WILL. 



As mmcupanve wills and codicils arc liable to great im- 



■ potitions, and may occafion many perjuries, the ttatute of 



frauds, 29 Car. II. cap. 3. hath laid them under many 



reftriftions ; except when made by mariners at fea, and fol- 



1 diers in a£lual fervice. As to all other perfons, it enafts, 



,1. That no written will (hall be revoked or altered by a fub- 



-fequent nuncupative one, except the fame be in the life-time 



of the teftator reduced to writing, and read over to him and 



approved ; and unlcfs the fame be proved to have been fo 



done by the oaths of three witneffes at leaft ; who, by 4 & 



5 Ann. cap. 16. muft be fuch as are admiflible upon trials 



at common law. 



2. That no nuncupative will (hall be good, where the 

 eftate bequeathed exceeds 30/., unlefs proved by three fuch 

 witneffes, prefent at the making of it, and unlefs they or 

 fome of them were fpecially required to bear witnefs to it 

 by the teftator ; and unlefs it was made in his laft ficknefs, 

 in his own habitation, or where he had previoufly refided 

 at leaft ten days, except he be furprifed with ficknefs on a 

 journey, or from home, and dies without returning to his 

 dwelling. 



3. That no nuncupative will ftiall be proved by the wit- 

 neffes after fix months from the making, unlefs it were put 

 in writing within fix days ; nor (hall it be proved till four- 

 teen days after the death of the teftator, nor till procefs 

 hath iirft iffued to call in the widow, or next of kin, to 

 conteft if they think proper. 



As to written wills {viz. thofe that concern not the de- 

 vife of lands), they need not any witnefs of their publication. 

 A teftament of chattels, written in the teftator's own hand, 

 though it has neither his name nor feal to it, nor witneffes 

 prefent at its publication, is good ; provided fufBcient proof 

 can be had that it is his hand-writing. (Swinb. 353. 

 Gilb. Rep. 260.) And though written in another man's 

 hand, and never figned by the teftator, yet if proved to be 

 according to his inftruftions, and approved by him, it hath 

 been held a good teftament of the perfonal eftate. How- 

 ever, it is the fafer and more prudent way, and leaves lefs 

 an the breall of the ecclefiaftical judge, if it be figned or 

 fealed by (he teftator, and publifhed in the prefence of wit- 

 neffes. It is faid in 3 Salk. 396. that by the canon law, 

 and alfo by the common law, two witneffes are requifite to 

 prove a will of goods ; for one witnefs by the civil law, unto 

 which the other laws are conformed in this matter, is as no 

 witnefs at all. I P. Wms. 1 3. 



The ftatute of frauds and perjuries, 29 Car. II. cap. 3. 

 direfts, that all devifes of lands and tenements (hall not only 

 be in writing, but figned by the teftator, or fome other per- 

 fon in his prefence, and by his exprefs dire&ion ; and be 

 fubfcribed, in his prefence, by three or four credible wit- 

 neffes. In the conftrudion of this ftatute, it has been ad- 

 judged that the teftator's name, written with his own hand 

 at the beginning of his will, as, " I John Mills do make 

 this my lall will," &c. is a fufficient figning, without any 

 name at the bottom ; though the other is the fafer way. 

 (3 Lev. I.) It hath been faid, that if the teftator only 

 put his feal to the will, without figning it, this is a fufficient 

 figning within the ftatute ; becaufe figning is no more than 

 a mark to diftinguilh a man's aft, and foaling is a fufficient 

 mark to know it to be his will. (Gilb. 93 ) Others, 

 however, have held that fealing without figning was not 

 fufBcient. (l Wilfon, 313. 2 Vezey, 459) Signing 

 being only mentioned in the ftatute, fealing is not neceffary. 

 (God. O. L, 5. I Wentw. 29.) It has alfo been deter- 

 mined, that though the witneffes muft all fee the teftator 

 fign, or at leaft acknowledge the figning, yet they may do 

 it at different times. But they muft all fubferibe their 



names as witBeffes in his prefence, left by any poffibiKty 

 they ftiould miitake the inftrument. In one cafe determined 

 by the court of king's bench, the judges would not allow 

 any legatee, nor confequently a creditor, where the legacies 

 and debts were charged on the real eftate, to be a com- 

 petent witnefs to the devife. This determination occafioned 

 the ftatute 25 Geo. II. cap. 6. which reftored both the 

 competency and credit of fuch legatees, by declaring void 

 all legacies given to witneffes, and thereby removing all 

 poffibility of their intereft affefting their teftimony. The 

 fame ftatute likewife eftablilhed the competency of creditors, 

 by direfting their teftimony to be admitted ; but leaving 

 their credit (hke that of all other witneffes) to be con- 

 fidered, on a view of all the circumftances, by the court 

 and jury before whom fuch will (hall be contefted. And in 

 a much later cafe, M. 31 Geo. II. the teftimony of three 

 witneffes, who were creditors, was held to be fufficiently 

 credible, though the land was charged with the payment 

 of debts. By ftat. 29 Car. II. cap. 3. all declarations or 

 creations of trufts or confidences, of any lands, tenements, 

 or hereditaments, (hall be manifefted and proved by fome 

 writing figned by the party who is by law enabled to de- 

 clare fuch truft, or by his laft will in writing, or elfe they 

 (hall be utterly void, and of none effeft. And all grants 

 and affignments of any truft or confidence (hall likewrife be 

 in writing, figned by the party granting or affigning the 

 fame by fuch laft will or devife ; or elfe (hall be utterly 

 void, and of none effeft. 



No teftament is of any effeft till after the death of the 

 teftator ; and, therefore, if there be many teftaments, the 

 laft overthrows all the former ; but the republication of a 

 former will revokes one of a later date, and eftabhlhes the 

 firft again. Although no man can die with two teftamentt, 

 becaufe the latter doth always infringe the former ; yet a 

 man may die with divers codicils, and the latter doth not 

 hinder the former, fo long as they be not contrary. (Swinb. 

 15.) All codicils are part of the will ; therefore, a codicil 

 merely for a particular purpofe, as to change an executor, 

 and confirming the will in all other refpefts, does not revive 

 a part of the will revoked by a former codicil. If two 

 teftaments be found, and it doth not appear which was the 

 former or latter, both teftaments are void ; but if two 

 codicils be found, and it cannot be known which was the 

 firft or laft, and one and the fame thing is given to one per- 

 fon in one codicil, and to another perfon in another codicil, 

 the codicils are not void, but the perfons therein named 

 ought to divide the thing betwixt them. Swrinb. 15. 



If codicils are regularly executed and attefted, they may 

 be proved as wills are. So if they are found written by the 

 teftator himfelf, they ought to be taken as part of the will, 

 and to be proved in common form by the oath of the ad- 

 miniftrator with the will annexed ; and in cafe of oppofition, 

 by witneffes to the hand-writing and finding : and it hath 

 been ufual to exhibit an alRdavit of the hand-writing and 

 finding, before a probate or adminiftration paffes even in 

 common form. 



But in cafe of a real eftate, a codicil cannot operate, unlefs 

 it be executed according to the ftatute. i Atk. 426. 



By ftat. 29 Car. II. cap. 3. no devife in writing of lands, 

 tenements, or hereditaments, or any claufe thereof, (hall be 

 revocable, otherwife than by fome other will or codicil in 

 writing, or other writing declaring the fame, or by burning, 

 cancelling, tearing, or obliterating the fame by the teftator 

 himfelf, or in his prefence, and by his direftions and confent ; 

 but all devifes and beqiiefts of lands and tenements ftiall re- 

 main and continue in force, until the fame be burnt, can- 

 celled, torn, or obliterated by the teftator, or by his direc- 

 tions 



