SECT. 14. 4 Burn's Eccl. Law, 85. was, that the real estate was only charged with the payment of debts, as an auxiliary fund to the personalty; which stood in need of no assistance, being itself much greater than the debts. Lord Mansfield discussed the question at length in delivering the opinion of the Court, that the will was duly attested. The same question afterwards arose in Hindson and Kersey, in which the three puisne judges of the Court of Common Pleas, agreed with the doctrine laid down in Wyndham v. Chetwynd; but Lord Chief Justice Pratt, in a laboured argument, declared his opinion against it that the Statute of Frauds had prescribed a certain method which must be punctually observed; that if the witnesses were interested at the time of the attestation, though their interest was contingent and future, and extremely minute, yet that the incompetency could never be purged, 5 B. & A. 589. and that the whole will was void for ever. Then came the case of Hatfield v. Thorp, in which an estate in fee, upon the determination of a life estate, was devised to the wife of Thomas Hatfield, who was one of the attesting witnesses to the will. The testator died in 1779, and the wife of Thomas Hatfield died in 1813, before the previous life estate was determined. It was cer tified by the Judges of the King's Bench, that the will was not duly executed so as to pass any real estate to Mrs. Hatfield. The present clause respects these cases, and enacts, that no will shall be invalid by reason of an attesting witness being at any time incompetent to be admitted to prove the execution of it. SECT. 15. SECT. 14. Gifts to a Witness void. Sect. 1. It happened that the title and preamble of 25 Geo. 2, c. 6, referred to wills of freehold estates only, while the enacting clause extended to "any will and codicil." Hence arose a doubt. Sir W. Grant decided in Lees v. Somersgill, that the 17 Ves. 508. act extended to all wills and codicils, as well of personal as of real estate. On the other hand, Brett v. Brett, Sir John Nicholl held a contrary opinion, which 3 Add. Eccl. R. 210; 1 Hagg. was affirmed by the delegates; and followed by Eccl. R. 582. Sir John Leach, M. R., in Emanuel v. Constable, 3 Russ. 436. and by the present Vice Chancellor, in Foster v. Banbury. The present clause, which re-enacts 3 Sim. 40. Section 1 of the above act, refers to any will, either of real or personal estate; and enacts, that a devise or bequest to an attesting witness, or to the wife or husband of an attesting witness, Hatfield v. shall be void. Thorp, 5 B. & SECT. 16. Re-enacts the second section of 25 Geo. 2, c. 6, with respect to creditors attesting being admitted witnesses to prove the execution of the will, or the validity or invalidity thereof. This also is extended to wills of personal estate.-[Wyndham v. Chetwynd, 1 Burr. 417.] D 5 Creditor attesting. Executor attesting. 12 East, 250. SECT. 17. In Bettison v. Bromley, which was an issue directed by the Master of the Rolls, to try whether a paper writing, purporting to be a will, was executed so as to pass real estate, the question before the Court of King's Bench was, as to the competency of one of the attesting witnesses, who was the wife of an acting executor. The Court concurred in opinion, that the will was well proved. The executor took no interest under the will, but only a burdensome office. The same point was again argued in Phipps v. Pitcher, 6 Taunt. 220, and decided in the same way. The enactments of this section are in conformity with these decisions. CHAPTER V. THE REVOCATION, ALTERATION, AND REVIVAL OF WILLS. It is an essential property of every will to be Revocation of revocable at any time during the life of the tes- Wills. tator: so that although a person should declare Real Property his will to be irrevocable, in the strongest terms, 4th Report of Commissioners, p. 25, et seq. yet he may revoke it; because his own acts or 6 Cru. Dig. words cannot alter the disposition of the law, so as to make that irrevocable which, in its nature, is revocable. The revocation of a will might be either express or implied, and a great variety of rules had been established applicable to this subject; and numerous inconveniences had arisen, which it is the purpose of the present act to simplify and remedy. We will pursue the order observed in the clauses of the act. SECT. 18. Enacts," that every will made by a man or Marriage. woman shall be revoked by his or her marriage." This is no alteration of the law with respect to a 4th Rep. 61; woman's will. But with respect to a man's will 2 the rule has been, that it was revoked by his marriage and the birth of a child, even of a post P. W. 624. Christopher v. Christopher, cit. 4 Burr. 2182; Phragge v. SECT. 18. Stone, Ambl. 721. 5 T. R. 49; 1 Jackson v. Hur- humous child, but not by marriage alone. These were both implied revocations; it being, as Lord Kenyon observed, in Doe v. Lancashire, 5 T. R. 58, a tacit condition, annexed to the will when made, that it should not take effect, if there should be a total change in the testator's family. But numerous difficulties have arisen from this Scrafton, 2 East, rule of law, upon evidence of circumstances showing the revocation to be unnecessary; and it has been a doubted point, whether parol eviIlchester, 4 Ves. dence of intention was admissible to rebut the 849. presumption. 541; Brown v. Thompson, 1 Eq. Ca. Abr. 413; Ex parte Brady v. Cu bitt, Doug, 31; Gibbons v. Caunt, 4 Ves. 848. 4th Rep. 32. The Real Property Commissioners thought that the inconveniences of this rule preponderated over its advantages, and therefore recommended that it should be abolished. And they stated their reasons for altering the law in this particular to be the numerous exceptions which have been made to the rule, and the variety of doubts and consequent litigation which have arisen from it. Great trouble and expense in the investigation of titles were produced by it, because it rendered necessary inquiries and evidence on every sale or mortgage of any real or leasehold estate, where the title was traced through a will, and it was possible that the testator might have married and had a child subsequently to the making of it: and where erroneous information was obtained, the title was rendered unsafe. Some of these objections may still be made to the law as it now stands altered. But there will |