ments shall not only be in writing, but signed by the testator, or some other person in his presence, and by his express direction; and be subscribed, in his presence, by three or four credRevocation ible witnesses. And a solemnity nearly similar is requisite for revoking a devise by writing; though the same may be also revoked by burning, canceling, tearing, or obliterating thereof by the devisor, or in his presence and with his consent; as likewise impliedly, by such a great and entire alteration in the circumstances and situation of the devisor, as arises from marriage and the birth of a child.9° of wills. Christopher v. Christopher, Scacch., 6 Jul., 1771. Spragge v. Stone, at the (4) Copyholds were not within the statute of Hen. VIII., or the Statute of Frauds, and passed by any will that was sufficient to pass personal property. (2 P. Wms., 258; 2 Atk., 37; 2 B. C. C., 58; 7 East, 322.) The execution of all wills and codicils, and revoking instruments and testamentary appointments, whatever may be their subject-matter, is now, with some exceptions in favor of mariners and others abroad, placed on the same footing; that is to say, they are all required to be signed at the foot or end thereof by the testator, or by some other person in his presence, and by his direction; and such signature must be made or acknowledged by the testator in the presence of two or more witnesses present at the same time, who must attest and subscribe the will in the presence of the testator; but no particular form of attestation is necessary. (Stat. 7 Will. IV. & 1 Vict., c. 26, s. 9.) The former statutes required the witnesses to be credible, but the recent act ex Cock-pit, 27 Mar., 1773, by Wilmot, pressly declares that the incompetency of a witness to be admitted to prove the execution shall not invalidate the will. (Sect. 14. See 1 Jarm., Wills, 102; infra, p. 379, n.)* (5) See 2 W. Bl., 1043; 3 B. & Ald, 489; 6 Ad. & El., 209; 8 Id., 1. (6) See 8 Ad. & El., 14. A will can now only be revoked by a separate writing, or an interlineation, obliteration, or alteration of the will itself, executed and attested as a will is required to be executed and attested; or by an actual burning, tearing, or other destroying of the substance of the will itself, with intention to revoke (which intent it is for the Ecclesiastical Court, or in case of a devise of land, &c., for the jury, to gather from the evidence); or, lastly, by mar riage of the testator, which, under any circumstances, is an absolute revocation of all prior wills.t * In New York, a will, whether of real or personal property, to be valid, must be subscribed at the foot or end thereof by the testator, or by some person by his direction, in the presence of at least two attesting witnesses, or the subscription must be acknowledged by the testator to the two attesting witnesses; he, at the time of subscription or acknowledgment, declaring the instrument to be his last will and testament. The witnesses must sign their names at the end of the will, at the request of the testator, and write opposite their names the places of their residence. The omission to do so does not invalidate the will; it only subjects them to a penalty.-(2 R. S., 63, § 40, 41.) These provisions do not apply to a nuncupative will of personal property made by a soldier in service, or by a mariner at sea; such will is valid, though not in writing.-(2 Id., 60, 22.) As to the declaration of the testator, it has been held that no particular form of words is necessary, but that there must be some communication indicating the intention of the testator to give effect to the instrument as his will.-(26 Wendell, 325.) In New York, a will in writing may be revoked or altered; but if so, it must be by writing, executed with the same formalities with which the will is required to be executed. So it may be burned, canceled, or otherwise destroyed with the intent of revocation, by the testator, or by his direction or consent, proved by two witnesses.-(2 R. S., 64, § 42.) The will of an unmarried man is revoked by marriage and the birth of a child, unless provision for the child is made in the will; while marriage alone destroys the will of an unmarried wom of witness es. In the construction of this last statute, it has been adjudged that the testator's name, written with his own hand, at the beginning of his will; as, “I, John Mills, do make this my last will [377] and testament," is a sufficient signing, without any name at the bottom; though the other is the safer way. It has also been determined, that though the witnesses must all see the testator sign, or, at least, acknowledge the signing, yet they may do it at different times." But they must all subscribe their names as witnesses in his presence, lest by any possibility they should mistake the instrument. And, in one case determined by the Court of King's Bench," the judges were extremely strict in regard to the credibility, or, rather, the competency, of the wit- Competency nesses; 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 purchasers and cred- Stat. 25 Geo. itors, and threatened to shake most of the titles in the kingdom avoiding that depended on devises by will. For, if the will was attest- legacies to ed 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 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 3 Lev., 1. Freem., 486. 3 Ch. Cas., 109. Pr. Ch.. 185. (7) I conceive that writing the name at the beginning would never be considered a signing according to the statute, unless the whole will was written by the testator himself; for whatever is written by a stranger after the name of the testator affords no evidence of the testator's assent to it, if the subscription of his name in his own hand is not subjoined.-[CHRISTIAN.] See Dougl., t1 P. Wms., 740. 241; 1 Meriv., 503. (8) And this notwithstanding the wit- an.-(2 Id., 64, § 43, 44.) A conveyance subsequent to a will, altering, but not wholly divesting, the estate or interest of the testator, does not revoke the will; nor does the birth of a child after the making of a will; nor the entering into a covenant to convey the premises devised; nor the creating a charge or encumbrance.-(2 Id., 65, § 45-49.) Nor does the destruction or revocation of a second will revive the first, unless such be declared to be the intention of the testator, or he republish his first will after the destruction or revocation of the second.-(2 Id., 66, § 53.) II., c. 6, witnesses. Creditors witnesses. mpetency and the credit of such legatees, by declaring void al legacies given to witnesses, and thereby removing all possibity of their interest affecting their testimony.* The same Statute likewise established the competency of creditors, by dicompetent recting the testimony of all such creditors to be admitted, but [378] 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 in a much later case, 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." Devise of lands void, as against specialty creditors. In what respect a devise and differ. Another inconvenience was found to attend this new method of conveyance by devise; in that creditors by bond and other specialties, which affected the heir, provided he had assets by descent, were now defrauded of their securities, not having the same remedy against the devisee of their debtor. To obviate which, the statute 3 & 4 W. & M., c. 14, hath provided that all wills and testaments, limitations, dispositions, and appointments of real estates, by tenants in fee-simple, or having power to dispose by will, shall (as against such creditors only) be deemed to be fraudulent and void; and that such creditors may maintain their actions jointly against both the heir and the devisee.1o+ A will of lands, made by the permission and under the control of these statutes, is considered by the courts of law not so conveyance much in the nature of a testament, as of a conveyance declar ing the uses to which the land shall be subject; with this difference, that in other conveyances the actual subscription of the witnesses is not required by law,w though it is prudent for them so to do, in order to assist their memory when living, and to supply their evidence when dead; but in devises of lands such ▾ M. 31 Geo. II. 4 Bur., 1, 430. (9) But a devise to the husband of a witness was held not to be within this statute, and the attestation was therefore bad. (5 B. & Al., 589). This defect is now remedied. (Ante, p. 376, n.; infra. p. 379, n.) (10) The statute excepts devises for payment of debts, or for the raising of See pages 307, 308. portions for younger children in pursu ance of marriage contracts. This act is now repealed, and the payment of simple contract as well as specialty debts out of the real estate of the deceased debtor has been further facilitated by the statutes 11 Geo. IV. & 1 Will. IV., c. 47; 3 & 4 Will. IV., c. 104; and 2 & 3 Vict., c. 60. * In New York, a legacy to a witness (without whose testimony the will can not be proved) is void, and the witness may be compelled to prove the will; but if he would have been entitled to any share of the estate in case the will was not established, such share is saved to him, and he is authorized to recover it from the devisees or legatees.-(2 R. S., 65, § 50, 51.) The same result is effected in New York by an enactment that deviscos, as well as heirs, shall be liable for the debts of a testator, whether arising by simple contract or by specialty, to the extent of the real estate received by them.(2 R S., 452, § 32.) subscription is now absolutely necessary, by statute, in order to identify a conveyance, which in its nature can never be set up till after the death of the devisor. And upon this notion, that a devise affecting lands is merely a species of conveyance, is founded this distinction between such devises and testaments of personal chattels; that the latter will operate upon whatever the testator dies possessed of, the former only upon such real estates as were his at the time of executing and publishing [379] his will." Wherefore no after-purchased lands will pass un * 1 P. Wms., 575. 11 Mod., 148. A similar decision was also made in the Courts of Common Pleas and King's Bench. (7 T. R., 399.) In that case, Lord Kenyon lays down generally, "that it is now indisputably fixed, that where the whole estate is conveyed to uses, though the ultimate reversion comes back to the grantor by the same instrument, it operates as a revocation of a prior will." (7 T. R., 419.) (11) (See 8 Ad. & El., 14. Under his wife and children, and in which he the recent act, a will may pass after- reserved to himself the reversion in fee, acquired real estate. The following which reversion he afterward disposed note of Mr. Christian must, of course, be of by his will; and after the making of understood to apply exlusively to wills his will, he executed proper conveyan made before the year 1838.) Lord ces for the performance of the marriage Mansfield has declared that this does articles, in which, after the limitations not turn upon the construction of the to his wife and children, he took back statute 32 Hen. VIII., c. 1 (as some have the reversion in fee; this was held by supposed), which says, that any person Lord Loughborough to be a revocation having lands, &c., may devise; for the of the will, and his decision was aftersame rule prevailed before the statute, ward confirmed by the House of Lords. where lands were devisable by custom. (2 Ves. Jun., 417.) (Cowp., 90.) It has been determined, that where a testator has devised all his lands, or all the lands which he shall have at the time of his death; if he purchase copyholds after the execution of the will, and surrenders them to the uses declared by his will, they will pass by the will. (Cowp., 130.) Or, if the testator, after making such a devise, purchase freehold lands, and then make a codicil duly executed according to the statute, though no notice is taken of the after-purchased lands; yet if the codicil is annexed to, or confirms the will, or, as it seems, has a reference to it, this amounts to a republication of the will, and the after-purchased lands will pass under the general devise. (Cowp., 158; Com., 383; 4 Bro., 2; 7 Ves. Jun., 98.) But if the codicil refer expressly to the lands only devised by the will, then the after-purchased lands will not pass under the general devise of the will. (7 T. R., 482.) This also is a general rule, that if a man is seized of an estate in fee, and disposes of it by will, and afterward make a conveyance of the fee-simple, and take back a new estate, this new estate will not pass by the will, for it is not the estate which the testator had at the time of publishing his will. Some cases have lately produced much discussion, both in the courts of law and equity; they were cases where articles had been entered into before marriage by a man possessed of estates in fee, in order to make certain settlements upon VOL. II.-FF Equity admits no revocation which would not upon legal grounds be a revocation at law. There are three cases which are exceptions to this general rule, viz., mortgages, which are revocations pro tanto only, a conveyance for payment of debts, or a conveyance merely for the purpose of a partition of an estate. In the two first a court of equity decrees the redemption, or the surplus, to that person who would have been entitled if such mortgage or conveyance had not existed, i. c., the devisee. (2 Ves. Jun., 428).-CHRISTIAN.] If the testator had the equitable in terest only in the lands devised, and afterward acquired the legal estate (as in the case of a contract for purchase, followed by a devise of the estate, and afterward by a conveyance), the devise was not revoked in equity, unless the estate was limited by the conveyance in a special manner; and the heir, upon whom the legal estate descended, was a trustee for the devisee. On the other hand, if the testator had only the bare legal estate at the time of devising, and afterward acquired the beneficial inter449 der such devise,y unless, subsequent to the purchase or contract, the devisor republishes his will.a11* y Moor, 255. 11 Mod., 127. 1 Ch. Cas., 39; 2 Ch. Cas., 144. est, the devisee was a trustee for the heir. (9 Ves., 509; 3 Ch. Rep., 188; 1 Jarman on Wills, 44.)† (12) If an estate is given to A. and his heirs, or to A. and the heirs of his body, or any interest whatever to A., and A. dies before the testator, the devise is lapsed and void, and the heirs of A. can claim no benefit from the devise. A severe instance of this rule occurred not long ago in Ireland. A father devised his estate to his eldest son and the heirs of his body, and upon failure of his issue, to his second son in like manner in tail; the eldest son died before the Salk., 238. father, leaving several children; and the father, supposing that the eldest of them would take under the devise, made no alteration in his will: the consequence was, that the devise was lapsed and void, and the second son was entitled by the will to an estate-tail, in exclusion of the children of the eldest brother, the first objects of the father's bounty and regard. The Court of King's Bench in Ireland decided in favor of the grandson; but that decision was reversed by the King's Bench and House of Lords here, the question being too clear to admit a doubt. (6 T. R., 518; 1 Bro., 219; Doug., 330).-[CHRISTIAN. ]‡ Some of the principal alterations effected by the recent Statute of Wills (7 Will. IV., & 1 Vict., c. 26) have been already mentioned in the notes to this chapter. The following summary of the old and new law will enable the student to understand the extent of the alterations introduced: As to Wills made before the 1st of January, 1838, and not re-executed or republished on or after that day. As to Wills made, re-executed, or republished on or after the 1st of January, 1838. I. WHAT MAY BE GIVEN BY WILL. 1. Personal chattels of every kind, and leaseholds for years. 2. Freeholds, customary freeholds, and copyholds— except the legal estate in some custom- of every kind. ary freeholds. As to customary estates and copyholds, without surrender to the use of the will or admittance of the devisor, where the or admittance of the devisor. In this respect, the law is altered in New York by statute. Every will made by a testator, in express terms, of all his real estate, or in any other terms denoting his intent to devise all his real property, passes all the real estate which he was entitled to devise at the time of his death.-(2 R. S., 57, § 5.) In New York, expectant estates are descendible, devisable, and alienable, in the same manner as estates in possession.-(1 R. S., 725, § 35.) This hardship is obviated in New York by an enactment that the property, in such case, shall go to the child or other descendant of the legatee or devisee, in the same manner as if the legatee or devisee had survived the testator, and then died intestate.-(2 R. S., 66, § 52.) |