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The statute of frauds.

favours appointments to charities, supersedes, and repeals all former statutes (1), and supplies all defects of assurances (m): and therefore not only a devise to a corporation, but a devise by a copyhold tenant, without surrendering to the use of his will (n), and a devise (nay even a settlement) by tenant in tail, without either fine or recovery, if made to a charitable use, are good by way of appointment (0) (6).

With regard to devises in general, experience soon shewed how difficult and hazardous a thing it is, even in matters of public utility, to depart from the rules of the common law; which are so nicely constructed and so artificially connected together, that the least breach in any one of them disorders for a time the texture of the whole. Innumerable frauds and perjuries were quickly introduced by this parliamentary method of inheritance; for so loose was the construction made upon this act by the courts of law, that bare notes in the hand-writing of another person were allowed to be good wills within the statute (p). To remedy which, the statute

. of frauds and perjuries, 29 Car. II. c. 3, directs, that all devises of lands and tenements shall not only be in writing, but signed by the testator (7), or some other person in his presence, and by his express direction; and be subscribed, in his presence, by three or four credible witnesses f. And

(1) Gilb. Rep. 45. 1 P. Wms. 248. (0) 2 Vern. 453. Ch. Prec. 16. (m) Duke's Charit. Uses, 84.

(p) Dyer, 72. Cro. Eliz. 100. (n) Moor, 890.

(6) See ante, pp. 273 and 274, with will. (Addy v. Grir, 8 Ves. 504. Mornote (8) to chapter 18, for a statement rison v. Turnour, 18 Ves. 183). But a of the very material qualifications of distinction must be attended to, where the text which the statute of 9 Geo. II. the devise is in execution of a power; c. 36, renders necessary.

there, it is not the will which is to be (7) The statute is satisfied by a de- attested, but the act of the testator in visor's acknowledgment of his hand- subscribing that will. (Wright v. Wakewriting, to an attesting witness who ford, 17 Ves. 458). did not see him actually execute his

v.

† Mr. Christian observes, that “copy- in the statute, but will pass by any holds and terms for years are not witho will which is sufficient to bequeath per

a solemnity nearly similar is requisite for revoking a devise by writing; though the same may be also revoked by burn

sonalty. 2 Atk. 37. 2 Bro. 58.” ecuted with the solemnities required by

[But, this must be understood with the statute; and, in support of this some distinction. A term, not in gross, opinion, he refers to 9 Mod. 127, and but vested in trustees to attend the in- 2 Collect. Jurid. 276.-Ed.] heritance, so follows the nature of the Mr. Christian adds, that “ where latter, that, if the owner makes a general the testator is a trustee for the benefit devise of the land by a will not so attested of others, he may devise those lands, as to pass the inheritance, not even the or the legal estate, by his will; but the trust of the term will pass. (Whitchurch trust estates will not pass by general v. Whitchurch, 2 P. Wms. 238, S. C. words, as, all my lands or estates: to Gilb. Eq. Rep. 171). Also, even as pass a trust estate the intention of the to terms in gross, though a testator, testator must be expressly shewn. 6 being possessed of such, may transmit Ves. jun. 577." them by the same unsolemn kind of [The case cited by Mr. Christian will as he might any other personalty; merely proves, that a trust estate will yet, he cannot create them by will, with not pass under a general residuary disout observing all the forms essential to position, where it can be collected that a devise of real estate; because the in- the testator only intended to give the terest in right of which the testator devisee property which he could enjoy creates the term is real estate, and beneficially, as his own. Lord Eldon, creating the term is a partial devise of (in the subsequent case of Lord Brayit. (Mr. Hargrave's note (3) to Co. broke v. Inskip, 8 Ves. 435), explains Litt. 111b).

that to be the principle upon which he [Mr. Sugden (in the concluding part decided the case referred to by Mr. of the 2nd section of the 9th chapter of Christian. It is true, however, that his Treat. on Vend. & Purch.) observes, Lord Loughborough (in the earlier that a term for years attendant on the case of the Attorney-General v. Buller, inheritance, whether by express decla- 5 Ves. 340), said it was then the unration, or by implication, is governed derstanding, that general words would by the same rules to which the inhe

not pass trust estates, unless there was ritance itself is subject. Therefore, an apparent intention that they should such a term cannot pass by a will not pass; but he added, the most conveexecuted according to the statute of nient rule would be the reverse. And frauds. (Tiffin v. Tiffin, 2 Freem. 66. the reverse seems now to be fully esVilliers v. Villiers, 2 Atk. 72. Good- tablished. It appears to be quite setright v. Sales, 2 Wils. 331). But, tled by the later cases, that under a Mr. Sugden conceives there are good general devise, estates held by the degrounds for holding, that where a visor in trust will pass, unless, from the term attends the inheritance merely context of the will, or from a disposiby operation of law, the owner may tion not consistent with a limited right, expressly bequeath it by a will not ex- and the nature of trust property, it VOL. II.

SS

ing, cancelling, tearing, or obliterating thereof by the devisor, or in his presence and with his consent (8); as like

same.

con

(8) The 6th section of the statute stitute one mode of revocation so nearenacts, that no devise of lands shall be ly approaching, and yet not exactly revocable otherwise than by some other conformable to, the mode prescribed will or codicil in writing, or other writ- for making a disposition of lands; still, ing, declaring the same; or by burning, as it has specified what shall be sufficancelling, tearing, or obliterating the cient to revoke, the enactment is consame by the testator himself, or in his clusive. And there is certainly nothing presence and by his direction and con- repugnant to the common law, in desent; but all devises and bequests of claring that an act which might not be lands and tenements shall continue in sufficient to give, shall be sufficient to force, until the same be burnt, can- revoke. (Ex parte the Earl of Ilchescelled, torn or obliterated by the testa- ter, 7 Ves. 372. Ellis v. Smith, 1 Ves. tor, or by his direction; or unless the jun. 13). But where the revocation of same be altered by some other will or a devise is attempted to be effected by codicil in writing, or other writing of an instrument purporting to be also a the devisor signed in the presence of will, disposing of the property; if it be three or four witnesses, declaring the not duly executed as such, within the This clause has been

fifth section of the statute of frauds, strued disjunctively; and it is settled although such instrument contain exthat, although three witnesses are re- press words of revocation, it will not quired to attest and subscribe a revo- let in the heir; for, the meaning of a cation of a previous will, when such second will must be to give to the serevocation is sought to be effected by cond devisee what it takes from the a subsequent will or codicil; yet if, by first, without any consideration had to any other writing, the testator intends the heir; and if the second devisee, barely to revoke his will, without more, owing to the defectiveness of the dishe may do this effectually by a writo disposition in his favour, can take noing signed in the presence of three wit. thing, the first devisee will lose nothing. nesses, who need not subscribe their (Onions v. Tyrer, 1 P. Wms. 345. S. C. names in his presence, as they must to Prec. in Cha. 460. Eccleston v. Speke, a will of real estate. (Eccleston v. Carth. 80). Speke, Carthew, 81. Hoil v. Clark, 3 There can be no doubt that the conMod. 220. Grayson V. Atkinson, 2 tents, or substance, of a testamentary Ves. sen. 458). For, however singu. instrument may be established, though lar the difference between the fifth and the instrument itself cannot be prothe sixth sections of the statute of frauds duced, upon satisfactory proof being may appear; and though it be difficult given that it was duly made by the to suppose the legislature meant to in- testator, and was not revoked by him;

wise impliedly, by such a great and entire alteration in the

the last point may be disposed of, ei. dictum, to a certain extent, by the quather by shewing that the instrument lification established in Onions v. Tyrer, existed after the testator's death; or in cases where a substituted will bethat it was destroyed in his life-time comes inoperative. without his privity or consent. (Davis Where a testator has executed du. v. Davis, 2 Addams, 224. Foster v. plicates of his will, and retained one Foster, 1 Addams, 408). It is also well part only in his own possession; if he settled, that, in legal consideration, a destroyed that part, the legal prewill may be cancelled without being sumption would be, that he intended to revoked. The cancelling is an equivo. revoke his will altogether; and the du. cal act, and, in order to operate as a re- plicate left in the hands of another vocation, must be done animo revocandi. would not avail. (Sir Edward Sey(Burtonshawv.Gilbert, Cowp.52. John- mour's case, cited 3 P. Wms. 345). If ston v. Johnston, 1 Phillim. 466. Scruby the testator himself had possession of and Finch v. Fordham, 1 Addams, 78). both parts, the same presumption would Thus, cancelling a former will, on a hold, though it would be weaker. And presumption that a latter, devising the even if, having both in his possession, he same lands to the same uses, was ef- altered one, and then destroyed that fective, would be no revocation of the which he had altered, there also, it has former, if the latter proved to be void. been said, the presumption of intended (Onions v. Tyrer, 3 P. Wms. 345). total revocation would exist; but still But, although the cancellation of a weaker and more capable of being rewill does not necessarily infer an in- butted. (Pemberton v. Pemberton, 13 tentional abandonment of the disposi- Ves. 310). tions contained therein, nor, conse

Lord Mansfield considered it settled, quently, any intended revocation of that, if a man by a second will revokes the will; still, this is the ordinary in- a former, yet, if he keeps the first will ference: and in order to bar its appli- undestroyed, and afterwards destroys cation to any particular case of cancel- the second, the first will is thereby reling, two things at least are requisite; vived: (Harwood v. Goodright, Cowp. first, it must be proved that the cancel. 91): considerable doubt, however, led paper once existed as a finished will; has been judicially expressed on this or at any rate one finally approved, if head; and it seems that it must be not completely executed, by the testator. treated as a question of intention, to be (Roose v. Moulsdale, 1 Addams, 131. decided according to the circumstances Warburton v. Burrows, 1 Addams, of each particular case. (Moor v. Met388; see, however, Popple v. Cunison, calfe, Phillim. 400, and on appeal be1 Addams, 381); secondly, it must before the court of delegates, ibid. 419, clearly shewn that the testator adhered Hooton v. Head, 3 Phillim. 32. Us. to it throughout in mind and intention, ticke v. Bawden, 2 Addams, 125. Bra. notwithstanding the cancellation: (Lord ham v. Burchell, 3 Addams, 268). A John Thynne v. Stanhope, 1 Addams, codicil added merely for a particular 54): restricting, however, this latter purpose (such, for instance, as chang

circumstances and situation of the devisor, as arises from marriage and the birth of a child (9) (9).

(9) Christopher v. Christopher, Scacch. Cockpit, 27 Mar. 1773, by Wilmot, De 6 Jul. 1771. Spragge v. Stone, at the Grey, and Parker. See pag. 502.

ing an executor, but confirming the will not be enough to prove that a second in all other respects), will not have the will was made, without producing it, and effect of setting up again a part of the shewing it to be not merely different will which a former codicil had re- from, but incompatible with, the former. voked. (Crosbie v. M ́Doual, 4 Ves. Otherwise, the fraudulent suppression 616, and see post, note (12) to this of a second will, which was intended chapter).

merely as a confirmation, might be The obliteration of part of a will, made to operate as a revocation. (Hitoperates as a revocation only pro tanto. chins v. Basset, 3 Mod. 208, affirmed (Larkins v. Larkins, 3 Bos. & Pull. 21. in Dom. Proc. Show. P. C. 149). It Short v. Smith, 4 East, 429. Scruby would be an untenable position, to and Finch v. Fordham, 1 Addams, 78). maintain that a devisor, by making a But, the obliteration of a codicil may second will in terms large enough to have the effect of cancelling an interli. include all his property, must, necessaneation in a will, if it clearly appear rily, have meant to revoke a former that the testator, by obliterating the co- will: to have this effect, it must be dicil, intended to renounce its object, shewn that, the disposition of the proand not merely the mode of effecting it. perty made by the two wills is incon(Utterson v. Utterson, 3 Ves. & Bea. sistent. It would be an assumption of 123). And as a codicil is, prima facie, what is not a necessary consequence, dependent on the will, cancellation of to say that, by his second will, the testhe will is, generally, an implied revo- tator must have intended either to concation of the codicil: there have, in- firm, or to revoke, the dispositions condeed, been cases where a codicil has tained in the first will: there is a third appeared to be so independent of, and proposition,—he might not have conunconnected with the will, that, under templated to do either, but to make a circumstances, the codicil has been es- mere collateral disposition. (Thomas v. tablished, though the will has been held Evans, 2 East, 494). invalid. Such cases have turned upon Certainly, where a testator has by a plain intention, repelling the legal pre- codicil expressly revoked the whole of sumption, and shewing that the testa- a previous devise, and has declared tor designed to leave the codicil opera- over again all the trusts, it is in his tive, notwithstanding the revocation of new disposition alone that the testathe will. (Medlycott v. Assheton, 2 Ad- mentary title to his property must be dams, 231).

sought. There may be strong ground A second will being no revocation for supposing, that it was by a mere of a former one, further than as it is slip he omitted to dispose of part by inconsistent therewith, (Harwood v. the codicil as he had done by his will; Goodright, Cowp. 90. S. C. in Dom. but this omission no court can supply. Proc. 7 Br. P. C. 349, fol. ed.), it will (Holder v. Howell, 8 Ves. 103).

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