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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, 3 P. Wms. 170. Rudstone v. Anderson, 2 Ves. sen. 419. Hone v. Medcraft, 1 Br. 263. Abney v. Miller, 2 Atk. 597); but the context of the will may, it seems, control this construction: (James v. Dean, 11 Ves. 390, and 15 Ves. 239. Carte v. Carte, 3 Atk. 176. S. C. Ridgw. 222. Stirling v. Lidyard, 3 Atk. 199): the question in these cases turns upon the intention of the testator, to be collected from the language of his will. (Slatter v. Noton, 16 Ves. 201. Colegrave v. Manby, 6 Mad. 84. S. C. on appeal, 2 Russ. 252).
Where a single man, after devising his whole estate, marries, and has issue, a revocation of the will has been presumed, where the devisor has left his widow and issue unprovided for; (Kenebel v. Scrafton, 2 East, 542. Wilkinson v. Adam, 1 Ves. & Bea. 465. Moore v. Moore, 1 Phillim. 433. Wright v. Sarmuda, 2 Phillim. 267, n.); this presumption, however, like all others, may be rebutted. (Gibbens v. Cross, 2 Addams, 455). Both the principles and practice apply equally in favour of a posthumous child. (Doe v. Lancashire, 5 T. R. 59). But it rather seems, that
neither marriage alone, nor the birth of children alone, will, without other special eircumstances, revoke a will. (Shepherd v. Shepherd, 5 T. R. 52, n. Doe v. Barford, 4 Mau. & Sel. 12. See, however, Johnstone v. Johnstone, 1 Phillim. 467, 474.
Of course there could be no good ground for presuming that a will of real estate was revoked by the subsequent marriage of the testator, who was at the time he made such will, a widower having children, of whom one was his heir apparent. In such case, to hold the will revoked as to the real estate, on account of the birth of children of a second marriage, would only have the effect of letting the eldest son by the first marriage into the whole. (Sheath v. York, 1 Ves. & Bea. 397, and see 7 Ves. 366). But, where a testator, after having made a provision by will for children by his then subsisting marriage, becomes a widower, and afterwards marries again, and has a family by his second wife; the ecclesiastical court may, perhaps, on reasonable grounds, declare the will revoked as to the personal estate, thereby letting in the after-born children to
+ Mr. Christian, in his note upon the text, says, "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." [See Coles v. Trecothick, 9 Ves. 248. Morison v. Turnour, 18 Ves. 183. Stokes v. 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)†. 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
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 legacies † 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 witness to a will, by this act of attestation, solemnly testifies the sanity of the testator. Should such witness afterwards attempt to impeach his own act, and to prove that the testator did not know what he was doing when he made (what purported to be) his will; though such testimony will be far indeed from conclusive, (Hudson's case, Skin. 70, Digg's case, cited ibid.), and Lord Mansfield held, that a witness impeaching his own act, instead of finding credit, deserved the pillory;
(Walton v. Shelley, 1 T. R. 300.
This extends to deviscs of lands, and every interest given to the witnesses.-CH.
By statute 3 & 4
W. & M. c. 14,
Another inconvenience was found to attend this new
creditors by bond method of conveyance by devise; in that creditors by bond or other special- and other specialties, which affected the heir, provided he had assets by descent, were now defrauded of their securidevisee, as well ties, not having the same remedy against the devisee of their
ties, may recov
er against the
as the heir, of
tenants in feesimple.
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 †.
roborated by other evidence. (Kinleside v. Harrison, 2 Phillim. 499, and see Burrowes v. Lock, 10 Ves. 474,
with the additions to Mr. Christian's note to the next paragraph).
Mr. Christian observes, that " devise to raise a portion for younger children according to an agreement before marriage, and a devise for the payment of debts, are exceptions in the statute, sect. 4. But it has been held, that the payment of the debt must be provided for effectually in order to bring it within the exception. 1 Bro. 311. 2 Bro. 614." [The judgment delivered in the case last cited, is more fully reported in 2 Cox, 170.--ED.]
"Lord Eldon, however, has declared that it is an uniform rule, that a provision by will, effectual in law or equity for payment of creditors, is not fraudulent within the statute, but is equitable assets. 7 Ves. 323."
[It is not necessary, therefore, that the descent of the estate should be broken; it is enough if it appear, upon the face of the will, that the testator intended to break it. A mere charge is not indeed a legal interest, in such
case; it is not a devise to any one: but it is a declaration of intention, upon which a court of equity will fasten; and whether the descent be broken or not, the charge will constitute equitable assets: (Shiphard v. Lutwidge, 8 Ves. 30. Kidney v. Coussmaker, 12 Ves. 154. Foly's case, 2 Freem. 49. Hungerford v. Earl, Ibid. p. 121. Hickson v. Witham, Ibid. case 12 in Append. to 2nd edit.): all creditors, therefore, of every description, must come in pari passu, without any preference of debts by specialty over those by simple contract. (Newton v. Bennet, 1 Br. 137. Clay v. Willis, 1 Barn. & Cress. 372). And where the testator has directed payment of his debts to be paid out of the "rents and profits" (if no words limiting the devise, expressly or by implication, to annual profits be used, (Ivy v. Gilbert, 2 P. Wms. 19. Mills v. Banks, 3 P. Wms. 7), the estate may be sold. (Lingard
A will of lands, made by the permission and under the The nature and control of these statutes, is considered by the courts of law
v. Earl of Derby, 1 Br. 311. Ridout v. Earl of Plymouth, 2 Atk. 105. Bootle v. Blundell, 19 Ves. 528. S. C. 1 Meriv. 233. Anonym. 1 Vern. 104. Allan v. Backhouse, 1 Ves. & Bea. 75). It has also been declared that, devisees in trust for payment of debts need not wait for a decree of a court of equity for raising the money; but, without that, may fairly raise it by sale or mortgage, (unless where it is directed to be raised by a perception of rents and profits); and the court of Chancery, if the matter be afterwards brought before it, will support the transaction. (Earl of Bath v. Earl of Bradford, 2 Ves. sen. 590).—ED.]
"The execution of a will in a court of law is proved by calling one of the subscribing witnesses, who proves that the testator executed his will by signing and sealing in his presence, and in the presence of the other two subscribing witnesses. But if a bill is filed to establish a will, all the subscribing witnesses living must be examined, unless they are abroad, then their hand-writing must be proved, as if they were dead. 5 Ves. jun. 411."
[See the note to Lord Carrington v. Payne, in 1 Hovenden's Suppl. to Ves. jun. Rep. p. 517, where this subject is discussed more at length, and the leading authorities collected. It is there observed, that the court of Chancery deems an heir entitled to evidence of his ancestor's sanity at the time of the execution of his will, (see the last note (10)), from every one of those whom the statute has placed round a testator at such a time as guards against fraud. (Harris v. Ingledew, 3 P. Wms. 93. Wallis v. Hodgson, 2 Atk. 56. Abrams v. Winshup, 1 Russ. 527). This is not
a mere technical rule. The design of this provision of the statute was to prevent wills from being set up which ought not; and it often operates silently, but forcibly, by intestacy. (Hind▾ son v. Kersey, 4 Burn's Eccl. L. 91. Bootle v. Blundell, 19 Ves. 500. S. C. Coop. 138): but when the best endeavours have been used to discover, and bring forward an attesting witness; if those endeavours are fruitless, the witness must be considered as dead. (Anonym. Godbolt, 326. M'Kenire v. Fraser, 9 Ves. 6. James v. Parnell, 1 Turn. & Russ. 417). And it is not only when a witness is abroad, (Wood v. Stane, 8 Pr. 615), that an exception to the general rule of complete examination is reasonable: that rule will, in like manner, be relaxed, if, owing to any other cause, one of the witnesses cannot be made amenable to the jurisdiction of the court: (Fry v. Wood, 1 Atk. 445): this last circumstance, indeed, seems to afford the most substantial reason for a departure from the general rule; since, notwithstanding a witness may be abroad, a commission may, if necessary, (though the proceeding is inconvenient,) be sent out to examine him; and an account may be decreed in the mean time, before the return of the commission, although there may not be proper evidence upon which the will can be declared formally, and finally proved. (Fitzherbert v. Fitzherbert, 4 Br. 430. Grayson v. Atkinson, 2 Ves. sen. 460. Wood v. Stane, 8 Pr. 615. Binfield v. Lambert, 1 Dick. 337).
[Of course, if one of the witnesses become insane, he must be considered as if he were dead. (Bernett v. Taylor, 9 Ves. 382).-ED.]
operation of a
devise of lands.