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No. 2. it, &c., That in all cases where it shall appear any executor, adAct 53 G. 3, ministrator, or guardian, as aforesaid, hath, bona fide, and without
collusion or fraud, compounded for, or settled by arbitration, any
debt, account, or matter, concerning the trust reposed in him, or Executors
may submit ac
concerning the execution thereof, that in every such case such procounts, &c. to
ceedings shall be valid in law, and no executor, administrator, or arbitration. guardian shall be made chargeable out of his own estate for any
actual or supposed loss which may be sustained thereby.
No. 3. No. 3.-4. Vic. ch. 23. An Act to declare in force within these Act 4 Vic.
Islands a certain statute of the United Kingdom of Great
Britain and Ireland, passed in the First year of the Reign Declaring Act of Parl.
of Her present Majesty, entitled “ An Act for the amend1 Vic. c. 26,
ment of the Laws with respect to Wills.” (February 25th, in force.
1841.) Statute of the
THAT from and after the Thirty-first day of May, in the present Imperial Parliainent with respect to wills one, the said before-mentioned statute shall be, and the same is declared in hereby declared to be in force within these islands, as fully and force.
effectually, to all intents and purposes, as if the said statute contained a provision expressly extending its enactments to this colony, or as if the said statute had been made and enacted by the Legislative Council of these islands; Provided always, nevertheless, That the said statute shall not extend to any will made within these islands before, or on the said Thirty-first day of May, in the present year of our Lord, One thousand eight hundred and forty-one.
Act of Parliament, 1 Vic. ch. 26, for the amendment of the larcs with
respect to Wills, declared in force by preceding Act. Meaning of I. That the words and expressions hereinafter mentioned, which certain words in their ordinary signification have a more confined, or a different in this Act.
meaning, shall in this Act, except where the nature of the provision
or the context of the Act shall exclude such construction, be interWill.
preted 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 12 Car. 2, c. 24. of the reign of King Charles the Second, entitled an Act for taking
away the Court of Wards and Liveries, and tenures in Capite, and by Knight's service, and purveyance, and for settling a revenue
upon His Majesty in lieu thereof; or by virtue of an Act passed in 14 & 15 Cap. 2. the Parliament of Ireland, in the Fourteenth and Fifteenth years of
the reign of King Charles the Second, entitled an Act for taking away the Courts 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, Real Estate
messuagos, lands, tithes, rents, hereditaments, whether freehold,
customary freehold, tenant right, customary, or copyhold, or of any No. 3. other tenure, and whether corporeal, incorporeal, or personal, and Act 4 Vic. to any undivided share thereof, and to any estate, right, or interest (other than a chattel interest) therein ; and the words “ Personal Declaring Estate ” shall extend to leasehold estates and other chattels real, Act of Parl. and also to moneys, shares of Government and other funds, secu- 1 Vic. c. 26, rities for money (not being real estates), debts, choses in action, in force. rights, credits, goods, and all other property whatsoever, which by Personal Estate. law devolves upon the executor or administrator, and to any share or interest therein; and every word importing the singular number Number. only, shall extend and be applied to several persons or things, as well as one person or thing; and every word importing the mas- Gender, culine gender only shall extend and be applied to a female as well as a male.
II. Repeals Imperial Acts 32 Henry 8, ch. 1, and 34 and 35 Certain Acts Henry 8, ch. 5; also Imperial Acts 1o Car. 1, sess. 2, ch. 2; repealed. and also so much of Imperial Act 29 Car. 2, ch. 3, and Imperial Act 7 Wm. 3, ch. 12, as relates to devises or bequests of lands, or tenements, 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, per autre vie, or to any such estate being assets, or to nuncupative wills, or to the repcaling, 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 Imperial Act 4 and 5 Anne, ch. 16, and Imperial Act 6 Anne, ch. 6, as relates to witnesses to nuncupative wills; and also so much of Imperial Act 14 Geo. 2, ch. 20, as relates to estates, per autre vie ; and also Imperial Act 25 Geo. 2, ch. 6, except so far as relates to His Majesty's colonies and plantations in America ; and also Imperial Acť 25 Geo. 2, ch. 11 ; and also Imperial Act 52 Geo. 3, ch. 152, except so far as the same Acts, or any of them, respectively, relate to any wills or estates, per autre vie to which this Act does not extend.
III. That it shall be lawful for every person to devise, bequeath, All property or dispose of, by his will executed in manner hereinafter required, may be disposed all real estate and all personal estate which he shall be entitled to,
of by will. either in 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 hereby given shall extend to all real estate of the nature 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 notwithstanding that, þeing entitled as heir, devisee, or otherwise, to be admitted thereto, he shall not have been admitted thereto, or notwithstanding that the
in consequence 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 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, per autre vie, Estates par whether there shall or shall not be any special occupant thereof, autre vie.
No. 3. and whether the same shall be freehold, customary freehold, tenant Act 4 Vic. right, customary, or copyhold, or of any other tenure, and whether
the same shall be a corporeal or an incorporeal hereditament; and Declaring also to all contingent, executory, or other future interests in any Act of Parl. real or personal estate, whether the testator may or may not be 1 Vic. c. 26, ascertained as the person, or one of the persons, in whom the same, in force. respectively, may become vested, and whether he may be entitled
thereto under the instrument by which the same, respectively, were Contingent
created, or under any disposition thereof by deed or will; and also to Interests. Kights of
all rights of entry for conditions broken and other rights of entry; and also to such of the same estates, interests, and rights, respectively, and other real and personal estate as the testator may bo entitled to at the time of his death, notwithstanding that he may
become entitled to the same subsequently to the execution of his will.
IV. Provided always, and be it further enacted, That where any to be admitted real estate of the nature of customary freehold, or tenant right, where Testa
or customary or copyhold, might' by the custom of the manor of tor does not
which the same is holden, have been surrendered to the use of a will, surrender estate to the
and the testator shall not have surrendered the same to the use of use of his wife. 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 Proviso. had been surrendered to the use of the will of such testator: Pro
vided 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, all 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. Wills or ex
V. That when any real estate of the nature of customary frectracts of Wills hold, or tenant right, or customary or copyhold, shall be disposed relating to cus- of by will, the lord of the manor, or reputed manor, of which such tomary freehold lands to
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 the Court 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 rolls that such real estate is subject to the trusts declared by such will; and when any
be entered on
such real estate could not have been disposed of by will if this Act
No. 3. had not been made, the same fines, heriot dues, duties, and services
Act 4 Vic. shall be paid and rendered by the devisee as would have been due froin the customary heir, in case of the descent of the same real Declaring estate, and the lord shall, as against the devisee of such estate, have Act of Parl. the same remedy for recovering and enforcing such fine, heriot dues, 1 Vic. c. 26, duties, and services as he is now entitled to, for recovering and en
in force. forcing the same from or against the customary heir, in case of a And the Lord to descent.
be entitled to the same Fine, &c. as from the Heir in case of descent. VI. That if no disposition by will shall be made of any estate, Relative to per autre vie, of a freehold nature, the same shall be chargeable in Estates per the hands of the beir, if it shall come to him by reason of special
autre vie. 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, per 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 same manner as the personal estate of the testator or intestate.
VII. That no will made by any person under the age of Twenty- No Will made one years shall be valid.
by a person under twenty-one years of age valid. VIII. That no will made by any married woman shall be valid, Wills by marexcept such a will as might have been made by a married woman ried women before the passing of this Act.
invalid, IX. That no will shall be valid unless it shall be in writing and executed in manner hereinafter mentioned, that is to say, it shall Will shall be be signed at the foot or end thereof by the testator, or by some executed. other person in his presence, and by his direction; and such signature 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. X. That no appointment made by will
, in exercise of any Appointments power, shall be valid, unless the name be executed in manner by Will to be
executed like hereinbefore required ; and every will executed in manner herein
other Wills, before required, shall so far as respects the execution and attesta- &c. tion 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 be executed with some additional, or other form of execution, or solemnity.
XI. Provided always, that any soldier being in actual military Soldiers and service, or any mariner or seaman being at sea, may dispose of mariners exhis personal estate as he might have done before the making of cepted. this Act.
XII. That this Act shall not prejudice or affect any of the Act not to provisions contained in an Act passed in the eleventh year of the affect certain reign of His Majesty King George the Fourth, and the first year 11 Geo. 4, and
provisions of of the reign of His late Majesty King William the Fourth, enti- i Wm. 4, c. 20, tuled “An Act to amend and consolidate the Laws relating to with respect to the pay of the Royal Navy, respecting the Wills of Petty Officers Wills of Petty
No. 3. and Seamen in the Royal Navy, and non-commissioned Officers of Act 4 Vic. Marines, and Marines so far as relates to their wages, pay, prize
money, bounty money, and allowances, or other moneys payable Declaring in respect of services in Her Majesty's Navy." Act of Parl. XIII. That every will, executed in manner hereinbefore re1 Vic. c. 26, quired, shall be valid without any other publication thereof. in force. XIV. That if any person who shall attest the execution of a
will, shall at the time of the execution thereof, or at any time Will not invalidated through afterwards, be incompetent to be admitted a witness to prove incompetence of the execution thereof, such will shall not on that account be witness. invalid. Gifts to an at- XV. That if any person shall attest the execution of any will testing witness to whom, or to whose wife, or husband, any beneficial devise, void.
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 execution 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 may
XVI. That in case by any will, any real, or personal estate, shall be a witness.
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 may
XVII. That no person shall, on account of his being an be a witness. 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 the invalidity thereof. Will to be re- XVIII. That every will made by a man or woman, shall be voked by revoked by his or her marriage (except a will made in exercise of a marriage.
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. That no will shall be revoked by any presumption of an
intention on the ground of an alteration in circumstances. In what case
XX. That no will or codicil or any part thereof, shall be revoked Wills may be otherwise than as aforesaid, or by another will or codicil, executed revoked.
in manner hereinbefore required, or by some writing declaring an intention to revoke the same, and executed in the manner 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 same. No alteration XXI. That no obliteration, interlineation, or other alteration to have any
made in any will, after the execution thereof, shall be valid, or have effect unless executed as a
any effect except so far as the words or effect of the will, before will.