gift, all devises and bequests in any previous will must necessarily be superseded. The object of it is, to revoke any specific devise of real estate contained in a former will, and which, according to the case Freeman v. Freeman, 5 D. M. & G. 704, would not be revoked by a mere general devise in a later will.

In this instance, we have deviated from established usage, by substituting one word for the words "devise and bequeath" generally used-the one applying to real, and the other to personal estate. The word "give," which is sometimes used by recognised authorities as applying both to realty and personalty, seems more suited to transactions inter vivos; whereas the word "leave" possesses the same advantage as the former of combining the meanings of the two words "devise" and "bequeath,” and at the same time is the word most frequently used in ordinary language in that sense. Instead of "all my property," many of the common forms say "all the property. . . of or to which I shall be seised, possessed or entitled at the time of. my decease, or which I shall then have power to appoint by will." But, having regard to sections 24 and 27 of the Wills Act, and the decisions upon sect. 24 in the cases O'Toole v Browne (3 E. & B. 572), and Stokes v. Salomons (15 Jur. 483), the above words may be considered unnecessary.

With regard to the devise of trust and mortgage estates hitherto usually inserted in wills, the following enactment is contained in the Conveyancing and Law of Property Act, 1881, sect. 30:-"Where an estate or interest of inheritance, or limited to the heir as special occupant, in any tenements or hereditaments, corporeal or incorporeal, is vested on any trust, or by way of mortgage, in any person solely, the same shall, on his death, notwithstanding any testamentary disposition, devolve to and become vested in his personal representatives or representative from time to time, in like manner as if the same were a chattel real vesting in them or him; and accordingly all the like powers, for one only of several joint personal representatives, as well as for a single personal representative, and for all the personal representatives together, to dispose of and otherwise deal with the same, shall belong to the deceased's personal representatives or representative from time to time, with all the like incidents but subject

I.

I.

to all the like rights, equities, and obligations, as if the same were a chattel real vesting in them or him; and for the purposes of this section, the personal representatives for the time being of the deceased shall be deemed in law his heirs and assigns, within the meaning of all trusts and powers."

A devise of trust and mortgage estates therefore is now uncalled for and useless, except that, in the case of trust estates only, the devisees might perhaps have the right to claim a conveyance to themselves from the executors: but if the testator wishes to vest the trust estates in some other persons than his executors, it would be better to insert not a devise, which would now be inoperative to pass the legal estate, but rather a direction to the executors to convey to the intended successors in the trusteeships.

It is a matter for regret that so long a form of attestation as the above should have grown into use; since, in the case of a will hastily prepared for a dying testator, much valuable time would be lost in writing it out. We have seen the following form suggested, "Signed by the said A. B. in our presence, and by us in his presence."

This would appear to meet the requirements of sect. 9 of the Wills Act; but the officials at the Probate Court are so much accustomed to the longer form, that they would hardly allow a will having a shorter attestation to be proved, without an affidavit of due execution. It will be necessary, therefore, to use it until a shorter form has been sanctioned by a decision of the Court. In order to dispose of land in a foreign country, whether held absolutely or for a term of years, &c., the will must be executed in accordance with the law of the country where such land is situate.

In order that a will by a seaman or marine in the Royal Navy may be effectual to dispose of pay, prize-money, &c., payable by the Admiralty, or effects or money in charge of the Admiralty, not only must the requirements of the Wills Act as to execution be complied with, but it is also necessary that one of the attesting witnesses shall be, where the will is made on board one of Her Majesty's ships, a commissioned officer, chaplain, or warrant or subordinate officer of the naval, marine, or military force, and, where the will is made elsewhere, either such a person as above, or the governor, agent, physician, surgeon, assistant surgeon, or chaplain of a naval

hospital at home or abroad, a justice of the peace, minister of a place of worship in the parish where the will is executed, British consular officer, officer of customs, or notary public: except where the testator is a prisoner of war, in which case the will may be made either according to the forms required by the law of the place, or according to the forms required by the law of England, or in writing signed by the testator and attested by one witness being a naval or military officer or chaplain, a warrant or subordinate officer of the navy, the agent of a naval hospital, or a notary public (28 & 29 Vict. c. 72). But subject to the above exception as regards the Royal Navy, and subject to kindred provisions in the Merchant Shipping Act as regards wages and effects under the control of the Board of Trade, officers and seamen of either the navy or the merchant service being at sea, or military officers and soldiers on actual military service may dispose of any personal property by a will in their own handwriting, without any witnesses, and even unsigned, or even by a will written by another and unsigned by the testator, if proved to be according to his instructions, and approved by him, or by a will declared by the testator in extremis before witnesses, and afterwards reduced to writing (Wills Act, s. 11; 29 Car. II. c. 3; Black. Comm. 2, 499– 501).

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II.

DEVISE, &c., to Two PERSONS.

THIS IS THE LAST WILL AND TESTAMENT of me, A. B., of &c. I REVOKE all former wills made by me. AND I DEVISE all my real estate and bequeath all my personal estate UNTO C. D., of &c., and E. F., of &c., absolutely to be equally divided between them. AND I APPOINT the said C. D. and E. F. executors of this my will. IN WITNESS, &c.

Words of equality or division create a tenancy in common (Jarman on Wills, 2, 237).

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III.

Devise of real and personal estate to trustees.

III.

DEVISE and BEQUEST of ALL the TESTATOR'S PROPERTY to TRUSTEES in TRUST for SALE and CONVERSION: the PROCEEDS to be DIVIDED between certain RELATIVES in UNEQUAL SHARES.

THIS IS THE LAST WILL AND TESTAMENT of me, A. B., of &c. I REVOKE all testamentary writings heretofore executed by me. I DEVISE all the real estate, and bequeath all the personal estate, of or to which I shall be seised, possessed, or entitled at the time of my decease, or over which I shall then have a general power of disposition exerciseable by will, UNTO B. C., of &c., and C. D., of &c., their heirs, executors, and administrators, according to the nature and quality of the same estates respectively; AS TO ESTATES vested in me as a trustee or mortgagee, UPON TRUST to dispose thereof according to the trusts and equities affecting the same respectively; AND as to all other the said real and personal Upon trust estate, UPON TRUST to sell my real and leasehold estates [either together or in parcels and either by public auction or by private contract, with power to make any special conditions as to title or evidence of title or otherwise, and with power to buy in the premises at any public sale, or to rescind either on terms or gratuitously any contract, and to resell, without being answerable for any consequent loss]; AND to convey and assign the premises sold respectively to the purchasers thereof respectively; AND to sell, get in, and convert into money all other my

to sell and convert.

III.

And after

personal estate not consisting of money; AND after payment, out of the net proceeds of such sale and conversion of my said real and personal estate, and payment of out of any moneys belonging to me at my decease, debts, &c. of my just debts, funeral and testamentary expenses, UPON TRUST to divide and pay the residue of such To divide net proceeds of sale and conversion and other residue; moneys (hereinafter referred to as "my trust property ") unto and among the following persons, and in the following proportions, namely, four twentieth One-fifth parts to my uncle, D. E., of &c., four twentieth each to an parts to my aunt, E. F., of &c., the widow of late of —, deceased, one twentieth part to each of Onemy three cousins next hereinafter named being the children of my uncle, H. B., late of — deceased, three namely, K.B., of -,L.B., of and M.B., of

uncle and

aunt,

twentieth

each to

cousins;

to three other cousins;

one twentieth part to each of my three cousins next The same hereinafter named, being the children of my uncle N. B., late of — deceased, namely, O. B., of P. B., of - and Q. B., of parts to my uncle R. B., of

three twentieth Three

twentieth parts each PROVIDED ALWAYS to an uncle

and three twentieth

and aunt.

Clause of

accruer, in deaths of

case of

testator's

parts to my aunt, S. B., of that in case any one or more of the aforesaid legatees shall die in my lifetime without leaving issue who shall be living at my decease, then as well the original share in my trust property of each or any legatees in legatee so dying, as also the share or shares if any lifetime which would have accrued to him or her under this limitation, if he or she had been living at my decease, shall go and belong as follows, namely; in the case of the said D. E. or the said E. F., his or her share shall go and belong to the other of them; in the case of each of my said cousins his or her

without leaving issue, in surviving members of

favour of

same

branch of family per

stirpes.