VYII.l.. 



\\II.I., HOMAN. 



81) 



party, and where it wan personalty the ulterior disposition to B was 



Mr remoteness. 



By the aotli Motion every devise of real estate (not being a right of 

 presentation to a church) to a trustee or executor is to be construed to 

 paw a fee simple, unless where a definite term of years or an estate of 

 freehold less than the fee simple ia expressly given to him. And l.y 

 the 31st section trustees under an unlimited devise to tin-in, when the 

 trust may endure beyond the life of a person beneficially entitled fur 

 life, are to take the fee. When the limitation in a will was made to a 

 trustee by way of use, he took the legal estate by the operation of the 

 Statute of Uses, without reference to the nature of the trust. But in 

 other cases the question was determined-by the intention of the testator, 

 as collected from the nature of the trust ; and the trustee was considered 

 to take only that quantity of estate which the exigencies of the trust 

 required. Such a rule of construction was obviously of very difficult 

 operation, and it was often not easy to determine in whom the fee was 

 Tested at any given period, and therefore who were the proper parties 

 to deal with the property and to join in a conveyance of it. The 

 enactments contained in the two lost-mentioned sections wil! in a great 

 measure remedy this inconvenience. 



It follows from the nature of wills that the devi < and bequests 

 contained in them are liable to failure from the death of the devisee 

 or legatee before the testator. This is called the doctrine of lapse. It 

 applies equally to devises of real estate and to bequests of personalty. 

 It is a general rule that words of limitation to heirs or executors 

 super-added to a gift have no effect in preventing lapse in cose of the 

 devisee or legatee dying before the testator, for they ore considered 

 not as words of gift, but merely as indicating the legal devolution of 

 the property. When the git't is to several persons as joint tenants, 

 unless all the objects die before the testator, there can be no lapse ; 

 for as joint tenants are each takers of the whole, any one existing at 

 the death of the testator will be entitled to the whole. The some is 

 the case where the gift is to a class, unless where the individuals of 

 the class were ascertained before the lapse. Two changes have been 

 introduced into the law of lapse by the new act. The 32nd section 

 enacts that devises of estates tail shall not lapse, but that where the 

 devisee in tail dies during the life-time of the testator, leaving issue, 

 the devise shall take effect as if he had died immediately after the 

 testator, unless a contrary intention appear by the will : and, by the 

 33rd section, gifts to children or other issue who shall die before the 

 testator, having issue living at the testator's death are not to lapse, 

 but, if no contrary intention appear by the will, are to take effect as if 

 the persons had died immediately after the testator. As a will of 

 personalty operated upon all the property of that kind belonging to 

 the testator at the time of his decease, there could obviously be no 

 intestacy with regard to any part of the personal estate while there was 

 a valid residuary bequest. The same is now true of wills of real estate 

 in which there is a valid residuary devise, so that there is no longer 

 room for many of the questions that arose as to whether the residuary 

 devisee took beneficially or as a trustee, and as to the devolution of 

 real estate directed to be sold. 



If an ambiguity exists on the face of a will, or, as it is technically 

 termed, U patent, parol evidence cannot be admitted to remove it, 

 because to admit evidence to explain what the will has left uncertain 

 would be in effect to make a new will by paroL If the ambiguity is 

 not apparent on the face of the will, but arises from circumstances 

 disclosed when an attempt is made to carry the will into effect, it may 

 be removed by evidence of the same nature. 



(Jarman, On \\'ilh, and Jannan and Sweet's Xu'.cs to Bythewood's 

 Pretedenti, Will*.) 



AVI LL. (Scotland.) The right of bequest in Scotland is confined to 

 moveable or personal property. It does not extend to heritable or real 

 property which comprehends lands and tenements, fixtures, those ap- 

 purtenances of a family mansion (such as the pictures, plate, and library) 

 which are called " heir-ship moveables," the machinery in mines and 

 manufactories, the stock on farms, and every description of security or 

 other right over any of these kinds of property. Settlements may be 

 made of heritable property in the manner which will be described 

 below, but it in a principle of the greatest importance, and one the 

 neglect of which is < . n productive of the most serious consequences, 

 that no such settlement can be mode in the form of a will. All persons 

 of sound mind above the age of puberty (fourteen in males, and 

 twi-lve in females) may execute wills ; and persons under guardianship, 

 as wives and minors who have curators, may do so without the consent 

 of tlicir guardians. The will of a bastard was formerly ineffectual, and 

 the moveable goods of such a person, lapsing to the crown on his death, 

 were distributed by a gift in exchequer; but this peculiarity was 

 abolished by 4 7 Will. IV. c. 22. A verbal or " nuncupative "' will, 

 if uttered in the presence of two witnesses who bear testimony to it, 

 is valid to the extent of a hundred pounds Scots, or 87. o. 8<i. sterling. 

 A will, sufficiently formal in all points to prove its terms and its 

 date, must be executed in the presence of witnesses and attested. 



Where the will in holograph, or written by the granter himself, it 

 does not require to be attested. If the party cannot write, he can 

 execute a will through a notary, who receives authority in presence of 

 two subscribing witnesses to sign for the testator, and describes the 

 transaction in his notarial docqnet. A clergyman of the Established 

 Church of .Scotland may act os A notary for the signing of a will. It 



is usual to nominate an executor of the will, but it is not essnit 

 do so; and if them be no one named, an executor is supplied by opera- 

 tion of law. Wills executed by persons domiciled out of Scotland, if 

 they be according to the form which would carry such propri i v .n tin- 

 place where they were executed, will be effectual to convey ni. 

 property in Scotland ; but no will, whatever be the law of the place 

 where it is made, can dispose of heritable property in Scotland. The 

 last dated will is the effectual one, and all others are considered as 

 revoked by it in so far as they ore inconsistent with it. 



The peculiar feature of the law of Scotland out of which arises the 

 circumstance that heritable or real property cannot be bequeathed is, 

 that no deed conveying such property is effectual unless it be expressed 

 in what are called " dispositive terms," or terms making ovi-r si 

 perty at the moment of the signing of the deed. The pecui 

 arose during the time when the holder of a fief could not part with it 

 to another person, unless that person were accepted as a vassal by tin- 

 feudal superior. But to accomplish the purposes of a virtual li- 

 the party grants a conveyance, reserving power to alter, and dispense! 

 with delivery of the deed. The formalities necessary to the exn 

 of wills carrying moveables ore necessary to settlements coin 

 heritable property, but with this difference, that in the settlem* 

 heritable property, if the party cannot write, the deed must be 

 executed by two notaries before four witnesses ; and in this cose a 

 clergyman cannot act as notary. 



No settlement of heritable property to the prejudice of the I: 

 law can be validly granted on a death-bed. Three elements are neces- 

 sary to constitute the legal exception of death-bed: 1st, that the 

 granter was ill of the disease of which he died when lie granted the 

 deed; 2nd, that he died within sixty days after executing it; and, 

 3rd, that he did not go to church, or to a market, unsupported, 

 during the sixty days. 



\V 1 1 ,L, ROMAN. A Roman will called Testamentum, was defined 

 by the jurists of the Imperial period to be " a legal mode of a man's 

 declaring his intention in due form, to take effect after his ili-atli." 



The power of making a Roman testament only belonged to i:.nn:m 

 citizens who were sui juris, a rule which excluded a great nun. 

 persons : those who were in the power of another, as sons not 

 emancipated, and daughters ; impuberes ; dumb persons, deaf ] 

 insane persons, and others; and, as a general rule, all women. The 

 circumstances under which a woman could moke a will were peculiar ; 

 and they would require a very particular statement. A male of lin- 

 age of fourteen years complete, unless under some special incapacity, 

 could make a valid will. A female, so far as respected age only, 

 acquired this capacity on the completion of her twelfth }-ear. 



Originally Roman citizens mode their wills at Calata Comitia, which 

 were held twice a year for this purpose. It is not said that these 

 wills were mode in writing ; and it is here assumed that they were 

 made at the Calata Comitia only for the purpose of securing the 

 proper evidence of the testator's intention. If a man died in the 

 interval between two such Comitia without having made his will, he 

 must have died intestate. But wills could also be mode in Prociuctu, 

 that is, by a soldier under arms and in presence of the enemy. 

 Another mode of testamentary disposition was introduced, apparently 

 for the purpose of preventing intestacy. If a man, says Gaiua i,ii. 1 ' U ) . 

 had neither made his will at the Calata Comitia nor in Product i 

 was threatened with sudden death, he transferred, by the form <>f 

 inaucipatio, his familia, that is, his patrimonium, to a friend, an 

 him what to give to each pel-son after his death : this was call 

 testamentnm per xs et libram, because the transfer was effected by 

 moncipatio. Thus it appears that the testamentum per ;es et libram 

 was a formal transfer of the property during the lifetime of the owner 

 to a person who undertook to dispose of it as he was directed. As it 

 was a substitute for the testament made at the Calata Comitia, it is a 

 probable inference that it only differed from the testament made at 

 the Comitia in wanting tha,t publicity. The two old forms of testa- 

 mentary disposition, adds Gains, fell into di*n.--e, and that per 

 libram became the common form. Originally the formal pm.-!.. 

 the testator's estate (familia; cmptor) occupied the place of the herea 

 at a later time; when Qaius wrote, and long before his time, t 

 form of testamentary disposition was retained as to the familia! cmptor, 

 but a heres was appointed by the will to carry into effect the testator's 

 intention. The formal purchaser was only retained out of regard to 

 ancient custom, and the institution of a heres became necessary to the 

 validity of a will. 



The form of testamentary transfer per ics ct libram is described by 

 Gains (ii. 104). Written wills, as already observed, were not 

 .necessary, for neither mancipation nor the in-titntion ,,f a heres require 

 a writing. But written wills Dommon form during thi 



republican and the imperial period. Wills were written on tablets of 

 wood or wax; hence the word " cera " (wax) is often used as equiva- 

 lent to tabula. A lioman will w;w required to be in the Latin 

 language until A.U. 439, when it was enacted that wills might be 

 written in Greek. A Roman will in the later periods was sealed .-,nd 

 signed by the witnesses. The' sealing consisted in making a mark with 

 a ring or something else on the wax, and the names were added. The 

 peals and names were on the outside, for, according to the old law, 

 there was no occasion for the witnesses to know the contents of the 

 will. The old practice was for the testator to show the will to the 



