Form of attestation. -where the testator signs;

in me upon trust or by way of mortgage, subject to the equities affecting the same respectively. AND I appoint the said [name] sole executor of this my will, hereby revoking all other testamentary writings. IN WITNESS whereof I have hereunder (b) set my hand, this day of

Signed, by the said testator, as his last will and testament, in the presence of us, present at the same time, who, at his request, in his presence, and in the presence of each other, have subscribed our names as witnesses.

[Two witnesses (c).]

usual and convenient to vest such estates in the devisees jointly, in order that they may devolve to the survivor. (See Ex parte Whiteacre, 1 Sand. Uses and Trusts, 285). The question has been much discussed in recent cases, whether the legal estate in mortgaged lands will pass by the words "mortgages," or "securities for money." The negative was determined in the cases of Sylvester v. Jarman, (10 Price, 76), and Galliers v. Moss, (9 Barn. & Cress. 267); but in the two subsequent cases of Ex parte Barber, (5 Sim. 451), and Mather v. Thomas, (6 Sim. 115, S. C. 10 Bing. 44), the words in question were held to carry such estate; the court, however, in both these cases relying much on the fact of the word "heirs" occurring as a word of limitation Suggestion as appended to the devise in question. Where an outstanding trust or mortgage estate remains in the testator after the mortgage es- trusts or incumbrances affecting it have been satisfied, it is often expedient to devise the property directly to the cestui que trust or mortgagor, instead of vesting it in the trustees

to the devise

of trust and

tates.

Signed by [name, description, and addition], where ano-
as the last will and testament of the said

testator, in his presence, and by his di-
rection, in the presence of us, present at
the same time, who, at his request, in
his presence and in the presence of each
other, have subscribed our names as wit-

nesses.

ther signs by his direction.

of the testator, by which means the necessity of a further conveyance is avoided. For the same reason, where a mortgage debt is specifically bequeathed, the estate should be devised to the legatee.

(b) Until the recent statute, the position of the signature was not material; but now, it must be at the foot or end of the will. (1 Vict. c. 26, s. 11).

nesses to wills.

lection of wit

(c) Witnesses of intelligence and respectability should be As to the seselected; and preference is to be given to professional men, whose subscription of the memorandum of attestation induces confidence that the formalities of execution have been strictly attended to; besides the advantage arising from the greater facility of finding such witnesses, if living, or of proving their handwriting, if dead. Domestic servants are too often, for the convenience of the moment, called in to attest wills. It is also proper that the witnesses should not be persons who, or whose wives or husbands, take any benefit under the will. The effect of making a beneficial devisee or Effect, where legatee, or the wife or husband of such a devisee or legatee, an attesting witness to a will, is not to invalidate the will, but to vacate the devise or bequest, in order that the witness may be admissible. The recent statute (1 Vict. c. 26, s. 15) has altered the law, first by destroying the distinction between

devisees or

legatees are

witnesses.

As to sealing a will.

As to the execution of

wills of personalty and copyholds.

real and personal estate; for, as a will of personalty did not require any witness, a gift to an attesting witness of such a will was not void under the statute of 25 Geo. 2, c. 6, (3 Russ. 436); and, secondly, by extending the provision to the wives and husbands of attesting witnesses; for such wives and husbands were not within the old statute, nor, consequently, admissible witnesses. (Hatfield v. Thorp, 5 Barn. & Ald. 589). Creditors, and, by construction, (for there is a verbal omission in the act), the wives and husbands of creditors, whose debts are charged by the will, and likewise executors, are admissible witnesses. (1 Vict. c. 26, ss. 16, 17).

The Statute of Frauds did not require that a will of freehold estate should be sealed; but the practice of sealing wills, nevertheless, much prevailed, and has been hitherto justified in some measure by the consideration, that the will, if sealed, might operate as an execution of a power of testamentary appointment expressly requiring a seal. But as wills, properly so called, and testamentary appointments, are now placed on an equal footing in regard to execution, (1 Vict. c. 26, s. 10), this reason no longer applies, and a seal is in every case a superfluous appendage.

Under the old law, wills of personal estate, and of copyholds, not only did not require the attestation of any witness, but even the signature of the testator was not essential; for any testamentary declaration, reduced into writing by the direction and in the lifetime of the testator, was sufficient. Hence, if a testator died in the interval between the period of his having given instructions for his will and that of its execution by him, supposing the execution to have been prevented by his death, the written instructions, in the handwriting of his solicitor or any other person, constituted an effectual will. (See 2 Phill. 213; 1 Hagg. 641; 2 Id. 490).

The recent statute, however, by subjecting wills of every kind to the requisitions of signature and attestation, has of

course deprived mere unattested instructions in the handwriting of a third person, or even of the testator himself, of all operation. It seems advisable, therefore, where a testator is in extremis, that the instructions should, if adequately expressed to convey his intention, be duly signed and attested according to the statute, in order to guard against sudden death or incapacity occurring before the execution of the more formal instrument.

No. II.

WILL disposing of Real and Personal Estate in favour of two Sons, of whom one is an Adult and the other a Minor; giving to the Devisees a Power of Appointment over the Real Estate (a). Direction to purchase a Life Annuity.

Devise of real THIS IS THE LAST WILL AND TESTAMENT of me

estate to uses

in favour of [testator's name, &c.]. I DEVISE the messuage or

elder son.

Advantages of (a) The advantages of reserving to a devisee a power of reserving to a devisee in fee appointment over real estate, instead of simply giving the appointment. property to him in fee, are, that it enables the donee to

a power of

dispose of freehold estate by a single deed, without enrolment, and exonerated from the dower of a wife to whom he may have been married on or before the 1st of January, 1834, (vide stat. 3 & 4 Will. 4, c. 105), and also (provided the appointee be a purchaser or mortgagee without notice, (stat. 2 & 3 Vict. c. 11), ) exempt from judgment debts affecting him; and moreover, if the estate is copyhold, the insertion of the power enables the devisee to appoint the estate to a purchaser or any other person without being admitted, as his nominee is considered as coming in immediately under the will no less than the devisee himself, for whom, in fact, he is substituted. Unless however the sale speedily follows the testator's decease, the lord of the manor would have the opportunity of compelling the admittance of the person entitled to the legal ownership in the meantime, either under the will or by descent.