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AMENDMENT OF THE LAWS
WITH RESPECT TO
W I L L S.
1 VICT. CAP. XXVI.
An Act for the Amendment of the Laws with respect to Wills.
[3d July 1837.] BE IT ENACTED by the Queen's most Excellent Ma- Meaning of jesty, by and with the advice and consent of the Lords in this Act; Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, that the words and expressions herein-after mentioned, which in their ordinary signification have a more confined or a different meaning, shall in this act, except where the nature of the provision or the context of the act shall exclude such construction, be interpreted as follows; (that is to say) the word “ will” shall extend to a testament, and to a codicil, and to an appointment by will or by writing in the nature of a will in exercise of a power, and also to a disposition by will and testament or devise of the custody and tuition of any child, by virtue of an act passed in the twelfth year of the reign of King Charles the Second, intituled 12 Car. 2, c. An Act for taking away the Court of Wards and Liveries, and Tenures in capite and by Knights' Service, and Purveyance, and for settling a Revenue upon his Majesty in lieu thereof, or by virtue of an act passed in the Parliament of Ireland in the fourteenth and fifteenth years of the reign of King Charles the
2. (1.) " Real
14 & 15 Car. Second, intituled An Act for taking away the Court of
Wards and Liveries, and Tenures in capite and by Knight's Service, and to any other testamentary disposition
and the words “real estate shall extend to manors, advowsons, messuages, lands, tithes, rents, and hereditaments, whether freehold, customary freehold, tenant right, customary or copyhold, or of any other tenure, and whether corporeal, incorporeal, or personal, and to any undivided share thereof, and to any estate, right, or interest (other than a chattel interest) therein; and the words “personal estate" shall extend to leasehold estates and other chattels real, and also to monies, shares of government and other funds, securities for money (not being real estates), debts, choses in action, rights, credits, goods, and all other property whatsoever which by law devolves upon the executor or administrator, and to any share or interest therein; and every word importing the singular number only shall extend and be applied to several persons or things as well as one person or thing: and every word importing the masculine gender only shall extend and be applied to a female as well as a male.
“Personal Estate :"
Repeal of the
10 Car. 1.
II. And be it further enacted, that an act passed in the Wills, 82 H. thirty-second year of the reign of King Henry the Eighth, 34 & 35 H.8, intituled The act of Wills, Wards, and Primer Seisins,
whereby a Man may devise Two Parts of his Land; and also an act passed in the thirty-fourth and thirty-fifth years of the reign of the said King Henry the Eighth, intituled The Bill concerning the Explanation of Wills;
and also an act passed in the parliament of Ireland, in the Sess. 2. c. 2. tenth year of the reign of King Charles the First, intituled
An Act how Lands, Tenements, etc. may be disposed by Sec. 5. 6. 12. Will or otherwise, and concerning Wards and Primer
Seisins; and also so much of an act passed in the twenty
ninth year of the reign of King Charles the Second, intituW.6.c. 12. led An Act for Prevention of Frauds and Perjuries, and (1.)
of an act passed in the parliament of Ireland in the seventh year of the reign of King William the Third, intituled An Act for Prevention of Frauds and Perjuries, as relates to devises or bequests of lands or tenements,
19. 20. 21. & 22, of the Statute of Frauds, 29 Car. 2, c. 3.
6 Anne, c. 10. (1.)
G. 2. c. 20.
or to the revocation or alteration of any devise in writing of any lands, tenements, or hereditaments, or any clause thereof, or to the devise of any estate pur autre vie, or to any such estate being assets, or to nuncupative wills, or to the repeal, altering, or changing of any will in writing concerning any goods or chattels or personal estate, or any clause, devise, or bequest therein ; and also so much of an act passed in the fourth and fifth years of the reign of Seco Mures Queen Anne, intituled An Act for the Amendment of the 16. Law and the better Advancement of Justice, and of an act passed in the parliament of Ireland in the sixth
year of the reign of Queen Anne, intituled An Act for the Amendment of the Law and the better Advancement of Justice, as relates to witnesses to nuncupative wills; and Sec. 90f14 also so much of an act passed in the fourteenth year of the reign of King George the Second, intituled An Act to amend the Law concerning Common Recoveries, and to explain and amend an Act made in the Twenty-ninth Year of the Reign of King Charles the Second, intituled ‘An Act for Prevention of Frauds and Perjuries,' as relates to estates pur autre vie ; and also an act passed in 25 G. 2. c. 6. the twenty-fifth year of the reign of King George the Seconomies) to cond, intituled An Act for avoiding and putting an end to certain Doubts and Questions relating to the Attestation of Wills and Codicils concerning Real Estates in that Part of Great Britain called England, and in His Majesty's Colonies and Plantations in America, except 25 G. 2. c. 11. so far as relates to His Majesty's colonies and plantations in America ; and also an act passed in the parliament of Ireland in the same twenty-fifth year of the reign of King George the Second, intituled An Act for the avoiding and putting an end to certain Doubts and Questions relating to the Attestations of Wills and Codicils concerning 55 G3, c. 192. Real Estates ; and also an act passed in the fifty-fifth year of the reign of King George the Third, intituled An Act to remove certain Difficulties in the Disposition of Copyhold Estates by Will, shall be and the same are hereby repealed, except so far as the same acts or any of them respectively relate to any wills or estates pur autre vie to which this act does not extend.
All Property inay be dis
III. And be it further enacted,a that it shall be lawful posed of by for every person to devise, bequeath, or dispose of, by his
will executed in manner herein-after required, all real estate and all personal estate which he shall be entitled to, either at law or in equity, at the time of his death, and which if not so devised, bequeathed, or disposed of would devolve upon the heir at law, or customary heir of him, or, if he became entitled by descent, of his ancestor, or
upon his executor or administrator; and that the power comprising hereby given shall extend to all real estate of the nature freeholds and of customary freehold or tenant right, or customary or
copyhold, notwithstanding that the testator may not have
surrendered the same to the use of his will, or notwithalso such are standing that, being entitled as heir, devisee, or otherwise them as can to be admitted thereto, he shall not have been admitted devised; thereto, or notwithstanding that the same, in consequence
copybolds without surrender and before Ad
By the present law all freeholds may be devised, except holds may be estates held in joint tenancy, or by entireties, or for an estate
tail, or an estate in quasi entail. No alteration is made by the present act as to these estates. The joint tenant cannot sever the joint estate by his will : if he wishes to dispose of it, he must still sever it by deed in his lifetime, and he may then devise his share. Neither can a tenant in tail bar the entail by will. He is expressly precluded from doing so by the Act for Abolishing Fines and Recoveries (3 & 4 W.4, c. 74, s. 40). And no alteration is made as to this by the present act; he may however acquire a fee by a deed enrolled under that act, and may then devise such estate in fee. But, with these two exceptions, every spe
cies of property will be devisable under this act. Copyholds.
Copyholds were not devisable at common law, and there must have been a surrender to the use of the will, which alone gave effect to the limitations therein ; but the necessity of a surrender to the use of a will was taken away by the stat. 55 G. 3, c. 192, which enacted that devises should be good without any surrender to the use of the will, and that the same duties and fees should continue to be paid as had been paid on surrenders. But diffculties arose under this act, as to whether it applied to cases where there was no custom in the manor to devise or surrender to the use of a will ; and it left untouched any custom that a copyhold surrendered to the use of a will should not pass thereby. See Pike v. White, 3 Bro. C. C. 117; Church v. Mundy, 15 Ves. 404. By the present act, the 55 G. 3, c. 192, is repealed; and it is enacted that customary freeholds and copyholds may be disposed of by will, notwithstanding there has been no surrender to the use of the will, and “notwithstanding that the same, in conseof the want of a custom to devise or surrender to the use of a will or otherwise, could not at law have been disposed of by will if this act had not been made, or notwithstanding that the same, in consequence of there being a custom that a will or a surrender to the use of a will should continue in force for a limited time only, or any other special custom, could not have been disposed of by will according to the power contained in this act, if this act had not been made ; and also to estates pur autre vie, whether autre vie ;
quence of the want of a custom to devise or surrender to the use of a will or otherwise, could not at law have been disposed of by will,” and “ notwithstanding that the same in consequence of there being a custom that a will or a surrender to the use of a will should continue in force for a limited time only, or other special custom.” The 4th section regulates the payment of the fees and fines payable by devisees of the customary and copyhold estates; and the 5th enacts, that wills or extracts of wills of customary freeholds and copyholds shall be entered on the court rolls, and the lord shall be entitled to the same fine where such estates are not now devisable, as he would have from the heir in case of a descent.
By the 29th Car. 2, c. 3, s. 12, estates pur autre vie might be Estates pur devised, but it was doubtful whether it extended to estates pur autre vie devisable by custom; this act is now repealed, and it is expressly provided that estates pur autre vie may be devised, “ whether 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 incorporeal hereditament.” See post, sec. 34.
It was settled by the more recent cases, that contingent and Contingent executory interests might be devised; Moor v. Hawkins, cit. 1 H. B. 33; Jones v. Roe, 3 T. R. 88; but the older authorities were to the contrary; Bishop v. Fontaine, 3 Lev. 427; Fearne. Cont. Rem. 291. The point is placed beyond dispute by the present act, which enacts that all contingent interests may be devised.
A right of entry cannot be at present devised. Baker v. Fack- Right of ening, Cro. Car. 387, 405; Goodright v. Forrester, 8 East, 564 ; Cave v. Holford, 3 Ves. 669. When the present act comes into operation this rule will be altered, and all rights of entry may be devised. No rule of the present law is better settled than that a devise What land
will operates of real estate operates only upon land of which the testator is seised at the time of making his will. 1 P. Wms. 575; 11 Mod. 148. This rule is altered by the present act, and under it property acquired after the execution of the will may be devised.