Page:EB1911 - Volume 28.djvu/676

Rh the Judicature Acts 1873 and 1875 and the Land Transfer Act 1897. All but the acts of 1837 and 1852 deal mainly with what happens to the will after death, whether under the voluntary or contentious jurisdiction of the Probate Division (see ). Some of the earlier acts are still law, though of little importance since the more modern and comprehensive enactments.

The earliest on the statute roll is an act of Henry III. (1236), enabling a widow to bequeath the crops of her lands. Before the Wills Act uniformity in the law had been urgently recommended by the Real Property Commissioners in 1833. It appears from their report that at the time of its appearance there were ten different ways in which a will might be made under different circumstances.

The act of 1837 affected both the making and the interpretation of wills. Excluding the latter for the present, its main provisions were these. All property, real and personal, and of whatever tenure, may be disposed of by will. If customary freeholds or copyholds be devised, the will must be entered on the court rolls. No will made by any person under the age of twenty-one is valid. Every will is to be in writing, signed at the foot or end thereof by the testator or by some person in his presence and by his direction, and such signature is to be made or acknowledged by the testator in the presence of two or more witnesses present at the same time, who are to subscribe the will in the presence of the testator. It is usual for the testator and the witnesses to sign every sheet. Publication is not necessary. A will is not void on account of the incompetency of a witness. Gifts to a witness or the husband or wife of a witness are void. A creditor or executor may attest. A will is revoked (except where made in exercise of a power of appointment of a certain kind) by a later will, or by destruction with the intention of revoking, but not by presumption arising from an alteration in circumstances. Alterations in a will must be executed and attested as a will. A will speaks from the death of the testator, unless a contrary intention appear. An unattested document may be, if properly identified, incorporated in a will, but such a document, if executed subsequently to the will, is inoperative.

Rules of interpretation or construction depend chiefly on decisions of the courts, to a smaller extent on statutory enactment. The law was gradually brought into its present condition through precedents extending back for centuries, especially decisions of the court of chancery, the court par excellence of construction, as distinguished from the court of probate. The court of probate did not deal unless incidentally with the meaning of the will; its jurisdiction was confined to seeing that it was duly executed. The present state of the law of interpretation is highly technical. Some phrases have obtained a conventional meaning which the testators who used them probably did not dream of. Many of the judicial doctrines which had gradually become established were altered by the Wills Act. These provisions of the act have since that time themselves become the subject of judicial decision. Among other provisions are these, most of them to take effect only in the absence of a contrary intention. A residuary devise is to include estates comprised in lapsed and void devises. A general gift of the testator's lands is to include copy holds and leaseholds. A general gift of real or personal estate is to include real or personal estate over which the testator had a general power of appointment. A devise without words of limitation is to pass the fee simple. The words “die without issue,” or similar words, are to mean die without issue living at the time of the death of the person whose issue was named, not as before the act, an indefinite failure of issue, an estate tail being thus created. Trustees under an unlimited devise are to take the fee simple. Devises of estates tail are not to lapse if the devisee, though he predeceased the testator, left issue inheritable under the entail. Gifts to children or other issue leaving issue living at the testator's death are not to lapse. Rules of interpretation founded on principles of equity independent of statute are very numerous, and for them the works devoted to the subject must be consulted. Some of the more important, stated in as general a form as possible, are these. The intention of the testator is to be observed. This rule is called by Sir E. Coke the pole star to guide the judges. There is a presumption against intestacy, against double portions, against constructing merely precatory words to import a trust, &c. One part of the will is to be expounded by another. Interlineations and alterations are presumed to have been made after, not as in deeds before, execution. Words are supposed to be used in their strict and primary sense. Many words and phrases, however, such as “money,” “residue” and “issue” and other words of relationship, have become invested with a technical meaning, but there has been a recent tendency to include illegitimate children in a gift to “children.” Evidence is admissible in certain cases to explain latent ambiguity, and parol evidence of the terms of a lost will may be given as in the famous case of Sugden v. Lord St Leonards (1876), 1 Prob. Div. 154.

A will may be void, in whole or in part, for many reasons, which may be divided into two great classes, those arising from external circumstances and those arising from the will itself. The main

examples of the former class are revocation by burning, tearing, &c., by a later will, or by marriage of the testator (except as below), incapacity of the testator from insanity, infancy or legal disability (such as being a convict), undue influence and fraud, any one of which is ground for the court to refuse or revoke probate of a will. A will being ambulatory is always revocable, unless in one or two exceptional instances. Undue influence is a ground upon which frequent attempts are made to set aside wills. Its nature is well explained in a judgment of Lord Penzance's: “Pressure of whatever character, whether acting on the fears or the hopes, if so exerted as to overpower the volition without convincing the judgment, is a species of restraint under which no valid will can be made.” There is nothing corresponding to the , but unnatural provisions may be evidence of mental defect. The circumstances appearing on the face of the will which make it open to objection may either avoid it altogether or create a partial intestacy, the will remaining good as a whole. Where the will is not duly executed, e.g. if it is a forgery or if it is not signed by the testator or the proper number of witnesses, the will is not admitted to probate at all. Where it contains devises or bequests bad in law, as in general restraint of marriage, or tending to create perpetuities, or contrary to public policy, or to some particular enactment, only the illegal part is void. A remarkable instance is a well-known case in which a condition subsequent in a devise was held void as against public policy, being a gift over of the estate devised in case the first devisee, the eldest son of an earl, did not before his death obtain the lapsed title of duke of Bridgewater.

There are some wills of an exceptional kind which demand special notice. The King.—It was resolved in parliament in Richard II.'s reign (1392) that the king, his heirs and successors, might lawfully make their testaments. In some later cases parliamentary authority has been given to royal wills, in others not. The executors of Henry IV. were confirmed in their office by letters patent of Henry V., those of Henry V. by parliament. The largest testamentary powers ever conferred on an English king were given to Henry VIII. by an act of 1533-1534, empowering him to limit and appoint the succession to the crown by will, in default of children by Jane Seymour or any future wife. By 39 & 40 Geo. III. c. 88 the king and his successor may devise or bequeath their private property. No court, however, has jurisdiction to grant probate of the will of a king.&emsp;Guardianship.—As a general rule wills deal with property, but even at common law a will simply appointing a guardian was good. The common law was superseded by an act of 1660, under which a father may dispose of the custody of his unmarried infant children by will. The Guardianship of Infants Act 1886 extended such powers in certain cases to the mother.&emsp;Married Woman.—At common law a married woman could not (with a few exceptions) make a will without her husband's licence and consent, and this disability was specially preserved by the Wills Acts of Henry VIII. and of 1837. A common mode of avoiding this difficulty was for the husband to contract before marriage to permit the wife to make an appointment disposing of personalty to a certain value. Courts of equity from an early time allowed her, under certain restrictions, to make a will of property held for her separate use. In some cases her husband could dispose other property by will, in others not. The law as it existed previously to 1883 is now practically obsolete, the Married Women's Property Act 1882 enabling a married woman to dispose by will of any real or personal property as her separate property as a feme sole without the intervention of any trustee. The act also enables a married woman who is executrix of a will to act as if she were a feme sole. The Married Women's Property Act 1893 extended the act of 1882 by making it unnecessary for the will of a married woman to be re-executed or republished after the death of her husband. Alien.—Before 1870 an alien enemy resident in England could only dispose of property by will with the king's licence. The Naturalization Act 1870 enables him to do so as fully as a natural-born British subject. But if he be an alien domiciled abroad he cannot avail himself of Lord Kingsdown's Act (see below). &emsp;Soldier and Sailor—Wills of soldiers in actual military service, and of sailors, are subject to special legislation, and are excepted from the operation of the Wills Act. The privilege only applies to wills of personal estate. Such wills may usually be made when the testator has attained the age of fourteen, and are not revoked by marriage only but by marriage and the birth of a child. Wills of soldiers on an expedition may be made by unattested writing or by nuncupative testament before two witnesses. Wills of petty officers and seamen in the navy, and of marines, as far as relates to their pay or prize-money, must be attested by an officer, and wills made by a seaman in the merchant service must, if made at sea, be attested by the master or mate, if made on land by a superintendent of a mercantile marine office, a minister of religion, justice of the peace, or consular or customs officer. See the Merchant Shipping Act 1894, s. 177. The wills of prisoners of war are subject to special regulations, and the Admiralty may at its discretion waive