required for will made before 1st January, 1838 (g); but the provisions previously in force are, by the Wills Act, 1837, repealed as to all wills made on or after that date (h), or re-executed or by codicil revived after that date (i). And it is now enacted (k), that no will (whether operating on real or on personal estate, or on both) shall be valid (1), unless it be in writing and signed at the foot or end thereof (m) by the testator or some other person, in his presence, and by his direction, such signature being also made or acknowledged by him, in the presence of two or more witnesses present at the same time, and such witnesses attesting and subscribing the will in his presence (n). Where these requisites, however, are complied with, no other are now imposed by law; and the statute expressly enacts that no publication, other than that which is implied in the execution so attested, shall in future be necessary. The statute has also expressly enacted, that wills exercising powers of appointment shall be attested in the same manner, and being so attested shall be sufficiently attested (o). The former provisions, also, with respect to the competency of witnesses having an interest, are repealed as to wills taking effect under the new law; and the new enactments on this subject are, first, that the incompetency of any attesting witness shall not invalidate the will (p); second, that any beneficial gift

(g) 7 Will. 4 & 1 Vict. c. 26, 8. 34.

(h) Sect. 2.

(i) Croker v. Hertford, (1844) 4 Moore's P. C. Cases, 339; Green v. Tribe, (1878) 9 Ch. D. 231.

(k) Ss. 9, 11.

(7) With regard, however, to wills of personalty made by soldiers or seamen on actual service and the distribution of their effects when intestate, see Statute of Frauds, s. 22; Navy and Marines Wills Acts, 1865 and 1897; In the Goods of Spratt, [1897], P. 28; and

(as regards the preferential payment of regimental debts) 56 & 57 Vict. c. 5.

(m) 15 & 16 Vict. c. 24; Re Archer, (1871) 2 P. & M. 252; Re Anstee, (1893) P. 283.

(n) Hindmarsh V. Charlton, (1862) 8 H. L. C. 160; Wyatt v. Berry, [1893] P. 5.

(0) 7 Will. 4 & 1 Vict. c. 26, s. 10. In re Price, Tomlin v. Latter, [1900]1 Ch. 442; Barretto v. Young, [1900] 2 Ch. 339.

(p) 7 Will. 4 & 1 Vict. c. 26,

s. 14.

or appointment by the will to an attesting witness, or to the husband or wife of an attesting witness, (except a charge for payment of debts,) shall be void, and the evidence of the witness admissible (q); third, that where land is charged by the will with payment of debts, and the creditor (or husband or wife of the creditor) is an attesting witness, such witness shall nevertheless be competent (r); fourth, that no person shall be incompetent as a witness on account of his being an executor of the will (s).

As to revocation, also, the former law was altered by the Wills Act, 1837. By sect. 18, every will is revoked by the marriage alone, either of a testator or of a testatrix, unless such will was made in exercise of a power of appointment vested in him or her, and the estate would not have passed, in default of appointment, to his or her representatives. On the other hand, by sect. 19, no will is to be revoked by any presumption of an intention to revoke, raised by any alteration in circumstances or otherwise, except only by the circumstance of marriage (t); and, by sect. 23, no alienation of the property devised will prevent the devise taking effect on any estate which the testator is entitled to dispose of at his death. A revocation may, however, take place by the execution of another will or of a codicil, or of some writing of revocation executed like a will, or by the burning, tearing, or other destruction of the original will, with the intention of revoking it, by the testator or by some person in his presence and by his direction (u). And with respect to obliterations or other alterations made after execution, it is provided, by, sect. 21, that they are to have no effect (where the original meaning can still be deciphered) (x) unless executed with the same ceremonies as the will itself; though it will be sufficient if the signature of the testator, and the (9) Sect. 15.

(r) Sect. 16.

(s) Sect. 17.

(t) De Pontes v. Kendall, (1862) 10 W. R. 69.

(u) Sect. 20; Cheese v. Lovejoy, (1877) 2 P. D. 251; Bell v. Fothergill, (1871) L. R. 2 P. & M. 148.

() Re Gilbert, [1893] P. 183.

subscription of the witnesses, be made opposite or near the part altered, or at the foot or end of some memorandum written on the will, and referring to the alterations. No letter or memorandum not so signed and witnessed can be regarded (y). And, by sect. 22, when a will is once revoked, it is not to be revived otherwise than by re-execution of the original, or by a codicil duly executed and shewing an intention of revival (z).

III. The rules of construction to which devises are subject. These rules are in great measure the same rules as apply to conveyances by deed (a); but as in making a will a party is supposed to be inops consilii, there are instances in which the law will carry his intended limitations into effect, though the words used would in a deed be insufficient or improper for the purpose (c). Thus, it has always been held, that a fee might be conveyed by devise without legal words of inheritance, and an estate tail without words of procreation (d), provided that other words are used sufficient to indicate the intention (e); though in a conveyance by deed, the case used to be otherwise. [So an estate may pass under a will by mere implication, without any express words to direct its course; e.g., where a man devised lands to his heir-at-law, after the death of his wife, here, though no estate was given to the wife in express terms, yet she was held to have an estate for life by implication (ƒ). For the intent of the testator was clear to postpone the heir until after her death; and if she did

(y) McCormick v. Grogan, (1879) L. R. 4 App. Ca. 82; Singleton v. Tomlinson, (1878) L. R. 3 App. Ca. 404.

(-) In re the Goods of Hodgkinson, [1893] P. 339; In the Goods of Chilcott, [1897] P. 223.

(a) Clayton v. Lord Nugent, (1845) 13 M. & W. 200; and vide sup., p. 296.

(c) Co Litt. by Butler, 272 a, n. (1) Seale-Hayne v. Jodrell, [1891] A. C. 304; Hamilton v. Ritchie, [1894] A. C. 310.

(d) Crumpe v. Crumpe, [1900] A. C. 127.

(e) Lloyd V. Jackson, (1867) L. R. 2 Q. B. 269.

(f) Pybus v. Mitford, (1674) 1 Vent. 376.

[not take it, nobody else could. So also, where the devise was of Blackacre to A. in tail, and of Whiteacre to B. in tail, and if they both died without issue, then to C. in fee, here it was held that A. and B. had crossremainders by implication; so that, on the failure of the issue of either, the other or his issue would take the whole, and C.'s remainder over would be postponed till the issue of both had failed (g). But where such implications are allowed, they must be such as are necessary, or at least highly probable, and not merely possible implications (h).] There is also this difference between deeds and wills in point of construction, that, supposing a will to contain two inconsistent clauses, the one which comes last in order shall prevail; while in a deed the preference is, as we have seen, due to that which comes first (i).

A devise also is subject to a less strict rule than a conveyance by deed, in respect of the description of the thing granted. Thus, if I convey my house by deed, describing it as a house and not as land, we have seen that no land can pass, except the orchard, garden, and curtilage; but the question what shall pass by the derise of a house (or of a house "with the appurtenances ") is purely a question of intention, to be determined, like other points of construction, by the tenor of the whole will. And a devise in either form may, under special circumstances, have the effect of passing even adjacent land or buildings (k).

There are also some particular points of construction with regard to devises, which have been established by parliamentary enactment. For the former state of the law upon these points, as settled by judicial decisions, having been deemed unsatisfactory, it was thought fit, in (g) Freem. K. B. 483.

(h) Holmes v. Willett, (1680); Gardner v. Sheldon, (1671); Vaugh.

259.

(i) Doe d. Spencer v. Pedley,

(1836) 1 M. & W. 677; Re Bywater, (1881) 18 Ch. D. 17.

(k) In re Portal & Lamb, (1885) 30 Ch. D. 50.

the Wills Act, 1837, to regulate them for the future upon different principles, that is to say, in the respects following:

1. As the dispositions made by a testator cannot take effect, and are not intended to take effect, till after his death, it has often been a question whether in his description of the property devised, he shall be considered as referring to the state of things which exists when he executes his will, or to that which may exist at the time of his death. As to bequests of personal estate, the rule has always been, that the will speaks as at the time of death: but in devises of the realty, the opposite construction formerly obtained, the will being held to speak, in general, as at the time of its execution (l). Wills Act, 1837, has now assimilated the construction of devises upon this point to that of personal bequests; for by section 24 it provides, that "every will shall be construed, "with reference to the real estate and personal estate comprised in it, to speak and take effect as if it had "been executed immediately before the death of the "testator, unless a contrary intention shall appear by "the will" (m).

66

The

2. Though an estate in fee was always allowed to pass by devise, without apt words of inheritance, provided there were other expressions to show the testator's intention to confer a fee, yet, prior to the Wills Act, 1837, a long train of judicial decisions had established that a mere devise of a house or land would not suffice to indicate that intention, but would confer only an estate for life (»). Thus, if I were seised in fee of a house at A., and devised the same to B., adding either the words and his heirs, or equivalent words, expressive of an intention that he should take my whole estate therein, the house

(1) King v. Bennett, (1838) 4 M. & W. 36.

(m) Castle v. Fox, (1871) L. R. 11 Eq. 542; Everett v. Everett, (1877) 6 Ch. D. 122. In re

Champion, Dudley v. Champion, [1893] 1 Ch. 101; Higgins v. Dawson, [1902] A. C. 1.

(n) Pickwell v. Spencer, (1871) L. R., 6 Exch. 190.