1 Sect. 19. * Sect. 20. Sect. 21. • Sect. 23. * Sect. 12. don, the principality of Wales, and the province of York, until they were abolished by statute. At the present time, the owner of personal estate, in any part of England and Wales, is allowed to bequeath the whole of it without attestation or even the signature of the testator. 2. Parol or nuncupative Wills.]—With very few and slight exceptions, a will of personal estate must be in writing. It is provided, however, by the Statute of Frauds, that a parol or nuncupative will shall be valid in the following cases: -A will may be by parol where the value of the property does not exceed 307.; but if it exceed the amount in value then the Statute of Frauds declares it shall not be good unless the following requisites be complied with 1st, That it be proved by three or more witnesses present at the making: 2nd, That it be proved that the testator, at the time, did bid the persons present to bear witness that such was his will; and 3rd, That the will was made in the last sickness of the testator, and in the house in which he dwelt, or in which he had been resident ten days, or that he was surprised and taken sick when absent from home, and died before his return1. It is further required that the substance of the testimony be committed to writing within six days, or otherwise it is not to be received after six months 2; and that the will shall not be proved till fourteen days after the death of the testator; nor then, until the widow or next of kin have been called upon to contest it if they think proper3. It is further provided by the same statute1, that the wills of soldiers in actual military service, and of mariners, or seamen at sea, with respect to their personal estate, are exempt from the provisions of the act. This exception is still in force with respect to petty officers and seamen in the royal navy, and non-commissioned officers of marines, and marines, so far as relates to their wages, pay, prize and bounty money, and allowances. In consequence of the frauds to which persons so situated are liable, such wills are required by subsequent statutes, which have been consolidated and amended by the 11 Geo. 4 & 1 Will. 4, c. 20, to be attested by commanding officers or other official persons, and to be executed with more solemnities than are necessary for any other will. This statute is expressly exempted from the operation of Lord Langdale's Act5; and it is also enacted, "that any "soldier being in actual military service, or any mariner or sea 66 man being at sea, may dispose of his personal estate as he "might have done before the making of this act 1. 1 Sect. 13. Hedges v. Hedges, Pr. Ch. 269. 3. Donatio mortis causá.]-It has been long settled, though the doctrine has been disapproved by great authorities*, and is a manifest breach of the Statute of Frauds, that some kinds of personal estate may also pass by a disposition called donatio mortis causâ, which is a gift by delivery of the property when the owner is in peril of death or in his last sickness, to take effect only in case he shall die 2. This mode of disposition is for the most part confined to such chattels as may be transferred by delivery; but it is now well settled, that choses in action, as bills of exchange, which pass by indorsement, or a bond3, may be the subject of a donatio mortis causâ. And even where the bond is only a collateral security for a mortgage debt, it was decided by the House of Lords, reversing the judgment of Sir John Leach 4, 1 S. & S. 244. after a most elaborate argument and the examination of every authority on the subject, that it may be the subject of a donatio Gardner v. Roe, 3 Madd. 184. 5 Duffield v. N. S. 497. mortis causâ 5. Where the chattel, which is the subject of this species of gift, Elwes, 1 Bligh, does not admit of actual delivery, a constructive delivery will be sufficient. Thus, a ship at sea has been determined to be virtually delivered by a delivery of the bill of sale, defeasible on the donor's recovery; and delivery of the key of a warehouse or of a trunk, has been held sufficient delivery of the goods in such warehouse or of the contents of the trunk; for, in these instances, the bill of sale and the keys were not considered as symbols, but as the means of obtaining possession of the property. There must, however, either actually or constructively, be a complete delivery; and therefore in a recent case7, where the obligee of a bond, five days before her death, signed a memorandum, not under seal, which was indorsed on the bond, and which purported to be an immediate and absolute assignment of the bond without consideration to a person to whom the bond was at the same time delivered, it was held that the circumstances of the transaction did not constitute a donatio mortis causâ. On one occasion 8 the question was considered but not decided, whether a donatio mortis Improvements in the law, or some things which have been considered improvements, have been lately proposed; and if, among those things VOL. II. P called improvements, this donatio Brown v. Williams, cited 2 Edwards v. Jones, 7 Sim. & C. 226. 325; S.C. 1 My. Ves. sen. 434. Hambrooke v. Symmons, 4 Russ. 25. causâ is avoided by a subsequently-made will or codicil, and whether a remainder may be limited upon a donatio mortis causâ, and whether the donatio mortis causâ being of a mortgage debt, a gift of the same sum with the same remainder over, in a subsequent codicil, is to be considered a satisfaction. A donatio mortis causâ has many of the properties of a legacy; it is liable to debts, and it is dependent on survivorship1. It is not a present absolute gift, vesting immediately, but a revocable and conditional one, of which the enjoyment is postponed until after the giver's death 2. On the other hand, though liable to be defeated, it must, subject to such liability, be a complete gift inter vivos, and therefore requires no probate3. It also differs from a legacy in this, that, in the former case, the subject of gift must be delivered by the donor, in the latter by his representative. So it differs from a nuncupative will in this, that in the latter case the bounty is to be received from the executor, but in the former may be held against him, and requires no assent on his part, the delivery having been completed by the donor himself 4. 4. Execution of Wills under Lord Langdale's Act.]—This act prescribes one simple uniform mode of executing all wills. By this statute it is enacted, "that no will shall be valid unless it "shall be in writing and executed in manner hereinafter men"tioned (that is to say) 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; and such signature shall be made or acknowledged by the testator in the presence of two or more witnesses, present at the same time, and such witnesses shall "attest and shall subscribe the will in the presence of the tes"tator, but no form of attestation shall be necessary 5." As no will is to be valid unless it be in writing,' the act in effect puts an end to parol or nuncupative wills. The act, however, does not appear to apply to donations mortis causâ, which are not expressly mentioned, and which, although in the nature of a testamentary disposition, are, in point of fact, gifts inter vivos; the delivery being complete in the testator's lifetime, and the donee taking, not under the executor, but under the testator himself. It certainly would have been better if this anomalous species of gift had been abolished. It has been seen, that, under the Statute of Frauds, the witnesses to the testator's signing were required to be "credible" witnesses, that is to say, (as this word was construed) persons capable of giving evidence in a court of law; a requisition which frequently resulted in litigation, and not unfrequently in the failure of the will, by reason of the witness, at the time of signing being, or afterwards becoming, incompetent. Lord Langdale's act merely requires "two or more witnesses," without saying they are to be "credible." Still, notwithstanding this, the courts might have held that the word "witness," per se, implied "competency;" and therefore to exclude all questions on this point, it is expressly enacted, "that 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 invalid1." 66 Care is taken, also, to prevent the disqualification, arising from the witness having an interest as devisee or legatee under the will: and as signature is made equally necessary to a will of personal as of real estate, the enactment, unlike that of the 25 Geo. 2, c. 10, extends to wills of personal as well as real estate. As a creditor of the testator under a charge for payment of debts, would be equally disqualified with a devisee or legatee, the privilege of being a competent witness is very properly also extended to him. For these purposes it is enacted, "That 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 appoint"ment, 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 2." And also, "That 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 Sect. 14. ect. 15. 1 Sect. 16. * Sect. 17. "execution of such will, or to prove the validity or invalidity "thereof1. And it is further enacted, "That no person shall, on account "of his being an executor of a will, be incompetent to be ad"mitted a witness to prove the execution of such will, or a wit"ness to prove the validity or invalidity thereof 2." 5. Publication.]-It does not appear that what is called publication was ever necessary to the validity of a will. It is, however, by Lord Langdale's Act, expressly dispensed with, it being expressly declared, that every will executed in manner therein required," shall be valid without any other publication thereof." s. 6. SECT. 3.-REVOCATION. 1. Of the Revocation of Wills made 3°. As to Estates pur autre vie, 222. 4o. As to Wills of Personal Estate, 222. 2o. As to Copyhold and Custom- 2. Revocation of a Will under Lord ary Estates, 221. Langdale's Act, 225. 1. Of the Revocation of Wills made previous to the 1st January, 1838.]—We have already observed, that it is an essential property of every will to be revocable. Wills have always been liable to be revoked, either expressly or by implication, arising from some act furnishing ground to presume that the testator intended to revoke his will. 1st. As TO FREEHOLD ESTATES IN FEE-SIMPLE. 1. Express Revocation.]—The revocation may be either express, or by implication. The express revocation of a will of $29 Car. 2, c. 3, freehold estate in fee-simple depends on the Statute of Frauds3, by which it is enacted, that "no devise in writing of lands, tene"ments, or hereditaments, nor any clause thereof, shall be revo"cable, otherwise than by some other will or codicil in writing, " or other writing declaring the same (1), or by burning, can"celling, tearing, or obliterating (2) the same, by the testator "himself, or in his presence and by his directions and consent: "but all devises and bequests of lands and tenements shall remain |