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This case was succeeded by that of Walpole v. Lord Orford (f ), where the Will of George, Earl of Orford, made in 1756, and Horace Lord Walpole's codicil of the same date, made in concert, constituted, in effect, a mutual Will. Horace Lord Walpole died in 1757, without revoking his part of the mutual Will, namely the codicil of 1756. George Earl of Orford died in 1791, when it appeared that he had made a codicil in 1776 : and this, by reason of a reference to his last Will, bearing date in 1752, was construed a revocation of his part of the mutual Will, namely, the Will of 1756. A case was then raised in Equity, that the mutual Will of 1756 became irrevocable on the death of Lord Walpole in 1757, though it was admitted to have been revocable by either during the joint lives of Lord Walpole and Lord Orford, with notice to the other. And the judgment of Lord Camden, in Dufour v. Pereira, was mainly relied on in support of that position. Lord Loughborough, however, refused to enforce the compact of the mutual Will; but this was chiefly, it seems, by reason of the uncertainty, and, in some sense, unfairness of the compact; so that it leaves the principle of Lord Camden's decision in Dufour v. Pereira, wholly unshaken (g).

By stat. 1 Vict. c. 20, s. 26, it is enacted, “ that no Will or 1 Vict. c. 26, $

20. No Will to codicil, or any part thereof, shall be revoked otherwise than be revoked but as aforesaid, [i.e. by marriage under sect. 18,] or by another by another Will

or codicil, or Will or codicil executed in manner hereinbefore required, or by a writing

executed like a by some writing declaring an intention to revoke the same Will, or by and executed in the manner in which a Will is hereinbefore destruction : required to be 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 same."

() 3 Ves. 402.

(9) See 1 Add. 278, note by the learned Reporter to Hobson v. Blackburn, and also Mr. Har

grave's remarks on the case of
Walpole v. Lord Orford, in 2 Jurid.
Arg. 272. 2 Jurid. Ex. 101.

1 Vict. c. 26, And by sec. 21, it is further enacted," that no obliteration, $ 21. No alteration in a Will interlineation, or other alteration made in any Will after the shall have any execution thereof shall be valid or have any effect, except so effect unless executed as a far as the words or effect of the Will before such alteration Will.

shall not be apparent, unless such alteration shall be executed in like manner as hereinbefore is required for the execution of the Will; but the Will, with such alteration as part thereof, shall be deemed to be duly executed if the signature of the testator and the subscription of the witnesses be made in the margin or on 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."

By the sect. 34, “ This Act shall not extend to any Will made before the 1st day of January, 1838.” With regard, therefore, to Wills, to which the Act does not extend, it is necessary to consider the law as it stood at the time of the passing of the statute, with respect to revocations, 1st, by cancellation, destruction, or obliteration: 2. By a subsequent testamentary disposition : 3. By an express revocation contained in a Will or codicil or in any other distinct writing : 4. By the republication of a prior Will : 5. By marriage or other change of circumstances; and therewith of presumptive

or implied revocation. A testator can- It may here be observed that, by reason of the above not authorize a Will to be de

enactment contained in the 20th section, a testator cannot stroyed after his death.

delegate his power of revoking the Will, by inserting in it a clause conferring on another an authority to destroy it after his death (h).

(h) Stockwell v. Ritherdon, 1 Robert. 661, per Sir H. Jenner

Fust. S. C. 6 Notes of Cas. 409, 414.


Rerocation by Destruction, Burning, Tearing, Cancellation,

or Obliteration.

8. 20.

It will be observed, that the 20th section of the new 1 Vict. c. 26, Statute of Wills confines the modes of total revocation by means of any act done to the instrument itself, to “burning, tearing, or otherwise destroying.

It is obvious, also, that a part only of a Will may be revoked in the manner here described; for the statute says that "no Will, or any part thereof, shall be revoked otherwise than, &c., or by the burning, tearing, or otherwise destroying the same," &c. (i).

And as to partial revocation, it is further enacted by s. 21. sect. 21, that no obliteration, interlineation, or other alteration, made after the execution, shall be valid or have any effect, (except so far as the words or effect of the Will before such alteration shall not be apparent) unless such alteration shall be executed in like manner as is required for the execution of the Will.

By the sixth section of the Statute of Frauds, with respect to devises of lands, revocations of this nature were confined to“ burning, cancelling, tearing, or obliterating the same.”

This section, however, did not extend to Wills of personal property ; but with respect to them it was merely provided, by sect. 22, that no Will concerning any goods or chattels or personal estate should be repealed or altered " by any words" (k). The 34th section of the new statute enacts, that “this To what cases

the new statute Act shall not extend to any Will made before the 1st day of

extends : January 1, 1838:” And certainly these words are of very general import; and seem to leave all Wills, made before

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January 1, 1838, in the same situation as if the Act had not passed, and to be dealt with in all respects with regard to execution, revocation, or alteration, according to the law as it then stood: And if this were the true construction, a testator, whose Will was in existence before January, 1838, if he should live for fifty years after that date, might at any time during his life revoke the Will by any of the modes which were effectual according to the old ecclesiastical law, or make alterations in it to any extent, or at any period,

without regard to the exigencies of the statute of Victoria. every act done

But the interpretation of the Act, which has been adopted to a will after Jan. 1, 1838,

"1838, by the Prerogative Court, and approved by the Privy Council, must be in

is, that the operation of the Act was meant only to be compliance with the statute suspended with respect to the execution of such Wills as though the Will be made were already made at the passing of the Act and those made before that date :

between the passing of the Act and the 1st of January, 1838; and that a Will made before the statute came into operation is not exempted from the necessity of complying with the provisions of the new law with respect to any act done to it

after that period (1). at what time A further question of much importance has arisen with alterations, &c., without reference to this subject, viz. whether in a

case where date shall be

unattested alterations appear on the face of a Will, and no presumed to have been information can be given, and there are no circumstances, made.

one way or the other, to show when the alterations were made, the presumption is, that they were made before or after the execution of the Will. After some variety of decision in the Prerogative Court of Canterbury (m), it has been established by the judgment of the judicial committee of the Privy Council, in Cooper v. Bockett (n), (which has been confirmed by several subsequent cases in both the

(1) In the goods of Livock, 1 Curt. 906. Hobbs v. Knight, i Curt. 768. Brooke v. Kent, 3 Moore, P. C. C. 334. De Zichy Ferraris v. Lord Hertford, 3 Curt. 468, 512, 513. Croker v. Lord Hertford, 4 Moo. P. C. 339, 356.

(m) See In the goods of Stow, 4 Notes of Cas. 477. Burgoyne v. Showler, 1 Robert. 5. 13. S. C. 3 Notes of Cas. 201. In the goods of Saumarez, Ibid, 208.

(n) 4 Notes of Cas. 685. 8. C. 4 Moo. P. C. 419,

Temporal and Spiritual Courts) (o), that the presumption in such a case is that the alterations were made after the execution (p). Consequently, if the Will is dated on or after Jan. 1st, 1838, it is obvious that the alterations also must be taken to have been made after the new Act came into operation (q). It has also been held, that this presumption is not at all varied or altered by the circumstance of a codicil to the Will having been duly executed: The presumption of law must still be that the alterations were made after the execution of the codicil; unless there be proof or

(0) Simmons v. Rudall, 1 Sim. legatee, being inserted in different N. S. 115, 137. Greville v. Tylee, ink, and in a different handwrit7 Moo. P. C. 320. Lushington v. ing, does not alone constitute an Onslow, 6 Notes of Cas. 183. Swete obliteration, interlineation "orother r. Pidsley, 6 Notes of Cas. 189. alteration” within the meaning of Gann v. Gregory, 3 De G. M. & G. the statute ; nor does any pre780, by Lord Cranworth. Doe v. sumption arise against the Will Palmer, 16 Q. B. 747.

having been duly executed as it (P) In order to rebut this pre- appears : Greville v. Tylee, 7 Moo. sumption, declarations of the tes- P. C. 320. See also, In the goods tator, before the execution of his of Swindin, 2 Robert. 192. It may Will, that he intended to provide here be observed that where proby his Will for a person who would bate has been granted of a Will be unprovided for without the al- made after the New Wills' Act came teration in question, are admissible into operation “with the several evidence; but not declarations, alterations, interlineations, and after the execution, that the alter- erasures appearing thereon," it ation had been made previously : must be taken as conclusively Doe o. Palmer, 16 Q. B. 747. settled by the Ecclesiastical Court,

(9) But when a Will has been that the Will was, at its execution, prepared in the first instance with in the state in which it is found : the amounts of the legacies in Thus where probate had been blank, and the amounts, involving, granted of a Will with cross lines for want of space, some interline- drawn in ink over the bequests of ations and alterations, have been certain legacies, Lord Cranworth afterwards filled in by the testator C. held, that the testator must be himself, the Court will presume

taken to have executed the instruthat they were filled in previous to ment with the cross lines drawn execution: for it cannot be sup- over it, and his meaning was that posed that the execution was prior the legacies were not to stand part to the insertion of the legacies : of the Will: Gann v. Gregory, 3 Birch 0. Birch, 1 Robert. 675. De G. M. & G. 777. See also Shea S. C. 6 Notes of Cas. 581. And v. Boschetti, 18 Beav. 321, and the mere

circumstance of the post, Pt. 1. Bk. vi. Ch. 1. amount of a legacy, or name of a

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