917 



WILL AND TESTAMENT. 



WILL^AND TESTAMENT. 



918 



English subject domiciled abroad and dying intestate, will descend 

 according to the English law. With respect to personalty, on the 

 other hand,_in cases both of testaey and intestacy, the law is different. 

 If a British subject becomes domiciled abroad, the law of his domicile 

 at the time of his death is the rule which the English courts follow in 

 determining the validity of his will and administering his personal 

 property in England, and vice versA in the case of a foreigner dying 

 domiciled in England. Cases sometimes arise in which it is difficult to 

 determine what was the domicile at the time of the death of the party, 

 and consequently what rule is to be followed in the distribution of 

 his personal estate. If an Englishman domiciled abroad has real pro- 

 perty in England, he ought on account of the difference of the doctrine 

 with respect to real and personal property, to make two wills, one duly 

 executed according to the English law for devising his real estate, and 

 another framed according to the law of his domicile for the disposal of 

 his personal property. 



A will is a revocable instrument. It was an established rule of law 

 that the will of a feme sole was revoked by her marriage, but marriage 

 alone was not considered a revocation of the will of a man ; though 

 marriage and the birth of a child, whom the will would disinherit, 

 conjointly were admitted by the courts to have that effect, on the 

 ground that these circumstances together produced such a change in 

 the testator's situation, that it could not be presumed he could intend 

 any previous disposition of his property to continue unchanged. By 

 section 18 of the act 1 Viet. c. 2ti, every will made by a man or woman 

 is revoked by 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 appointment, pass to the heir, personal representative, 

 or next of kin of the appointor. And by the 19th section no will is 

 to be considered as revoked by any presumption of intention on the 

 ground of an alteration in circumstances. By the 20th section no 

 will or codicil is revocable except as above mentioned, or by another 

 will or codicil executed in the manner required by the act, or by a 

 writing declaring an intention to revoke, executed in the same manner, 

 or by burning, tearing, or otherwise destroying the will by the testator 

 himself, or by some other person in his presence, and by his direction, 

 with intent to revoke. By the 21 st section no obliteration, interlinea- 

 tion, or other alteration made in any will after execution is to have any 

 effect, except in so far as the words or effect of the will previous to the 

 alteration cannot be made out, unless the alteration be executed as a 

 will, such execution to be in the margin opposite or near to the altera- 

 tion, or to a memorandum referring to the alteration. By the Statute 

 of Frauds witnesses to a will were required to sign in the testator's 

 presence, but it was not necessary that he should sign in their presence, 

 whereas by section 6 of that act, a mere revocation in writing must 

 have been signed by the testator in presence of the witnesses, but they 

 were not required to sign in his presence. This inconsistency is now 

 removed. The 21st section alters the law as to the effect of oblitera- 

 tions where the words remain legible, and of cancellation by drawing 

 lines across the whole or any part of the will. These acts will now be 

 of in) effect unless properly executed and attested. By the 23rd section 

 no conveyance or other act made or done subsequently to the execution 

 of a will of real or personal estate, except an act of revocation, is to 

 prevent the operation of the will upon such estate or interest as the 

 testator has power to dispose of at the time of his death : and by the 

 24th section every will is to be construed with reference to the real 

 and personal estate comprised in it, so as to take effect as if it had been 

 executed immediately before the death of the testator, unless a con- 

 trary intention appear on the wilL 



Kepublication of a will is in fact a re-execution of it, being a repeti- 

 f the ceremonies required for ita original validity : before the act 

 1 Viet. c. 26, a devise of lands could only be republished by signature 

 and attestation by three witnesses, while with respect to copyholds and 

 personalty a will might be republished without any formal execution, 

 and even by the mere parol acts and declarations of the testator. 



The 22nd section of the act provides that no will or codicil, or any 

 part thereof, which shall have been in any manner revoked, shall be 

 revived otherwise than by the re-execution thereof, or by a codicil 

 executed in manner required by the act, and showing an intention to 

 revive the same ; and when any will or codicil which shall be partly 

 and afterwards wholly revoked, shall be revived, the revival is not to 

 extend to such parts as had been revoked before the revocation 

 of the whole, unless a contrary intention appear. Under the old 

 law, if a second will or codicil which revoked a former will was 

 afterwards cancelled, the first, if it had been kept undestroyed, was 

 held to be revived. It had previously been determined (4 Ves., 610) 

 that a subsequent codicil, merely for a particular purpose and con- 

 firming the will in other respect*, did not amount to a republication of 

 if the will revoked l>y a former codicil. This section extends 

 the doctrine to the case where a will had been first partially and after- 

 ward* wholly revoked. 



Estates or interests in property created by way of executory devise 

 or bequest, that is to say, such as are made expectant on the determi- 

 i of prior estates in the same property, may be, like estates 

 created by way of remainder in a deed, either vested or contingent. 

 So far as depends upon the nature of the limitations themselves, the 

 name rules are in general applicable to executory devises or bequests aa 

 to remainders ; but testamentary instruments are not construed with 



the same strictness as deeds, and in determining the question of vesting 

 or contingency, many considerations, depending on expressions in the 

 will or other circumstances appearing upon the face of it, are admitted 

 as affording presumptions of the intention of the testator. It is im- 

 possible here to give any enumeration of the numerous rules which 

 have been laid down on this subject, and which are of course liable to 

 be modified according to the circumstances of each particular case. It 

 may however be observed generally that when a future gift is preceded 

 by a gift f the immediate interest, it is to be presumed that the enjoy- 

 ment only is postponed, and that the future gift is vested in interest; 

 whereas when there is no gift of the immediate interest, the contrary 

 presumption obtains : and again, that when the enjoyment of a gift is 

 postponed, not on account of circumstances personal to the object of 

 the gift, but with a view to the circumstances of the estate, the gift is 

 to be presumed vested. With respect to pecuniary legacies, some dis- 

 tinctions, borrowed from the civil law, are admitted which have no 

 place as to real estate. One of these distinctions is that where futurity 

 is annexed to the substance of the gift, the vesting is in the mean time 

 suspended : but where the time of payment only is future, the legacy 

 vests immediately. If however the only gift is contained in the direc- 

 tion to pay, this case is to be regarded as one in which time is annexed 

 to the substance of the gift. When a future gift of a principal sum is 

 coupled with a gift of the interest in the mean time, a strong presump- 

 tion exists in favour of vesting. It is generally considered that a very 

 clear expression of intention must exist in order to postpone the vest- 

 ing of residuary bequests, on the ground that intestacy may often be 

 the consequence of holding them to be contingent. 



Great changes have been introduced in the law, as to the interpreta- 

 tion of wills by the above-mentioned 24th section of the act, which 

 declares that wills are to be construed to speak as if they were executed 

 immediately before the death of the testator, and by the six following 

 clauses. The 25th section enacts that, unless a contrary intention 

 appear on the will, a residuary devise shall include all estates com- 

 prised in lapsed and void devises. This alters the former law, whereby 

 such estates devolved on the heir. The 26th clause enacts that a 

 general devise of the testator's lauds shall include copyhold and lease- 

 hold as well as freehold lands, unless a contrary intention appear. 

 This also effects a considerable alteration in the law of devises. 

 Formerly neither copyholds (unless surrendered to the use of the will) 

 nor leaseholds would pass by a general devise of lauds or other general 

 words descriptive of real estate, unless the testator had no freehold 

 lands on which the devise might operate. Since the statute of the 

 55 Geo. III. c. 192, which dispenses with the necessity of surrenders 

 in certain cases, copyholds stood upon nearly the same footing as free- 

 holds, in respect to a general devise ; but leaseholds still continued 

 subject to the old rule of law. By the 27th section, unless a contrary 

 intention appear, a general devise of real estate and a general bequest 

 of jwrsonal estate are respectively to include estates and property over 

 which the testator has a general power of appointment. It was never 

 considered necessary in the execution of a power of appointing real 

 estate, whether general or special, to refer expressly to the power. It 

 was sufficient if the intention to exercise it appeared from a description 

 of the property in the will or by other means. If the testator had no 

 other lauds which answered the description, a general devise would 

 have been a good execution of the power ; but it was otherwise if he 

 had any other lands which would satisfy the terms of the devise. The 

 enactment applies only when the testator has a general power of ap- 

 pointment. Where the power is limited or special, it seems that the 

 old rule of construction will still hold. As to personal property the 

 rule was, that there must be some reference to the power, on the 

 somewhat unsatisfactory ground that as any person must be supposed 

 possessed of some personalty, there was enough to make a general 

 bequest operative without reference to the property comprised in the 

 power. With respect to devises, it seems that the old rule must still 

 prevail where the power is special or limited. By the 28th section a 

 devise of real estate without words of limitation is, unless a contrary 

 intention appear by the will, to be construed to pass the fee. This 

 clause introduces a very considerable alteration of the old law, under 

 which, in accordance with the doctrine that the heir was not to be dis- 

 inherited by implication, it was settled that a devise of lands without 

 words of limitation conferred on the devisee an estate for life only, 

 notwithstanding the appearance of a contrary intention in other parts 

 of the will. The 29th section enacts, that in any devise or bequest of 

 real or personal estate the words " die without issue," " die without 

 leaving issue," or " have no issue," or any other words of the like im- 

 port, shall be construed to mean a want or failure of issue at the time 

 of the death, and not an indefinite failure of issue, unless a contrary 

 intention appear ; except in cases where such words mean, if no issue 

 described in a preceding gift shall be born, or if there shall be no issue 

 who shall live to attain the age or otherwise answer the description 

 required for obtaining a vested estate by a preceding gift to such issue. 

 Under the old law, when a testator gave an estate to A and his heirs, 

 and directed that if A died without issue it should go to B, though 

 his meaning in most cases was that B should have it unless A had issue 

 living at the time of his death, the word " issue " was held to comprise 

 descendants of every degree existing at any distance of time, and the 

 consequence was, that where the subject of the devise was real estate, 

 A took an estate tail and acquired the absolute dominion over the pro- 



