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that all real and personal estate to which the testator is entitled at the time of his death, shall pass, notwithstanding that he may become entitled to the same subsequently to the execution of his will(s); and it is farther to be remarked, that as to the person capable of taking by devise, there is no exception (as under the former statutes) of corporations; so that a devise to a body corporate will now be valid; subject of course to the prohibition of 9 Geo. II. c. 26, as to a devise to charitable uses, and subject also to the enactments of the statutes of mortmain, by which corporations are required to obtain the crown's licence, to enable them to become the holders of land (t).

II. With respect to solemnities. When the former statute of wills had for the first time given efficacy to devises [innumerable frauds and perjuries were quickly introduced](u), which can excite no surprise when we consider that bare notes, in the handwriting of another person, then became good wills within the statute (x), if only published as such, that is, declared by the testator to be intended to operate as his will and testament. For except publication (y), no other ceremony had been essential to a written will of personalty, before the statute passed; and the statute itself prescribes no particular solemnity in reference to a devise of real estate, except that it requires the will to be in writing. [To remedy which, the Statute of Frauds and Perjuries, 29 Car. II. c. 3, directed that all devises of lands and tenements should not only be in writing, but signed (z) by the testator or some other person, in his presence, and by his express direction, and be subscribed, in his presence, by three credible witnesses. And a solemnity nearly similar was requisite for revoking (a) a de

(s) Sect. 3; Marston v. Roe, 8 Ad.

& Ell. 14.

(t) Vid. sup. p. 427. (u) 2 Bl. Com. 376. (1) Ibid.

(y) As to this requisite, vide Doe v. Sir F. Burdett, 4 Ad. & El. 14.

() As to signing by mark, vide Baker v. Denning, 8 Ad. & Ell. 94.

(a) As to revocation by burning, Doe v. Harris, 6 Ad. & Ell. 209. 8 Ad. & Ell. 1; Bibb v. Thomas, 2 w. Bla. 1043.

[vise by writing, though the same might be also revoked by the burning, cancelling, tearing, or obliterating thereof by the devisor, or in his presence, and with his consent] (if done animo revocandi) (b), [as likewise impliedly] by any new modification of the interest of the devisor, in the estate devised (c), [or by such a great and entire alteration in his circumstances as arises from marriage and the birth of a child (d), or, in case of a woman, marriage only (e). [In the construction of this last statute, it had been adjudged that the testator's name, written with his own hand at the beginning of his will, as "I John Mills do make this my last will and testament," was a sufficient signing within the Statute of Frauds, if so intended by the testator (f). [It had also been determined, that though the witnesses must all see the testator sign, or at least acknowledge the signing, yet they might do it at different times (g); but that they must all subscribe their names as witnesses in his presence, lest by any possibility they should mistake the instrument (h). And in one case determined by the Court of King's Bench (i), the judges were extremely strict in regard to the credibility, or rather the competency, of the witnesses, for they would not allow any legatee, nor, by consequence, a creditor, where the legacies and debts were charged on the real estate, to be a competent witness to the devise, as being too deeply concerned in interest, not to wish the establishment of the will; for if it were established, he gained a security for his legacy or debt from the real estate, whereas otherwise he had no claim but on the personal assets. This determination, however, alarmed many purchasers and creditors,

(b) Burtenshaw v. Gilbert, Cowp. 52; Doe v. Perkes, 3 B. & Ald. 489. (c) Sparrow v. Hardcastle, 3 Atk. 802; Williams v. Owens, 2 Ves. j. 599; 4 Real P. R. 24.

(d) 2 Bl. Com. 376; Marston v. Roe, 8 Ad. & Ell. 14.

(e) Forse and Hembling's case, 4

Rep. 60 b.

(f) 2 Bl. Com. by Chitty, 376, n. (6).

(g) Freem. 486; 2 Ch. Ca. 109; Pr. Ch. 185.

(h) Longford v. Eyre, 1 P. Wms. 740.

(i) Holdfast v. Dowsing, Stra. 1253.

[and threatened to shake most of the titles in the kingdom, that depended on devises by will. For if the will was attested by a servant to whom wages were due, by the apothecary or attorney whose very attendance made them creditors, or by the minister of the parish who had any demand for tithes or ecclesiastical dues (and these are the persons most likely to be present in the testator's last illness); and if, in such case, the testator had charged his real estate with the payment of his debts, the whole will and every disposition therein, so far as related to real property, was held to be utterly void. This occasioned the statute 25 Geo. II. c. 6, which restored both the competency and the credit of such legatees, by declaring void all legacies given to witnesses, and thereby removing all possibility of their interest affecting their testimony. The same statute likewise established the competency of creditors, by directing the testimony of all such creditors to be admitted, but leaving their credit (like that of all other witnesses) to be considered on a view of all the circumstances by the court and jury before whom such will should be contested. And in a much later case (k), the testimony of three witnesses, who were creditors, was held to be sufficiently credible, though the land was charged for the payment of debts, and the reasons given on the former determination were said to be insufficient.]

But now as to all wills except those made before 1st January, 1838 (1), the former provisions as to execution and attestation are repealed (m); and it is enacted (n) that no will (with the exception of those made as to personal estate by soldiers and seamen in certain cases, as provided for by former statutes (o)) shall be valid, unless it shall be in (m) Sect. 2.

(k) M. 31 Geo. 2; Wynham v. Chetwynd, Burr. 414.

(1) Vide sect. 34. By this section every will re-executed or re-published or revived by any codicil, shall for the purposes of the act be deemed to have been made at the time when so reexecuted, re-published, or revived.

(n) Sect. 9, 11, 12.

(0) Statute of Frauds, 29 Car. 2, c 3; 11 Geo. 4 & 1 Will. 4, c. 20; vide 2 Bl. C. 500; Shelford's Wills, 77. Which latter work contains a very full and useful exposition of the new statute of wills.

writing, and signed at the foot or end thereof by the testator, or some other person, in his presence, and by his direction; such signature being also made or acknowledged by him, in the presence of two or more witnesses present at the same time, and such witnesses attesting and subscribing the will in his presence. Where these requisites, however, are complied with, no other is now imposed by law (p); and the statute expressly enacts that no publication other than is implied in the execution so attested, shall in future be necessary.

The former provisions with respect to the competency of witnesses having an interest, are also repealed as to wills taking effect under the new law (q); and the new enactments on this subject, are, first, that in case of the incompetency of any attesting witness, the will shall not, on that account, be invalid; secondly, that any beneficial gift or appointment by the will to an attesting witness, or to the husband or wife of an attesting witness, (except a charge for payment of debts) shall be void, and the evidence of the witness admissible; thirdly, that where land is charged by the will with payment of debts, and the creditor, or husband or wife of the creditor, is an attesting witness, such witness shall nevertheless be competent; fourthly, that no person shall be incompetent on account of his being an executor of the will.

As to revocation also, the former law is altered; and it is provided that every will taking effect under this act, shall be revoked by the marriage alone of the testator or testatrix, unless such will was made in exercise of a power of appointment, and in a case where the estate would not have passed, in default of appointment, to his or her representatives (r); but that, on the other hand, no will "shall be

(p) Appointments by will under a power, are to be executed and attested in the same manner with other wills; even where other solemnities have been prescribed by the donor of the power;

sect. 10. As to the prior law with re-
spect to attestation in such cases, vide
Doe v. Sir F. Burdett, 4 Ad. & El. 11.
(9) Sect. 14, 15, 16, 17.
(r) Sect. 18.

"revoked by any presumption of an intention on the ground "of an alteration in circumstances (s)," nor in any other manner, except by marriage as aforesaid, or by another will or codicil or some writing of revocation, executed like a will, or by burning, tearing, or otherwise destroying it (animo revocandi) by the testator, or some person in his presence, and by his direction(t); and that, except such acts as these, no act whatever subsequent to its execution shall prevent its taking effect on any estate which the testator shall have power to dispose of, at his death (u). With respect to obliteration or other alteration made after execution, it is in like manner provided that they are to have no effect (where the original meaning can still be deciphered) unless executed with the same ceremonies as the will itself, though it will be sufficient if the signature of the testator, and the subscription of the witnesses, be made opposite or near the part altered, or at the foot or end of some memorandum written on the will, and referring to the alteration (r). And so when a will is once revoked, it is not to be revived otherwise than by re-execution of the original, or by a codicil duly executed, and showing an intention of revival (y).

III. With respect to the construction of devises, they are subject, in a great measure, to the same rules of interpretation as apply to conveyance by deed (z); but as in making a will, a party is supposed to be inops consilii (a), there are instances in which the law will carry his intended limitations into effect, though the words used would be insufficient for the purpose in a deed (b). Thus by devise La fee may be conveyed without words of inheritance (c), and an estate tail without words of procreation (d), provided that other words be used sufficient to indicate the

(s) Sect. 19. (t) Sect. 20. (u) Sect. 23. (r) Sect. 21. (y) Sect: 22.

(*) Vide supra, p. 309.

(a) 2 Bl. Com. 172.

(b) Co. Litt. by Butl.272 a, n. (1). (c) Vide supra, p. 224.

(d) Supra, p. 232.

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