Exchequer, that the will, having been thus republished by the codicil, in July, 1841, must, according to the provision of sect. 34 of the Wills Act (1 Vict. c. 26), be deemed to have been made at that date, and consequently was governed by the 26th section of that statute, which enacts that a general devise of lands shall include leasehold as well as freehold lands; and therefore, that the leaseholds passed under this will. Previously to the new Wills Act, leaseholds would not have passed under a general devise of real estate, where the testator was possessed both of freehold and leasehold property, unless there were sowie expressions in the will denoting an intent to include both kinds of property under the same denomination: (Rose v. Bartlett, Cro. Car. 293; Davis v. Gibbs, 3 P. Wms. 26; Knotsford v. Gardiner, 2 Atk. 450.) WILLS. Introductory TESTAMENTARY CAPACITY. 34 Hen. 8, c. 1. THE Statute of Wills (32 Hen. 8, c. 1) empowered all persons to devise their lands without any restriction whatever; but the subsequent statute 34 & 35 Hen. 8, (34 & 35 Hen. 8, c. 5) expressly excepted devises by corporations, and also expressly provided that all wills by any woman covert, or person within the age of twenty-one years, idiot, or person of non-sane memory, shall not be taken to be good or effectual in law: (stat. 14.) c. 5. Corporations. Joint tenants. Personal estate. Goods holden by way of partnership in trade. Joint tenants of tenements in London. No survivorship in equity where two advance With respect to the disability of corporations to devise, it extends as well to corporations sole as aggregate; but by special enactments the king or queen of this realm have been empowered to devise any lands purchased by them out of any moneys from the privy purse, or any other moneys not appropriated to the public service, or any lands coming to them by gift of descent from any persons not being kings or queens of the realm: (stat. 39 & 40 Geo. 3, c. 28, s. 4.) Joint tenants, although not mentioned in the statute of 34 & 35 Hen. 8, amongst the persons thereby rendered incapable of devising, are nevertheless unable to make any testamentary disposition of property so holden that shall be in anywise available, unless under some particular circumstances which will be noticed hereafter. The reason that a joint tenant cannot devise proceeds from the peculiar nature of the tenure, which, upon the death of one of the joint tenants, survives to his companions, instead of being transmissible to his heirs, so that the right of survivorship, taking precedence of the devise, defeats all claims under the deceased joint tenant's will, by vesting the estate in the surviving tenants, and thus leaving nothing upon which the will can operate: (Co. Litt. 185, a; Swift v. Roberts, 3 Bur. 1438.) Nor, until the new Wills Act (1 Vict. c. 26), would a devise of lands holden in joint-tenancy, of which the testator eventually became solely seised by survivorship, or severally seised by partition, have passed under a description in a previous will sufficient to comprehend it, as the latter acquisition would have been regarded as a fresh purchase incapable of passing by a will made previously; but now, by the act above mentioned, all future interests in lands may pass if the terms of the will are sufficiently comprehensive to include them (sect. 3.) The like rule extends equally to joint tenants of personal, as of real estate, with the exception of goods which parties hold jointly for the purposes of trade, the latter of which will not go over to the surviving co-partners, but be transmissible to the representatives of the deceased partner. A second exception to the rule of joint tenants being incapacitated from devising the joint property is, in the case of joint tenants of tenements holden in London, who may by the custom of that city, devise their interest in such property without any other severance. A third exception is, where two or more persons advance money in separate portions upon mortgage, but the conveyance is made to them jointly, in which case, although the legal estate in the mortgaged WILLS. premises will go over to the survivors, the beneficial interest in the Testamentary moneys so respectively advanced will be transmissible to the represen- Capacity. tatives of the dying mortgagees: (Rigden v. Valier, 3 Atk. 371.) mortgage. money are not The fourth exception is, where two or more jointly purchase lands, money and the proportions of the purchase moneys are not equal; for under separately upon such circumstances, notwithstanding the legal estate will go over to the survivors, they will only hold as trustees for the representatives of their No survivorship deceased co-tenants. The same rule also holds where two or more in equity where persons make a purchase, and the property is conveyed to them jointly, the portions of the purchase after which some or one of them lay out a considerable sum of money in repairs, or in improving the estate, which will confer a lien upon the equal. land for the benefit of the representatives of the parties or party advancing the money. And in all cases of a joint undertaking, or partnership in trade, or in any other dealings, joint tenants are in equity considered in the same light as tenants in common, and the survivors as trustees for those who are dead: (see Partridge v. Partridge, 1 Atk. 467; 2 ib. 55; Lake v. Gibson, 1 Eq. Ca. Abr. 291; S. C., 1 P. Wms. 138; sub nom. Lake v. Cradock; and see Hamel v. Hunt, Pre. Cha. 163.) for a joint And although a joint tenant cannot sever the joint tenancy by will Proper course there is nothing to prevent him from so doing by deed. Any joint tenant to adopt tenant, therefore, who is desirous of devising his estate, should in the who is desirous first place sever the tenancy, and then, having converted his estate of devising his into a tenancy in common, he has a devisable estate within the express property. words of the statute 34 & 35 Hen. 8, c. 5. Tenants in tail cannot devise their entailed states, because their power Tenants in tail. of alienation ceases with their death; but by barring the entail and acquiring a fee simple, a testamentary power may be acquired, and this may now be effected even if done subsequently to date of will, which is now made to speak from the testator's death, without any reference to the time at which it is made: (1 Vict. c. 26.) woman over A married woman was both before, and also by the statute of 34 & 35 As to the Hen. 8, c. 5, incapacitated from disposing of her real estate; but she is power of empowered to evade this law by devising through the medium of a use of a married disposition or trust. This is done by conveying her property to trustees previously to her marriage, to such uses or upon such trusts as she shall, by deed her freehold or will, and notwithstanding her coverture, appoint; in which case she property. may exercise her power either by deed, or by will, in precisely the same manner as if she were sole: (Abbott v. Burton, 1 Willes, 180; 11 Mod. 181; Travel v. Travel, 3 Atk. 711; Tomlinson v. Deighton, 1 P. Wms. 149; Peacocke v. Moncke, 1 Ves. sen. 90; Fettyplace v. Gorges, 3 Bro. C. C. 8; Rich v. Cockell, 9 Ves. 319; Wagstaff v. Smith, 9 Ves. 520; Burnaby v. Griffin, 2 Ves. 7; Maundrell v. Maundrell, 7 Ves. 567.) But a married woman cannot confer such a power upon herself without entering into a deed in which her husband must concur, and which she must also acknowledge in pursuance of the provisions of the Fine and Recovery Substitution Act: (3 & 4 Will. 4, c. 74.) But although a married woman cannot confer this power upon herself, without entering into such an assurance as above mentioned, such power may be conferred upon her by a third party either by deed, or by will. Neither are there any precise words necessary to create a power of this kind, provided the intention be clearly expressed; therefore a gift simply to the separate use of a married woman has been considered tantamount WILLS. to a gift to such uses as she shall by deed or will appoint (see Abbott v. Burton, and the other cases above referred to); neither is it material Testamentary in what part of the instrument such power be inserted. And this may be made to comprehend either real or personal estate : (Buck v. Miller, 2 Ves. 583; Hulme v. Tenant, 1 Bro. C. C. 18.) Capacity. When a married treated as a A married woman whose husband has abjured the realm, or been woman may be banished by act of Parliament (Countess of Portland v. Prodger, 2 Vern. 104), or transported beyond the seas (Ex parte Franks, 1 Moore. & Sc. 11), is restored to the rights and privileges of discoverture, and may dispose of her property in the same manner as a feme sole. feme sole. As to wills of with their husband's licence and authority. A married woman may also make a will of personal estate by her married women husband's licence or authority; but as a husband may revoke this licence, the proper course where such a power is intended to be reserved, is, for the husband to enter into marriage articles, or a bond in a sufficient penalty to permit his wife to make a will, and to dispose of money or legacies to a certain amount, and in that case, if after the marriage, or during it, she makes any writing purporting to be her will, and disposes of legacies to the value agreed upon, though in strictness of law she cannot make a will without her husband's positive assent to her specific will, but only something like a will, yet this will shall be good as an appointment, and the husband is bound by his agreement, bond, or covenant, to allow the execution of it: (Marriott v. Kinsman, Cro. Car. 219.) According to the former practice in the Ecclesiastical Courts, an appointment of this nature was not admitted to probate without the husband's concurrence, but it was nevertheless carried into execution in equity; and the husband was also liable to be sued upon his bond or covenant at law, in case of refusing his consent: (4 Burn E. L. 53; Daniel v. Goodwyn, Sug. Pow. App. 11.) But it is now settled that such an appointment cannot be made available either at law or in equity without probate: (Ross v. Ewer, 1 Atk. 160; Stone v. Forsyth, Doug. 681; Jenkins v. Whitehouse, 1 Burr. 54; Rich v. Cockell, 9 Ves. 369.) And the appointment is now allowed to be proved without the husband's consent, the probate being limited to the property comprised in the power (see Tappenden v. Walsh, 1 Phil. 352 Moss v. Brander, ib. 254.) In these cases the Ecclesiastical Courts will not look nicely into the question whether the appointment is authorized by the power, as the grant of probate does not determine the right, but leaves it open to the decision of the temporal courts: (1 Phill. 353; and see Mr. Jacob's note to 2 Rop. Husband and Wife, 188.) Effect of husband's death upon wife's will. As to husband's In case of the husband's death the wife's will becomes void so far as it derives its effect from his consent, but it will still remain good so far as she was empowered to make it without his consent (Scammele v. Wil kinson, 2 East, 552); yet will still be valid as an execution of a power, or as a disposition of property belonging to her during her coverture as separate estate (see Dingwell v. Asken, 1 Cox, 427; Doe v. Weller, 7 T. R. 478; Tappenden v. Walsh, 1 Phill. 352.) As all the goods, and all chattels personal of a wife become the absolute property of her husband, he may dispose of them by will, as well as by any act to take effect in his life time: (Co. Litt. 300.) But with respect to her chattels real, the law only gives him a qualified title. He may by alienation defeat her title to them, and if he outlives her, he will become absolutely entitled to them without even taking out administration to her effects; but if she be the survivor, then the chattels real will remain in statu quo, and she, and not her husband's next-of-kin, will be en titled to them. Hence it follows that he cannot dispose of them by his will against her surviving him; for as the will does not take effect until after his death, the law takes precedence, and vests such chattels real in the wife immediately upon his decease; but if he happens to be the survivor, then his testamentary disposition will be good: (Co. Litt. 351; 1 Roll. Abr. 345, pl. 40; Dy. 251; 2 Eq. Ca. Abr. 138, pl. 4; Doe dem. Roberts v. Polgreen, 1 H. Black. 535; 1 Rop. Husband and Wife, 173.) WILLS. Testamentary Capacity. husband's will can defeat A husband could not formerly have prejudiced his wife's right of Whether dower by devising away the lands out of which this right arose; but now by the late Dower Act (3 & 4 Will. 4, c. 105), he is not only wife's right of empowered to do so by disposing of the property by deed, will, or dower. contract, but also to exclude her from all title to dower by a simple declaration to that effect, and without making any disposition whatever : (sects. 4, 7.) But this law only holds with respect to husbands married subsequently to 1834, for with respect to those married previously the disability still exists. : Persons of unsound mind are incapable of making wills, amongst which Persons of are included idiots, lunatics, and persons grown childish by reason of old unsound mind. age or distemper. Persons born deaf, dumb, and blind are also viewed in the same light as idiots, as wanting those senses which furnish the human mind with ideas (Swin. 97; Shep. Touch. 403; Co. Litt. 42, b.) But it is otherwise where a person is only afflicted with some of these defects; for a person who is both deaf and dumb may have a perfect intellect and disposing capacity; neither does blindness in any way preclude the afflicted party from making a will (Longchamp v. Finch, 2 New Rep. 415); neither in such case is it absolutely necessary that the will should be actually read over in the blind man's presence; but it is almost needless to say that this is an act which, under such circumstances, ought never to be omitted. lunatic to But, notwithstanding madmen are disabled from making a will, this As to the incapacity only exists during the time they are labouring under derange- power of a ment; for during a lucid interval their testamentary capacity is restored, devise during a and they are again rendered capable of performing acts binding upon lucid interval. themselves and others: (Swin. 72; Beverley's case, 4 Rep. 1236; Kemble v. Church, 3 Hag. 275.) And although an inquisition finding a man a lunatic is primâ facie evidence of lunacy during the whole period covered by such inquisition, yet it does not preclude proof that a will was executed, or some act was done during a lucid interval: (Hall v. Warren, 9 Ves. 605; Re Watts, 1 Curt. 594.) Nor will even the fact of a person being confined in a madhouse necessarily invalidate a will or other instrument executed by him during a lucid interval, if the latter fact can be clearly established. Thus, in a case mentioned by Lord Eldon in McAdam v. Walker (1 Dow. 179), in which his lordship said he had been concerned, where a gentleman who had been for some time insane, and was confined in Richmond, made a will. It was of large contents, proportioning the different provisions with the most prudent care, with a due regard to what he had previously done for the objects of his bounty, and in every respect pursuant to what he declared before his malady he intended to have done. It was held, that he was of sound mind at the time, and consequently that the will was valid. Nice questions have therefore often arisen as to what will amount to such a remission or intermission of the disorder as to amount to a lucid interval; a subject upon which it is impossible to lay down any fixed |