Page:Encyclopædia Britannica, Ninth Edition, v. 24.djvu/608

Rh 572 WILL &quot; credible,&quot; and it was specially enacted by 4 and 5 Anne c. 3 that anyone who could give evidence in a court of law was a good witness to a will of personalty. A will entirely in the testator s handwriting, called a holograph will, was valid without signature. At one time the executor was entitled to the residue in default of a residuary legatee. But 11 Geo. IV. and 1 Will. IV. c. 40 made him in such an event trustee for the next of kin. Jurisdic- Jurisdiction over wills of personalty was till 1858 in the tiou of ecclesiastical courts, probate being granted by the diocesan courts. CQUrt i ~f t j ie g OOC i s O f the deceased lay in the same diocese, in the provincial court of Canterbury or York (the Pre rogative Court) if the deceased had bona notabilia, that is, goods to the value of 5 in two dioceses. The ecclesiastical jurisdiction was of very ancient origin. It Avas fully established under Henry II., as it is mentioned by Glanvill. In the City of London wills were enrolled in the Court of Hustings from 1258 to 1688 after having been proved before the ordinary. Contested cases before 1858 were tried in the Prerogative Court with an appeal originally to the Court of Delegates, later to the judicial committee of the privy council. There were also a few special local jurisdictions, probably for the most part survivals of the pre-Conquest period, when wills seem to have been pub lished in the county court. The ecclesiastical courts had no jurisdiction over wills of land, and the common law courts were careful to keep the ecclesiastical courts within their limits by means of PROHIBITION (q.v.). No probate of a will of land was necessary, and title to real estate by will might be made by production of the will as a document of title. This is still the law in ordinary cases ; but the Act of 1857 has introduced probate of will of land as an ex ceptional proceeding. The liability of the executor and legatee for the debts of the testator has been gradually established by legislation. In general it is limited to the amount of the succession. Personal liability of the exe cutor beyond this can by the Statute of Frauds only be established by contract in writing. Existing Such were the principal stages in the history of the law as it law. affected wills made before 1838 or proved before 1858. The principal Acts now in force are the Wills Act, 1837 (7 &quot;Will. IV. and 1 Viet. c. 26), the Court of Probate Act, 1857 (20 and 21 Viet. c. 77), and the Judicature Acts. Some of the earlier Acts are still law, thougji of little importance since the more modern and compre hensive enactments. The earliest on the statute roll is 20 Hen. III. c. 2, 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 2 that at the time of its appearance there were ten different ways in which a will might be made under different cir cumstances. Making The Act of 1837 affected both the making and the interpretation of wills, of wills. 3 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. Publi cation 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 appoint ment 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. The Act of 1857 transferred the jurisdiction, both voluntary and contentious, of all ecclesiastical, 1 The testamentary jurisdiction of the archdeacon s court is alluded to by Chaucer in the &quot; Friar s Tale,&quot; but it was afterwards completely superseded by the bishop s court. Fourth Report, p. 12. 3 By sect. 1 of the Act the word &quot; will &quot; includes codicil. royal peculiar, peculiar, and manorial courts to the Court of Probate constituted by the Act, created a judge and registrars of that court, abolished the old exclusive rights in testamentary matters of the advocates of Doctors Commons, and laid down rules of procedure. Contentious jurisdiction was given to county courts where the per sonal estate of the deceased was under 200 in value. The Judi cature Act, 1873, merged the old Court of Probate in the Probate, Divorce, and Admiralty Division of the High Court of Justice. The division now consists of the president and one other judge. The practice of the division is mainly regulated by the Rules of the Supreme Court, 1883. Appeals lie to the Court of Appeal and thence to the House of Lords. Before the Judicature Act they lay directly to the House of Lords. The principal rules now obtaining as to probate are these. Probate is confined as a rule to wills of per sonalty or of mixed personalty and realty, and is either in common form, where no opposition to the grant is made, or in solemn form, generally after opposition, when the witnesses appear in court. The Act of 1857 introduced proof of wills of realty in solemn form after citation of the heir-at-law and devisees. Probate may be granted either in the principal or in a district registry, and should be obtained within six months after the testator s death. Where no executor is named in a will, the will is not now invalid, as was once the case, but administration cum testamento annexo is granted. The same course is pursued where the executor renounces or dies intestate before administering the estate of the deceased^ After probate the probate (as the official copy of the will is called) itself becomes evidence, the original will being deposited in the principal registry at Somerset House, London. On grant of probate a duty, denoted by a stamp on the probate, is payable. It varies accord ing to the amount at which the personalty is fixed by the oath of the executor. Other Acts dealing with the practice in wills and probate may be shortly stated. 15 and 16 Viet. c. 24 removed some of the difficulties which had arisen on the clause of the Wills Act that the signature was to be at the foot or end. 44 Viet. c. 12 enabled any officer of inland revenue to grant probate where the personal estate does not exceed 300. The main duty of an exe cutor is to pay the debts of the deceased in a certain order of priority, to administer the estate, to pay probate and legacy duties, and in general to carry out the intention of the testator. There are numerous Acts, especially the Conveyancing Act, 1881, dealing with the rights and liabilities of executors, the general effect of which is to discharge an executor from liability for bona fide pay ment of debts, for distribution of assets after public notice to persons interested, &c. (see EXECUTOKS). Rules of interpretation or construction depend chiefly on decisions Interpre- of the courts, to a smaller extent on statutory enactment. The tation of law was gradually brought into its present condition through pre- wills, cedents extending back for centuries, especially decisions of the Court of Chancery, the court par excellence of construction, as dis tinguished from the Court of Probate. The Court of Probate did not deal unless incidentally with the meaning of the will ; its juris diction 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 copyholds 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 &quot;die without issue&quot; or similar words are to mean die with out issue living at the time of the death of the person whose issue was named. 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 ts 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 &quot;money,&quot; &quot;residue,&quot; and &quot;issue&quot; and other words of relation ship, have become invested with a technical meaning. Evidence is admissible in certain cases to explain latent ambiguity, and parol I evidence of the terms of a lost will may be given.