under hand or by will is not well exercised by a testamentary instrument unattested (s).

signature.

Questions having frequently arisen as to the suffi- Position of the ciency of the signature with reference to its position, an explanatory Act (t) was passed, which made the signature sufficient if so placed at, or after, or following, or under, or beside,. or opposite to, the end of the will, that it should be apparent on the face of the will that the testator intended to give effect by such his signature to the writing signed as his will, and the Act enumerates various circumstances as regards the position which are not to affect the validity of the will.

duly executed

when it

Where a will has a formal attestation clause, and Presumption appears on the face of it to be properly executed, the that will is Court will presume that the requirements of the Wills and attested, Act have been complied with, although the memory of applies. the witnesses may have failed. When the attestation clause is informal, the presumption omnia rite esse acta applies with less force; but even in that case, the leaning of the Court is not to allow the testator's intention to be frustrated by lapse of time and failure of the memory of the witnesses; and if therefore the circumstances are such as reasonably to lead to the conclusion that the will was duly executed, the Court will adopt that conclusion (u). But even where there is a regular attestation clause, the Court cannot pronounce a will to be duly executed, in the face of the direct testimony of the attesting witnesses to the contrary (x).

terested not a

law.

Under the Statute of Frauds, a person taking any Person ininterest under a will was considered not to be a cre- sufficient witdible witness, and consequently a will was invalid if ness under old any one of the three attesting witnesses took any beneficial interest under it. Under the Wills Act, a Legacy to legacy or other benefit given to an attesting witness, or to his or her wife or husband, is void, but the will is in other respects good, and the legatee, &c., is an admissible witness (y).

witness void.

Creditor or executor a competent witness.

Where one of

a class is an attesting witness.

Legacy to attesting

witness when

rendered valid

codicil.

A creditor (when the will contains a charge of debts) may be an attesting witness, and so also may an executor (z).

Where there is a gift to a class as joint tenants, and one of the class is an attesting witness, the joint tenancy is not severed, but the whole goes to the other members of the class (a).

A legacy given by a will to an attesting witness is rendered valid by a codicil confirming the will attested by subsequent by other witnesses (b). But if a testator makes first a will, secondly, a codicil giving a legacy to a person who is an attesting witness to such codicil, and thirdly, a second codicil which refers to the will but takes no notice of the first codicil, the legacy given by the first codicil remains invalid (c).

By what local

law the execution of wills must be regulated.

Lord Kings

down's Act.

A will disposing of land of any tenure must be executed and construed according to the law of the country in which the property is situate, whatever may be the domicile of the testator. But a will of moveable estate must be executed and construed according to the law of the country in which the testator is domiciled, subject, however, to the provisions of a recent Act, commonly called Lord Kingsdown's Act (d). By this Act it is provided that every will or testamentary instrument made out of the United Kingdom by a British subject (whatever may be the domicile of such person at the time of making the same, or at the time of his death) shall, as regards personal estate, be held to be well executed for the purpose of being admitted in England and Ireland to where made. probate, and in Scotland to confirmation, if the same be made according to the forms required either by the law of the place where the same was made, or by the laws then in force in that part of Her Majesty's dominions where he had his domicile of origin (e). The Act further provides that every will, &c., made within the

A will made
British subject

abroad by a

to be admitted

to probate here, if executed according to law of place

(z) Sects. 16 and 17.

(a) Young v. Davies, 2 Drew. & Sm. 167.

(b) Anderson v. Anderson, L. R. 13 Eq. 381.

(c) Burton v. Newbury, 1 Ch. D. 234.

(d) 24 & 25 Vict. c. 114.

(e) Sect. 1.

United Kingdom by any British subject (whatever may be the domicile of such person at the time of making the same or at his death) shall, as regards personal estate, be held to be well executed, and shall be admitted to probate, &c., if the same be executed according to the laws for the time being in force in that part of the United Kingdom where the same is made (ƒ). And that no will, &c., shall be held to be revoked, or to have become invalid, nor shall the construction thereof be altered, by reason of any subsequent change of domicile of the person making the same (g).

Majesty to

foreign state as

And by another Act (h) it is provided that whenever power to Her a convention to that effect is made with a foreign state, make arrangeHer Majesty may by Order in Council direct that a ments with British subject resident in the foreign country shall not to domicile. be deemed to have acquired a domicile for testamentary purposes or purposes of succession to moveables, unless he has been resident in such foreign country a year, and has deposited in a public office there a declaration in writing of his intention to become domiciled there: and corresponding provisions are enacted as to subjects of foreign states dying in Great Britain.

pass by English

Since the Act 31 & 32 Vict. c. 101, real estate in Real estate in Scotland may be disposed of by a will made and Scotland will executed with the formalities required by English will. law (i).

revocation.

Previously to the Wills Act the will of a woman was Effect of revoked by marriage, and the will of a man was in marriage as a most cases revoked by marriage and the birth of a child, but not by marriage alone.

Every will made since the Wills Act 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 such appointment, pass to the heir, customary heir, executor, or administrator, or the person entitled as next of kin under the

(f) Sect. 2.

(g) Sect. 3. See In re Reid, 1 L. R. Prob. 74.

(h) 24 & 25 Vict. c. 121.

(i) Sect. 20; Connell's Trustees v. Connell, 10 Court of Sessions Reports (3rd series), p. 627.

Will may be

revoked by

&c. must be executed.

Statute of Distributions (k). A will or codicil may also another will or be revoked by another will or codicil duly executed, or by the burning, tearing, or otherwise destroying the same by the testator, or by some person in his presence and by his direction, with the intention of revoking the Interlineation, same (1), and no obliteration, interlineation, or other alteration will have any effect unless such alteration is executed in like manner as is required for the execution of the will; but the will, with such alteration as part thereof, will be deemed to be duly executed if the signature of the testator and the subscription of the witnesses be made in the margin, or in some other part of the will opposite or near to such alteration, or at the foot or end of or opposite to a memorandum referring to such alteration, and written at the end or some other part of the will (m).

How revoked will may be revived.

Dependent relative revocation.

No revoked will or codicil can be revived, otherwise than by the re-execution thereof, or by a codicil showing an intention to revive the same, and if any will or codicil which is partly revoked and afterwards wholly revoked is revived, such revived will will not extend to so much thereof as shall have been revoked before the revocation of the whole thereof, unless an intention to the contrary shall be shown (n).

If a person makes a second will, revoking the first, and then destroys or otherwise revokes the second, the first is not thereby revived.

Where a will is destroyed, the presumption is that the act was done animo revocandi, but this presumption may be repelled by evidence that such animus did not exist. If a will is destroyed or torn with the intention of setting up some other testamentary instrument, the act of destruction will be a revocation, in case only the testamentary instrument intended to be thereby set up proves efficacious. The revocation in such case is called a dependent relative revocation.

Thus, where a man made a second will, slightly differing from the first, but which second will was invalid

for want of a proper attestation, and the testator, after making such second will, cancelled the first by tearing off the seal, it was held that such cancellation being made under the mistaken notion that the second will was effectual was not a revocation (o). And in another case where a testator, after having made two successive wills, the second revoking the first, destroyed the second, erroneously supposing that in so doing he was reviving the first, it was held that the second will was not revoked (p).

II. As to the time from which a will speaks, what property passes under a general devise and bequest, and what words are sufficient to carry the fee simple.

was formerly

Formerly every devise of freehold and copyhold lands Every devise included only such property as the testator was seised of of real estate or entitled to at the date of the will, and a devisee of specific. copyholds had no devisable estate before admittance (q). Whenever therefore a will contained a general devise, and lands were subsequently acquired by the testator which he wished to be included in such devise, it was necessary for him to republish his will, or make a codicil; but in the case of copyholds, a surrender to the use of the testator's will operated as a republication of the will so as to include the after-acquired copyholds in the previous general devise (r).

a general

On the other hand, a general bequest of personal Operation of estate embraced all the personalty of which the testator bequest of was possessed at the time of his death, the will for this personalty. purpose speaking from the death of the testator.

disturbance

estate after

One of the consequences of the above-mentioned Effect of doctrine with regard to real estate was, that any dis- of testator's turbance of the devised estate between the date of the date of will. will and the testator's death operated as a revocation -as, for instance, the entering into a binding contract