PT. III.T.15, attesting the execution of such will or codicil, or any C. 1, s. 2. person claiming under him, be utterly null and void and such person shall be admitted as a witness to the execution of such will or codicil, within the intent of the said Act, notwithstanding such devise, legacy, estate, interest, gift, or appointment mentioned in such will or codicil." And by s. 2, "in case, by any will or codicil already made or hereafter to be made, any lands, tenements, or hereditaments, are or shall be charged with any debt or debts, and any creditor whose debt is so charged hath attested or shall attest the execution of such will or codicil, every such creditor, notwithstanding such charge, shall be admitted as a witness to the execution of such will or codicil, within the intent of the said Act" (a). 2754. This statute does not extend to wills of personal estate only, the preamble relating only to real estate; and a legacy to a person who is an attesting witness to such a will is not void (b). And the Act does not extend to a devise of real property to the wife of one of the witnesses. So that, in such a case, the husband is not a credible witness (c). 2755. A person cannot empower himself to give lands by a will not duly attested (d). All devises by which terms for years or other interests arising out of lands are created, or by which powers to sell or charge lands are given, are within the Statute of Frauds. If, however, a will duly executed contains a general charge of legacies on the testator's lands, such charge will extend to legacies given by a subsequent will or codicil not duly attested. But if a person by will duly attested, charges his real estate with such legacies and annuities as he 45. (a) 6 Cruise T. 38, c. 5. § 44. (b) Emanuel v. Constable, 3 Russ. 436; Foster v. Banbury, 3 Sim. 40. (d) 6 Cruise T. 38, c. 5, § 53. CH. 1, s. 2. PT. III.T.15, shall afterwards give and charge upon that estate by will, whether attested or not, a charge by an unattested codicil will not be good (a). 2756. Will in the form of an Terms for years already created were disposable by testament before the Statute of Wills, and they are not comprehended within the Statute of Frauds, and might therefore be disposed of by any kind of will or testamentary disposition, unless they became attendant on the inheritance, when they were considered as part of the inheritance, and not as chattels real, and could only be disposed of by such a will as would pass the inheritance (b). 2757. An instrument may operate as a will, though it be in instrument the form of a deed or some other than a testamentary inter vivos. form, especially where it cannot operate in the form intended, or where it contains a power of revocation. But if, in order to give full effect to an instrument, it must be considered as an act inter vivos, it is generally not testamentary, especially if there is no power of revocation (c). Yet an instrument may operate as a will, though it be only partially testamentary (d). 2758. By the stats. 2 & 3 Anne c. 4, and 6 Anne c. 35, Yorkshire relating to the West Riding of Yorkshire, by the latter statute relating to the East Riding, by the stat. 8 Geo. 2, c. 6, relating to the North Riding, and by the stat. 7 Anne c. 20, relating to the county of Middlesex, wills are made void against a subsequent purchaser, unless a memorial be registered as directed by those statutes (e). 2759. Registration of wills in and Middle sex. (a) 6 Cruise T. 38, c. 5, § 55, 56, 59; 1 Rop. Leg. by White, 685; 1 Jarm. Wills, 2nd ed. 78, 79. (b) 6 Cruise T. 38, c. 5, § 72, 74. (c) Att.-Gen. v. Jones, 3 Price 368; Tompson v. Browne, 3 My. & K.32; Fletcher v. Fletcher, 4 Hare 79; In the goods of Morgan, L. R. 1 Prob. & M. 219; 9 Jarm. & Byth. 2nd ed. 508-524; 1 Sugd. Pow. 261 n.; 1 Jarm. Wills, 2nd ed. 12, 17, 18, 19. (d) Doe d. Cross v. Cross, 8 Ad. & E. (N. S.) 714. (e) 6 Cruise T. 38, c. 1, § 28-32: Sugd. Concise View, 577; Chadwick v. Turner, 34 Beav. 634. CH. 1, s. 2. Non-regis will in Middlesex, But by the stat. 37 & 38 Vict. c. 78, s. 8, "where the PT. III.T.15, will of a testator devising land in Middlesex or Yorkshire has not been registered within the period allowed of by law in that behalf, an assurance of such land to a etc., cured purchaser or mortgagee by the devisee or by some one cases. deriving title under him, shall, if registered before, take precedence of and prevail over any assurance from the testator's heir at law." 2760. in certain of wills in the City of London. Wills devising lands or tenements in the city and Enrolment liberties of London, duly executed and attested, may be enrolled either in the Hustings of Pleas of Land or Common Pleas; the same being first proved in open Court, on the oaths of two of the subscribing witnesses thereto, and proclaimed at one of these Courts (a). 2761. A will of personalty, including terms for years and Probate. other chattels real, must have been proved in the proper Ecclesiastical Court; otherwise its existence could not be recognized in any Court. But a will of realty alone need not have been proved; and so far as a will relates to realty, probate of it in the Ecclesiastical Court was of no avail. But by the stat. 20 & 21 Vict. c. 77, ss. 61—64, wills are proved in the Court of Probate [now the Probate, Divorce, and Admiralty Division of the High Court of Justice]; and such proof is conclusive evidence of the validity and contents of a will of realty (b). Where, however, a will is limited to the disposition of real property only, it is not entitled to probate, although it contains the appointment of an executor, with directions to convert the real into personal estate (c). 2762. against No relief will be afforded to the legatees or devisees No relief under a will defectively executed (d). Being volunteers, defective 263. (a) 1 Jarm. & Byth. by Sweet, (b)1 Wms. Exors. 5th ed. 34, 21; 2 Steph. Com, 202-5. (c) In the goods of Jane Barden, L. R. 1 Prob. & M. 325. (d) See Story's Eq. Jur. § 105 a, 106. PT. III.T.15, they are deemed to have as little equity as the heir or CH. 1, s. 2. execution of a will. Signature. next of kin, or even less, as it is a maxim that fortior et æquior est dispositio legis, quam hominis (a); and therefore the legal right which has vested in the latter will not be taken away; for the maxim is, that where the equity is equal, the law must prevail. 2763. II. Of the Alterations as to the Requisite Forms made by the stat. 1 Vict. c. 26 (b); and of the Provisions of the stat. 15 Vict. c. 24, and the stat. 24 & 25 Vict. c. 114. By the stat. 1 Vict. c. 26, s. 9, "no will shall be valid unless it shall be in writing and executed in manner hereinafter mentioned; (that is to say,) it shall be signed at the foot or end thereof by the testator, or by some Attestation. other person in his presence and by his direction; and such signature shall be made or acknowledged by the testator, in the presence of two or more witnesses present at the same time, and such witnesses shall attest and shall subscribe the will in the presence of the testator, but no form of attestation shall be necessary." But by s. 11, it is Exceptions provided, "that any soldier being in actual military service, or any mariner or seaman being at sea, may dispose of his personal estate as he might have done before the making of this Act." And by s. 12, it is further enacted, that this Act shall not prejudice or affect any of the provisions contained in the stat. 11 Geo. 4 & 1 Will. 4, c. 20, "respecting the wills of petty officers and seamen (a) Co. Litt. 338 a. in the case of soldiers and sailors. (b) By 1 Vict. c. 26, s. 34, it is enacted, "That this Act shall not extend to any will made before the 1st day of January, 1838, and that every will re-executed or re-published or revived by any codicil, shall, for the purposes of this Act, be deemed to have been made at the time at which the same shall be so re-executed, re-published, or revived; and that this Act shall not extend to any estate pour autre vie of any person who shall die before the 1st day of January, 1838." For decisions on this Act, see Hayes and Jarm. Concise Forms of Wills, 6th edition, by the late Mr. T. S. Badger-Eastwood, the learned Reader on the Law of Real Property to the Inns of Court. CH. 1, s. 2. in the Royal Navy, and non-commissioned officers of P.III. T.15, marines, and marines, so far as relates to their wages, pay, prize money, bounty money, and allowances, or other moneys payable in respect of services in Her Majesty's Navy." 2764. The eleventh section, as regards soldiers, is confined to those who are on an expedition. On the other hand, as regards sailors, it extends to those who are on an expedition, though not at sea at the time. It applies even to sailors in the Merchant Service, though they be superiors of a ship (a). 2765. c. 24. ture to a deemed By the stat. 15 Vict. c. 24, s. 1, the following enact- Stat. 15 Vict. ment is made: "Where by the statute 1 Vict. c. 26, it is When signaenacted, that no will shall be valid unless it shall be will shall be signed at the foot or end thereof by the testator, or by valid. some other person in his presence, and by his direction; every will shall, so far only as regards the position of the signature of the testator or of the person signing for him as aforesaid, be deemed to be valid within the said enactment, as explained by this Act, if the signature shall be 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, and that no such will shall be affected by the circumstance that the signature shall not follow or be immediately after the foot or end of the will, or by the circumstance that a blank space shall intervene between the concluding word of the will and the signature, or by the circumstance that the signature shall be placed among the words of the testimonium clause or of the clause of attestation, or shall follow or be after or under |