CHAPTER VII. WILLS OF SOLDIERS AND SEAMEN. THE Statute of Frauds (29 Car. II. c. 3), sect. 23, provides that, notwithstanding that Act, any soldier being in actual military service, or any mariner or seaman being at sea, may dispose of his movables, wages, and personal estate as he or they might have done before the making of the Act. The Wills Act (1 Vict. c. 26), sect. 11, enacts 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 the Act. By the Navy and Marines (Wills) Act, 1865 (28 & 29 Vict. c. 72), as amended by the Navy and Marines (Wills) Act, 1897 (60 & 61 Vict. c. 15), as to persons dying after June 3, 1897, it is provided : 2. In this Act Chap. VII. Soldiers and sailors ex cepted from Statute of Frauds as regards wills of movables. Exception continued by Wills Act. The Navy and (Wills) Act, Marines 1865. of terms. The term "seaman or marine means a petty officer or Interpretation seaman, non-commissioned officer of marines or marine, or other person forming part in any capacity of the complement of any of Her Majesty's vessels, or otherwise belonging to Her Majesty's naval or marine force, exclusive of commissioned, warrant, and subordinate. officers, and assistant engineers, and of kroomen. before entry ineffectual as to wages, &c. 3. A will made after the commencement of this Act by any Will made person at any time previously to his entering into service as a seaman or marine shall not be valid to pass any wages, prize money, bounty money, grant, or other allowance in the nature thereof, or other money payable by the Admiralty, or any effects or money in charge of the Admiralty. Chap. VII. Will invalid if combined with power of attorney. Regulations for wills of seamen, &c., as to wages, &c. 4. A will made after the commencement of this Act by any person while serving as a seaman or marine shall not be valid for any purpose if it is written or contained on or in the same paper, parchment, or instrument with a power of attorney. 5. A will made after the commencement of this Act by any person while serving as a seaman or marine shall not be valid to pass any wages, prize money, bounty money, grant, or other allowance in the nature thereof, or other money payable by the Admiralty, or any effects or money in charge of the Admiralty, unless it is made in conformity with the following provisions :(1.) Every such will shall be in writing and be executed with the formalities required by the law of England in the case of persons not being soldiers in actual military service or mariners or seamen at sea: (2.) Where the will is made on board one of Her Majesty's ships, one of the two requisite attesting witnesses shall be a commissioned officer, chaplain, or warrant or subordinate officer belonging to Her Majesty's naval or marine or military force: (3.) Where the will is made elsewhere than on board one of Her Majesty's ships, one of the two requisite attesting witnesses shall be such a commissioned officer or chaplain or warrant or subordinate officer as aforesaid, or the governor, agent, physician, surgeon, assistant surgeon, or chaplain of a naval hospital at home or abroad, or a justice of the peace, or the incumbent, curate, or minister of a church or place of worship in the parish where the will is executed, or a British consular officer, or an officer of customs, or a notary public, or a solicitor, or in Scotland a law agent. A will made in conformity with the foregoing provisions shall, as regards such wages, money, or effects, be deemed to be well made for the purpose of being admitted to probate in England; and the person taking out representation to the testator under such will shall exclusively be deemed the testator's representative with respect to such wages, money, or effects. Chap. VII. As to wills made by prisoners of 6. Notwithstanding anything in this or any other Act, a will made after the commencement of this Act by a seaman or marine while he is a prisoner of war, shall (as far as regards the form thereof) be valid for all purposes if it is made in war. conformity with the following provisions: (1.) If it is in writing and is signed by him, and his signature thereto is made or acknowledged by him in the presence of and is in his presence attested by one witness, being either a commissioned officer or chaplain belonging to Her Majesty's naval or marine or military force, or a warrant or subordinate officer of Her Majesty's navy, or the agent of a naval hospital, or a notary public: (2.) If the will is made according to the forms required by the law of the place where it is made: (3.) If the will is in writing and executed with the formalities required by the law of England in the case of persons not being soldiers in actual military service or mariners or seamen at sea. under will not in con Act. 7. Notwithstanding anything in this Act, in case of a will Payment made after the commencement of this Act by any person while serving as a marine or seaman, and being either in actual formity with military service or a mariner or seaman at sea, the Admiralty may pay or deliver any wages, prize money, bounty money, grant, or other allowance in the nature thereof, or other money payable by the Admiralty, or any effects or money in charge of the Admiralty, to any person claiming to be entitled thereto under such will, though not made in conformity with the provisions of this Act, if, having regard to the special circumstances of the death of the testator, the Admiralty are of opinion that compliance with the requirements of this Act may be properly dispensed with. ment of Act. By sect. 8, the Act was to commence in effect on the 1st CommenceJanuary, 1866, with power for Her Majesty in Council, with reference to places out of the United Kingdom, to direct that the Act shall not commence until a time after that day. It follows, therefore, that except in the cases mentioned in the Navy and Marines (Wills) Act, 1865, any soldier in actual Chap. VII. military service, and any mariner or seaman being at sea, can make a testamentary disposition of his personalty in the manner allowed before the Statute of Frauds. Infancy. Soldier defined. Military service. Mariner defined. "At sea." It is not proposed here to go into a full discussion of the old law. It may, however, be useful shortly to state some of the more important points relating to the wills of these privileged persons. Such privileged persons may make wills disposing of their personal property, provided they have attained the age of fourteen. In bonis Farquhar, 4 N. of C. 651; In bonis McMurdo, 1 P. & D. 540; Swinburne, part ii., sect. 2, p. 75. The term " soldier" in sect. 11 of the Wills Act includes an officer and a surgeon. Drummond v. Parish, 3 Curt. 522; In bonis Hayes, 2 Curt. 338; In bonis Donaldson, 2 Curt. 386. 66 The words "on actual military service" are equivalent to on an expedition.' Drummond v. 818; In bonis Thus a will made by an officer while quartered at home or In bonis Hill, 1 Rob. 276; Herbert v. Herbert, D. & Sw. 10; see In bonis Donaldson, 2 Curt. 386. The term "mariner or seaman" includes a purser and a surgeon, and it seems the whole profession. In bonis Hayes, 2 Curt. 338; In bonis Saunders, 1 P. & D. 16; In bonis Rae, 27 L. R. Ir. 116. It also includes persons serving in the merchant service. In bonis Milligan, 2 Rob. 108; Morrell v. Morrell, 1 Hag. 51; In bonis Parker, 2 Sw. & T. 375. The term "at sea" appears to be equivalent to "on maritime service," including the period while the testator is returning from such service. Thus wills made on board a vessel in a river, or in port, have been held valid within sect. 11. In bonis Austen, 2 Rob. 611; In bonis Corby, 18 Jur. 634; In bonis Lay, 2 Curt. 375; Seymour's Case, cit. 3 Curt. 530; In bonis Saunders, 1 P. & D. 16; In bonis McMurdo, ib. 540; In bonis Rae, 17 L. R. Ir. 116; In bonis Patterson, 79 L. T. 123. Chap. VII. wills. The privileged persons above mentioned may make nuncupative wills, which will remain operative, though at the time of Nuncupative their death they may not be on service, or at sea. Morrell v. Morrell, 1 Hag. 51; In bonis Leese, 17 Jur. 216; see, too, Leman v. Bonsall, 1 Add. 389. They may make a will by any testamentary paper, whether in their handwriting or not, and whether signed by them or not, provided it can be shown that such paper was intended to take effect as the testator's last will. Friswell v. Moore, 3 Phillim. 135; Constable v. Steibel, 1 Hag. 56; Maclae v. Ewing, 1 Hag. 317; Read v. Phillips, 2 Phillim. 122; Masterman v. Maberly, 2 Hag. 235. See Rymer v. See Rymer v. Clarkson, Rob. 633; Fulleck v. 1 Phillim. 22; In bonis Cosser, 1 The following rules must be understood as relating only to wills of personalty not within the Statute of Frauds or the Wills Act. A will not found in the testator's possession cannot be established merely on proof of the testator's handwriting. Machin v. Grindell, 2 Lee, 406; Jameson v. Cooke, 1 Hag. 82; Crisp v. Walpole, 2 Hag. 541; Rutherford v. Maule, 4 Hag. 213; Bussell v. Marriott, 1 Curt. 9; Wood v. Goodlake, 2 Curt. 82, 176; 2 Moo. P. C. 354, 436. Proof of hand writing. attestation clause, but A will bearing an execution or attestation clause, but will with unexecuted or unattested, will be presumed not to have been finally adopted as the will of the testator. Scott v. Rhodes, not attested. 1 Phillim. 19; Abbott v. Peters, 4 Hag. 380; Beaty v. Beaty, 1 Add. 154; Montefiore v. Montefiore, 2 Add. 357; Stewart v. Stewart, 2 Moo. P. C. 193; Bragg v. Dyer, 3 Hag. 207. Such presumption may be rebutted, if sufficient grounds can be shown for the omission to execute or attest it, such as ill-health or unavoidable accident, or if it appears that it was intended to take effect as the testator's will in the form in which it is found. In bonis Taylor, 1 Hag. 641; L'Huille v. Wood, 2 Cas. t. Lee, 22; Lamkin v. Babb, 1 Cas. t. Lee. 1; Scott v. Rhodes, 1 Phillim. 12; Masterman v. Maberly, 2 Hag. 247; Hoby v. Hoby, 1 Hag. 146; Forbes v. Gordon, 3 Phillim. |