1 Vict. c. 26, 8. 30. Trustees under an unlimited devise, where the trust may endure beyond the life of a person beneficially entitled for life, to take the fee. Devises of estates tail shall not lapse. or uncertain term of years shall now be construed to pass the fee." (Hawk. Wills, 143.) Thus, in wills prior to 1838, where a testator devises lands to his executors for payment of his debts, or until his debts are paid, the executors only take an estate for so many years as are necessary to raise the sum required. (Co. Litt. 42 a; 8 Rep. 96 a; 1 P. Wms. 509.) It is the same where an estate is devised till such time as a particular sum shall be raised out of the rents and profits thereof. (Corbet's case, 4 Rep. 81 b; 1 P. Wms. 118; Co. Litt. 45 b; Com. Dig. Biens (A. 1). See further, Hawk. Wills, 142; 2 Jarm. Wills, 288.) 31. Where any real estate shall be devised to a trustee, without any express limitation of the estate to be taken by such trustee, and the beneficial interest in such real estate, or in the surplus rents and profits thereof, shall not be given to any person for life, or such beneficial interest shall be given to any person for life, but the purposes of the trust may continue beyond the life of such person, such devise shall be construed to vest in such trustee the fee simple, or other the whole legal estate which the testator had power to dispose of by will in such real estate and not an estate determinable when the purposes of the trust shall be satisfied (k). (k) The effect of this section "is to propound in regard to wills made or republished since the year 1837 the following general rule of construction : that whenever real estate is devised to trustees (and it would seem to be immaterial whether the devise is to the trustees indefinitely, or to them and their heirs, or to them and their executors or administrators), for purposes requiring that they should have some estate, without any specification of the nature or duration of such estate, and the beneficial interest in the property is not devised to a person for life, or being so devised, the purpose of the trust may endure beyond the life of such person; the trustees take (not as in Carter v. Barnardiston, 1 P. W. 505, an estate for years, or as in Doe v. Simpson, 5 East, 162, an estate for life with a superadded term for years, but) an estate in fee simple. The result, in short, is, that trustees whose estate is not expressly defined by the will must, in every case, and whatever be the nature of the duty imposed on them, take either an estate for life or an estate in fee." (2 Jarm. Wills, 296.) Sections 30 and 31 have thus been compared: "The 30th and 31st sections of the Wills Act have been described as obscure, and even conflicting; their meaning, however, will be apprehended by observing that the 30th section, which speaks of a devise passing the fee simple or other the whole estate or interest of the testator' relates to the quantity of estate to be taken by a trustee for the purposes of the trust; while the 31st section, which declares that a devise shall vest in trustees 'the fee simple or other the whole legal estate' in the premises devised, relates to the disposition of the legal estate not required for the purposes of the trust. The 30th section enacts, that in no case shall trustees or executors be held for the purposes of the trust, to take an indefinite term of years; the 31st section enacts, that where the estate of the trustees is not expressly limited, they shall in all cases take either an estate determinable on the life of a person taking a beneficial life interest in the property, or the absolute legal estate in fee simple." (Hawk. Wills, 156.) As to the quality and extent of the estate conferred by devises in trust, see further, Hawk. Wills, 140 et seq.; 2 Jarm. Wills, 268 et seq.; Collier v. McBean, L. R., 1 Ch. 81. 32. Where any person to whom any real estate shall be devised for an estate tail or an estate in quasi entail shall die in the lifetime of the testator leaving issue who would be inheritable under such entail, and any such issue shall be living at the 8. 32. time of the death of the testator, such devise shall not lapse, but 1 Vict. c. 26, shall take effect as if the death of such person had happened immediately after the death of the testator, unless a contrary intention shall appear by the will. 33. Where any person being a child or other issue of the testator to whom any real or personal estate shall be devised or bequeathed for any estate or interest not determinable at or before the death of such person shall die in the lifetime of the testator leaving issue, and any such issue of such person shall be living at the time of the death of the testator, such devise or bequest shall not lapse, but shall take effect as if the death of such person had happened immediately after the death of the testator, unless a contrary intention shall appear by the will (7). (7) As to the doctrine of lapse, see 1 Jarm. Wills, 314 et seq.; 2 Wms. Exors. 1118 et seq.; Elliot v. Davenport, Tudor, L. C., Conv. 803. Gifts to children who leave issue living at the shall not lapse. or other issue testator's death The words "shall die" in this section refer to the period at which the Date of death act came into operation. Thus it has been held, that lapse was prevented of devisee or by this section where the devisee or legatee died before the date of the will; legatee. but after the act came into operation (Winter v. Winter, 5 Hare, 306; Mower v. Orr, 7 Hare, 473; Wisden v. Wisden, 2 Sm. & G. 396, and see Loxley v. Heath, 27 Beav. 535); secus, where he died before the act came into operation. (Wild v. Reynolds, 5 Notes of Cases, 1; Barkworth v. Young, 4 Drew. 21.) This section was held to extend to a case where the issue of the legatee, who was alive at the date of the will, was not the same issue as was in existence when the legatee died. (In bonis Parker, 1 Sw. & Tr. 523; but see Sugd. R. P. Stat. 393.) This clause does not substitute for the predeceased devisee or legatee the issue whose existence is the event or condition which excludes the lapse, but renders the subject of the gift the absolute property of the predeceased devisee or legatee, and therefore disposable by his will, notwithstanding his death in the lifetime of the testator. (Johnson v. Johnson, 3 Hare, 157.) It was considered doubtful by the Master of the Rolls whether the will of a predeceased legatee should be construed as if the legatee had survived the testator, or as if the testator had predeceased the legatee. (Re Mason's Will, 34 Beav. 494.) Where a married woman to whom a legacy was left by her father's will died in his lifetime leaving her husband surviving, who also died before the father, administration to the married woman's estate was granted as if she had died immediately after her father. (Re Councill, L. R., 2 P. & M. 314.) The provisions in this act against the lapse of legacies given to children render it necessary for a testator intending that a legacy given to one child shall go over to another in the event of the death of the first legatee, to express that meaning by his will. (Re More's Trust, 10 Hare, 178.) A devise and bequest was made to all the testator's children living at his decease (without naming them). A subsequent codicil confirmed the gift, as mentioned in the will," to his surviving children," naming all of them. One died in the testator's lifetime, leaving children who survived the testator: it was held, that the survivorship had relation to the testator's death and not to the date of the will, and that the representatives of the deceased child took nothing under this section. (Fullford v. Fullford, 16 Beav. 565.) Where a testator gave a legacy to his daughter, with a gift over, in the event of her dying unmarried, to such of his other children as she should appoint, and in default of appointment to his other children equally, and the daughter died in the testator's lifetime, unmarried, and without having exercised the power of appointment: it was held, that the legacy had not lapsed, and that one of the other children was entitled to a share. (Kellett v. Kellett, I. R., 5 Eq. 298.) Subject of the absolute property The intention of the legislature was to provide against lapse merely, Section does not and not to alter the construction to be put on any will. On arriving at apply to gifts to a class. 1 Vict. c. 26, 8. 33. Gifts in exercise of powers. Act not to extend to wills made before 1838, nor to estates pur autre vie of persons who die before 1838. Revocation of by acts since 1837. the conclusion that there would have been a lapse, then the statute applies, not otherwise. This section does not apply to the case of a gift to a class, for according to the rule before the act, under a gift to children as a class, the share to which a surviving child would have been entitled did not lapse in consequence of his death in the testator's lifetime. (Olney v. Bates, 3 Drew. 323; Browne v. Hammond, Johns. 215.) This section applies to a testamentary appointment made under a general power (Eccles v. Cheyne, 2 K. & J. 676), but not under a special power. (Griffiths v. Gale, 12 Sim. 354; Freeland v. Pearson, L. R., 3 Eq. 663.) The fictitious survivorship created by this section will not be extended beyond the limits necessary to carry out the purpose of the act. Therefore, where a married woman in whose settlement there was a covenant to settle property coming to her during the coverture, and to whom a legacy was left by her father's will, predeceased him, but by reason of her having issue, the legacy did not lapse; it was held that the legacy was not within the covenant (Pearce v. Graham, 11 W. R. 415); but probate duty is payable in the same manner as if the legatee had actually survived the testator. (Executors of Perry v. Regina, L. R., 4 Ex. 27.) 34. This act shall not extend to any will made before the first day of January, one thousand eight hundred and thirtyeight, and that every will re-executed or republished, 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 reexecuted, republished, or revived; and this act shall not extend to any estate pur autre vie of any person who shall die before the first day of January, one thousand eight hundred and thirty-eight (m). (m) The provisions of the statute as to the operation of a will and of wills prior to 1838 the gifts in it do not apply to wills prior to 1838 (Lord Langford v. Little, 2 J. & Lat. 633); but with respect to the revocation of wills prior to 1838, acts of revocation done subsequently to 1837 must be considered with reference to the statute. (Hobbs v. Knight, 1 Curt. 768; Benson v. Benson, L. R., 2 P. & M. 172.) Republication. "Republished." Will re-executed by codicil. Where a will was prepared and dated in Oct. 1837, but not executed until Feb. 1844, it was construed according to the rules laid down in this act. (Randfield v. Randfield, 9 W. R. 1.) Formerly wills of personalty might be republished by parol acts or declarations of the testator; and republication made a will speak from the date at which it was republished. (1 Wms. Exors. 198, 208.) But since this statute nothing short of a re-execution of a will itself, or the formal execution under the act of some document which directly or impliedly affirms it, can confer new or further testamentary validity upon it beyond that which it derived from its original execution. (Noble v. Phelps, L. R., 2 P. & M. 282; and see Rolfe v. Perry, 3 De G., J. & S. 481.) From the occurrence of the word "republished" in this section, it was argued that republication as distinct from re-execution was still permissible in some cases; but the court explained the section to mean, that if a will had been made before the act and republished after, it was to be held to have been made after the act, and to require a formal execution. The object of the section was to get rid of republication as a method of conferring testamentary validity even as regards a will made before the date of the act, and not to extend the operation of republication to wills made since the act. (Noble v. Phelps, L. R., 2 P. & M. 276.) Under this section of the act the effect of the re-execution of the will by the codicil is the same as if the testator had at the date of the codicil made a will in the words of the will so re-executed. (Winter v. Winter, 5 Hare, 306; Anderson v. Anderson, L. R., 13 Eq. 381.) A codicil, executed in 1839, to a will of 1818, was held to be a re-execution of that will, and to have the effect of bringing a bequest in the will to a deceased daughter under the operation of the 33rd section of this act, as no intention to the contrary appeared on the face of either instrument. (Skinner v. Ogle, 1 Rob. 363.) Where a testator made his will before the act, and by a codicil made after the act ratified and confirmed his will except as altered by the codicil: it was held, that the will was so re-executed by the codicil as to come within the provisions of the act, and lands acquired subsequently to the date of the codicil were held to pass. (Lady Langdale v. Briggs, 3 Sm. & G. 246.) 35. This act shall not extend to Scotland (n). (n) As to the adoption of this act in the colonies, see 4 Davidson, Conv. 267, n.; Hayes & Jarm. Wills, 59, 7th ed. 1 Vict. c. 26, s. 34. Act not to extend to Scotland. 15 & 16 Vict. c. 24, s. 1. 1 Vict. c. 26. When signature deemed valid. THE WILLS ACT AMENDMENT ACT, 1852. 15 & 16 VICTORIA, c. 24. An Act for the Amendment of an Act passed in the First WHEREAS the laws with respect to the execution of wills require further amendment: be it therefore enacted as follows: 1. Where by an act passed in the first year of the reign of her Majesty Queen Victoria, intituled "An Act for the Amendment of the Laws with respect to Wills," it is enacted, that no will shall be valid unless it shall be signed at the foot or end thereof by the testator, or by some other person in his presence, and by his direction (a): every will shall, so far only as regards to a will shall be 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 (b), 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 (c), or by the circumstance that the signature shall be placed among the words of the testimonium clause or of the clause of attestation (d), or shall follow or be after or under the clause of attestation, either with or without a blank space intervening, or shall follow or be after, or under, or beside the names or one of the names of the subscribing witnesses, or by the circumstance that the signature shall be on a side or page or other portion of the paper or papers containing the will whereon no clause or paragraph or disposing part of the will shall be written above the signature, or by the circumstance that there shall appear to be sufficient space on or at the bottom of the preceding side or page or other portion of the same paper on which the will is written to contain the signature; and the enumeration of the above circumstances shall not restrict the generality of the above enactment; but no signature under the said act or this act shall be operative to give effect to any disposition or direction which is underneath or which follows it, nor shall it give effect to any |