No. VI. BOND GIVEN BY A BUILDER AND TWO SURETIES FOR THE 1. Recital of contract to build dwel- 2. Of agreement that principal and sureties should enter into a bond for the due performance of the contract. 3. Condition. Recital of contract to &c. [INSERT exordium with two sureties, ut ante, Section II., No. X., clause 1, p. 552.] 1. WHEREAS the above-bounden (principal), by an agreement build dwelling- in writing under his hand, bearing even date herewith but executed house, with suitable offices, previously, contracted with the said (obligee) to erect, build and complete, within the space of twelve calendar months from the date thereof, in a good, proper, efficient and workmanlike manner, one messuage or dwelling-house upon the piece or parcel of land of the said (obligee), in the said agreement particularly described, with suitable outbuildings and offices, drains, sewers and other conveniences, according to the plans, drawings and specifications, particularized and set forth in a plan and specifications, numbered 2, annexed to the said agreement, for the sum of 1,2007. Of agreement that principal and sureties should enter into a bond for the due performance of the contracts. 2. AND WHEREAS, at the time of entering into such agreement, the said (two sureties) agreed to concur with the said (principal) in the above-written bond, for the due execution of the said con tract according to the aforesaid specifications, with the condition to the effect hereunder written. No. VI. Bond given by a Builder Sureties for performance and two the due 3. Now THE CONDITION of the above-written bond is such that if the above-bounden (principal), his executors or administrators, shall within the space of twelve calendar months from the day of the date of the above-written bond, build and complete the said messuage or dwelling-house, outbuildings, offices, drains and sewers, conformably to the plans, drawings and specifications particularized in the said plan and specifications, in a good, proper, Condition. efficient and workmanlike manner in every respect, THEN the above-written bond to be void, otherwise to continue in full force and virtue. of a Contract, fc. PART VII. WILLS. Origin and antiquity of wills. Stat. 32 Hen. 8, c. 1. Knight's service in capita. INTRODUCTORY REMARKS. THE power of devising both real and personal estates is said to have prevailed amongst our Saxon ancestors to its fullest extent (Spelm. Feud. 22), but after the Norman Conquest, and the introduction of the feudal system, this power was destroyed, as far as real property was concerned, except as to lands in gavel-kind (Saunder v. Brooks, Cro. Car. 561; Perryman's case, 5 Co. 104), and small tenements in some cities or boroughs, or estates holden for a term of years: (Wright Ten. 172; Co. Litt. 111; 1 Roll. Abr. 62; Bro. Abr. tit. Dev. pt. 20.) But means were not very long wanting by which the strictness of the feudal law was evaded, for shortly after the statute quia emptores terrarum came into operation, we find testators disposing of the profits of their lands. and passing every beneficial interest therein through the medium of others seised to their use. This power was for a short time taken away by the operation of the Statute of Uses (27 Hen. 8, c. 10), which executed the legal estate in cestui que use with all its incidental properties; but this difficulty was soon gotten over by creating a trust estate, which the statute could not execute into possession. At length these devises were rendered unnecessary by the statute 32 Hen. Ɛ, c. 1; and 34 & 35 Hen. 8, c. 5. By the first of these statutes (32 Hen. 8) it was enacted, that any person having a sole estate or interest in fee simple, or seised in fee simple, in coparcenary, or in common, of any manors, lands, tenements, rents or other hereditaments holden in socage, in possession, reversion, or remainder, or any of them, or any rent, common, or other profit or commodity out of, or to be perceived of the same, or out of any parcel thereof, should have full power to give and devise the same, as well by his last will and testament in writing, as otherwise by any act or acts lawfully executed in his lifetime, for such estate or interest therein as he pleased. By the same statute also, persons holding by knight's service in capita were empowered to devise two-thirds of their lands so holden, or twothirds of the value of the same, and all these military tenures being afterwards abolished by the statute 12 Car. 2, c. 25, and all tenures turned into common socage, all persons were thereby enabled to will away their landed property of every kind and description, excepting copyhold and customary estates, which were devisable only according to the customs of the different manors to which they appertained. WILLS. Introductory Remarks. valid devise The only solemnity the Statute of Wills required was, that the instru- What would ment should be in writing; hence a letter written by a man whilst at have been a sea, in which he mentioned that his lands should go as there directed, within the was held to be a good will: (West's case, Moor, 177.) Neither was it Statute of necessary that the writing should be in the handwriting of the testator, Wills. or even that it should have been signed by him; so that even short notes taken by a third party from the testator's instructions for the purpose of being reduced into form was holden to constitute a valid will, notwithstanding the testator's name was not mentioned in any part of it: (Sir Francis Worsley's case, 1 Sid. 315, pl. 33; S.C., 2 Keb. 132, pl. 82, sub nom. Stevens v. Jerrard.) devises of real estate. The Statute of Frauds (29 Car. 2, c. 3), however, introduced some Effect of Statute stricter rules with respect to wills of real estate, by the fifth section of which of Frauds upon it is enacted, "that all devises and bequests of any lands or tenements, devisable either by force of the Statute of Wills, or by this statute, or by the custom of Kent, or of any borough, or of any particular custom, shall be in writing and signed by the party so devising the same, or by some other person in his presence, and by his express directions, and shall be attested and subscribed in the presence of the devisor by three or four credible witnesses, or else they shall be utterly void and of none effect. Although the Statute of Frauds required the will to be signed by the As to the testator, it did not require him to sign it in the presence of the witneses, testator's provided he acknowledged to them that it was his handwriting (Dormer signature. v. Thurland, 2 P. Wms. 506; Tollet's case, Mos. 46; Moodie v. Reed, 1 Mad. 516); neither was it material in what part of the will the testator's name appeared, if it could have been shown that he himself actually placed it there. As, where a testator commenced his will thus:—“ I, John Stanley, do hereby," &c.; which was held a sufficient signing within the statute: (Lemayne v. Stanley, 3 Lev. 1; see also Cook v. Parsons, Pre. Cha. 192; Smith v. Codron, cited 2 Ves. sen. 455; Stonehouse v. Evelyn, 3 P. Wms. 252; Grayson v. Atkinson, 2 Ves. sen. 454; Addy v. Grix, 8 Ves. 504.) But now, by the late Wills Act (1 Vict. c. 26, s. 9), the testator's signature must be placed at the foot of the will, and must be made or acknowledged by him before the witnesses. In a recent case, the attesting witnesses to a will deposed that the testator did not sign the will in their presence, nor did they see any signature when they subscribed their names: it was held that the will was not duly executed under the 9th section of that act (Shaw v. Neville, 24 L. T. Rep. 339.) A signature by a mark or stamp was holden to be a sufficient signature under the Statute of Frauds (Harrison v. Harrison, 8 Ves. 185; Saunderson v. Jackson, 2 Bos. & Pull. 239; Wright v. Wakeford, 7 Ves. 558; Taylor v. Denning, 3 Nev. & Per. 228; and see Re Bryce, 2 Curt. 325); and will also be considered as a valid signature within the meaning of the Act of Victoria (Re Bryce, 2 Curt. 325); but affixing, a seal is not a sufficient signature within the meaning of either of those statutes; for those enactments, by requiring the will to be signed, undoubtedly mean some evidence to arise from the handwriting, which could never arise out of a seal, for so many common seals are alike that no certainty or guide could possibly be gained from this; added to which, when an act of Parliament mentions signing, it means something different WILLS. Introductory Signature by third person when valid. Important alteration effected by stat. 1 Vict. c. 26, with respect to signatures to wills. from sealing. And in a very recent case (In the goods of John Simmers, Prerogative Court, May 11, 1850), the mere fact of placing a seal by the side of a signature previously written, that signature not having been written by the person whose name it represented, with the use of the words, "I deliver this as my act and deed," was held by Sir H. J. Fust to be an insufficient acknowledgment of a signature to a will under the terms of 1 Vict. c. 26, under the 9th section of this act : (Shaw v. Neville, 24 L. T. Rep. 413.) It is not necessary that the testator should himself sign his will, for this may be done either by himself, or by any person in his presence and by his direction, and such signature may be made as well by either of the two attesting witnesses as by any other person: (Re Bailey, 1 Curt. 914; Smith v. Harris, 1 Robert, 262.) An important alteration is also made by the act 1 Vict. c. 26, with respect to the place of signature, for instead, as under the Statute of Frauds, of permitting its insertion in any part of the instrument, it expressly requires that the signature should be at the foot or end. Upon this clause questions have lately arisen as to what, strictly speaking, may be construed as the foot or end within the meaning of this clause. The question was, it seems, first mooted in the case of Smee v. Bryer: (10 L. T..380.) In that case a will, signed by the testatrix writing her name on the fourth page of the sheet of paper on which the will was written, the signature being opposite the attestation clause, beneath which were the names of the witnesses, no part of the will being on the fourth page, was held to be an insufficient signature at the "foot or end," within the meaning of the statute 1 Vict. c. 26, s. 9. The rigid construction put on the words "foot or end" in the above-mentioned case rendered it advisable, in Re William Harris (reported 13 L. T. 10), to take the opinion of the court as to whether a will signed by the testator after the attestation, was or was not a sufficient signature; and it was held to be signed at the foot or end. In Re Howell (2 Curtis, 342), below the signature of the testator and of the witnesses, but before the execution, was written the clause appointing the executors. The latter clause was rejected, and administration with the will annexed allowed to pass to the residuary legatee. In another case, where a testator signed his name at the bottom of a printed form ending on the second side of a sheet of paper, the will itself ending on the first side, probate was allowed to pass of the will as signed at the "foot or end" thereof: (In Re Carver, 3 Curt. 293; see also Re Bullock, ib. 35.) In Re Hellings also (13 L. T. 308), the will of a blind woman was held to be valid, although the will was contained in the first two pages of a sheet of paper, and the signature was half way down the third page, followed however by the attestation clause, and the names of the witnesses. In the goods of James Mc Cullum also (3rd of July, 1849), probate was granted of a will, although the signature was in the margin, and therefore not strictly at the "foot or end" as mentioned in the statute. Again, in Re M. Beadley, a will was written on both sides of a sheet of paper, and on part of a third side. At the end of the will itself there was a blank space of about half a line, the words "one thousand eight hundred and forty-eight," forming the first line. Immediately below those words was an attestation clause, which extended from one side to the other wholly across the paper. About three inches below the last line of the attestation clause was the signature of the testatrix. Opposite to the signature was the word "witnesses." The name of the testatrix was followed immediately by the names of the two attesting witnesses. |