1. Change in the Law of Wills.]-The powers of testamentary disposition have, by the recent statute 7 Will. 4 & 1 Vict. c. 26, (which will be referred to as Lord Langdale's Act*), been so

enlarged as to comprise every species of estate or interest in property,—the execution of wills has been rendered simple and uniform,--the doctrine as to the revocation and republication of wills remodelled and more accurately defined, and various important rules of construction introduced, the effect of which, among other things, will be to restore to the language of wills the import which it bears in the daily business of life, and ultimately to root out that extensive head of judge-made law, which has arisen out of the construction given to certain particular expressions. This act, indeed, constitutes almost an entire code of testamentary law: as, however, it is only prospective, the former state of the law is that to which the practitioner will have chiefly to look for many years to come: and the present generation of lawyers, at least, will have to be equally familiar with the two systems. In the following pages I shall endeavour to blend the two in such a manner as to convey, as clearly as I am able, a distinct idea of the operation of them both.

2. A Will,-Codicil.]—A will is a disposition of a man's proproperty to take effect after his death, and hence called his last will and testament.' Such a disposition of real estate is called a 'devise,'-of personal estate a legacy' or 'bequest.' Legacies are of four kinds:-1st. A gift of a specific chattel, which may be a leasehold estate, a specified sum of stock, mortgage, &c., and is called a specific legacy;-2nd. A gift chargeable primarily on a specific chattel; but, if this particular security happen to fail, pay

of an act (14 & 15 Car. 2, (I.) passed in the parliament of Ireland in the fourteenth and fifteenth years of the reign of King Charles the Second, in tituled "An act for taking away the court of wards and liveries, and tenures in capite and by knights service;" and to any other testamentary disposition and the words "real estate" shall extend to manors, advowsons, inessuages, 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 words "personal estate" shall extend to leasehold estates and other chattels real, and also to monies, shares of government and other funds, securities for money (not being real estates), debts, choses in action, rights, credits, goods, and all other property whatsoever, which by law devolves upon the executor or administrator, and to any share or interest therein; and every word importing the singular number only shall extend and be applied to several persons or things as well as one person or thing; and every word importing the masculine gender only shall extend and be applied to a female as well as a male. (Sect. 1.)

1 Fowler v. Wil-
loughby, 2 S.
& S. 354.

Barnes v.

Crowe, 1 Ves. jun. 497.

" Meggison v. Moore, 2 Ves. jun. 632; Burton v. Knowl

able out of the general estate, and this is called a demonstrative legacy1;-3rd. The gift of a sum of money, without pointing to any fund for its payment, which is called a general legacy;-and 4th. A gift of the residue. A codicil' is a supplement or addition made by a testator to his will, and of which it is considered a part, being intended to alter or explain, or make some addition to or modification of the former disposition of his property. A codicil necessarily implies a former will, of which (subject to special and rare exceptions) it becomes a part, not only when it expressly refers to the will2; but, generally, if the will and codicil be capable of standing together, they are considered as parts of the same instrument, and the codicil operates as a republication of the will3.

3. Revocability of a Will.]-A will is revocable by the testator at any time during his life. This is the peculiar character ton, 3 Ves. 110; of a will, and distinguishes it from all other written instruments*, Hulme v. Heyand the introduction of an express clause in derogation of his power of making a future will would make no difference, such a clause being merely inoperative.

gate, 1 Mer.

294.

4 Forse & Hem

bling's ca., Rep. 61.

4

Price v. Dew hurst, 8 Sim. 279.

• Hobson v. Blackburn, 1 Add. 274.

7 Dufaur v. Perraro, 2 Harg. Jurid. Arg. 304; 1 Dick. 419.

4. Conjoint Wills.]-Hence it is that a "mutual and conjoint will," although recognised by the laws of some foreign countries 5, is inadmissible as a will in an English court of law; for the vital principle of such a transaction is, that when the will shall have become irrevocable, on one side, by the death of one of the co-testators, the other co-testator shall, on his part, cease to have the power of revoking,—a disability, as we have seen, which our law does not recognise. An instrument, however, in the form of a mutual and conjoint will, though it cannot operate as a testamentary instrument6, may be enforced in a court of equity as a contract, where it can be made out that this is the true character of the transaction7; provided the contract is reasonably certain and fair.

5. A Will may be made at different Times.]—A testator may make his will at different times, if the subsequent writing take up and continue the former; and it is immaterial by how long a period these acts are separated; they will compose one entire instrument, notwithstanding these interruptions, where the testator's first purpose appears to have proceeded to its accomplishment. Thus, where an illiterate person made his will, in which there was a devise of lands, and signed it; and at a subsequent period added more on the same sheet of paper, and declared that

he did not mean thereby to disannul any part of his former disposition, and had the will duly executed according to the Statute of Frauds,—the additional writing was held to be part of one entire will, and not a codicil, and the execution and attestation to be an original publication and not a re-publication1. It would 'Carleton v. seem, though it is a proposition not very easy to apply in prac- 549. Griffin, 1 Burr. tice, that the distinction between an additional writing, which constitutes a codicil, and one which forms part of an entire will, is, that where the previous writing has not been properly executed and attested, so as to pass the subject-matter which it professes to dispose of, the additional writing forms part of one entire will; where the former part has been duly executed and attested, the additional writing is a codicil.

Co. Litt. 89. b.,

n. 6.

6. Who may make a Will.]--All persons of sound mind, and of the age of twenty-one years, except married women, are capable of making a will of real estate. Previous to Lord Langdale's Act coming into operation a will of personal estate might have been made by an infant; and it would seem, in the case of a female, so early as the age of twelve, and of a male at fourteen2; and in some places, by the force of local customs, an infant could have made a will of real estate. By this statute it is enacted, "that no will made by any person under the age of "twenty-one years shall be valid ;" and "that no will made by "a married woman shall be valid except such a will as might "have been made by a married woman before the passing of this "act3;" which would seem to limit her capacity in this behalf to Sect. 7, 8. the power of making a will in exercise of a power of appointment. A will made by a person under disability at the time of making it is absolutely void, though the disability be removed before the death of the testator4. The statute of 39 & 40 Geo. 3, c. 88, s. 4, gives the power of devising to the King, which it seems he could only do before that statute by a conveyance to trustees to his last will; and the same statute, gives to the Queen consort the power of devising and bequeathing her property by last will and testament, in the same manner as if she were a feme sole.

7. What passes by Will.]—The power of testamentary disposition has been most materially enlarged by Lord Langdale's Act. In order to comprehend the change which has been effected in this respect, it may be observed, that previous to this act coming into operation, the power of disposition extended to freehold estates, except estates held in joint tenancy, or by entireties

Hawe v. Bur ton, Comb. 84;

Salk. 238; 11

Mod. 157.
4 Inst. 335.
Sect 8.

or for an estate tail or quasi entail, and to personal property which were vested in possession or right. Subject to the operation of the 55 Geo. 3, c. 192, customary or copyhold estates could only be devised indirectly, by means of a surrender to the use of the copyholder's will. Contingent, executory, or other future estates or interests, rights of entry and action, and subsequently-acquired real estate could not be made the subject of testamentary disposition at all.

These testamentary disabilities have all been removed by the statute alluded to, by which it is enacted, "that it shall be lawful " for every person to devise, bequeath, or dispose of, by his will "executed in manner hereinafter required, all real 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,

rr

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 given shall extend to all real estate of the na"ture of customary freehold or tenant right, or customary or copy

hold, notwithstanding that the testator may not have surren"dered the same to the use of his will, or notwithstanding that, being entitled as heir, devisee, or otherwise to be admitted "thereto, he shall not have been admitted thereto, or notwith

standing that the same, in consequence of the want of a cus"tom to devise or surrender to the use of a will or otherwise, "could not at law have been disposed of by will if this act had "not been made, or notwithstanding that the same, in conse66 quence of there being a custom that a will or a surrender to "the use of a will should continue in force for a limited time only, or any other special custom, could not have been dis"posed 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 shall not be any special occupant "thereof, and whether the same shall be freehold, customary

freehold, tenant right, customary or copyhold, or of any other "tenure, and whether the same shall be a corporeal or an incorporeal hereditament; and also to all contingent, executory, or "other future interests in any real or personal estate, whether "the testator may or may not be ascertained as the person or one of the persons in whom the same respectively may become "vested, and whether he may be entitled thereto under the in