Sivut kuvina

In the construction of this last statute, it has been ad- Decisions on the judged that the testator's name, written with his own hand, the statute.

construction of

However, where an instrument re- tract in the testator's life-time. (Bennet voking bequests, bears, upon the face v. Earl of Tankerville, 19 Ves. 178). of it, evidence that it was entirely It should be observed, that, if the grounded upon misinformation or mis- owner of an unqualified equitable fee take, the bequests made by the will re- devises it by will, and afterwards takes main good. (Campbell v. French, 3 a conveyance of the unqualified legal Ves. 323. See 1 Hovenden on Frauds, fee, this is no revocation, because the 296, et seq., where the doctrine of re- conveyance was incident to the equitvocation is treated more at length). able fee; just as a partition is no re

(9) Revocations of wills disposing of vocation, because incident to a joint eslands, may be implied by operation of tate; though, as before observed, any law, nɔtwithstanding the stat. of frauds, qualified conveyance of the legal fee, and without reference to the intent of or the least addition to the mere object the testator. (Cave v. Holford, 3 Ves. of partition, however slight the modifi. 653. Brydges v. Duchess of Chandos, cation, would operate a revocation. 2 Ves. jun. 430). Thus, the least al- (Ward v. Moore, 4 Mad. 372. Rose teration or new modelling of the de. v. Conynghame, 11 Ves. 554. Knollys vised estate, subsequently to the will, v. Alcock, 7 Ves. 564.

Rawlins v. operates as a revocation. (Sparrow v. Burgess, 2 Ves. & Bea. 387). Hardcastle, 3 Atk. 802. Williams v. If a conveyance, even made by reOwens, 2 Ves. jun. 599). And if a covery, be intended only for a partidevisor, after making his will, puts the cular limited purpose, (supposing that whole interest in the lands devised out purpose is merely to give a security for of himself, by any conveyance what- money, Vawser v. Jeffery, 2 Swanst. ever, it is a revocation, although he 273. Brain v. Brain, 6 Mad. 228), immediately takes back the very same this will not revoke a previous devise estate; (Parsons v. Freeman, 3 Atk. 747. of the estate so conveyed, further than Vawser v. Jeffery, 2 Swanst. 274. See is necessary for that express purpose. ante, p. 357, note (5) to chapter 21); (Parsons v. Freeman, 3 Atk. 748). or, although without express limitation, Upon this ground, a devise of real esit results to him. (Harmood v. Ogland- tate is not held to be revoked merely

6 Ves. 222. Cave v. Holford, 3 because a commission of bankruptcy Ves. 659. see ante, p. 296, with note has issued against the testator; for, (1) to chapter 20). Upon the same the bankrupt laws take the property principles, a binding contract for the out of the bankrupt only for the pursale of lands devised is, in equity, as pose of paying his creditors; and from much a revocation as a conveyance of the moment the debts are paid, the the lands would be at law. (Cotter v. assignees are mere trustees for the Layer, 2 P. Wms. 624. Attorney-Ge- bankrupt. (Charman v. Charman, 14 neral v. Vigor, 8 Ves. 289). The will, Ves. 585). Thus, also, if a person it seems, would not be up again, mortgage an estate which he has deeven by an abandonment of the con- vised, although such mortgage be no


at the beginning of his will, as, “I John Mills do make “ this my last will and testament,” is a sufficient signing,


merely by lease and release, but by heirs until his marriage, and, after his fine, this, in equity, will be a revoca- marriage, to himself for life, with the tion only pro tanto. (Casborne v. Scarfe, usual remainders; though the party 1 Atk. 606. Rider v Wager, 2 P. Wms. should die before marriage, this will 334). Even a mortgage in fee to the amount to a revocation. (Earl of Lindevisee, does not revoke the devise. coln's case, 2 Freem. 202, confirmed on (Baxter v. Dyer, 5 Ves. 664). Upon appeal, in Dom. Proc. Show. P. C. 154. similar reasoning, a subsequent lease Arthur v. Bockenham, Fitz-Gib. 241, does not revoke, though it qualifies, a and see Doe v. Pott, 2 Dougl. 722. previous devise of the property. (Lambe Goodtitle v. Otway, 7 T. R. 220). v. Parker, 2 Freem. 284. Doe v. Wegg, A conveyance, or other instrument, 6 T. R. 710). The case would be the obtained by such fraud and covin as same, although such lease were made would render it a nullity even at comto the devisee himself; for the devisor mon law, cannot, of course, revoke a might naturally choose to reserve a will; (Hicks v. Morse, Ambl. 215); rent during his life-time: but this but, in what cases a deed, though reason would fail if the lease were liable to be impeached in equity, and made to commence after the testator's ordered to be delivered up as improdeath;—that would be a revocation of perly obtained, may, notwithstanding, the devise in toto, for the two dispo- operate a revocation, is, perhaps, hardsitions would be altogether inconsistent. ly settled. Where the party executing (Coke v. Bullock, Cro. Jac. 49. Hodg- thought that by such conveyance his kinson v. Wood, Cro. Car. 24).

will was revoked, and where a re-conA feoffment of lands, previously de- veyance would be necessary to remedy vised, may fail, for want of due livery the fraud, Lord Alvanley was of opinof seisin; yet, the intent of the feoffor ion that the impeached instrument, being apparent, the devise will be re- though set aside and made ineffectual voked. (Ex parte the Earl of Ilchester, for other purposes, would still be a re7 Ves. 370). The same rule holds as vocation. (Hawes v. Wyatt, 2 Cox, to a bargain and sale, which, though 268). Lord Thurlow thought differnot enrolled before the testator's death, ently, when the same case was brought is a revocation. (Sparrow v. Hardcastle, before him by appeal; (see 3 Brown, 3 Atk. 802. Vawser v. Jeffery, 2 157); Lord Alvanley, however, remainSwanst. 274). Even a grant, which, ed firm in his opinion; (Harmood v. from the incompetency of the party in Oglander, 6 Ves. 215. Ex parte the whose favour it was made, cannot take Earl of Ilchester, 7 Ves. 374); and effect, may operate as a revocation of Lord Eldon appears to have inclined a previous will, disposing of the same in favour of the same doctrine. (Atsubject; (Beard v. Beard, 3 Atk. 72); torney-General v. Vigor, 8 Ves. 283). and if, after a devise, a man convey his Generally speaking, a devise of a freehold estate, by lease and rele leasehold interest is revoked, if the trustees, to the use of himself and his stator surrenders the old lease and



without any name at the bottom (r); though the other is the safer way t. It has also been determined, that though the

(r) 3 Lev. 1.

takes a renewal; (Marwood v. Turner, neither marriage alone, nor the birth of 3 P. Wms. 170. Rudstone v. Anderson, children alone, will, without other special 2 Ves. sen. 419. Hone v. Medcraft, circumstances, revoke a will. (Shepherd 1 Br. 263. Abney v. Miller, 2 Atk. v. Shepherd, 5 T. R. 52, n. Doe v. 597); but the context of the will may, Barford, 4 Mau. & Sel. 12. See, howit seems, control this construction: ever, Johnstone v. Johnstone, 1 Phillim. (James v. Dean, 11 Ves. 390, and 15 Ves. 467, 474. 239. Carte v. Carte, 3 Atk. 176. S. C. Of course there could be no good Ridgw. 222. Stirling v, Lidyard, 3 ground for presuming that a will of Atk. 199): the question in these cases real estate was revoked by the subseturns upon the intention of the testa- quent marriage of the testator, who tor, to be collected from the language of was at the time he made such will, a his will. (Slatter v. Noton, 16 Ves. widower having children, of whom one 201. Colegrave v. Manby, 6 Mad. 84. was his heir apparent. In such case, S. C. on appeal, 2 Russ. 252).

to hold the will revoked as to the real Where a single man, after devising estate, on account of the birth of chilhis whole estate, marries, and has issue, dren of a second marriage, would only a revocation of the will has been pre- have the effect of letting the eldest sumed, where the devisor has left his son by the first marriage into the whole. widow and issue unprovided for; (Kene- (Sheath v. York, 1 Ves. & Bea. 397, bel v. Scrafton, 2 East, 542. Wilkin- and see 7 Ves. 366). But, where a son v. Adam, 1 Ves. & Bea. 465. testator, after having made a provision Moore v. Moore, 1 Phillim. 433. Wright by will for children by his then subv. Sarmuda, 2 Phillim. 267, n.); this sisting marriage, becomes a widower, presumption, however, like all others, and afterwards marries again, and has may be rebutted. (Gibbens v. Cross, 2 a family by his second wife; the eccleAddams, 455). Both the principles and siastical court may, perhaps, on reapractice apply equally in favour of a sonable grounds, declare the will reposthumous child. (Doe v. Lancashire, voked as to the personal estate, thereby 5 T. R. 59). But it rather seems, that letting in the after-born children to



+ Mr. Christian, in his note upon the the name of the testator, affords no text, says, “I conceive that writing the evidence of the testator's assent to it, name at the beginning would never be if the subscription of his name in his considered a signing according to the own hand is not subjoined." [See statute, unless the whole will was Coles v. Trecothick, 9 Ves. 248. Mori. written by the testator himself: for son v. Turnour, 18 Ves. 183. Stokes v. whatever is written by a stranger after Moore, 1 Cox, 223.–Ed.]

witnesses must all see the testator sign, or at least acknowledge the signing, yet they may do it at different times (s). But they must all subscribe their names as witnesses in his presence, lest by any possibility they should mistake the instrument (t)t. And, in one case determined by the court of King's Bench (u), the judges were extremely strict in regard to the credibility, or rather the competency, of the witnesses: for they would not allow any legatee, nor by consequence a creditor, where the legacies and debts were charged on the real estate, to be a competent witness to the devise, as being too deeply concerned in interest not to wish the establishment of the will; for, if it were established, he gained a security for his legacy or debt from the real estate, whereas otherwise he had no claim but on the personal assets. This determination, however, alarmed many purchasors and creditors, and threatened to shake most of the titles in the kingdom that depended on devises by will. For, if the will was attested by a servant to whom wages were due, by the apothecary or attorney whose very attendance made them creditors, or by the minister of the parish who had any

(s) Freem. 486. 2 Ch. Cas. 109, Pr. Ch. 185.

(1) 1 P. Wms. 740.
(u) Stra. 1253.

participate with those of the first mar- 344. See, however, Thompson v. Shepriage. (Hollway v. Clark, 1 Phillim. herd, 2 Cox, 165, 168. Johnston v. 342. Emerson v. Boville, 1 Phillim. Johnston, 1 Phillim. 472).

+ Mr. Christian observes, that "it testator's presence. 1 Bro. 99. [See has been determined to be in his pre- Brodrick v. Brodrick, 1 P. Wms. 239. sence, if he is apprised at the time of Doe v. Manifold, 1 Mau. & Sel. 296.] the attestation of the witnesses, and The object of this requisition in the was in a situation from which he might statute is, to prevent the testator and have seen the witnesses subscribe their the witnesses from being imposed names. As in a case where the testa- upon by the substitution of another tor's carriage was drawn opposite the instrument, or a fabricated will. Hence windows of an attorney's office, in the attestation of a will is void, if at which the witnesses attested the will, the time the testator is in a state of inthis was clearly determined to be in the sensibility. (Doug. 229).”

demand for tithes or ecclesiastical dues (and these are the persons most likely to be present in the testator's last illness), and if, in such case, the testator had charged his real estate with the payment of his debts, the whole will, and every disposition therein, so far as related to real property, were held to be utterly void. This occasioned the statute 25 Geo. II. c. 6, which restored both the competency and 25 Geo. II. c. 6. the credit of such legatees, by declaring void all legaciest given to witnesses, and thereby removing all possibility of their interest affecting their testimony. The same statute likewise established the competency of creditors, by directing the testimony of all such creditors to be admitted, but leaving their credit (like that of all other witnesses) to be considered, on a view of all the circumstances, by the court *and jury before whom such will shall be contested. And [ *378 ] in a much later case (v) the testimony of three witnesses who were creditors, was held to be sufficiently credible, though the land was charged with the payment of debts; and the reasons given on the former determination were said to be insufficient (10).

(v) M. 31 Geo. II. 4 Bur. I. 430.

(10) A person who signs his name as (Walton v. Shelley, 1 T. R. 300. witness to a will, by this act of attesta- Lowe v. Jolliffe, 1 W. Bla. 366, S. C. tion, solemnly testifies the sanity of 1 Dick. 389. Goodtitle v. Clayton, 4 the testator. Should such witness Burr. 2225); yet, Lord Eldon held that afterwards attempt to impeach his own the evidence of such parties was not act, and to prove that the testator did to be entirely excluded; admitting, not know what he was doing when he however, that it is to be received with made (what purported to be) his will; the most scrupulous jealousy. (Bootle though such testimony will be far v. Blundell, 19 Ves. 504. Howard v. indeed from conclusive, (Hudson's Braithwaite, 1 Ves. & Bea. 208). case, Skin. 70, Digg's case, cited ibid.), And Sir John Nicholl has laid it down and Lord Mansfield held, that a wit- as a distinct rule, that no fact stated by ness impeaching his own act, instead any witness open to such just suspicion of finding credit, deserved the pillory; can be relied on, where he is not cor

+ This extends to devises of lands, and every interest given to the witnesses. -Ch.

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