CHAPTER V. trust took? was the question, as to the quantity and quality of the estate taken by trustees or executors, under an indefinite devisees in gift (2). But though this question (which was not peculiar to wills) has, as we shall see, been selected as a fit subject for legislation, it would not be difficult to point out other questions equally perplexed by the conflict of opinions, and equally within the scope of a testamentary law, professing to quiet possessions by setting limits to judicial exposition. Objections to the old law, as regards the doc trine of lapse; V. Cases sometimes occurred in which the presumable intention to benefit the descendants of a devisee or legatee, derivatively through him, was defeated by the lapse of the devise or bequest in the lifetime of the testator, and by his omission or incompetency to make a subsequent disposition, adapted to the altered state of circumstances. This happened where a devisee in tail died before the estate tail; testator, but issue, within the line of the entail, survived of testator. the testator (a); also where a devisee or legatee, being a gift to a child child of the testator, died in his lifetime, but issue of such child survived the testator. The latter case was sometimes met by a prospective provision; but the infrequency of such provisions seems to shew, either that the mischief was not severely felt, or that there was little confidence in the remedy. If the attempt to provide by (2) Doe v. Simpson, 5 East, 162; Hawker v. Hawker, 3 Barn. & Ald. 537; Doe v. Nicholls, 1 Barn. & C. 336; Glover v. Monckton, 3 Bing. 13; Warter v. Hutchinson, 1 Barn. & C. 721, 2 Brod. & B. 349; Heardson v. Williamson, 1 Keen, 33. But see Doe v. Edlin, 4 Ad. & Ell.582; ante, 105; Doe v. Ewart, 7 Ad. & Ell. 636; Barker v. Greenwood, 4 Mees. & (a) Bret v. Rigden, Plow. 343; CHAPTER V. anticipation for changes consequent on the premature death of the primary objects of the testator's bounty was, even when undertaken with full knowledge of his views, and of the circumstances of his family, always in some degree speculative and hazardous, the task of making a general provision of that nature, adapted to the views of all testators, and to the circumstances of every family, demanded a degree of foresight which even the legislature could hardly be expected to exert. The use to be made of this sketch of the old law. To what wills, estates, persons, and places, the act does, or does not extend. These observations are sufficient to afford the student such a general view of the state of the old law, as, aided by adverting to particular points of that law when they shall arise in immediate connexion with the new statute, will enable him to estimate the important changes to which his attention is about to be called. As this statute is the code of positive law on the subject of wills, and becomes therefore every man's concern, we shall endeavour to exhibit, clearly and succinctly, the substance of its provisions, accompanied by explanatory comments, directed to matters of general, and, probably, permanent interest. The acts extends to all wills made on or after the 1st day of January, 1838 (s. 34); and to all wills, made previously to that date, and re-executed, republished, or by a codicil (shewing an intention to revive the will, if revoked (s. 22)) revived (b), on or after that day (s. 34): but the act has no application to any other will; nor does it extend to estates pur auter vie of persons dying before the same date (s. 34); nor to dispositions of personal estate by soldiers on service or by mariners at sea (s. 11); nor to disturb the provisions of a recent act (c), as to the wills of petty officers, seamen, non-commissioned officers of marines, and marines, so far as relates to money arising from service (s. 12); nor to Scotland (s. 35); nor (s. 2) (b) Vide post, 382. (c). 11 Geo. 4 & 1 Will. 4, c. 20. to the American colonies (d); nor to affect the application by our judicature of that principle, which, on grounds of international policy, determines the validity and construction of testamentary dispositions of personal, or rather of moveable property, with reference to the law of the testator's domicil at the time of his decease (e), (while, as to real or immoveable property, the law of its locality is inherent); nor to a donatio mortis causâ (ƒ). In perusing the act, or this sketch of its provisions, the student should advert to the definitions (s. 1) of the terms "will," " real estate," "personal estate," and to the directions (ib.) respecting number and gender. Immediately after those definitions and directions, the act (s. 2) proceeds (but in respect of only such wills and such estates pur auter vie (see s. 34) as it afterwards embraces) to repeal the following statutes, either wholly or partially, according as they relate exclusively to the subject-matter of the principal act or not:—the English (g) and Irish (h) statutes of wills; the English (i) and Irish (k) statutes of frauds relating to devises or bequests of lands, to the revocation or alteration of any devise in writing of lands, to the devise of any estate pur auter vie, to any such estate being assets, to nuncupative wills, and to the repealing or altering of any will in writing of personal estate; the English (1) and Irish (m) statutes relating to witnesses to (d) Sugd. Wills, 143; 1 Pow. Dev. by Jarm. 57. (e) Somerville v. Lord Somerville, 5 Ves. 750; Stanley v. Bernes, 3 Hagg. 373; Re De Vera Maraver, 1 Hagg. 498; Price v. Dewhurst, 4 Myl. & Cr. 76; Story's Conflict of Laws, c. 11. As to the French Law of Testaments and Succession, vide post, Illustrations, XI. Elwes, 1 Bligh's Parl. Rep. N. S (g) 32 Hen. 8, c. 1, and 34 & (f) 1 Rop. Leg. 1; Duffield v. (h) 10 Car. 1, sess. 2, c. 2. (k) 7 Will. 3, c. 12. (1) S. 14 of 4 & 5 Anne, c. 16. CHAPTER V. General interclause. pretation Repeal of for mer statutes re lating to wills. CHAPTER V. Proposed distribution of the five heads. nuncupative wills; the English statute (p) relating to estates pur auter vie; the English statute (q) relating to the attestation of wills of real estates, except so far as that statute relates to the American colonies; the Irish statute (r) relating to the attestation of wills concerning real estates; and the statute of the Imperial Parliament (s) for facilitating the disposition of copyholds by will. The other principal enactments may be most clearly subject under arranged under five heads. The first comprises those enactments which relate to the execution and attestation of wills, and to the competency of the witnesses; the second, those which relate to the extent of the testamentary power, as regards the subject-matter of wills, and to the testamentary capacity, as regards the personal condition of the testator; the third, those which relate to the revocation (including the alteration) and to the revival of wills; the fourth, those which relate to the construction or effect of wills generally, or of particular devises, or of particular words in wills; and the fifth, those which, in certain specified cases, impart operation to gifts void, according to the pre-existing law, by lapse. To each head will be appended the comments upon it. 1. EXECUTION AND ATTEST- I. The first class of enactments relates to the instrument, in its inception. 1. As to the execution and attestation of wills;-no will (with the exceptions in ss. 11 ner wills must & 12) is valid, unless it be in writing, and be signed at In what man be executed and attested; the foot or end thereof by the testator, or by some other person in his presence and by his direction, and such signature be made or acknowledged by the testator in the presence of two or more witnesses, present at the same time, and such witnesses attest and subscribe the will in (p) S. 9 of 14 Geo. 2, c. 20. (r) 25 Geo. 2, c. 11. CHAPTER V. All including ap pointments by will may be witwhat gifts are nesses, and void, in relation to witnesses. the testator's presence (s. 9); but no form of attestation is necessary (ib.), nor any other publication (s. 13). appointments by will, under powers, must be executed in the same manner, and, if so executed, are, as respects execution and attestation, declared valid (s. 10). 2. As to the witnesses; though an attesting witness be incom- What persons petent, at or after the execution of the will, to be admitted a witness to prove the execution, yet the will is not thereby invalidated (s. 14), and if a witness to a will be also an executor thereof (s. 17), or be a creditor, or be the wife or husband of a creditor, whose debt is charged by the will on any real or personal estate (s. 16), or be a beneficial devisee, legatee, or appointee, or be the wife or husband of such a devisee, legatee, or appointee (s. 15), yet such witness may give testimony for or against the will, but the beneficial devise, legacy, or appointment, (subject to a saving (s. 15) of charges and directions for payment of debts), is annulled. the first class of (Execution of Wills). testator; 1. The ninth section, which prescribes the ceremo- Comments on nies necessary to constitute a valid execution, may be enactments. divided into three clauses. The first clause relates to the incipient act of execution by the testator himself, 1. Execution of wills generally; and requires the will to be signed at the foot or end-signature of thereof by him, or by some other person in his presence, and by his direction. The observations which arise upon this clause are,-that a seal would not (t), while a mark would (u) be a sufficient signature by the testator, (though the virtue of a mark, as compared with a seal, can hardly be said to consist in the superior evidence which it affords);-that another person, signing in the presence and by the direction of the tes (t) Smith v. Evans, 1 Wills. 313; Wright v. Wakeford, 17 Ves. 459. (u) Prest., Shep. Touch. 407; Baker v. Dening, 8 Ad. & Ell. 91. |