8. 9.

1 Vict. c. 26, the one positively that the will was not executed in the testator's presence, and the other as positively declared that it was, the court has given the preponderance to the witness deposing affirmatively in accordance with the statement set forth in the attestation clause. (Brenchley v. Still, 2 Rob. Eccl. R. 176, 177; Farmar v. Brock, 1 Deane, Eccl. R. 187; 2 Jur. 670.) Positive affirmative evidence by the subscribing witnesses of the facts of a testator acknowledging his signature in their joint presence, and of their subscribing in conformity with the requisites of the law, is not absolutely essential to the validity of testamentary papers. When the inaccuracy and imperfect recollection of witnesses are established, the court may upon the circumstances of the case presume due execution. (Leech v. Bates, 1 Rob. Eccl. R. 714.) Positive evidence of one of the subscribing witnesses, negativing the fact of signing or acknowledgment of the signature by the deceased in his presence, in the absence of circumstances raising any presumption of his being mistaken, will compel the court to pronounce against the due execution of a testamentary paper. (Noding v. Alliston, 14 Jur. 904.)

Although a will may be valid without any attestation clause, (Bryan v. White, 2 Robert. 315,) yet one should be added; otherwise, in order to obtain probate, it is necessary to have an affidavit of one of the subscribing witnesses to prove that the provisions of the act, in reference to the execution of the will, have in fact been complied with. (Belbin v. Skeats, 1 Sw. & Tr. 148.)

Although a testamentary instrument is not properly executed or attested, yet, if it is clearly referred to by one of later date properly executed and attested, it will be operative, and no particular form of expression is necessary; therefore, where there was a will duly executed, then a codicil attested by one witness only, and, lastly, a codicil duly executed, which was described as "another codicil to my will," the second codicil was held to give operation to the first codicil. (Ingoldby v. Ingoldby, 4 No. Cas. 439; Re Hilhouse, 1 Eccl. & Adm. Rep. 111.) And it of course would be the same if the will were informally executed, but a codicil duly executed were to be described as a codicil to his last will, (Hill's Case, 4 No. Cas. 404; Hally's Case, 5 No. Cas. 510,) it is not properly a question of incorporation, (see Id. 512,) but any other papers may be incorporated by reference in a testamentary instrument duly executed, the paper to be incorporated need not be void or valid per se, and whether of itself void or valid is equally entitled to probate. (Sheldon v. Sheldon, 1 Robert. 81; and see Dickens' Case, 3 Curt. 60; Willesford's Case, Ib. 77; Bacon's Case, 3 No. Cas. 644; Smartt's Case, 4 No. Case, 38; Darby's Case, 4 No. Cas. 427.) But the paper intended to be incorporated must be in existence; it must be already written. (Countess Ferraris v. Lord Hertford, 3 Curt. 468.) As to lists of articles referred to, see In re Ash; In re Countess Dowager of Pembroke, 2 Jur., N. S. 526. (Sugd. on Stat., pp. 345, 346.)

An unattested paper, which would have been incorporated in an attested will or codicil executed according to the Statute of Frauds, is now in the same manner incorporated, if the will or codicil is executed according to the requirements of this section. (Allen v. Maddock, 11 Moore, P. C. C. 427.) Where there is a reference in a duly executed testamentary instrument to another testamentary instrument imperfectly executed, but by such terms as to make it capable of identification, it is necessarily a subject for the admission of parol evidence, and such parol evidence is not excluded by this statute. (Ib.)

If the parol evidence satisfactorily prove that in the existing circumstances there is no doubt as to the instrument referred to, it is no answer that by possibility circumstances might have existed in which the instrument could not have been identified. (Ib. See Wigram on Evid., prop. 5.) A married woman, having power under a settlement to make a will, in 1851 made a testamentary instrument in her own handwriting, which she intended to operate as a will, but which was not attested according to the requirements of this section. In 1856, she duly executed a codicil, which was headed," This is a codicil to my last will and testament." This codicil contained no reference to the testamentary paper of 1851, which was not

produced at the time the codicil was executed, but was found at her death in a trunk in a room in her residence, enclosed in a sealed envelope, on which was indorsed "Mrs. Anne Foote's Will." The codicil was found in a drawer in her bed-room. No other will or testamentary paper was found. It was held, first, that, as there was a distinct reference in the codicil to a "last will and testament," and as no other will had been found, the testamentary paper of 1851 was by parol evidence sufficiently identified as the last will referred to by the codicil of 1856. (Allen v. Maddock, 11 Moore, P. C. C. 427.) It was held, secondly, that, though informally executed, the testamentary paper of 1851 was incorporated with and made valid by the duly-executed codicil of 1856, and probate was granted of both papers as together containing the last will and codicil of the testatrix. (Ib.)

The Court of Probate will not extend the principle of incorporation of law as laid down in Allen v. Maddock, supra. (In bonis Greves, 1 Sw. & Tr. 250; 7 W. R. 86.)

In order that a testamentary paper duly executed may incorporate another, it must refer to it as a written document then existing in such terms that it may be ascertained. (Smart v. Prujean, 6 Ves. 565.) The identity may be ascertained by the aid of the surrounding facts. A. duly executed the following document :-"It is my wish for my dear husband to administer the monies. The smaller bequests L. will be so kind as to attend to." She then, in the presence of the attesting witnesses, inclosed in it two papers with writing thereon, folded it up and sealed it. After her death the envelope was found to contain two sheets of paper containing bequests of money; and other bequests in the handwriting of the deceased, but unexecuted, were found. It appeared that the envelope had been opened and resealed, and there was no evidence that the papers found in it were those originally inclosed, or that they were in existence when the envelope was executed. No other testamentary papers were found. It was held, that the duly-executed paper did not refer to any written document as then existing; and, assuming that it did so, that the document was not pointed out in such a manner as to enable the court to ascertain its identity; and, therefore, that the three papers were not together entitled to probate, and that, as the duly-executed paper taken by itself had no testamentary character, it was not entitled to probate. (Van Straubenzee v. Monck, 32 Law J., Prob. 21.)

A will contained the following clause :-"I request my trinkets shall be divided as I shall direct in a small memorandum." After the death of the deceased an unexecuted memorandum in her handwriting, disposing of certain trinkets, was found; and it appeared that this was in existence before the execution of a codicil, but it was referred to by it. It was held, that the memorandum was not entitled to probate. (In bonis Mathias, 32 Law J., Prob. 115, overruling In bonis Hunt, 2 Robert. 622; In bonis Stewart, 32 Law J., Prob. 94.)

A. executed his will in February, and a codicil on the same paper in December below the signature to the will; and before the commencement of the codicil appeared a memorandum, which, from the evidence of the solicitor who prepared the will, had been written on the paper before the execution of the will: it was held, that the memorandum, being no part of the will as originally executed, was not entitled to probate by reason of the duly-executed codicil of a subsequent date, such codicil referring merely to the will. (In bonis Willmott, 1 Sw. & Tr. 36.)

Where a testatrix purported by a codicil to revive a will not only revoked but destroyed, the court refused to grant probate of the draft, which was an unexecuted paper, and not specifically adverted to or recognized by the codicil. The court gave no opinion as to what would be the case if the will had been accidentally lost or destroyed without animus revocandi. (Hale v. Tokelove, 2 Robert. 318.)

A testator made a will in 1858, and another in 1859, and then the will of 1858 was actually destroyed, the will of 1859 having previously revoked it. A codicil was afterwards made in terms purporting to be a codicil to the will of 1858. It was decided that it could not again become a will, as the instrument had been destroyed, and it no longer existed either in law or

1 Vict. c. 26,

8. 9.

1 Vict. c. 26, 8. 9.

Appointments by

will to be executed like other wills, and to be valid, although other required solemnities are not observed.

Soldiers and mariners' wills excepted.

fact. It did not exist as a will from the time when the second will was executed, and it no longer existed as a written instrument, as a paper writing, from the time it was burnt. (Rogers v. Andrews, 2 Sw. & Tr. 342.)

A. wrote out a draft will, which on his death was found completed, with the names of two attesting witnesses. On inquiry no such persons could be traced, and the writing of the names was sworn to be that of A. himself. The court granted administration of the goods of A., as having died intestate, without the parties interested under the draft will having been first cited to propound it. (In bonis Lee, 4 Jur., N. S. 790-Prob.)

A will was written on one side of a half-sheet of paper, and concluded with the words, " In witness whereto I have hereunto set my hand and seal this 9th day of July, in the year as above written." A small space at the bottom of the page was left blank, and then followed a separate piece of paper attached by wafers to the half-sheet on which the will was written. The testator's signature, the attestation clause, and the signatures of the attesting witnesses were alone written on this separate paper. It was held, that the court could not grant probate of such a document. (In bonis Lambert, 8 Jur., N. S. 158; 31 Law J., Prob. 118.)

10. No appointment made by will, in exercise of any power, shall be valid, unless the same be executed in manner hereinbefore required; and every will executed in manner hereinbefore required shall, so far as respects the execution and attestation thereof, be a valid execution of a power of appointment by will, notwithstanding it shall have been expressly required that a will made in exercise of such power should be executed with some additional or other form of execution or solemnity (k).

(k) It is now decided, after some conflicting opinions, that this section does not apply to a case where the power authorizes an appointment only by deed or writing and does not in terms authorize an appointment by will or a testamentary writing. The question arose thus :-The settlor reserved a power of appointing, "during the term of his natural life, by any deed or deeds, writing or writings, under his hand and seal, to be attested by two or more credible witnesses," and then he made an appointment by will, not under seal, but executed and attested as required by this statute. V. C. Wigram, in Buckell v. Blenkhorn, (5 Hare, 131,) which was followed in Man v. Ricketts, (7 Beav. 95,) held, that inasmuch as the previous decisions had established that where there was a power worded like this of appointing "by writing," coupled with certain solemnities, a testamentary writing executed with those solemnities would be a good execution of the power, the donor being indifferent, so long as the conditions were complied with, whether the instrument were a writing or a will; therefore the case would fall within this section of the statute. It was also held by the Master of the Rolls, on the authority of that case, that a will not sealed, but executed according to the formalities of this act, was a due execution of a power required to be executed by writing under band and seal. But the Lords Justices held that the title was too doubtful to force upon a purchaser, and that it could not be assumed that a power to appoint by "any writing" is identical with a power to appoint by will. (Collard v. Sampson, 16 Beav. 543; 22 Law J., Ch. 729; 17 Jur. 641; 4 De G., M. & G. 224. See Orange v. Pickford, 4 Jur., N.. S. 649, 650; 4 Drew. 363.) And it has since been decided by V. C. Wood, that where a power of appointment is to be exercised by a writing under the hand and seal of the donee, it cannot be exercised by a will executed with only the formalities required by this act, because the essential requisition of the power is that it should be exercised under hand and seal, and the statute applies to a power of which the essential requisition is that it should be exercised by will. (West v. Ray, 1 Kay, 385. See Sugd. Pow. 217-221, 8th ed.)

11. Provided always, and be it further enacted, that any soldier being in actual military service (1), or any mariner or sea

man being at sea (m), may dispose of his personal estate as he 1 Vict. c. 26, might have done before the making of this act.

s. 11.

(1) This privilege, as it respects soldiers, has been held to be confined, Soldiers. by the insertion of the words, "actual military service," to those who are on an expedition; and, consequently, it has been decided that the will of a soldier made while he was quartered in barracks, either at home (Drummond v. Parish, 3 Curt. 522), or in the colonies (White v. Repton, 3 Curt. 818; In bonis Phipps, 2 Curt. 368; In bonis Johnson, Curt. 341), is not privileged. The same was held as to the will of a soldier made at Bangalore, in the East Indies, whilst in command of the army there stationed, and who died whilst on a tour of inspection of the troops under his command. (In bonis Hill, 1 Rob. Eccl. R. 276. See 1 Wms. Exors. 96, 4th ed.)

The term "soldier," in this section, extends to persons in the military service of the East India Company. (In bonis Donaldson, 2 Curt. 386.) An unattested will, made by an officer on service at Berbice, was allowed to pass as that of a soldier in actual military service at the prayer of the party whose interest was prejudiced by such will. (In bonis Phipps, 2 Curt. 368.)

(m) The term "mariner or seaman" does not exclude any person in her Seamen. Majesty's navy, though superior of the ship, being "at sea," from the exception contained in this act. (In bonis Hayes, 2 Curt. 338.) A codicil signed but not attested on board a Queen's ship in a river by the commander-in-chief actually engaged in a naval operation was held to be within this section, and to incorporate a prior codicil signed by him but not attested whilst living on shore. Though the admiral was not actually at sea when he wrote the codicil, he was in a river on a naval expedition. (In bonis Austen, 2 Rob. Eccl. R. 611; 17 Jur. 284.) A will made under this section remains operative unless expressly revoked, although the maker of such will lives in England several years after the date of such will. (In bonis Leese, 17 Jur. 216.) But in a case in which the testator was commander-in-chief of the naval force at Jamaica, but lived on shore at the official residence, his family and establishment being also on shore: it was held, that the testator did not come within the exception as to mariners at sea. (Seymour's Case, cited 3 Curt. 530; 2 Curt. 339.)

This section applies to seamen, whether in the Queen's or merchants' service. (In bonis Milligan, 2 Rob. Eccl. R. 108; Morrell v. Morrell, 1 Hagg. 51.) Probate was allowed of an unattested codicil made at sea by the purser of a man-of-war, as that of a seaman. (In bonis Hayes, 2 Curt. 338.) The will of a seaman, who went on shore and there died by an accident, was allowed probate as that of a seaman at sea. (In bonis Lay, 2 Curt. 375.) Henry Corby died at sea on the 24th June, 1853. He left England in October, 1850, for New Zealand, whence he afterwards, in May, 1852, went to Australia; he there resided till the 15th March, 1853, on which day he shipped as an able seaman on board the "James Alexander," which was then lying at Melbourne on a voyage to England, and he remained on board that vessel until his death. Three letters, all in the handwriting of the deceased, of a testamentary character; one dated on the 6th, and the others on the 15th March, but the first not signed, were received by members of his family in England, and, on intelligence of his death being received, search was made among his boxes and effects for some more formal testamentary instrument, but without success. It was held, that the papers were not entitled to probate as a mariner's will within the meaning of this section. (In bonis Corby, 18 Jur. 634.)

12. This act shall not prejudice or affect any of the provisions contained in an act passed in the eleventh year of the reign of his Majesty King George the Fourth and the first year 1 of the reign of his late Majesty King William the Fourth, intituled "An Act to amend and consolidate the Laws relating to the pay of the Royal Navy," respecting the wills of petty

Act not to affect of 11 Geo. 4 & Will. 4, c. 20, wills of petty officers and marines,

certain provisions

with respect to

seamen and

s. 12.

1 Vict. c. 26, officers and seamen in the royal navy, and non-commissioned officers of marines, and marines, so far as relates to their wages, pay, prize money, bounty money, and allowances, or other monies payable in respect of services in her Majesty's navy.

Publication not

to be requisite.

Will not to be void on account of

incompetency of attesting witness.

Gifts to an attesting witness to be void.

Creditor attesting to be admitted a witness.

Executor to be admitted a witness.

Will to be re

voked by marriage.

13. Every will executed in manner hereinbefore required shall be valid without any other publication thereof.

14. If any person who shall attest the execution of a will shall at the time of the execution thereof or at any time afterwards be incompetent to be admitted a witness to prove the execution thereof, such will shall not on that account be invalid.

15. If any person shall attest the execution of any will to whom or to whose wife 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 invalidity thereof, notwithstanding such devise, legacy, estate, interest, gift or appointment mentioned in such will (n).

(n) Where the execution of a will was attested by two marskmen and signed also by two other persons as witnesses, the court held that the signature of the two latter must be regarded as affixed likewise in attestation of the will, and not as merely verifying the attestation of the marksmen, and that the legacy to the wife of one of them failed under this section. (Wigan v. Rowland, 11 Hare, 157.)

A legacy was given by will, and a codicil confirming the will was attested by the legatee; the gift was held to be good. A person entitled to a share of a residue given by will, attested a codicil which indirectly increased the residue: such attestation was held not to invalidate the witness's claim to a share of the residue. (Gurney v. Gurney, 3 Eq. R. 569; 3 Drew. 208; Tempest v. Tempest, 2 Kay & J. 635.)

Where there was a bequest to several as joint tenants, one of whom was an attesting witness to the will, it was decided, that as the gift to the witness was simply void, the other joint tenants took the whole, there being no lapse. (Young v. Davies, 32 L. J., Ch. 372.)

16. In case by any will any real or personal estate shall be charged with any debt or debts, and any creditor, or the wife or husband of any creditor, whose debt is so charged shall attest the execution of such will, such creditor, notwithstanding such charge, shall be admitted a witness to prove the execution of such will, or to prove the validity or invalidity thereof.

17. No person shall, on account of his being an executor of a will, be incompetent to be admitted a witness to prove the execution of such will, or a witness to prove the validity or invalidity thereof.

18. Every will made by a man or woman shall be revoked by his or her marriage (except a will made in exercise of a power of appointment, when the real or personal estate thereby ap