Frauds, it was 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], if so intended by the testator (i). It was also [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 (k); but that they must all subscribe their names as witnesses in his presence, lest by any possibility they should mistake the instrument (7). And in one case, determined by the Court of King's Bench (m), 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 by simple contract (n), [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,] as the law then stood, [he had no claim but on the personal assets. This determination, however, alarmed many purchasers and creditors, 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 (i) 2 Bl. Com. by Chitty, 376, n. (6). (k) Freem. 486; 2 Ch. Ca. 109; Pr. Ch. 185. (1) Longford v. Eyre, 1 P. Wms. 740. (m) Holdfast v. Dowsing, Stra. 1253. But see to the contrary, Wyndham v. Chetwynd, Burr. 414. (n) Vide sup. p. 434. com [statute 25 Geo. II. c. 6, which restored both the co petency 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, 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.] Such is still the law as to the execution and attestation required for all wills made before 1st January, 1838 (o); but the provisions previously in force are, by 7 Will. IV. & 1 Vict. c. 26, repealed as to all wills made after that date (p); and it is now enacted (q), 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 (r), shall be valid, unless it be in writing, and signed at the foot or end thereof (s), by the testator, or some other person, in his presence, and by his direction; such signature being also made or acknowledged by him, (0) 7 Will. 4 & 1 Vict. c. 26, s. 34. By this section, every will reexecuted, or republished or revived by any codicil, shall, for the purposes of the Act, be deemed to have been made at the time when so re-executed, re-published, or revived. (See Doe v. Walker, 12 Mee. & W. 591; Winter v. Winter, 5 Hare, 306.) The statute extends to wills made before 1st January, 1838, if altered subsequently to that date. (Croker v. Hertford, 4 Moore's P. C. Cases, 339.) (p) 7 Will. 4 & 1 Vict. c. 26, s. 2. (q) Sects. 9, 11, 12. (r) Statute of Frauds, 29 Car. 2, c. 3; 11 Geo. 4 & 1 Will. 4, c. 20. (See Shelford on Wills, 77; a work which contains a very full and useful exposition of the New Will Act.) Since 7 Will. 4 & 1 Vict. c. 26, new provisions have been made as to the wills, wages and effects of deceased merchant seamen, viz. by 17 & 18 Vict. c. 104, ss. 194-204.. (s) As to the position of the signature, it is by 15 & 16 Vict. c. 24, made sufficient if it be placed at or after or following, or under, or beside, or opposite to the end of the will, in such manner that it shall be apparent on the face of the will, that the testator intended to give effect, by such signature, to the writing signed as his will; but the signature is not sufficient to give effect to any disposition underneath or following it, or inserted after the signature is made. (As to this provision see Re Peach, 1 Swab. & Trist. 138; Trott v. Skidmore, 2 Swab. & Trist. 12.) in the presence of two or more witnesses present at the same time, and such witnesses attesting and subscribing the will in his presence (t). Where these requisites, however, are complied with, no other is now imposed by law (u); 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 (x); 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 hushand or wife of the creditor, is an attesting witness, such witness shall nevertheless be competent; fourthly, that no person shall be incompetent as a witness, on account of his being an executor of the will. These enactments, however, are now of the less importance, as by the later statutes of 6 & 7 Vict. c. 85, and 14 & 15 Vict. c. 99, the objection to a witness on the ground of interest, (which once applied (1) As to attestation, see Ilott v. Genge, 4 Moore's P. C. Cases, 265; In re William Frith, 1 Swab. & Trist. 8; Charlton v. Hindmarsh, ib. 433; Re Drummond, 2 Swab. & Trist. 8. It may be as follows: "Signed, published and declared by "the said A. B., the testator, as and "for his last will and testament, in "the presence of us, present at the 66 same time, who at his request, in "his presence, and the presence of "each other, have hereunto sub"scribed our names as witnesses." (u) 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 (7 Will. 4 & 1 Vict. c. 26, s. 10); a provision parallel to which has been since made by 22 & 23 Vict. c. 35, s. 12, as to appointment by deed under a power; vide sup. p. 557, n. (a). (x) 7 Will. 4 & 1 Vict. c. 26, ss. 14, 15, 16, 17. generally in our law, and not merely in the instance of wills,) is in all cases taken away (y). As to revocation, also, the former law is altered by the New Will Act; and it is provided (2), that every will taking effect under this statute shall be revoked by the marriage alone either of a testator or of a 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: but that, on the other hand, no will "shall be revoked by any "presumption of an intention on the ground of an alter"ation in circumstances (a)," or 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 except by burning, tearing, or otherwise destroying the original will (animo revocandi), by the testator or some person in his presence and by his direction (b); and that, with the exception of such acts as these, no act whatever subsequent to the execution of the will shall prevent its taking effect on any estate which the testator shall have power to dispose of at his death (c). With respect to obliteration or other alteration made after execution (d), 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 altera (y) There is, however, in both of these statutes, a proviso that this shall not be taken to repeal the enactments of 7 Will. 4 & 1 Vict. above referred to; and consequently a gift or appointment to an attesting witness, or to the husband or wife of an attesting witness, will still be void. (x) 7 Will. 4 & 1 Vict. c. 26, s. 18. (a) Sect. 19. See De Pontes v. Kendall, 10 W. R. 69. (b) Sect. 20. See Francis v. Grover, 5 Hare, 39; Price v. Powell, 3 H. & N. 341; Elms v. Elms, 1 Swab. & Trist. 155. (e) 7 Will. 4 & 1 Vict. c. 26, s. 23. (d) See as to alterations or erasures, Gann v. Gregory, 22 L. J. (Ch.) 1059; Re James, 1 Swab. & Trist. 238. Et vide sup. p. 505, n. (e). tion (e). 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 (ƒ). III. With respect to the construction of devises, they are subject, in a great measure, to the same rules of interpretation as apply to conveyances by deed (g); but as in making a will, a party is supposed to be inops consilii (h), there are instances in which the law will carry his intended limitations into effect, though the words used would be insufficient or improper for the purpose in a deed (i). Thus it was held-even before the late act 7 Will. IV. & 1 Vict. c. 26, rendering the fee devisable without words of limitation (k),—that a fee might be conveyed by devise [without words of inheritance (1), and an estate tail without words of procreation (m),] provided that other words were used sufficient to indicate the design; though, in conveyances by deed, the case, as we have seen, is otherwise. So an estate may pass under a will [by mere implication, without any words to direct its course. express As where a man devises lands to his heir at law, after the death of his wife. Here though no estate is given to the wife in express terms, yet she shall have an estate for life by implication (n); for the intent of the testator is clearly to postpone the heir, until after her death; and if she does not take it, nobody else can. (e) 7 Will. 4 & 1 Vict. c. 26, s. 21. (f) Sect. 22. See as to revival, Andrews v. Turner, 3 Q. B. 177; In the goods of William Brown, 1 Swab. & Trist. 32. (g) See Clayton v. Lord Nugent, 13 Mee. & W. 200. As to these rules of interpretation, vide sup. p. 507. (h) 2 Bl. Com. 172. (i) Co. Litt. by Butler, 272 a, n. (1); Doe v. Roberts, 7 Mee. & W. VOL. I. 386; Slater v. Dangerfield, 15 Mee. (k) Vide post, p. 611. (m) Doe v. Bannister, 7 Mee. & W. 298; Lewis v. Puxley, 16 Mee. & W. 733; vide sup. p. 250. (n) H. 13 Hen. 7, 22; 1 Vent. 376. R R |