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to what cases
and consequently the 19th section of the new Statute will prevent such revocation in future.
The enactments contained in these two sections lead to consequences which may be considered as somewhat harsh : for by reason of the former, a man's Will must be revoked by his marriage without the birth of children, in a case where he had no intention to revoke it, nor any testamentary duty demanding the revocation : whereas by the operation of the latter, a Will made by a married testator must stand unrevoked, notwithstanding that the subsequent birth of children unprovided for, and other concurrent circumstances, may raise a case (as in Johnston v. Johnston) (f) of the strongest inference that the testator did not mean to adhere to the Will.
It remains to be considered to what cases these enactinents the stat. 1 Vict. of the new Statute extend. c. 26, extends.
The 34th section enacts," that this Act shall not extend to any Will made before the 1st day of January, 1838." And the language here employed seems to show, that if a Will were made at any time before that date, and the testator were to marry after the Act came into operation, the statute would not apply, and the Will would not be revoked thereby: while, on the other hand, such a Will might be revoked by the alteration of the condition of the testator taking place at any time during the life of the testator, though after Jan. 1. 1838. The construction at first put upon the statute appears to have been, that Wills made previously to 1838, with respect to revocations to be effected subsequently, are subject to the provisions of the Act(g). But on a late occasion (h) Sir Herbert Jenner Fust, in a case on motion, held the contrary, and allowed probate to pass of a Will made before the 1st of January, 1838, as unrevoked, though the testator had married in 1839. And the learned judge said, that notwithstanding the Court had
() Ante, p. 170.
(9) See Hobbs v. Knight, 1 Curt. 750, ante, p. 114, and the
cases there cited in note (1).
(1) In the goods of Shirley, 2 Curt. 657.
held, with regard to alterations in any Will after' January, 1838, that they must be made with reference to the provisions of the Act, yet, as to the present point, he was of opinion, by reason of the 34th section, that the Will was not revoked.
There is another sort of implied revocation, in the nature Implied revoof ademption; which arises either when the subject of the cation by
ademption, bequest is altered or parted with, or when the purpose, for which it was bequeathed, has been provided for by the testator by other means. But it will be convenient to post. pone treating of this mode of revocation, till the subject of legacies, generally, is considered (i).
It may be proper, however, here to point out a material difference with respect to this species of revocation, between Wills of realty and Wills of personalty, arising from the office of executor. If the whole subject of a Will of realty be adeemed, the Will is completely revoked, and is wholly ineffectual : but should the same thing happen with respect to a Will of personalty, in which an executor is appointed, the Will must still be proved in the Ecclesiastical Court, as if its dispositions had never been revoked. Thus, in Beard v. Beard (k), where the testator, by a Will, gave his brother all his real and personal estate, and made him executor; and afterwards, by a deed-poll, gave his wife all the substance he had, and might thereafter have; Lord Hardwicke held, that although the deed-poll, according to the law of husband and wife, could not take effect as a grant or gift to the wife, yet it operated as a revocation to the Will as to the whole of the personal property; but as the executor continued, the Will must of necessity be proved in the Commons, and the executor would become trustee for the next of kin (1).
CHAPTER THE FOURTH.
OF THE REPUBLICATION OF WILLS.
By stat. 1 Vict. c. 26, s. 22, “no Will or codicil, or any 1 Vict. c. 26 : No Will re- part thereof, which shall be in any manner reroked, shall be voked to be re. vived (aster
revived otherwise than by the re-execution thereof, or by a Jan. 1, 1838) codicil executed in manner hereinbefore required, and show • otherwise than by re-execu- ing an intention to rerive the same ; and when any Will or tion or a codicil showing an codicil which shall be partly revoked, and afterwards wholly intention to re
revoked, shall be revived, such revival shall not extend to so vive it.
much thereof as shall have been revoked before the revocation of the whole thereof, unless an intention to the contrary shall be shown."
In order to examine the effect of this and other clauses of the Statute on the doctrine of republication, it is necessary to consider the law as it stood at the time of the passing of the Act.
llow a Will may be Republished or Rerired.
First, as to republications earlier than January 1, 1838 What will amount to a re- (when the new Act came into operation). By reason of publication of a the enactments of the fifth section of the Statute of Frauds, Will of perso nalty, if it took (29 Car. II. c. 3) no Will of Lands could be republished, place before Jan. 1838 : except by re-execution in the presence of three attesting
witnesses, or by a codicil duly executed according to the statute (m). But as that section did not apply to Wills of Personalty, such a Will might be republished, not only by an
unattested codicil, or other writing, but by the mere parol acts or declarations of the testator (n). It has indeed been said, that there must be some difficulty in holding that the statute, by the prohibition, in section 19, of Nuncupative Wills, has not in effect prohibited nuncupative republications (o). But, upon a closer examination of the subject it should seem that the statute does not affect the question (1). It must be remembered, that no publication nor formalities of execution are required either by the Statute of Frauds, or the general law, for the validity of a Will of personalty, if made before the Statute of Victoria came into operation (1). It has already been shown, that such a Will need not be executed by the testator;—it is sufficient if it be in writing, and approved of by him before his death (). . Hence, it should appear, that if a Will of personalty, which has been revoked, or made at a distant period, be afterwards suffi. ciently recognised as his operative Will, by the parol acts or declarations of the testator, the Will so recognised becomes, as any other written document would, his legal Will of the date of the recognition. A Will of personalty (not within the operation of stat. 1 Vict. c. 26,) appears to stand nearly in the same situation as a Will of lands did before the Statute of Frauds ;-it must have been in writing, by the provisions of the Statute of Wills, but no other formalities were necessary; and we find that, before the Statute of Frauds, and after the passing of the Statute of Wills, it was holden that a written Will of lands might be republished by parol(s); As where, after a Will had been revoked by operation of law, the testator allowed it to be his Will, without writing it anew, it was held a republication, and that the land should pass by the Will, as much as if it had never been revoked (t).
(n) Wentw. Off. Ex. chap. 1, p. 60, 14th edit.
(0) Roberts on Wills, vol. 2, p. 167.
(P) See Serocold v. Hemming, 2 Cas. temp. Lee, 494.
(9) See ante, p. 58.
(s) Jackson x. Hurlock, Amb. 494. Beckford v. Parnecott, Cro. Eliz. 493. 1 Saund. 277, c. d.
(1) 1 Roll. Abr. 617, (2) pl. 2.
parul acts or A formal republication, therefore, was never necessary in declarations amounting to a cases of Wills of personal property. It would have been a republication : strange doctrine to hold that a formal republication was
necessary for a Will of personalty, where no publication was ever necessary.
Before the Statute of Frauds, it was holden that any thing which showed an intent that a Will of lands should be of a subsequent date, was a sufficient republication (u). In Long v. Aldred (2), Sir John Nicholl observed, that the mere conservation of a Will for many years, might, under circumstances, amount to a republi. cation. In another case in the same Court (y), where the question was whether a widow had republished a Will made before her marriage, it appeared that the testatrix, being confined to her room through illness, desired her nurse to bring her a mahogany box, in which she kept her important papers, for the purpose of looking at her marriage bond; whilst engaged in looking at the papers therein, she took out the Will, and observed to the nurse, “Nurse, this is my Will:” and upon the nurse remarking that it was not a Will, and that it was all eaten by mice, the deceased replied, "that it was eaten by cock-roaches-that it was the Will she would abide by—that people wished her to make another; but that she would not, and, if she did, she should not alter it;" That the deceased began to read the Will aloud, but on some one coming into the room, she replaced it in the box, desiring the nurse not to mention that she had a Will, and adding, “Now, nurse, if any thing should happen to me, you know where it is :" And it further appeared, that the deceased had on several occasions, since the death of her husband, declared to different persons that she had a Will, naming the executor, and she intended the same to operate, and that her affairs were to be settled according to the directions contained in such a Will: The Court held, that these facts and circumstances clearly
(u) 1 Roll. Abr. 618, pl. 7. Barnes v. Crowe, 1 Ves. jun. 497. Cotton v. Cotton, cited in Alford v. Earle, 2 Vern. 209. Anon. 2
() 3 Add. 48.
(y) Braham . Burchell, 3 Add. 264.