WHIPPING. This is a punishment which may or may not accompany sentences of imprisonment in most cases; as to females, it was abolished by 1 Geo. 4, c. 51. WIDOW: See titles DOWER and NEXT OF KIN. The king's widow was she who, after her husband's death being the king's tenant in capite, could not marry again without the king's consent. WILL, ESTATE AT: See titles ESTATES; TENANCIES. WILLS. For the growth of the power of alienation by devise, see ALIENATION The whole law of wills has been digested in a single Act, viz, the New Wills Act (7 Will. 4 & 1 Vict c. 26), the short contents of which Act are as follows: I. As to the property devisable or be-- All real estates (whether legal or All estates pur autre vie; All contingent, reversionary, and All rights of entry. II. As to the capacity of testators: (1.) Persons under twenty-one years have no such capacity, even for the purpose of exercising a power expressed to be exerciseable during minority, and the subsequent attainment of twenty-one years will not validate the will (Sugd. R. P. Stat. 330); (2.) Married women have a limited capacity, that is to say, to the extent of exercising any power over real or personal estate, or to the extent that their husbands authorize them to dispose of their personal estate, or to the extent of property (real or personal) settled to their separate use. Thomas v. Jones, 2 J. & II. 475. III. As to the formal requisites of wills: (1.) Writing; whether in ink or in pencil (Gregory v. Queen's Proctor, 4 No. Ca. 623; Bateman v. Pennington, 3 Moo. P. C. 227); and whether or not in testamentary form (Thorncroft WILLS-continued. v. Lashman, 2 Sw. & Tr. 479); and the writing of the will may, by reference, incorporate other then existing documents (Allen v. Maddock, 11 Moo. P.C. 427); (2.) Signature by testator, or by some other person by his direction and in his presence, at the foot of the will (15 & 16 Vict. c. 24); the testator's mark is a suflicient signature, whether he can or cannot write, even though his name is not affixed to the mark (Re Bryce, 2 Cur. 325); and even an impressed fiesimile is sufficient (Jenkins v. Saisford, 3 Sw. & Tr. 93); and signature by initials is good (Re Wingrove, 15 Jur. 91); a witness may sign the testator's name for him (Re Bailey, 1 Cur. 914); (3.) Presence of two witnesses at one and same time, being time that testator signs personally or by proxy; (4.) Attestation of witnesses in the presence of the testator, although not necessarily in each other's presence, but no form of attestation is required (Bryan V. White, 2 Rob. 315); although the full attestation clause is useful, obviating the necessity of proof of the formalities of execution (Re Diaper, 3 N. R. 215); (5.) Subscription of witnesses in the presence of the testator,although not necessarily in each other's presence; but the witness's mark is a sufficient subscription whether he can or cannot write (Re Amiss, 2 Rob. 116); and a subscription by initials is good (Re Christian, 2 Rob. 110): since the 20 & 21 Vict. c. 77. s. 33, the execution of the will may be proved by one only of the attesting and subscribing witnesses (Belbin v. Skeats, 1 Sw. & Tr. 148); (6.) In the special case of wills executing powers, if the power is to be exercised by writing under seal, and a will is used for the purpose of executing it, the will must be sealed in addition to the observance of the formalities before mentioned (West v. Ray, Kay, 385); and generally all other extra formalities required by the donor of the power, not being forma WILLS-continued. lities of execution or of attestation, however whimsical, must be complied with, notwithstandings. 10 of the Wills Act, which relates only to execution and attestation; (7.) No publication of a will is necessary, other than such publication as consists in the observance of the formalities before mentioned, s. 13. IV. As to the capacity of witnesses: (1.) The incompetency of an attesting witness is not to invalidate the will, whether such incompetency existed at the time of the testator's execution of the will or at any time afterwards (s. 14); (2.) A gift, whether by devise or be quest, to a witness, or to the then existing wife or husband of a witness, is not to affect the competency of the devisce or legatee as a witness (s. 15); but the gift is to be void, unless in the case of a creditor (ss. 15, 16); (3.) An executor of the will may be a witness (s. 17) V. As to revocation of will: (1.) In the general case, and also in the case where the will is in exercise of a power of appointment over property which would in default of appointment devolve upon the real or personal representatives of the donee of the power, the marriage of the testator, whether male or female, revokes the will, the marriage being a legal marriage (Re Mette, 7 W. R. 543); (2.) In the case where the will is in exercise of a power of appointment over property which would not in default of appointment devolve upon the real or personal representatives of the donee of the power, the marriage of the testator, whether male or female, does not revoke the will (Hawksley v. Barrow, L. R. 1 P. & M. 147); (3.) Revocation by presumption is abolished (s. 19); (4.) Revocation may also be by sub sequent will or codicil, being well executed, and the testator acting on that assumption (Re R. L., 29 L. T. 26); (5.) Revocation may also be by the burning, tearing, or otherwise destroying the will, with the intention of thereby revoking it (Re Kennett, 2 N. R. 461); WILLS-continued. and such burning, tearing, or other destruction may be either by the testator personally, or by any other person in his presence acting by his direction; such revocation may be in part only (Christmas v. Whinyates, 11 W. R. 371); but if the part cut out or destroyed is the signature of the testator, the revocation is of the whole will (Walker v. Armstrong, 4 W. R. 770); but the mere cancelling of the signature is nothing (Stephens v. Taprell, 2 Cur. 458); the codicil shares the fate of the will, in the absence of an intention that the codicil should operate substantively (Grimwood Cozens, 5 Jur. (N.S.) 497); where the will has been destroyed or lost sine animo revocandi, a copy of it will be admitted to probate (Brown v. Brown, 8 El. & Bl. 886); (6.) Revocation may be partially V. effected by means of interlineations, or by means of obliterations, or by means of other alterations generally, made in the will after execution, provided such interlineations, obliterations, or other alterations are executed as a will (s. 21); (7.) Revocation by alteration of estate is abolished (s. 23); (8.) A revoked will may be revived by the re-execution of the will, or by a codicil duly executed with the intention of reviving it, (s. 22; Marsh v. Marsh, 35 L. T. 523); therefore a will revoked by a revoking instrument would not be revived by the revocation of the latter instrument. Major v. Williams, 3 Cur. 432; Wood v. Wood, L. R. 1 P. & M. 309. VI. As to operation of will: (1.) With reference to the real and personal estate comprised in it, a will operates from the death of the testator (s. 24); but that only in the absence of a contrary intent; (2.) With reference to matters other than the property comprised in it, a will operates from the date of the execution (Re Wollaston, 9 Jur. (N.S.) 727; Bullock v. Bennett, 7 De G. M. & G. 283; Trimmell v. Fell, 16 Beav. 539; Gibbins v. Eyden, L. R. 7 Eq. 371; Noble v. Willock, W. N. 1873, p. 124; 21 W. R. 711); gered that a power aȚ te if the intrument w (7.) An estate tail given to any de of the winding-up of companies underte provisions of the states 23 & 2 Vist. c. the Companies Act. 15-2 at 130 & 31 Vit. c. 131 (the Companies Act, 197). When an order has been Laie for tie compulsory winding-up of a eompany, and even in the case of a voluntary winding-up. the Cout of Chancery will stay actions by creditors against the company (In re Keyn * Company. 33 Bar. 123: In re Life Association of England, 34 L. J. (Ch.) 61). A winding-up is usually carried out by means of a liquidator, who (as the name denots) liquidates, i... ascertains, the assets and liabilities of the company, with a view to the discharge of the latter by the former, so far as they go. See Buckley on the Companies Acts. WITCHCRAFT. A practice for which in former times persons might have been, and often were, condemned to death, even vises who predeceases the tes-upon their own confession (see Best on tator, but leaves inheritable issue who survive the testator, is not to lapse, but to take effect in the predeceasing devisee (*. 32) (we title LAPSE); (8) A devise or bequest to any child of the testator is to take effect in such child, notwithstanding he may die before the testator, provided any of his issue survive the testator (s. 33) (see title LAPSE); (9.) The phrase "dying without issue," and like phrases, formerly construed to give an estate tail by implication, are deprived of that effect (s. 29); and (10.) The Act is to extend to the wills of all persons executed or re Evidence, Criminal Confessions). The rule of the Mosaic Law was,-"Thou shalt not suffer a witch to live:" and the Civil Law also punished with death sorcerers and witches. By the English Law, witchcraft was at one time (under 33 Hen. 8, c. 8) a felony without benefit of clergy - a severity continued in the Act 1 Jac. 1. c. 12; but at the present day under the stats. 9 Geo. 2, c. 5, and 56 Geo. 3, c. 138, no prosecution for witchcraft is for the future to be carried on; but the PRETENCE of witchcraft is made a misdemeanor punishable with a year's imprisonment and hard labour. A NEW LAW DICTIONARY. WITHERNAM: See title CAPIAS IN WITHERNAM. WITHOUT DAY: See title SINE DIE. These are a means or WITNESSES. instrument of evidence, and are persons who inform the tribunals regarding matters of fact. Generally, all persons are compellable to give evidence excepting only the Sovereign; but witnesses may object to answer particular questions, being chiefly questions which tend to criminate or to expose to penalties or forfeitures, but not (unless where the judge interposes) questions tending to bring the witness into disgrace or ridicule, or to render him liable to merely civil proceedings. A distinction is taken between the competency and the credibility of witnesses, the former determining absolutely the admission or rejection of their evidence, the latter going to corroborate or to impugn its truthfulness. At the present day, all objections to witnesses (with one exception) go to the credibility of their testimony and not to their competency, the stats. 14 & 15 Vict. c. 99, and 32 & 33 Vict. c. 68, having rendered even the parties to an action of whatever sort competent and also compellable to give their testimony. The one exception referred to, is that in criminal proceedings a husband is not compellable to give evidence against his wife, or the wife against her husband, these twain being one flesh. However, for various reasons a person may not be competent to take an oath, and therefore may never fall under the category of witness at all, so that neither the question of his competency nor that of his credibility may come into question. Thus, from want of understanding, whether innate deficiency (as in the case of idiots) or extreme immaturity (as in the case of children of very tender years), or, semble, atheism, a person is incompetent to take an oath (see title OATH), and is therefore excepted from the class of witness, excepting that an atheist may now make a solemn affirmation, and a child may on examination on the voir dire (see that title) be found to be conscious of the sanctity of an oath. The principal grounds for suspecting the credibility of a witness (as distinguished from his competency) are pecuniary interest, sexual relationship, social connections, self-regarding sentiments, and the feeling of sympathy with others. Usually the method of dealing with witnesses is for the party on whose behalf they are called to examine them in chief, then for the opposite party to cross-examine them, and finally for the chief examiner to re-examine them. The object of the exami WITNESSES-continued. nation-in-chief is to obtain facts in support See also titles EVIDENCE; PROOF PER WORKHOUSES: See POOR. WRECK. Such goods as after a shipwreck are cast up by the sea and left there within some county. By the Common Law all wrecks belonged to the Crown; but it was usual to seize wrecks to the king's use only when no owner could be found. The Common Law was modified by statute in the reign of Henry I., who granted that if any person escaped alive out of the ship it should be no wreck; and afterwards by the Statute of Westminster the First (3 Edw. 1) c. 4, if a man or dog or cat escaped alive the goods shall be no wreck, but the sheriff' shall keep the same (or, if perishable, their value) for a year and a day, in order to restore them to the rightful owner, or his representatives establishing their claim to them. And by the statute 27 Edw. 3, c. 13, if a ship is lost on the shore and the goods come to land, they are to be at once returned to the owners, they paying a reasonable reward for their salvage (sce title SALVAGE). By the stat. 7 & 8 Geo. 4, c. 29, plundering any vessel in distress or wrecked is made felony punishable with death. If for a year and a day no one claims wreck, it still belongs to the king as before. See also titles FLOTSAM and JETSAM. WRIT. This word is from the Saxon writan, to write; it is translated by brere in the Latin forms. In general a writ is the king's precept in writing under scal issuing out of some Court and commanding something to be done touching a suit or action, or giving commission to have it done. Les Termes de la Ley. Writs in civil actions were either original or judicial. Original writs issued out of the Court of Chancery for summoning a defendant to appear, and were granted before the suit was begun, to begin the same, whence the name; judicial writs issued out of the Court where the original was returned after the suit was begun. The original bore date in the name of the king, the judicial in the name of the judge. Another division of writs was into real, personal, and mixed; the real concerning the possession of land, and being either WRIT--continued. writs of entry or writs of right, the personal concerning goods, chattels, and personal injuries, and the mixed partaking of the nature of both. Again, writs concerning the possession of land were either possessory, of a man's own possession, or ancestral, of the scisin and possession of his ancestor as well. Writs also commonly bore some special name or addition descriptive of their particular purpose, e.g., writ of assistance, of inquiry, of capias, &c. Writs original have been abolished, and all personal actions are now to be commenced by writ of summons (1 & 2 Vict. c. 110); also, all the real and mixed writs have been abolished (3 & 4 Vict. c. 17; C. L. P. Act, 1860), and ejectment itself even is now commenced by an ordinary writ of summons. For the varieties of the writ of summons, and also for the other varieties of now existing writs, see the respective titles, and in particular title SUMMONS, WRIT OF. WRIT OF RIGHT. This was a writ which lay for a man who had the right of property against another man who had the right of possession and was in possession under such right. This severance of the two rights arose in three cases chiefly : (1.) Upon discontinuance by tenant in tail; (2.) After judgment in a possessory action; and (3.) After the possessory action was barred by the Statute of Limitations. The writ of right properly lay only to recover corporeal hereditaments for an estate in fee simple; but there were other writs said to be in the nature of a writ of right" available for the recovery of incorporeal hereditaments or of lands for a less estate than a fee simple. In this action, the demandant alleged some seisin of the lands in himself, or else in some one under whom he claimed; and usually the tenant in possession denied the demandant's right, which the latter was thereupon required to prove; and failing such proof, the demandant and his heirs were perpetually barred of his claim, otherwise he recovered the lands against the tenant and his heirs for ever. There was a limit to the seisin which the demandant might allege; and such limit was fixed by the Statute of Westminster the First (3 Edw. 1), c. 39, from the time of Richard I.; and afterwards by the stat. 32 Hen. 8, c. 2, seisin in a writ of right was to be alleged within sixty years. By the stats. 3 & 4 Will. 4, c. 27, s. 36, and C. L. P. Act, 1860, s. 26, all writs of right and writs in the nature thereof have been abolished. YARD. An enclosed space of ground generally attached to a dwelling-house. YEA AND NAY. Yes and No; according to a charter of Athelstan, the people of Ripon were to be believed in all actions or suits upon their yea and nay. YEAR. The year, as divided by Julius Cæsar, consists of twelve months. It appears that in early English times the year began with Christmas Day; but as from the reign of William I. the year is designated by that of the reign only. Upon the Reformation of Religion the year was made to begin with the 25th of March, being the day of the feast of the Annunciation, but the year of the reign continued to be the common mode of denoting dates until the Commonwealth, when the year of our Lord came into use; and ultimately, by the 24 Geo. 2, c. 23, it was enacted that the 1st of January next following the last day of December, 1751, should be the first day of the year 1752, and so on for the first day of every succeeding year; and that the then 2nd of September, 1752, should continue to be reckoned as the second, but the next succeeding day (which of right would be the 3rd of September, 1752) should be reckoned as the 14th of September, 175, omitting for that time only the eleven intermediate days. And all writings after the 1st of January, 1752, were to be dated according to the new style. See also title TIME. YEAR AND DAY. This period was fixed for many purposes in law. Thus, in the case of an estray, if the owner did not claim it within that time, it became the property of the lord. So the owners of wreck must claim it within a year and a day. Death must follow upon wounding within a year and a day if the wounding is to be indicted as muider. Also, a year and a day was given for prosecuting or avoiding certain legal acts, e.g., for bringing actions after entry, for making claim, for avoiding a fine, &c. |