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CHAPTER XX.

DEVOLUTION OF PROPERTY ON DEATH.

THE power of making a will or testament (a) of personal pro- Chap. XX. perty seems to have existed from a very early time (b). In the Will, power city of London, the province of York, and the principality of of making. Wales, there were formerly customs which restricted the testamentary power of a man who left a wife or children; but these customs have long since been abolished by statute (c).

will.

At common law a will might be "nuncupative," i.e., by word Nuncupative of mouth without writing; but by the Statute of Frauds (d) nuncupative wills of personal property exceeding in value 301., though not absolutely abolished, were subjected to such restrictions and requirements that they fell into disuse.

The Statute of Frauds (e) required wills of lands to be in Statute of writing signed by the devisor or by some other person in his Frauds. presence and by his express directions, and to be attested and subscribed in the presence of the devisor by three or four credible witnesses; but it did not require wills of personalty to be signed or attested at all (f); and so the law remained until the year 1837, when the Wills Act (g) provided that a will (which is Wills Act,

1837.

defined so as to include a codicil (h)) "shall be signed at the Requirefoot or end thereof by the testator or by some other person in ments; his presence and by his direction, and such signature shall be signature; made or acknowledged by the testator in the presence of two

(a) See M. L. R. P. Ch. 19. (b) See 2 Bl. 491 et seq., and as to wills of land, see M. L. R. P. Ch. 19. (c) As to freemen of the City of London by 11 Geo. 1, c. 18, s. 17; as to York, 4 & 5 W. & M. c. 2; 2 & 3 Anne, c. 5; as to Wales, 7 & 8 W. 3, c. 38. See the question whether the custom ever prevailed over all England -discussed in Williams, Executors, 2. And as to the custom of London, see

Com. Dig. Guardian (G. 2); 2 Salk.
426; Hall v. Hall, 2 Vern. 277, 612,
685; Kenny on Marr. Women, 66.

(d) 29 Car. 2, c. 3, s. 19. See 4
Anne, c. 16, s. 14.

(e) 29 Car. 2, c. 3, s. 5.
(f) See cases cited in Limbery v.
Mason, Com. Rep. 451.

(g) 7 Will. 4 & 1 Vict. c. 26, s. 9.
(h) Ib. s. 1. As to codicils, see
M. L. R. P. 413.

two wit

nesses.

Chap. XX. or more witnesses present at the same time, and such witnesses shall attest and shall subscribe the will in the presence of the testator" (i).

"Foot or end."

Subscription by witnesses.

Alterations.

What may be bequeathed.

The Wills Act Amendment Act, 1852 (k), in order to explain what is meant by signature "at the foot or end thereof " provides that the signature is sufficient if it is "so placed at or after, or following, or under, or beside, or opposite to the end of the will, that it shall be apparent on the face of the will that the testator intended to give effect by such his signature to the writing signed as his will" (7); the Act goes on to enumerate many cases of such signatures which are to be sufficient (m). No signature, however, shall give effect to anything which follows after it or is inserted after the signature is made (m).

The attesting witnesses must "subscribe" the will, but this does not mean that they must write their names underneath the will; it is sufficient if they have written their names upon the will with the intention of attesting the testator's signature (n).

Any alteration in a will made subsequent to its execution must be executed in the same way as a will(o); but it is sufficient if the signature of the testator and the subscription of the witnesses be made in the margin or on some other part of the will opposite or near to the alteration, or at the foot or end of or opposite to a memorandum referring to the alteration and written at the end or some other part of the will (o). Alterations not duly executed may, however, be made valid by a codicil confirming the will (p). As regards personal property, the Wills Act, 1837 (q), after repealing the former statutes relating to wills, enacts that every person may by his will (executed as above mentioned) dispose of all personal estate which he shall be entitled to, either at law or in equity, at the time of his death and which, if not so disposed of, would devolve upon his executor or administrator; and that

(i) Wyatt v. Berry, [1893] P. 5; Brown v. Skirrow, [1902] P. 3.

(k) 15 & 16 Vict. c. 24.

(1) Ib. s. 1. See Margary v. Robinson, 12 P. D. 8; Re Fuller, [1892] P. 377; Royle v. Harris, [1895] P. 163. As to nuncupative or informal wills of soldiers or sailors, see Wills Act, 1837, s. 11; 28 & 29 Vict. c. 72, as amended by 60 & 61 Vict. c. 15; 57 & 58 Vict. c. 60, s. 177; Gattward v. Knee,

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the power thus given "shall extend to all contingent, executory, Chap. XX. or other future interests in any personal estate, whether the testator may or may not be ascertained as the person or one of the persons in whom the same respectively may become vested," and notwithstanding that he may become entitled to the property or interests subsequently to the execution of his will.

witness.

Formerly a person to whom, or to whose wife or husband, any Gift to benefit was given by the will was considered not to be a credible attesting witness to the will; under the Wills Act (r) such a person is a competent witness to prove the execution of the will, but the gift is void(s). A creditor or executor may be an attesting witness (8). Before the Wills Act, a boy of the age of fourteen and a girl of Infants. the age of twelve could make a valid will of personal property;. but that Act provides that no will made by a person under the age of twenty-one years shall be valid (t).

Every will is now construed, with reference to the real and Will speaks personal estate comprised in it, to speak and take effect as if it from death as to property had been executed immediately before the death of the testator, bequeathed. unless a contrary intention appears by the will (u). This provision has reference only to the question of what property passes by the will; it does not mean that whatever the testator says in the will is to be construed as if the will were made on the day of his death (x).

If a person to whom any personal estate is bequeathed dies Lapse. before the testator, the bequest fails or "lapses," except where the legatee is a child or other issue of the testator and leaves issue living at the testator's death, in which case the Wills Act provides (y) that the bequest shall take effect as if the legatee had died immediately after the death of the testator (unless a contrary intention appears by the will). This does not, however, apply where the gift is to children or other issue as a class, even if it

(r) Wills Act, 1837, ss. 14, 15.

(8) Ib. ss. 16, 17; Re Pooley, 40 Ch. D. 1; Thorpe v. Bestwick, 6 Q. B. D. 311.

(t) Ib. s. 7; see M. L. R. P. as to infants, and as to wills of married

women.

(u) Ib. s. 24. See Trinder v. Trinder, 1 Eq. 695; Wagstaff v. Wagstaff, 8 Eq. 229; Re Ord, 12 Ch. D. 22; Re Russell, 19 id. 432. As to the general personal estate, a will was construed in

the same way before the Act. See
Hawkins on Wills, 17. Formerly a
will did not pass land acquired by the
testator after the date of the will. See
M. L. R. P. 415; Hawkins, 14.

(x) Per Lindley, L.J., Re Portal,
30 Ch. D. 55. See Bullock v. Ben-
nett, 7 De G. M. & G. 283; Hawkins,
18.

(y) Wills Act, 1837, s. 33. See Theobald, 784; Elph. Introd. 488; Re Griffiths, [1911] 1 Ch. 246.

Chap. XX. happens that the class consists of but one individual (z). It will be observed that the effect of this section is to make the property bequeathed part of the estate of the original legatee and not to give it to the issue of the legatee (a).

Joint tenancy.

Gift to a class.

Revocation.

Revival of revoked will.

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If there be a bequest to several persons by name (as "to A., B., and C."), or by a general description of them as a class (as "the children of A."), without more, they take jointly, and if any one of them dies before the testator, the whole gift goes to those who survive (b). But if there be any words importing distinctness or plurality of interest among them (as "equally," "between," or among" them, or if the "share" of any one is spoken of), they take as tenants in common (c). If, however, the gift be to a class (d), though as tenants in common, the result is that the whole bequest is taken by the persons who form the class when the gift takes effect; thus, if a testator gives 1,000l. to "the children of A. in equal shares," this is construed as a gift to those children of A. who shall be living at the testator's death (e), and there is no lapse by reason of the death of a child of A. before the testator, for such child is not a member of the class to whom the gift was made.

A will is revoked by subsequent marriage (except wills made in exercise of some powers of appointment (f)), or by another will (g) or codicil duly executed, or by a writing declaring an intention to revoke the will and duly executed in the same manner as a will, or by burning, tearing, or otherwise destroying the will with the intention of revoking it (h).

A will which has been revoked cannot be revived except by re-execution or by a codicil showing an intention to revive it (i). When a will which has been partly revoked, and has been afterwards wholly revoked, is revived, the part which was first revoked is not revived unless such an intention appears (k).

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Formerly (1) it was essential in a will of personalty to appoint Chap. XX. an executor, that is, "one appointed by a man's last will and testa- Executor. ment to have the disposing and administration of all or a part of a man's goods and chattels and to perform a man's last will and testament, according to the contents thereof" (m). And it is still usual and proper to appoint an executor or several executors; but if there be no executor, the Court appoints an "administrator with the will annexed (cum testamento annexo).

Under the old law the executor was entitled to the residue of Beneficial interest of the personal estate which was not disposed of by the will, unless executor. it appeared from the will that he was not intended to take beneficially; but, by the Executors Act, 1830 (n), the executor now holds that residue as trustee for the next of kin, unless it appears by the will that he was intended to take beneficially. If there are no next of kin, the executor still takes the undisposed-of residue for his own benefit (o).

executors.

A testator may appoint one executor or several. If there are Several several executors, they "in the eye of the law are but as one man" (p); and therefore most acts done by or to any one of them are considered as done by or to all of them; for instance, payment of a debt by or to one of them is esteemed payment by or to all (g); and so one may make a sale or a mortgage or pledge (r) of goods or chattels of the testator; or compromise a claim against the estate even if it is a claim by a co-executor (s).

An executor may be appointed by express words, or by im- Executor according to plication, as by declaring that a man shall have certain rights the tenor. which appertain to the office of executor, in which case he is called an "executor according to the tenor" (t). The appointment may

(7) 2 Bl. 503.

(m) Shep. Touch. 400.

(n) 1 Will. 4, c. 40. See Re Roby, [1908]1 Ch. 71.

(o) See A.-G. v. Jefferys, [1908] A. C. 411; Re Roby, sup.; Theobald, P. 136.

(p) Shep. Touch. 484.

(q) Ib. Charlton v. Durham, 4 Ch. 433. Secus, as to one trustee, though he be also an executor, Lee v. Sankey, 15 Eq. 204.

(r) Per Ld. Thurlow, C., Scott v. Tyler, 2 Dick. 712, 725; M'Leod v. Drummond, 14 Ves. 353; 17 Ves. 152;

11 R. R. 41; Jacomb v. Harwood,
Ves. sen. 267, per Strange, M.R.;
Simpson v. Gutteridge, 1 Madd. 616;
16 R. R. 276; Cole v., Miles, 10 Ha.
179, post, p. 403.

(8) Re Houghton, 90 L. T. 252.

(t) Godolph. Pt. 2, c. 5, s. 2. Brightman v. Keighley, Cro. Eliz. 43; 1 Wms. Exors. Pt. 1, Bk. 3, ch. 2. For instances, see Re Punchard, L. R. 2 P. & M. 369; Re Bell, 4 P. D. 85; Re Lush, 13 id. 20; Re Leven, 15 id. 22; Re Russell, [1892] P. 380; Re Wilkinson, ib. 227; Re Way, [1901] P. 345; Re Cook, [1902] P. 114.

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