Interest thereon .... 262 PERSONAL APPLICATIONS Price of Stocks. Actual Value. Real Estate contracted to be Sold . . h .1. Personal Estate and Effects left by the Will under some authority enabling the De- ceased to dispose of the same as he or she might think lit . . . . Stock-in-Trade, Farming Stock, and Imple- ments of Husbandry, valued at Other Personal Property not comprised under the foregoing heads, viz. APPENDIX D FORMS OF WILLS A SIMPLE form of both an English and a Scotch will is appended, not so much as a precedent to be followed as an illustration of the law. Some forms of bequest of a special nature which are likely to be useful are also added. It cannot, however, be too strongly impressed upon intending testators that in all but in the very simplest cases or in some sudden emergency the comparatively trifling sum necessary to obtain professional assistance is money well spent. In the forms punctuation is used in order that they may be more easily read ; in wills prepared by counsel or solicitors, as in deeds, stops are not usually inserted, as they may possibly lead to difficulties in inter- pretation. AN ENGLISH WILL OF REAL AND PERSONAL ESTATE (From Davidson's Concise Precedents in Conveyancing, No. civ) I, A. B., of hereby revoke all wills and testamentary dispositions heretofore made by me, and declare this to be my last will. I bequeath to my wife C. B. all my furniture, plate, plated articles, linen, china, glass, Mines, liquors, con- sumable stores, and articles of household and domestic use and ornament ; I bequeath to my said wife the sum of to be paid to her within one calendar month after my death, 1 and the further sum of to be paid to her within three 1 This provision is commonly made in order that the legatee may not be left without ready money for current expenses. 264 FORMS years after my death, with interest thereon at the rate of per cent per annum from the day of my decease, to be paid by equal half-yearly payments, the first thereof to be made at the end of six calendar months from my death ; I bequeath to my said wife my leasehold messuage, No. in Street, London, she paying the rent reserved by the lease under which I hold the same, and performing and observing the covenants by the lessee and conditions therein contained, and indemnifying my executors and adminis- trators therefrom, and from all actions and demands in respect thereof; I bequeath to my son E. B. and to each of my daughters F. B., G. B., and II. B. the sum of ; I devise unto my son J. B., his heirs and assigns, 1 my free- hold farm, lands, and hereditaments, situate in or near the parish of in the county of , with the appurtenances subject nevertheless in exoneration of my personal estate 2 to the payment of a principal sum of now owing to X. Y. on the security of a mortgage thereof, and the interest for the same ; and I hereby devise and bequeath all my real and personal estate, except what I otherwise dispose of by this my will or by any codicil thereto, unto my son A. B., his heirs, executors, administrators, and assigns, 3 charged as to my real estate, in aid of my personal estate, with the pay- ment of my debts, and the pecuniary legacies hereinbefore bequeathed. And I hereby appoint my said son A. B. sole executor of this my will. In witness whereof I, the said A. B., have to this my will set my hand this day of 18 . (Signature of testator.) Signed and acknowledged by the above-named A. B. as his will in the presence of us, present at the same time, who in his presence and in the presence of each other, have hereunto subscribed our names as witnesses. (Signatures and descriptions of witnesses.) 1 In this precedent the children are supposed to be adult, and there if BO trust for maintenance of infants or investment of their shares. 3 These words are not necessary, as a gift to A simply passes to him the fullest estate, real or personal, of the testator in the subject of the gift. 3 These words are inserted ex majori cantdA in order to avoid the difficulties which have sometimes arisen under Locke King's Act and the acts amending it. See p. 160. FORMS 265 FORM OF A CODICIL SUBSTITUTING A NEW EXECUTOR This is a codicil to the will of me A. B. of which will bears date the day of 18 Whereas by my said will I appointed 0. D. executor. Now I revoke my said will as far as the said C. D. is concerned and I substitute E. F. in his place. And I declare that my said will shall take effect in the same manner as if the name of the said E. F. had been originally inserted therein instead of the name of the said 0. D., And I confirm my said will in other respects. In witness whereof, etc. A BEQUEST TO A CHARITY (From Hayes and Jarman's Concise Forms, No. vi) I bequeath the charitable legacies following (namely) : To the Society for the sum of : To etc. And I direct that the said charitable legacies "be paid exclusively out of such part of my personal estate as may lawfully be appro- priated to such purposes and in preference to any other pay- ment thereout l And that the receipt of the Treasurer for the time being of the said Societies respectively shall be a sufficient discharge to my executors for the said charitable legacies respectively. A DEVISE AND BEQUEST IN TRUST FOR SALE AND CONVERSION FOR WIDOW AND CHILDREN (From Davidson's Concise Precedents in Conveyancing, No. xcix) I devise and bequeath all my real and personal estate whatsoever (except what I otherwise dispose of by this my 1 The object of this phrase is to prevent the gift to the charity failing in whole or in part through the operation of the rule (p. 162) that the court does not marshal assets in favour of a charity. By the insertion of a direction such as that in the text the debts and funeral and testamentary expenses will be thrown upon the whole fund of pure and mixed personalty, and the charitable legacies will only fail or abate in the event of the entire property, exclusive of the pure per- sonalty, being insufficient for the payment of the debts and funeral and testamentary expenses. VOL. I 18 266 FORMS will or any codicil hereto) unto and to the use of C. D. & E. F., their heirs, executors, and administrators respectively upon trust, that they the said C. D. & E. F. or the survivors or survivor of them, or the heirs, executors, or administrators (as the case may be) of such survivor, shall in such manner, and under such stipulations, and upon such terms, in all respects as he or they shall think fit, sell, collect, or other- wise convert into money (according to the nature of the premises) all such parts of the same premises as shall not consist of ready money, and may buy in or rescind any contract for sale or of any other description, and may, for the purposes aforesaid, execute and do all such assurances and things as they, or he, shall think fit ; And shall, out of the monies to arise from such sale, collection, and conversion, and the money of which I shall be possessed at my death, pay my funeral and testamentary expenses and debts ; And shall invest [in named securities with power to vary invest- ments'] And shall pay the income of the said trust monies and the investments for the time being, representing the same to my wife G. H. during her life, such income in the event of her re-marriage to be for her separate use without power of anticipation, and her receipt alone to be a discharge for the same ; And after her death shall hold the said trust premises in trust for such of my children living at my death, and such of my grandchildren living at my death, and being children of any child of mine having predeceased me, as being male, attain the age of twenty-one years, or being female, attain that age, or marry, and if more that one, in equal shares per stirpes, so that my children taking under this trust shall take in equal shares, and the children taking under this trust, of any child of mine having predeceased me, shall take equally between them the share which the parent would have taken had he or she survived me. A SCOTCH TRUST DISPOSITION AND SETTLEMENT (From 1 Juridical Styles, 286) I, A, having resolved to provide for the settlement of my affairs in the event of my death, do hereby leave and bequeath and assign and dispone to and in favour of B. as FORMS 267 his absolute property the whole means, estate, and effects, heritable and moveable, real and personal, of whatever kind and wherever situated, presently belonging and addebted, or which shall belong and be addebted to me at the time of my death ; and I nominate the said B. to be my sole executor and administrator ; but declaring always that the said B. shall be bound out of my said means and estate to pay all my lawful debts, deathbed and funeral expenses, and also to pay or deliver the following legacies, viz. (specifying them), and also any other legacies or bequests which I may leave, or direct to be paid by any writing under my hand, whether formally executed or not, 1 and I reserve power to revoke or alter these presents in whole or in part ; and I reserve my own life-rent ; and I dispense with the delivery hereof, and I consent to registration hereof for preservation. In witness whereof these presents, consisting of this and the preceding pages, with the marginal additions upon pages and , all written by (declaring that the words on the line of page hereof are written upon an erasure [or, are delete] before subscription) are subscribed by me, the said A, at on the day of 18 before these witnesses, W. and Y. (fully describing them). 2 (Signatures of testator and witnesses.) A BEQUEST TO A CHARITY IN A SCOTCH WILL (From 2 Juridical Styles, 569) I ordain my said executor to pay and deliver the following legacies Item, to the Royal Infirmary of Edinburgh the sum of 1000 sterling to be paid upon the receipt of the Treasurer or Secretary thereof for the time being for the purposes of the said infirmary. 1 This would not be a valid clause in an English will. By English law an existing writing may be incorporated, though not duly executed, but no provision can be made for future disposition by informal writing. See p. 31. 2 By s. 38 of the Conveyancing Act, 1874, the testing clause in use before that act was enabled to be considerably simplified, but the longer form is still commonly used. 268 FORMS A CLAUSE OF MORTIFICATION (From 2 Juridical Styles, 633) And farther, for the purpose of establishing four bursaries in the college of M., I do hereby leave and bequeath to the Principal and Professors of the said college of M. the sum of 4000 for maintaining and educating four students in that college, which sum I will and ordain to be invested and employed in manner following, viz. etc. A BEQUEST OF A BUSINESS (From Bythewood and Jarman's Precedents in Conveyanci/xj, vol. vii, p. 777) I bequeath unto C. D. absolutely all the stock in trade fixtures, machinery, plant, utensils, and effects employed in my trade or business of a , and also the good- will of the said trade or' business, and all my leasehold interest in the messuage, manufactory, offices, and buildings situate at in which the said trade or business is carried on, or used for the purposes of the same ; but not any money or debts which shall be owing to me in respect of the said trade or business. [Or, And also the benefit of all contracts subsisting in respect of the same trade or business, and all book and other debts and monies owing to me in respect of the same ; Provided always that the said C. D. shall, to the satisfaction of the executors of this my will, sufficiently indemnify my general estate from all debts and liabilities owing or incurred by me in respect of my said trade or business, and if they shall so require, shall enter into a bond or covenant in that behalf at the cost of my general personal estate.] A BEQUEST OF AN ANNUITY (From Bythewood and Jarman's Precedents in Conveyancing, vol. vii, p. 824) I bequeath to C. D. an annuity of during his life clear of legacy duty and all other incidental expenses and FORMS 269 deductions. And I direct my executors, as soon as convenient after my death, to purchase in their names such an annuity, either from government or from one of the public offices or companies concerned in granting annuities, or upon freehold, copyhold, or leasehold, or other real or chattel real security, from some private person or persons, as my executors shall deem expedient ; such annuity to commence from my death and to be paid to the said C. D. by equal quarterly payments, the first of such payments to be made at the expiration of three calendar months from the time of my death. And I direct that until such purchase shall be made, the said annuity shall be paid out of my general personal estate at the times and in manner aforesaid. AN APPOINTMENT OF GUARDIANS (From Bythewood and Jarman's Precedents in Conveyancing, vol. vii, p. 752) I appoint jointly with my wife, 0. D., the said [naming the executors], and the survivors and survivor of them, to be guardians and guardian of my children during their respective minorities ; but such guardianship shall cease as to each of the said guardians who shall go to reside abroad, refuse or become incapable to act in the said guardianship, or become bankrupt or insolvent. I appoint C. D. of during his life, and after his death such person or persons as he shall by will appoint or nominate, to be guardian or guardians of my children, during their respective minorities. APPENDIX E DIFFERENCES BETWEEN THE ROMAN AND ENGLISH WILL (1) The primary object of the Roman will was the appointment of a keres. Such an appointment was essential to the validity of the will. The primary object of the English will is the disposition of property. The will is valid even though there be no one appointed executor. (2) A Roman testator could not, unless a soldier, die partly testate and partly intestate. The will must stand or fall as a whole. This is not the case in England. (3) There is no one in England to whom the universitas juris of the testator descends as it did to the Roman fares, the English heir-at-law taking only on an intestacy. (4) The disabilities of testators differed in the two systems. The disability of a slave or a heretic was peculiar to Roman law, of a youth between fourteen and twenty-one to English law. (5) The whole property may be disposed of in England ; at Rome, except by the wills of soldiers, children could not be disinherited unless for specified acts of misconduct. During the greater part of the period of Roman law the heir must also have had a fourth part of the inheritance (the Qiutrta Falcidia) in order to induce him to accept the office. It follows from this that there is in England nothing corre- sponding to the ({iitrela tnofficiori tettamenti^ the Roman remedy for a child entitled to succeed and passed over by the testator. (6) In English law all wills must be written and must conform to certain statutory requirements ; the Romans recognised a nuncupative will and from the time of Augustus ROMAN AND ENGLISH WILL 271 downwards an informal will called codicilli. The English codicil is not an informal will, but an addition to a will, read as a part of it, and needing the same formalities of execution. (7) There is a striking difference, unknown to Roman law, between wills of real and personal estate. Probate is necessary for the latter but not for the former. The Roman legatum applied to gifts of both moveables and immoveables ; in England "legacy" has long been confined to the former. (8) The Roman will spoke from the time of making, the English speaks from the time of death. The difference becomes very important in the case of alteration in the position of the testator between the making of the will and his death. As a rule the Roman will could not, the English can, pass after acquired property. (9) In Roman law in the time of Justinian seven witnesses were required, two are sufficient in England. The Roman witnesses must have been idonei, or free from legal disability, and slaves, women, heretics, and others were not good witnesses. In England there appears to be no legal dis- ability. (10) The English distinction between the court of probate and the court of construction was unknown to Roman law. The same court decided whether a will was duly executed and what was the meaning of the words used in the will. (11) The Roman will was a public instrument, the English is a private one. This difference rests on historical grounds. (12) A Roman paterfamilias could make a 1 will on behalf of his infant son ; this was never the case in England. (13) A contract to make a will in favour of a certain person, good in England, was void in Roman law. Several examples of disputed Roman wills and the de- cisions thereon are given in Valerius Maximus, bk. vi, c. 7 (De Testamentis fiescissis), and c. 8 (De Ratis Testamentis et Insperatis). ADDENDUM THE English law of intestate succession has been modified by the following Act, which received the royal assent too late for any reference to it to be incorporated in the body of the work. INTESTATES' ESTATES ACT, 1890 (53 and 54 Viet., c. 29) intes- 1. The real and personal estates of every man who shall tau- not die intestate after the first day of September one thousand exceed- eight hundred and ninety leaving a widow but no issue shall, "'.li.i.nig in all cases where the net value of such real and personal where no elates shall not exceed five hundred pounds, belong to his issue. widow absolutely and exclusively. intes- 2. Where the net value of the real and personal estates tote ex- 8 in the preceding section mentioned shall exceed the sum of five hundred pounds the widow of such intestate shall be to entitled to five hundred pounds part thereof absolutely and exclusively, and shall have a charge upon the whole of such for MX* real and personal estates for such five hundred pounds, with interest thereon from the date of the death of the intestate at four per cent per annum until payment. " ow 3. As between the real and personal representatives of u/bonie such intestate, such charge shall be borne and paid in pro- tween portion to the values of the real and personal estates realty respectively. anil per- sonalty. A Consistory Court, 19 Construction of wills, 84-108 principles of law, 85 authority of casds, ib. statutory rules, 86 non-statutory rules, 89 minor rules, 94, 101 different from that of deeds, 96 court of, 85, 157 cannot rectify mistake, 106 governed by law of domicil, 1 85 in Scotland", 199, 200 Contingent remainder, 41, 49 Contract to make will, 36 disposing of succession, 36, 37 not to revoke will, 68 by acceptance of trust, 74 one executor cannot bind another by, 144 right to' sue on contract made by deceased, 152 with deceased, 142 express by executor, 154 Conversion, 144, 161 Copyholds, will of, 15, 43 descent of, 24, 112 seizure quousque of, 112, 113 Corporation, gift to, 15, 45, 48 as executor, 122 as administrator, 134 Costs, when payable by executor or administrator, 159, 160 County Court, jurisdiction in pro- bate, 21, 62, 120, 129, 180, 133 in administration, 136, 137 under Employers' Liability Act, 143 in suit for legacy, 151 equitable, 164, 165 INDEX 277 County Court, appeal from, 129, 130, 165 Cremation, 148 Crown is ultimus heres, 111, 116, 134, 201 may terminate abeyance, 118 debts, 149 Curtesy, 24, 25, 112 Cy-pres, 103, 104, 200 DEATH, action for, under Lord Campbell's Act, 143 Employers' Liability Act, ib. certificate of, 120, 135 presumption of, 120 duties, 168 Debts, liability of devisee, 13 heir, 13 copyholder, 15 executor, 21, 148, 149, 195, 196 administrator, 148, 149 legatee, 21 ordinary, 26 in what order payable, 149 privileged, 196 Delegates, Court of, 20 Depositors in savings banks, etc., 29, 81 Descent, rules of, 109-112 Devastavit, 154 Devise, meaning of, 58 immediate or executory, 40, 41 conditional, 97 Devisee, liability for debts, 13, 14 title accrues at death of testator, 121 Dilapidations, 149 Disposition and settlement, 11, 192, 193, 197, 202 Distribution, Statutes of, 26, 95, 115, 136, 137, 150 Domicil defined, 182 governs testamentary capacity, 183 construction of will, 185 Acts of 1861, 183, 184 Donatio mortis causA, 61, 171 Dower, 24, 25, 59, 111, 112 Drunkenness, effect on validity of will, 83 Duties, probate, 131, 169, 190, 198, 207 account, 131, 169 legacy, 171-175 succession, 175-179 estate, 179, 180 minor, 180, 181 in Scotland, 197, 198 in Ireland, 207 ECCLESIASTICAL COURTS, 18 Eik, 197 Emblements, 94, 141 Escheat, 15, 111, 112, 114, 117 Estate, " personal " and real, 10, 141 tail, 12 how barred, 49 quasi entail, 89 succession duty on, 177 duty, 179, 180 Evidence to explain intention, 92, 161 Execution, requisites of, 33 Executor, origin of term, 5 liability for debts, 21, 149, 153 for costs, 159, 160 as shareholder, 155 originally essential to will of personalty, 58 assent to legacy, 62, 117 his rights over real estate, 121 must prove will or renounce, 121, 123, 124 has inchoate right on testator's death, 121 number unlimited, 121 no one legally excluded from the office, 121, 122 appointment of, express or im- plied, 123, 124 alternative, 122 limited, 122, 123 de son tort, 123, 146, 154 of executor, 124 need not give security, 125 oath of, 130, 131 retainer by, 133, 146 rights of, 140-148 duties of, 148-156 278 INDEX Executor, rights exercisable without action, 143 receipt by, 144 when trustee, 144, 155 investment by, 152 has year for distributing assets, 150 in Scotland, 195 Executory devise, 41, 98 bequest, 61, 98 Exoneration, 145, 160, 161 FAMJLY, primitive, 2 Fees in non-contentious business, App. B Fixtures, 22, 141 Folcland, 9 Forgery of will, 166 of signature, 167 Forms of wills, App. D of pleadings, 126 France, law of, 6, 29, 36 Frauds, Statute of, 13, 14, 18, 36, 43, 77, 155 Freedom of disposition not univer- sal, 6 Friendly Society, nomination by depositor, 29, 139 GAVBLKIND, Engl^b, 10, 24, 25, 113, 114 Irish, 204 Glanvill cited, 13, 18, 23, 24 Guardianship, devise of, 30, 75 form of, App. D HALF-BLOOD, 24, 111, 116, 202 Heir, liability for debts, 13, 14 cannot renounce, 112 cannot be disinherited but by express words, 102 customary, 113 apparent and presumptive, 114, 195 estate vests on death of testator, 121 resulting trust in favour of, 161 in Scotch law, 195, 199, 200 portioner, 201 service as, 201, 202 Heirloom, 37, 42 141 Hereditas, I ii-,-- i, >; Heriot, 9, 15, 24 Hindu law, 3, 7 Holograph will, 18, 194 House-Spirit, worship of, 2 Hustings Court, 19 ILLEGITIMATE CHILD, gift to, 100 cannot succeed as heir, 185 can succeed as next of kin, 185, 186 revenue duty payable by, 191 Immoveables and moveables, 10, 182, 185, 200 Indefiuiteuess of gift, 57 Inland Revenue, probate through, 74, 120, 130, 131, 136, 137, 170 affidavit, 135, 136, 149 duties, 147, 149, 168-181 Insanity, 29, 81 Intention, as a guide to construc- tion, 90-92, 94 explanation of, 92 to take effect as far as possible, 102 inconsistent, 104 to benefit executor, 155 to exonerate real estate, 161 International Law, see Conflict of Laws Intestacy, presumption against, 102 total or partial, 109 share on, liable to legacy duty, 172 where sued for, 117 Inventory, 130, 131, 135, 149, 196 Investment by executor, 152, 195 Ireland, law of, 204-207 JUDICATURE Acre, see Statutes Jus accracendi, 199 marili, ib. rdictce, 194 KINO, will of, 70 as executor, 122 LANCASTER, Chancery of, 163 INDEX 279 Lapse, 60 Larceny of will, 166 Leaseholds liable to succession duty, 171 are personal property, 10 are within Locke King's Act, 161 Legacy, meaning of, 58, 172 kinds of, 59 executory,. 61, 98 lapse of, 60 wrima facie payable out of per- sonalty, 96 whether executor renouncing can take, 124 paid after debts, 149 interest on, 150, 188 to infant, 150 where sued for, 62, 117, 151 limitation in action for, 151 duty, 171-175 Legitim, 186, 193, 194 Legitimatio per subsequens matri- monium, 185, 186, 200 Limitations, Statute of, 121, 146, 148 in claim against executor, 157 administrator, 152 for legacy, 151 for legacy or succession duty, 175, 179, 190, 191 Loan Society, 139 Locke King's Act, 145, 150, 160, 161 Lunatic, will of, 81 as executor, 122 as administrator, 135 intestate, 138 MAINE, Sir H., cited, 2, 4, 7 Malum prohibitum and malum in se, 97, 98 Marriage, restraint of, 57, 60, 98- 101 revokes will, 67, 69 articles, 97 Married woman, will of, 22, 25, 29, 71-73 as executrix or administatrix, 73 cannot be surety to administra- tion bond, 136 Marshalling assets, 162 Masses, bequest for, 18, 53, 205 Misdescription, 102 Mohammedan law, 7, 23 Mortgaged estate, exoneration of, 145, 150, 160, 161 Mortification, 198 form of clause of, App. D Mortmain meaning of term, 15 licence in, 16 provisions of Act of 1888, 45, 46 exemptions from, 47 how far extends to land abroad, 186 does not apply to Scotland, 198 to Ireland, 205 Mosaic law, 3, 7, 23 Moveables and immoveables, 10, 182, 185, 200 NATURALISATION, 76, 184 Nomination equivalent to will, 29 139 OCCUPANCY, general, 43 special, ib., Ill Ordinary, Court of, 19 power to grant probate, ib. administration, 26 Originating summons, 144, 159, 164 Pars rationdbilis, 17 Partnership estate, 141 debt, 135 Peerage, succession to, 117-119 Perpetuity, 48-52, 61 in colonies, 52, 187 in Scotland, 198 in Ireland, 206 Personal and real estate, 10, 141 Personalty, will of, history, 16 intestacy as to, history, 25 will of, 58-63 intestate succession to, 114-117 impure, 45 Power, see Appointment Prcecipuum, 201 Precatory trust, 103 Prerogative Court, 19, 20, 131 280 INDEX Presumption of alteration in cir- cumstances, 67 to explain intention, 92 against intestacy, 102 in Court of Probate, 107 of death, 120 of Life Limitation Act, 203 Primogeniture, 2, 3, 23, 24, 113, 200 Priority, 149, 163, 188 Privy Council, appeal to, 20 Probate Acts, see Statutes in Ecclesiastical Courts, 21 in old county courts, i/>. in Court of Probate, ib. in Probate Division, ib. t 120-133 not granted by Chancery Divi sion, 120 is evidence of will, 39, 131, 132 in common form, 125, 130 in solemn form, 38, 125, 148 of will of lands, 38 double, 125 conclusive till revoked, 132 exemption from, 139 when to be obtained, 148 duty, 131, 168-170, 189, 198, 207 sealing, 189 Probate Division cannot entertain action for legacy, 62, 151 for distributive share under intestacy, 117 cannot grant probate of King's will, 71 limited jurisdiction to construe, 84, 107 authority of, necessary for execu- tor or administrator, 120 trial in, 128 appeal from, ih. discretion in grant of adminis- tration, 138 in Ireland, 206 Property of all kinds may be left by will, 35, 68 Public policy, 44, 99, 100, 105 Quia Emptoret, Statute of, 10 Queen, will of, 71 RABBINICAL LAW, 7 Radical right, 200 Rationabilis pars, 17 Real estate, history of will of, 10 history of descent on intestacy, 23 will of, 39-58 descent of, on intestacy, 109-114 and personal estate distin- guished, 10, 141 power of executor over, 144, 145 when charged with debts and legacies, 96, 145, 169 administration of, in equity, 158 Receiver, appointment of, 138, 145 Reconversion, 162 Reduction ex capite Itcti, 193 Register of Sasines, //>. of Entails, 199 Registry of will in England, 40 in Ireland, 206 probate, 123, 125, 130-132, 136 Relief, feudal, 24, 25 none against defective execution of will, 106 Remainder, contingent, 48, 49 Remoteness, 50 Renunciation by executor, li'l, 123, 124 not by heir, 112 Residue liable to legacy duty, 171 Restraint of marriage, 57, 60, 98- 101 Retainer, 133, 146 Revival of revoked will, 67, 69 Revocation before Wills Act, 11, 38, 69 since Wills Act, 35, 65-69 dependent relative, 66 of probate, 132, 133, 138 of administration, 138, 139 Roman Catholic religion, gift to, 53 charity, 54, 104 Roman and English will compared, App. i: law, 1, 3-8, 10, 12, 16, 23, 31, 36, 43, 59, 61, 63, 73, 94, 98, 101, 112, 115, 116, 194, 196, 201 INDEX 281 Rules, Lord Coke's, 11, 37 of descent, 109-112 of Supreme Court, 126-129, 135, 136 Probate, 22, 83, 126 County Court, 129, 156, 164 for personal applications, App. C SACRA, 2, 3 Sailor, will of, 29, 77-81, 139, 169 Savings bank, nomination by de- positor in, 29, 81, 139 Scotland, law of, 6, 11, 192-203 Secret trust, 64 Security by administrator, 125 by receiver, 138 justifying, 133. none by executor, 125 Settlement includes will in some statutes, 44, 56 Sheriff court, 197, 202, 203 clerk, 197 Signature of testator, 33 of witness, 34 Singular succession, 1, 197, 200 Socage tenure, 12, 24, 113 Soldier, will of, 29, 77, 78, 80, 139, 169 Specialty binding heir, 14 Stamp not needed for will, 28 on probate, 28, 189 on letters of administration, ib. on copies, valuations, and grants of arms, 180, 181 duties denoted by, 169, 180 Statutes Constitution of Clarendon, 16 Magna Carta of John, 17, 25 20 Hen. Ill, c. 2, 17 13 Edw. I, c. 1 (De Donis), 101 c. 19, 26 c. 23, 21 st. 3, 14 18 Edw. I, c. 1 (Quia JEmptores), 10 4 Edw. Ill, c. 7, 21, 142 31 Edw. Ill, c. 11, 20, 26 21 Hen. VIII, c. 5, 20, 26, 139 27 Hen. VIII, c. 10 (Statute of Uses), 12, 14 VOL. I Statutes 28 Hen. VIII, c. 7, 70 c. 11, 17 32 Hen. VIII, c. 1 (Wills), 12 c. 37, 145 34 and 35 Hen. VIII, c. 5 (Wills), 12 35 Hen. VIII, c. 1, 70 1 Edw. VI, c. 14, 53 43 Eliz., c. 4, 205 12 Car. II, c. 24, 12, 30, 75 22 and 23 Car. II, c. 10 (Distri- bution), 26, 95, 115, 136, 137, 150 29 Car. II, c. 3 (Frauds), 13, 14, 18, 36, 43, 77, 155 I Jac. II, c. 7 (Distribution), 26, 95, 115, 136, 137 4 and 5 Anne, c. 16, 21 9 Geo. II, c. 36, 16, 205 25 Geo. II, c. 6, 13 36 Geo. Ill, c. 52, 150, 171, 174 38 Geo. Ill, c. 87, 122, 138 39 Geo. Ill, c. 73, 174 39 and 40 Geo. Ill, c. 88, 71, 199 c. 98 (Thellusson Act), 51 43 Geo. Ill, c. 108, 47, 72 53 Geo. Ill, c. 49, 44 55 Geo. Ill, c. 184, 148, 170, 171, 173, 174 c. 192, 15 10 Geo. IV, c. 7, 54 II Geo. IV and 1 Will. IV, c. 20, 78 c. 40, 18, 155 c. 41, 77 3 and 4 Will. IV, c. 27, 121 c. 42, 142, 153 c. 74, 12 c. 104, 162 c. 105, 25, 59 c. 106 (Inheritance), 24, 110, 115 7 Will. IV and 1 Viet., c. 26, (Wills), 13, 15, 17, 18, 28, 30, 33, 34, 35, 38, 41, 42, 43, 44, 58, 60, 63, 65, 67, 68, 69, 72, 75, 77 78, 79, 80, 86, 87, 88, 89, 90, 205, App. A 19 INDEX Statutes 3 and 4 Viet., c. 60, 46 4 and 5 Viet., c. 35, 15 7 and 8 Viet, c. 37, 47 8 and 9 Viet, c. 76, 172 9 and 10 Viet, c. 93, 143 10 and 11 Viet., c. 93, 143 14 and 15 Viet., c. 25, 14 15 and 16 Viet., c. 24 (Will.-), 33, App. A 16 and 17 Viet, c. 51 (Succes- sion Duty), 155, 171, 173, 175-179, 190, 191, 197 c. 70, 82 17 and 18 Viet, c. 104, 79 c. 112, 47 c. 113, 145, 160, 161 18 and 19 Viet, c. 124, 48 19 and 20 Viet, c. 94, 27 20 and 21 Viet, c. 77 (Probate), 13, 21, 39, 124, 126, 129, 133, 139, 145, 167, App. A c. 79, 189 c. 85, 74 21 and 22 Viet, c. 56 (Probate), 124, 126, 129, 138, 167, 189, App. A 22 and 23 Viet, c. 35, 59, 110, 146, 147, 150, 160, 166 23 Viet, c. 5, 142 c. 15, 142 23 and 24 Viet, c. 28, 152, 166 c. 134, 54 24 and 25 Viet, c. 96, 166 c. 98, 166 c. 114, 183 c. 121, 184 25 and 26 Viet, c. 89, 47 26 and 27 Viet, c. 57, 77 c. 87, 174 28 and 29 Viet, c. 72, 78 c. 99, 164 c. 104, 148, 173 c. Ill, 80 30 and 31 Viet., c. 69, 160 32 and 33 Viet, c. 46, 149, 162 33 Viet c. 14 (Naturalisation), 28, 76 83 and 34 Viet, c. 35 (Appor- tionment), 60, 141, 153 c. 97 (Stamps), 28, 181 Statutes 34 and 35 Viet, c. 43, 149 35 and 36 Viet, c. 44, 150 36 and 37 Viet, c. 52, 136, 169, 170 c. 66, and subsequent acts, (Judicature Acts, 1873 to 1890), 21, 128, 130, 151, 158, 163, App. A 37 and 38 Vict.c. 57, 151 c. 78, 40, 145, 147 38 and 39 Viet, c. 27, 136-139, 170 c. 87, 145 39 and 40 Viet, c. 18, 116, 135 c. 59, 118 c. 87, 145 40 and 41 Viet, c. 18, 44, 56 c. 33, 41, 50 c. 34, 160 43 Viet, c. 14, 172, 175, 179 43 and 44 Viet, c. 42, 143 44 Viet, c. 12, 149, 169, 171, 173, 174, 179, API-. A 44 and 45 Viet, c. 41 (Convey- ancing), 56, 97, 110, 111, 112,140,144-146,153,205 c. 57, 78 e. 58, 77 45 and 46 Viet, c. 38 (Settled Laud), 44, 55, 56, 205 c. 39, 50 c. 75 (Married Wonu-n perty), 22, 25. 56, 71-74, 115 46 and 47 Viet, c. 52 (Bank- . ruptcy), 163 49 and 50 Viet, c. 27, 76 c.38, 2 51 Viet, c. 8, 175, 176, 178 51 and 52 Viet, c. 41, 169 c. 42 (Mortmain), 16, 45-48 205 & 48 (County Courts), 62, 164 c. 59, 147, 151, 152, 155 c. 73, 145 52 Viet, c, 7, 169, 175 177- 179, 181 Hand 63 Viet, c, 32 (TruM Investment), 152, 155 A\>\>. INDEX Statutes 52 and 53 Viet., c. 42, 80 53 Viet., c. 5, 138, 155 53 and 54 Viet., c. 29, Adden- dum, 272 Statutes relating to Scotland Statuta Gilde, 192 1587, c. 29, 198 1617, c. 14, 194 1681, c. 5, 193 1695, c. 24, 196 4 Geo. IV, c. 97, 197 c. 98, 196 11 and 12 Viet., c. 36, 199 18 and 19 Viet., c. 23, 194, 203 30 and 31 Viet., c. 97, 195 31 and 32 Viet., c. 101 (Titles to Land), 193, 194, 198- 203 34 and 35 Viet., c. 81, 193 37 and 38 Viet., c. 94 (Convey- ancing), 194, 196, 197, 199, 200, 201, 202 40 and 41 Viet., c. 29, 199 44 and 45 Viet., c. 21, 194 c. 47, 203 47 and 48 Viet., c. 63, 195 50 and 51 Viet., c. 69, 198 52 and 53 Viet., c. 50, 198, 207 Statutes relating to Ireland Passed by the Parliament of Ireland 10 Hen. VII f c. 22 (Poyning's Law), 205 28 Hen. VIII, c. 18, 205 7 Will. Ill, c. 12, 205 2 Anne, c. 6, 205 6 Anne, c. 2, 206 Passed by the Parliament of the United Kingdom 2 and 3 Will. IV, c. 87, 206 14 and 15 Viet., c. 57, 207 20 and 21 Viet., c. 79 (Pro- bate), 207 22 and 23 Viet., c. 31, 207 40 and 41 Viet., c. 56, 207 c. 57 (Judicature), 207 45 and 46 Viet., c. 29, 207 51 and 52 Viet., c. 60, 207 Succession, its place in a legal system, 1 Succession in Roman law, 1, 3 in Athenian and other systems, 3 universal and singular, 1, 197, 200 origin of, 2 agnatic, 3 intestate earlier than testate, 4 intestate, history of, 23 modern law of, 109 to real estate, 24, 109 to personal estate, 114 to titles of honour, 117 duty, 175-179, 190, 191 Scotch law of, 192-203 Irish law of, 204-207 Superstitious uses, 53, 60, 64, 205 TANISTRY, 3, 204 Terce, 193 Testament defined, 5, 192 Testamentary character of instru- ment, 29 Thellusson Act, 51, 61, 199, 205 Titles of Honour, 117-119 201 Tombs, trust for repairing, 51 Torts to person or property of de- ceased, 21, 142 by deceased, 153 Trial, 128, 129 Trust, secret, 64 acceptance of, is contract, 74 for repair of tombs, 51 precatory, 103 resulting, 161 cannot be attached to land abroad, 187 disposition and settlement, 192, 197, 202 form of, App. D Trustee, married woman as, 7 estate taken by, 89 receipt by, 144 executor when, 144, 178 in Scotland, 195 investment by, 152, 195, App. D UNATTESTED WRITING, incorpora- tion of, 31, 267 Undue influence, 31 284 INDEX United States la*, 6,.23, 25, 104, 106, 134, 183 Universal succession, 1, 197, 200 Uses, conveyance to, 11 Statute of, 12, 14 superstitious, 53, 60, 64 VALUATION, production of, 180 stamp on, 181 WAGER OF LAW, 21 Widow, right to dower, see Dower to one - third of personalty, 115, 116 under Act of 1890, Adden- dum, 272 to terce, 193 intestate, 136 as administratrix, 134 Will, Roman, 4 basis of English, 7 and English compared, App. E defined, 5, 30 not universal, 6 in canon law, 8 could not at one time dispose of whole real estate, 12 of whole personalty, 17 nuncupative, 17, 194 holograph, 18, 194 of living testator may be de- posited, 28 requisites for validity, 29-35 in more than one document, 30, 31 duplicate, mutual, and joint, /''. execution of, 33 attestation of, ,'/-. form of, App. D contract to make, 36 defective in form, 37 needs no seal, 11, 38 or stamp, 28 of lands itself evidence, 39 need not be proved, 38 Will of lands must be good by lex loci rei sitce, 184 registry of, in England, 40 in Scotland, 193 in Ireland, 206 revocation of, 65-69 revival of, 67, 69 of special nature king, 70 married woman, L'"_', 7 1 power of appointment, 75 guardianship, Hi. alien, 76 soldier and sailor, 77 depositor in savings bank, etc., 81 lunatic, i)>. other cases, 82 construction of, see Construction cannot pass title of honour, 118 evidence of lost, 132 criminal law relating to, 166, 167, 198 international law relating to, 182-191 in Scotland, 192-203 in Ireland, 204-207 Wills Act, see Statutes its .history, 28 interpretation clause, 30, 58, 63 sections affecting real estate, 41, 44 construction, 44, 86-90 general law, 35 Witness, no number fixed before Conquest, 9 credibility of, 13 signature of, 33-35 competence of, 34 gift to, ib. affidavit by, 108, 131 evidence at trial, 125, 126 Words construed in ordinary sense, 91 technical in technical sense, 106 rrinttdby R. & R. CLARK, F.dinb*rfk LAW LIBRARY UNIVERSITY OF CALIFORNIA LOS ANGELES A 000 695 41 1 9