« EelmineJätka »
there shall or shall not be any special occupant thereof, and whether the same shall be freehold, customary freehold, tenant right, customary or copyhold, or of any other tenure, and whether the same shall be a corporeal or an incorporeal hereditament; and also to all contingent, executory, or other future interests in any real or personal estate, whether the testator may or may not be ascertained as the person or one of the persons in whom the same respectively may become vested, and whether he
be entitled thereto under the instrument by which the same respectively were created or under any disposition thereof
by deed or will; and also to all rights of entry for condiRights of
tions broken, and other rights of entry; and also to such quired after of the same estates, interests, and rights respectively, and
other real and personal estate, as the testator may be entitled to at the time of his death, notwithstanding that he may become entitled to the same subsequently to the execution of his will.
entry; and Property ac.
As to the fees and fines pay
sees of customary and copyhold Estates.
IV. Provided always, and be it further enacted, that alle by devi- where any real estate of the nature of customary freehold
or tenant right, or customary or copyhold, might, by the custom of the manor of which the same is holden, have been surrendered to the use of a will, and the testator shall not have surrendered the same to the use of his will, no person entitled or claiming to be entitled thereto by virtue of such will shall be entitled to be admitted, except upon payment of all such stamp duties, fees, and sums of money as would have been lawfully due and payable in respect of the surrendering of such real estate to the use of the will, or in respect of presenting, registering, or enrolling such surrender, if the same real estate had been surrendered to the use of the will of such testator : Provided also, that where the testator was entitled to have been admitted to such real estate, and might if he had been admitted thereto, have surrendered the same to the use of his will, and shall not have been admitted thereto, no person entitled or claiming to be entitled to such real estate in consequence of such will shall be entitled to be admitted to the same real estate by virtue thereof, except on payment of all such stamp duties, fees, fine, and sums of money as would have been lawfully due and payable in respect of the admittance of such testator to such real estate, and also of all such stamp duties, fees, and sums of money as would have been lawfully due and payable in respect of surrendering such real estate to the use of the will, or of presenting, registering, or enrolling such surrender, had the testator been duly admitted to such real estate, and afterwards surrendered the same to the use of his will ; which stamp duties, fees, fine, or sums of money due as aforesaid shall be paid in addition to the stamp duties, fees, fine, or sums of money due or payable on the admittance of such person so entitled or claiming to be entitled to the same real estate as aforesaid.
V. And be it further enacted, that when any real es- Wills or extate of the nature of customary freehold or tenant right, of Customary or customary or copyhold, shall be disposed of by will, Copybolds to the lord of the manor or reputed manor of which such the Court real estate is holden, or his steward, or the deputy of such steward, shall cause the will by which such disposition shall be made, or so much thereof as shall contain the disposition of such real estate, to be entered on the court rolls of such manor or reputed manor; and when any trusts are declared by the will of such real estate, it shall not be necessary to enter the declaration of such trusts, but it shall be sufficient to state in the entry on the court and
the Lord rolls that such real estate is subject to the trusts declared to the same by such will; and when any such real estate could not when such have been disposed of by will if this act had not been not now demade, the same fine, heriot, dues, duties, and services would have shall be paid and rendered by the devisee as would have Heir in case been due from the customary heir in case of the descent of the same real estate, and the lord shall as against the devisee of such estate have the same remedy for recovering and enforcing such fine, heriot, dues, duties, and services as he is now entitled to for recovering and enforcing the same from or against the customary heir in case of a descent.
VI. And be it further enacted, that if no disposition by
Estates pur autre vie.
willó shall be made of any estate pur autre vie of a freehold nature, the same shall be chargeable in the hands of the heir, if it shall come to him by reason of special occupancy, as assets by descent, as in the case of freehold land in fee simple; and in case there shall be no special occupant of any estate pur autre vie, whether freehold or customary freehold, tenant right, customary or copyhold, or of any other tenure, and whether a corporeal or incorporeal hereditament, it shall go to the executor or administrator of the party that had the estate thereof by virtue of the grant; and if the same shall come to the executor or administrator either by reason of a special occupancy or by virtue of this act, it shall be assets in his hands, and shall go and be applied and distributed in the
as the personal estate of the testator or intestate.
No will of a
VII. And be it further enacted, that no will made by any person under the age of twenty-one years shall be valid.
nor of a Feme Covert, ex
VIII. Provided also and be it further enacted, that no will cept such as made by any married woman shall be valid, except such a
might now be made,
b The Statute of Frauds, which gives the power of devising estates pur autre vie, also provides that if there shall be no devise of an estate pur autre vie, it shall be chargeable in the hands of the heir, if it shall come to him by reason of special occupancy, as assets by descent; and in case there shall be no special occupant, it shall go to the executors or administrators, and be assets in their hands. The statute does not mention copyholds or incorporeal hereditaments; it does not refer to executors or administrators as special occupants; and it makes no provision for the surplus remaining after payment of debts. See 4th Report of the Real Property Commissioners. This section is intended to supply these deficiencies.
c By the present law wills of leasehold and other personal estate may be made by boys at fourteen years of age, and by girls at twelve ; Shep. Touch. 403 ; Harg. n. Co. Litt. 89, b. n. (6); but as a general rule, varied to a certain extent by the customs of particular places, neither freeholds nor copyholds can be devised by persons under the age of twenty-one. By the present act it is enacted that no will made by any person under the age of twenty-one shall be valid.
At what age will may be made.
will as might have been made by a married woman before the passing of this act.d
IX. And be it further enacted, that no will shall be valid Every Wihl unless it shall be in writing and executed in manner herein- Writing, and after mentioned ; (that is to say,) it shall be signed at the Testatoes in foot or end thereof by the testator, or by some other per- of Two Wita son in his presence and by his direction; and such signa- Timeture shall be made or acknowledged by the testator in the presence of two or more witnesses present at the same time, and such witnesses shall attest and shall subscribe the will in the presence of the testator, but no form of attestation shall be necessary.e
like other Wills, and to be valid, al
X. And be it further enacted, that no appointment made Appoint, by will, in exercise of any power, shall be valid, unless to be executed the same be executed in manner herein-before required; and
every will executed in manner herein-before required though other shall, so far as respects the execution and attestation lemnities are thereof, be a valid execution of a power of appointment by will, notwithstanding it shall have been expressly required that a will made in exercise of such power should
d A married woman cannot devise lands by force of the Statute will of mar. of Frauds, but by the custom of particular places she may devise ried woman. her lands. This section seems to leave the law in this respect as it was.
e As the law at present stands a great variety of rules exists as Execution of to the execution of a will, according to the property devised or bequeathed by it. To pass freeholds, the will must be in writing, and signed and attested by three witnesses, according to the provisions of the Statute of Frauds; but leaseholds and other personal property may be bequeathed by any writing, however informal, and unattested; or such property may pass by parol in certain cases, with the evidence required by the statute. money in the funds by direct legal devise, the will must be attested by two witnesses, under the 1 G. 1, st. 2, c. 19, s. 12, although, according to the construction which that act has received, it is in fact nugatory. Copyholds may be devised by an unattested will; but to appoint a guardian, the will must be attested by two witnesses, 12 Car. 2, c. 24, s. 18; and several other minor differences exist. When the present act comes into operation all these differences will cease, as under it, one settled rule is established, applicable to every species of wills, which is prescribed by section 9.
be executed with some additional or other form of execution or solemnity.
XI. Provided always, and be it further enacted, that any Wills except- soldier being in actual military service, or any mari
ner or seaman being at sea, may dispose of his personal estate as he might have done before the making of this act.
Act not to affect certain
with respect to Wills of Petty Officers
XII. And be it further enacted, that this act shall not Provisions of prejudice or affect any of the provisions contained in an 1 W. 4, c. 20. act passed in the eleventh year of the reign of his Majesty
King George the Fourth, and the first year of the reign of and seamen his late Majesty King William the Fourth, intituled An
Act to amend and consolidate the Laws relating to the Pay of the Royal Navy, respecting the wills of petty officers and seamen in the Royal Navy, and non-commis. sioned officers of marines, and marines, so far as relates to their wages, pay, prize money, bounty money, and allowances, or other monies payable in respect of services in her Majesty's Navy.
Publication not to be requisite.
XIII. And be it further enacted, that every will executed in manner herein before required shall be valid without any other publication thereof.h
Will not to be void on ac
XIV. And be it further enacted, that if any person who
Appoint- By the present law an appointment made by will in exercise ments by will. of a power must be executed according to the form prescribed by
the power, as with three witnesses, or otherwise. Under this act, however, appointments are to be executed like other wills, and to be valid although other required solemnities are not performed. So that the case of a will in execution of a power is not
in contradiction to the general rule laid down in the last note. Exceptions to
8 The only exceptions to the general rule are the wills of the general
soldiers and mariners, which are left as before the act, and wills Nuncupative
under the stat. 11 G. 4, and 1 W, 4, c. 20. But no nuncupatiye will of
other kind will be valid under the act. h In wills, under the present act, publication will no longer be necessary. Publication was formerly considered necessary; Ross v. Ewer, 3 Atk. 156; but has in a more recent case been thought immaterial under the present law. Moody v. Reid, 7 Taunt. 355.