equity would compel a purchaser to take, if the will pear, upon the face of it, to be duly executed and attested. POSING POWER personal estate may be disposed of by will. II. The second class of enactments relate to the sub- II. THE DISject-matter, and to the maker of the instrument. 1. AS AND CAPACITY. to the testamentary power;-this power (to be exercised according to the forms prescribed by the act) is extended expressly to all customary freeholds and copyholds, although not surrendered to the use of a will, and although the testator, being entitled to admission in any character, shall not be admitted, and notwithstanding any special custom, or the want of a custom, to devise or surrender to the use of a will; also to all estates pur auter vie, of whatever tenure or quality, and to every species of contingent, executory, and future interest, and to all rights of entry (s. 3), and to all real, as well as personal estate, which the testator may acquire after the execution of his will, (ib. and see also sect. 23). In short, the testator is empowered to devise and bequeath all the real and personal estate to which he may be entitled at law or in equity at his decease (ss. 3, 23), and which, if not so devised or bequeathed, would devolve on his heir, or on the heir of his ancestor, or on his executor or administrator (s. 3.) 2. As to the testamentary capacity: Personal com-this is denied to persons not of the full age of twenty- make a will, as one years (s. 7); and it is limited, in regard to married regards age and women, to such wills as they might, previously to the act, have made (s. 8). petency to coverture. Comments on the second class of enactments. (The disposing power and capacity). Subjects of the 1. Thus, after centuries spent in the acquisition of imperfect rights, won at different times by different means, and as variously exercised, the legislature has at once made a full concession of the testamentary power, as regards the subject-matter, establishing the same ampli- testamentary tude of dominion, and the same standard of competency, as to both real and personal estate of every denomination. Henceforth, all testamentary power and capacity will power; CHAPTER V. quired property, both real and personal. ing gift should rest on the basis of one positive law. As it is no longer -all after-ac- necessary that the testator should have (o) the estate at the time of making the devise, and should continue to have it, and as devises cease, therefore, to be necessarily specific; since, in short, real and personal estate are subjected, in this respect, to the same law which previously governed personal estate exclusively (p), it should seem that the doctrine, as to the inefficacy of a devise to pass after-acquired lands, the doctrine as to lapsed devises not sinking into the residue, and the doctrine of constructive revocation by alteration of estate, would, without more (but see ss. 23, 24, 25), have fallen together How a sweep to the ground. It may, however, be thought advisable now be penned. that a devise or bequest, intended to be sweeping, should include, in express terms, all the real estate, or all the personal estate, which may belong to the testator at his decease, inasmuch as this enactment merely purports to enable the testator so to devise or bequeath, and inasmuch as another clause (g), (to be hereafter considered), making a devise or bequest speak as if the will were executed immediately before death, makes it so speak with reference only "to the real and personal estate comprised in it." The extension of the disposing power to after-acquired real estate will, doubtless, in many cases, where, under the old law, personal estate alone would have been contemplated, suggest a corresponding extension of the disposing instrument, especially as one uniform mode of execution is prescribed. Indeed, there has ceased to be any reason for framing wills upon a plan less comprehensive, as regards real, than as regards personal estate; with the exception only of cases, in which the improbability of the testator's ever acquiring any real estate, and the nature of his scheme of disposition, would Of extending wills, generally, to real estate; CHAPTER V. othercustomary and contingent render the introduction of the requisite devises an idle addition to the expense of probate. The power, before -copyhold and imperfect, of disposing by will of copyhold and other cus- estates; tomary estates is rendered complete; for, neither the want of a surrender, nor of admittance, nor even the existence of a prohibitory custom, will, in any case, prevent the operation of the devise; though, (as we shall presently see), a joint-tenant must still surrender (r), in order that he may devise at law, as against his surviving cotenant; and a married woman must also surrender, with the concurrence of her husband (s), in order that she may be enabled to devise as against the heir (t), because a power must be created for that purpose (s. 8). The act -executory has also enlarged, in some respects, the testamentary interests; power over estates pur auter vie, and, perhaps, over contingent and executory interests (u); and it has called rights of eninto existence, for the first time, the power of devising rights of entry, including of course rights of entry for the breach of conditions. But mere rights of action (which but not of may still exist (x)) are not devisable, and they appear to form the single exception; for estates tail, including quasi entails of leaseholds for life (y), are, from being confined in their devolution to special heirs, entirely without the scope of the devising power; and bare possibilities, as the spes successionis of an heir apparent, rest- sion; ing in expectation at the death of the testator, are also obviously excluded by their very nature. With respect -estates in joint-tenancy, to estates in joint-tenancy;-as, without a severance, if severed benothing would devolve upon the representatives of the fore death. (r) Porter v. Porter, Cro. J. 100; Gale v. Gale, 2 Cox, 136. (s) Ante, 206. (t) Doe v. Bartle, 5 Barn. & A. 492, 1 Dowl. & R. 81; Doe v. Ludlam, 7 Bing. 275, 5 M. & P. 48; Doe v. Bird, 5 Barn. & Ad. try; action; -nor estates tail; nor the mere hope of succes CHAPTER V. Aim of the third section, and its influence as regards intestacy. Testator's competency. be testators; Married women may, in what pre-deceasing joint-tenant, it is of course essential that he should sever, at law or in equity, in order that, notwithstanding the event of his not becoming solely seised, by surviving his co-tenant or co-tenants, his will may operate; though it is no longer material whether his acquisition of an undivided share by severance, or of the whole by survivorship, be prior or posterior to the making of his will, if the terms of the devise or bequest be sufficiently large. The particular enumeration, in the third section, of the disposable subjects of property, has reference chiefly to real estate; for, as to personal estate, the old law was abundantly liberal. Intestacy, as to either real or personal estate, can no longer occur, unless from omission to make a will according to the requisitions of the statute, or to insert in the will a general gift of the testator's property, or of the residue of his property, or from the total or partial lapse or failure of the general gift itself; and as to lapse, if the gift be in favour of a child or other issue of the testator, the liability to intestacy, from the death of the object in his lifetime, is diminished by the statute (z). 2. Minors can no longer make wills of any kind of Minors cannot property (a), or for any purpose (b) whatever. The incapacity of infancy is subject to no exception, and admits of no dispensation or evasion by means of a power or otherwise. The reference, in the eighth section, to the previous law confines the testamentary capacity of a married woman to the five following cases :-first, where she has separate estate, (and, notwithstanding that a contrary opinion seems to have been entertained (c), it is apprehended that even the equitable inheritance of land, cases: -separate estate; (z) Vide post, ss. 25, 32, 33. (b) See 12 Car. 2, c. 24, s. 8; Ex parte Ilchester, 7 Ves. 348. (c) See Hay. Conc. Conv. 46, n. But see Sand. Us. 3rd ed. 276. CHAPTER V. as well as the corpus of personalty, may be constituted her separate estate); or, secondly, where she has a power of appointment; or, thirdly, where she has, in respect of -husband's personal estate, the assent of her husband (d), though, in such a case, the disposition can hardly be denominated assent; nished. her will; or, fourthly, where, being the sole or surviving -executrix; executrix of another, she merely appoints an executor to continue the representation (e) to her testator; or, fifthly, -husband bawhere the husband is banished, or has abjured the realm (f). But if there should be any other case in which the will of a married woman would have been valid before the act, either by the statute law or the common law, or by local custom, the saving extends to it (g). As to every other species of incapacity to dispose by will, and as to incapacity to take under a will, the law remains unaltered. TION AND RE- WILLS. In what man ner wills may be revoked (in revocation by III. The third class of enactments relates to the in- III. REVOCAstrument, as it may be affected by matter subsequent. 1. As to the revocation of wills.-Every will becomes revoked by the maker's marriage, unless it be a will under a power, where the property appointed would not, including partial default of appointment, pass to the heir, executor, ad- alteration); ministrator, or the next of kin of the testator (s. 18); but no will is revocable, otherwise than by marriage, or by another will, or by some writing declaring the intention to revoke, and executed as a will, or by burning, tearing, or otherwise destroying, either by the testator or by another in his presence, and by his direction, with intent to (d) See Shep. Touch. by Prest. 402. (e) Id. 459, 473. (f) Countess of Portland v. Prodgers, 2 Vern. 104. (g) The words "except such a will as might have been made by a married woman before the pass- |