« EelmineJätka »
shall attest the execution of a will shall at the time of the count of Inexecution thereof or at any time afterwards be incompe- of attesting tent to be admitted a witness to prove the execution thereof, such will shall not on that account be invalid.'
XV. And be it further enacted, that if any person shall Gifts to a attest the execution of any will to whom or to whose wife ness to be or husband any beneficial devise, legacy, estate, interest, gift, or appointment, of or affecting any real or personal estate (other than and except charges and directions for the payment of any debt or debts), shall be thereby given or made, such devise, legacy, estate, interest, gift, or appointment shall, so far only as concerns such person attesting the execution of such will, or the wife or husband of such person, or any person claiming under such person or wife or husband, be utterly null and void, and such person so attesting shall be admitted as a witness to prove the exe
i The four next sections relate to the witnesses to a will. As to the witThe Statute of Frauds requires that the witnesses should be nesses to a “credible," and upon that expression various questions arose. 1st. What was meant hy credible witnesses. 2d. Whether, if not credible at the time of the execution of the will, they can become credible by any subsequent occurrence. And 3d. Whether witnesses who are not credible on account of their having in. terests given them by the will, are credible witnesses to support the will for the benefit of other parties. It was at one time held, that persons taking any direct or indirect benefit under the will, being creditors, where debts were charged on freehold estates by the will, were not credible witnesses; but that persons so circumstanced became credible when they had received or released their interests. To remove some of these inconveniences the act 25 G. 2, c. 6, was passed, declaring that such persons shall be credible witnesses, but that any gift to them shall be void; but much difference of opinion exists to this day, as to whether this statute extends to all wills, or only to wills of freehold estates. Lees v. Summersgill, 17 Ves. 508; Emanuel v. Constable, 3 Russ. 436; Brett v. Brett, 3 Add. Eccl. Rep. 210; 1 Hagg. Eccl. Rep. 582; Foster v. Banbury, 3 Sim. 40. These doubts are set at rest, so far as future wills are concerned, by the present act, which enacts that (s. 14) wills are not to be void on account of the incompetency of the attesting witnesses; that (s. 15) gifts to an attesting witness are to be void ; that (s. 16) a creditor attesting is to be admitted as a witness; and that (s. 17) an executor may be admitted as a witness.
cution of such will, or to prove the validity or invalidity thereof, notwithstanding such devise, legacy, estate, interest, gift, or appointment mentioned in such will.
Creditor attesting to be admitted a Witness.
XVI. And be it further enacted, that in case by any will any real or personal estate shall be charged with any
debt or debts, and any creditor, or the wife or husband of any creditor, whose debt is so charged shall attest the execution of such will, such creditor notwithstanding such charge shall be admitted a witness to prove the execution of such will, or to prove the validity or invalidity thereof.
Executor to be admitted a Witness.
XVII. And be it further enacted, that no person shall, on account of his being an executor of a will, be incompetent to be admitted a witness to prove the execution of such will, or a witness to prove the validity or invalidity thereof.
Will to be revoked by Marriage.
XVIII. And be it further enacted, that every will made by a man or woman shall be revoked by his or her marriage (except a will made in exercise of a power of appointment when the real or personal estate thereby appointed would not in default of such appointment pass to his or her heir, customary heir, executor, or administrator, or the person entitled as his or her next of kin, under the statute of distributions.)
XIX. And be it further enacted, that no will shall be re
No Will to be revoked by Presumption.
As to revoca
k A will of a man is not revoked by marriage alone, or by the tion of a will. birth of a child alone ; Sullivan v. Sullivan, 1 Phillim. 343;
Emerson v. Boville, ibid. ; but the will of a single woman is revoked by her marriage alone. Doe v. Staple, 2 T. R. 696 ; Long v. Aldred, 3 Add. 48. By the present act it is enacted, that all wills shall be revoked by marriage, with the exception mentioned in the 18th section; but no will shall be revoked by prescription (s. 19); and no will is to be revoked but by another will or codicil, or by a writing executed like a will, or by de. struction. These two last sections will settle many doubts which have arisen as to the question of revocation. The cases as to these doubts are collected in the Fourth Report of the Real Property Commissioners.
voked by any presumption of an intention on the ground of an alteration in circumstances.
Will or Codi.
XX. And be it further enacted, that no will or codicil No will to be or any part thereof, shall be revoked otherwise than as by another aforesaid, or by another will or codicil executed in man- cil, or by a ner hereinbefore required, or by some writing declaring ecuted like a an intention to revoke the same, and executed in the man- Destruction. ner in which a will is hereinbefore required to be executed, or by the burning, tearing, or otherwise destroying the same by the testator, or by some person in his presence and by his direction, with the intention of revoking the
XXI. And be it further enacted, that no obliteration, in- No alteration terlineation, or other alteration made in any will after the have any ef. execution thereof shall be valid or have any effect, except executed as a so far as the words or effect of the will before such alteration shall not be apparent, unless such alteration shall be executed in like manner as hereinbefore is required for the execution of the will; but the will, with such alteration as part thereof, shall be deemed to be duly executed if the signature of the testator and the subscription of the witnesses be made in the margin or on some other part of the will, opposite or near to such alteration, or at the foot or end of or opposite to a memorandum referring to such alteration, and written at the end or some other part of the will.
XXII. And be it further enacted, that no will or codicil, No will re or any part thereof, which shall be in any manner revoked, revived othershall be revived otherwise than by the re-execution thereof, Re-execution or by a codicil executed in manner hereinbefore required, to revive it. and showing an intention to revive the same; and when any will or codicil which shall be partly revoked, and afterwards wholly revoked, shall be revived, such revival shall not extend to so much thereof as shall have been revoked before the revocation of the whole thereof, unless an intention to the contrary shall be shown.
XXIII. And be it further enacted, that no conveyance or A Devise not
inoperative by any subse.
ance or Act.
other act made or done subsequently to the execution of quent convey a will of or relating to any real or personal estate therein
comprised, except an act by which such will shall be re. voked as aforesaid, shall prevent the operation of the will with respect to such estate or interest in such real or personal estate as the testator shall have power to dispose of by will at the time of his death.
A will shall be construed
the Death of
XXIV. And be it further enacted, that every will shall be to speak from construed, with reference to the real estate and personal the Testator. 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 th will.1
A Residuary Devise shall include Estates comprised in lapsed and
XXV. And be it further enacted, that unless a contrary intention shall appear by the will, such real estate or in
terest therein as shall be comprised or intended to be void Devises. comprised in any devise in such will contained, which shall
fail or be void by reason of the death of the devisee in the lifetime of the testator, or by reason of such devise being contrary to law or otherwise incapable of taking effect, shall be included in the residuary devise (if any) contained in such will.m
When a will speaks.
As the law stands at present, although a will is a future disposition, revocable by the testator, and it is not completed, and can pass no estate until after his death, yet, unless by means of the doctrine of election, it can affect no freehold estate but such as he is entitled to at the time of making his will. Therefore if he devise all such estates as shall belong to him at the time of his death, the devise is inoperative with respect to any lands he may acquire subsequently to the date of his will, except so far as it may, according to a recent decision, (Churchman v. Ireland, 1 Russ. & M. 250,) raise a case of election against the heir. Copyholds also do not pass by a will, if they are acquired after the date of it; but they may be surrendered to the use of a prior will ; in which case the surrender amounts to a republication of the will, and makes it speak as from the date of the surrender. But with respect to personal estate a will speaks from the death of the testator. By this section a will shall in all cases be construed to speak from the death of the testator.
m A residuary bequest operates on personal estate of which a testator is possessed at the time of his death; and consequently includes all specific bequests, void or failing by the death of the
What a residuary be. quest includes.
XXVI. And be it further enacted, that a devise of the A general land of the testator, or of the land of the testator in any place Testator's or in the occupation of any person mentioned in his will, include copsor otherwise described in a general manner, and any other Leasehold as general devise which would describe a customary, copy- hold lands. hold, or leasehold estate if the testator had no freehold estate which could be described by it, shall be construed to include the customary, copyhold, and leasehold estates of the testator, or his customary, copyhold, and leasehold estates, or any of them, to which such description shall extend, as the case may be, as well as freehold estates, unless a contrary intention shall appear by the will."
Gift shall in
XXVII. And be it further enacted, that a general devise of the real estate of the testator, or of the real estate of the clude Estates testator in any place or in the occupation of any person the Testator mentioned in his will, or otherwise described in a general Power of Ap
pointment. manner, shall be construed to include any real estate, or any real estate to which such description shall extend (as the case may be), which he may have power to appoint in
legatee in the testator's life time; Brown v. Higgs, 4 Ves. 708 ; Shanley v. Baker, ib. 732; Jackson v. Kelly, 2 Ves. jun. 285. But as a divisor can only devise the land to which he is actually entitled at the time of making the will, it follows that every resi. duary devise, however general the terms of it, is in its nature specific; Howe v. Earl of Dartmouth, 7 Ves. 147; Broome v. Monck, 10 Ves. 605 ; Hill v. Cook, i Ves. & B. 175; being in fact a specific disposition of the lands not before expressed to be given by the will, 2 Jarm. Dev. 103. Under the present act this distinction will no longer prevail, as by this section it is provided that a residuary divise shall include estates comprised in lapsed and void devises.
Many nice distinctions exist at present whether copyholds What lands and leaseholds pass under a general devise of lands; the general general rule being that where the testator had freeholds and copyholds or leaseholds, the copyholds or leaseholds would not pass under such a devise; but where the testator had no copyholds or leaseholds, then the devise would operate, ut res magis valeat quam pereat, 2 Jarm. 121, 127. These doubts are provided for by this section, by which it is enacted that a general devise of the testator's lands shall include copyhold and leasehold as well as freehold lands. By the next section it is provided that a general gift shall include estates over which the testator has a general power of appointment.