66 "strument 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, interests, and rights respec"tively, and other real and personal estate, as the testator may "be entitled to at the time of his death, notwithstanding that " he may become entitled to the same subsequently to the exe"cution of his will1." 17 Will. 4 & 1 Vict. c. 26, It is also enacted, "that where any real estate of the nature of 8. 3. "customary freehold or tenant-right, or customary or copyheld, 66 might, by the custom of the manor of which the same is "holden, have been surrendered to the use of a will, and the "testator shall not have surrendered the same to the use of his will, no person entitled or claiming to be entitled thereto by "virtue of such will shall be entitled to be admitted, except upon payment of all such stamp duties, fees, and sums of money as would have been lawfully due and 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 tes"tator 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 ad"mitted thereto, no person entitled or claiming to be entitled to "such real estate in consequence of such will shall be entitled to "be admitted to the same real estate by virtue thereof, except on payment of all such stamp duties, fees, fine, and sums of money as would have been lawfully due and payable in respect "of the admittance of such testator to such real estate, and also "of all such stamp duties, fees, and sums of money as would "have been lawfully due and payable in respect of surrendering "such real estate to the use of the will; or of presenting, regis"tering, or enrolling such surrender, had the testator been duly "admitted to such real estate, and afterwards surrendered the 66 same to the use of his will; all which stamp duties, fees, fine, or sums of money due as aforesaid, shall be paid in addition to "the stamp duties, fees, fine, or sums of money due or payable on the admittance of such person so entitled or claiming to be "entitled to the same real estate as aforesaid 2." * Id. sect. 4. 1 Id. sect. 5. new altered by Wills bet 1 Ves & Bea. 175; Milnes v. Slater, 8 Ves. 305. And it is also further enacted, "that when any real estate of "the nature of customary freehold or tenant right, or customary 66 or copyhold, shall be disposed of by will, the lord of the manor or reputed manor of which such real estate is holden, or his "steward, or the deputy of such steward, shall cause the will by "which such disposition shall be made, or so much thereof as "shall contain the disposition 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 be sufficient to state in the entry on the court rolls that "such real estate is subject to the trusts declared by such will; "and when any such real estate could not have been disposed of by will if this act had not been made, the same fine, heriot, "dues, duties, and services shall be paid and rendered by the "devisee as would have been due from the customary heir in 66 66 case of the descent of the same real estate, and the lord shall, as against the devisee of such estate, have the same remedy for "recovering and enforcing such fine, heriot, dues, duties, and "services as he is now entitled to for recovering and enforcing "the same from or against the customary heir in case of a de"scent1." 8. From what time a Will operates.]—A devise of lands operates only upon the lands of which the testator was seised at the date of his will, and of which he continued to be seised up to the time of Hill v. Cock, his death. Every devise, therefore, is said to be 'specific 2,' and is considered in the nature of an appointment of particular lands to a particular devisee; for even if the devise be in general terms, it can only operate on the specific lands, which the testator has when he makes his will. Hence, if a testator devise all such estates as shall belong to him at the time of his death, the devise is inoperative with respect to any lands he may acquire subsequently to the date of his will, except so far as it may, according to a recent decision3, raise a case of election against the heir. This rule has been attributed by Lord Coke to the word "having" in the Statute of Wills; by Lord Chief Justice Trevor 5 to a design of the legislature, in passing the Statute of Wills, to give a power of disposition similar to that which had been taken away by the Statute of Uses; and by Lord Mansfield to a devise being in the nature of a conveyance by way of appointment of particular Churchman v. Ireland, 1 Russ. & My. 250. Butler & Baker's ca. 3 Rep. 25; Leonard Lovie's ca. 10 Rep. 83. 5 Arthur v. Bockenham, Fitzg. 238. • Harwood v. Goodright, 1960. lands to a particular devisee: this inconvenient distinction is peculiar to the laws of England; and, whatever may have been its origin, "one would wish," as observed by Lord Mansfield on another occasion1, "that no such rule had ever been established, 1 Roe v. Grifand lament that such mere subtleties should have been admitted fiths, 4 Burr. as the ground of it." By the Roman law, a will was the appointment of an executor or testamentary heir, who succeeded to the whole of the testator's property; and hence, the power of testamentary disposition over personal property being governed by the rules of the civil law, a testator can bequeath any subsequently-acquired personal property to which he may be entitled at the time of his death. In other words, a will of real estate speaks at its date,—a will of personal estate at the death of the testator. Copyholds do not, any more than freeholds, pass by a will, if acquired subsequently to the date of it, though they may be surrendered to the use of a former will; in which case the surrender operates, so far as the surrendered copyholds are concerned, as a re-publication of the will, and makes it speak as from the date of the surrender. The inconveniences of this distinction are forcibly pointed out in the fourth report of the commissioners on the law of real property. It is there observed that "the rule that freehold and copypyhold estates acquired after the date of the will cannot pass by it, is attended with several inconveniences. It renders it necessary for a testator to republish his will, or to make a new one, as often as he acquires other property. It prevents (except in a few cases in equity) a devise from taking effect if a testator makes any alteration in his estate, or does any act which prevents the interest in it, to which he was entitled at the date of his will, from continuing unaltered until his death. It creates many nice and unnecessary questions in the law relating to the revocation of wills; it frequently defeats the intention of the testator, and has been disapproved of by eminent judges. The usual intention of the testator is to dispose not of the property which he has when he makes his will, but of the property which he may have at his death; and if wills were to be construed with reference to the property comprised in them, both real and personal, as speaking at the testator's death, unless a contrary intention appears, the rnle would get rid of the greatest part of the intricate laws relating to revocation and re- 24 Rep. R. P. publication 2." These inconveniences, however, no longer exist as c. 24. A Sect. 24. to wills made since the 7 Will. 4 & 1 Vict. c. 26, came into operation, it being enacted by this statute" that every will shall "be construed, with reference to the real and personal estate comprised in it, to speak and take effect as if it had been exe"cuted immediately before the death of the testator, unless a contrary intention shall appear by the will1." 29 Car. 2, c. 3, s. 5. SECT. 2.-EXECUTION. 1. Execution of Wills made prior to 1o. As to Freehold Estates in Fee- 2o. As to Copyholds, 200. 3°. As to Estates pur autre vie, 204. 5°. As to Leasehold and other Personal Estate, 207. 2. Parol or nuncupative Wills, 208. 3. Donatio mortis causá, 209. 4. Execution of Wills under Lord Langdale's Act, 210. 5. Publication, 212. 1. Execution of Wills made prior to 1st January, 1838.]— One of the most important changes effected by Lord Langdale's Act consists in its having replaced the diversified modes of execution previously prevailing, by one simple and uniform system. As these must, however, for a long series of years, govern the title to property, it will be expedient to consider them in detail before stating the simple rule now established by this act. 1st. AS TO FREEHOLD ESTATES IN FEE-SIMPLE. By the Statute of Frauds2, it is enacted, "that all devises and bequests of any lands or tenements, devisable either by force of "the Statute of Wills, or by this Statute, or by force of the cus"tom of Kent, or the custom of any borough, or any other par"ticular custom, shall be in writing (1) and signed by the party devising the same, or by some other person in his presence, "and by his express direction (2), and shall be attested and "subscribed in the presence of the devisor (3) by three or four "credible witnesses (4), or else they shall be utterly void and of none effect." To the validity of a devise, therefore, three things are necessary, writing, signing, and attestation by three credible witnesses. (1). "In Writing."-It is immaterial whether the will be written at large or by notes, usual or unusual,-whether the sums of money be expressed in words or figures, or whether the will be Smith v. Evans, 1 Wils. 313; see also 2 Ves. 459; 1Ves. jun. 13. 4 Right v. Price, Doug. 241. (3). "Attested and subscribed in the presence of the devisor."-The attestation must be in the presence of the testator; but his mere corporal presence, unless his mind and faculties also are present, will not satisfy the statute 5. It is not necessary that Ibid. the testator should actually see the witnesses sign, it is enough if the testator might see 6. Thus where the testator lay in bed in one room, and the witnesses went through a small passage into another room, and signed their names at a table in the middle of the room and opposite the door, and both that and the door of the room where the testator lay were open, so that he might see them subscribe if he would, though there was no positive proof that he did, has been adjudged to be a good attestation. So, if the witnesses subscribed their names in the room where the testator lay, though the curtains of his bed were drawn7. So, where the testatrix, being asthmatical and the attorney's office very hot, retired to her carriage to execute her will, the witnesses attending her;-after having seen the execution of the will they returned into the office to attest it, and the carriage was put back to the window of the office, through which, it was sworn by a person in the carriage, the testatrix might see what passed; the Lord Chancellor was strongly inclined to think the will well executed8: but where the testator duly subscribed his will in the presence of persons, who went down stairs into another room, and at three Roe v. Manifold, 1 M. & S. Glasscock, 2 294; Shires v. Salk. 688. Davy and Nicholas, v. Smith, 3 Salk. 395. Capon v. Dade, 1 Bro. C. C. 99. |