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under which Wills of this kind were executed (ƒ), or as to the due compliance with their conditions (g). But according to the modern practice, until the decision of the case of Vincent v. Barnes, (hereafter mentioned,) the Court of Probate considered itself bound to decide in the first instance, not only whether there was a power authorising the testamentary act, but also whether the power had been duly executed, before it gave the instrument the sanction of its seal (h). Yet if the Court felt any real doubt on the point, it was always deemed the safer course to admit the paper to probate: inasmuch as the production of such a probate will not alone be sufficient to induce a Court of Equity to act upon it; for, with respect to other special circumstances which may be required to give the instrument effect as a valid appointment, viz., attestation, sealing, &c., the Temporal Courts have never been contented with the judgment of the Spiritual Court (i): whilst on the other hand, if the Court of Probate should reject the paper, its decision would be final; as the Court of Construction will not proceed to the consideration of the effect of any testamentary paper, till it has been proved in the proper Ecclesiastical Court (k). But at last, in the case of Barnes

(ƒ) It has been held that if he Will be contested, the deed from which the power is derived must be pleaded in the allegation of the executor, and exhibited: Temple r. Walker, 3 Phillim. 394. So administration with the Will of a married woman annexed, as executed in pursuance of a power, was refused, the power not being before the Court: In the goods of Monday, 1 Curt. 590.

(g) 1 Phillim. 353. Burchell, 3 Add. 264. Hitch, 1 Hagg. 675.

Braham v.
Draper v.

(h) Allen v. Bradshaw, 1 Curt. 110, 121. In the goods of Biggar, 2 Curt. 336.

(i) Rich v. Cockell, 9 Ves. 376. 2 Roper on Husb. and Wife, 189. Price v. Parker, 16 Sim. 198. However, if the instrument has been admitted to probate, a Court of Equity is precluded from questioning it as a Will; and the only office of that Court is to see that it has been duly executed and attested according to the power: Douglas v. Cooper, 3 M. & K. 378. But see Morgan r. Annis, 3 De G. & Sm. 461.

(k) 1 Curt. 121, 122. In the goods of Biggar, 2 Curt. 336. See post, Pt. 1. Bk. IV. Ch. III. § IX. But see also Goldsworthy v. Crossley, 4 Hare, 140, 145.

without any whether it is

decision as to

authorised by the power and its execution.

v. Vincent (1), it was held by the judicial committee of the Privy Council (reversing the decision of the Prerogative Court of Canterbury) that the proper course for the Ecclesiastical Court is to grant probate wheresoever the paper professes to be made and executed under a power, and is made by one whose capacity and testamentary intention are clear, and no other objection occurs save those connected with the power, (for example, no objection on the provisions of the Wills' Act,) and to leave the Court, which has to deal with the rights under that instrument, to decide whether or not it is authorised by that power and by its execution. Their Lordships appear further to have been of opinion, that, on a power being alleged, the Ecclesiastical Court should grant probate, without going into any question as to the existence of the power. The decision in this case was declared by their Lordships to be a restoration of "the ancient and laudable practice" of the Ecclesiastical Court.

It may be remarked that, in this case, the Will had been executed in 1826, and, therefore, before the new statute of Wills (1 Vict. c. 26) had come into operation. By the 10th section of that Act the Will of a married woman who has a right to make a Will under a power must, in order to be valid, be executed in the same manner as is required by that statute in respect of all other Wills; and if it be so executed, it is enacted that the Will shall be a valid execution of the power (as far as respects the execution and attestation) notwithstanding the terms of the power require some addition or other form of execution or solemnity. It follows that some of the reasons of inconvenience, by which the Court was influenced in this case of Vincent v. Barnes, apply with less force to the case of a Will executed after the new statute began to operate. And on this account, in the subsequent case of Este v. 'Este (m), Sir H. Jenner Fust thought that the dicta in the Privy Council, above stated, (7) 4 Notes of Cas. Suppl. XXI. S. C. 5 Moo. P. C. 201. (m) 2 Roberts. 351.

leading to the conclusion that the Ecclesiastical Court has no right to look to the power, must be construed in reference to the law prior to the year 1838; and the learned judge held that an allegation propounding a Will, dated in 1845, of a married woman, and alleging it to have been made in pursuance of a deed of settlement, but without producing the deed, must be reformed by pleading and annexing that instrument. In the progress of the case, however, the same judge held that the Court had no jurisdiction to try the validity of the power.-With reference to these observations of Sir H. Jenner Fust, it may be remarked that the statute does not appear at all to affect the jurisdiction of the Courts of Probate in these matters. It merely enacts that powers to be exercised by testamentary acts shall, as to the mode of execution, be the same as in ordinary testamentary instruments. The Court of Probate must decide whether this form of execution has been duly complied with. But its judgment is no more binding on a Court of Equity than before the statute (n)

In these cases where a Will is made by a married woman under a power, her executors do not take jure representationis, but merely under the power which she was authorised to exercise by making a Will as to particular property. And, consequently, the title of her executors cannot extend beyond the property disposed of by her Will (0).

It need hardly be observed, that if a Will of a married woman, made under a power, be obtained by the husband by undue influence and marital authority, contrary to her real wishes and intentions, such will not be admitted to probate (p). So if a wife have power to dispose of property by her Will, makes her Will, and afterwards destroys it, by the compulsion of her husband, it may be established, upon satisfactory

(n) Brenchley v. Lynn, 2 Robert.

461, per Dr. Lushington.

(0) Tugman v. Hopkins, 4 M. & Gr. 389.

(p) Marsh v. Tyrrell, 2 Hagg.
Mynn v. Robinson, 2 Hagg.

84.

179.

Executors of married woman made take nothing jure represen tationis.

the Will of a

under a power

Will unduly

obtained or un

duly destroyed by marital authority.

Will of feme covert of per

sonalty settled, or agreed to be

settled to her

separate use:

good, of property in rever. sion as well as possession:

extends to accretions.

proof of its having been so destroyed, and also of its contents and execution (q).

Besides this case of a Will, made by a married woman by virtue of a power, there are other circumstances under which a Will made by her is valid, without the assent of her husband, viz., where personal property is actually given or settled, or is agreed to be given or settled, to the separate use of the wife. In such a case it has been established, since the case of Fettyplace v. Gorges (r), that she may dispose of it as a feme sole, to the full extent of her interest, although no particular form to do so is prescribed in the instrument by which the settlement or agreement was made. The principle upon which that decision was founded, is this; that when once the wife is permitted to take personal property to her separate use as a feme sole, she must so take it with all its privileges and incidents, one of which is the jus disponendi (s). And this rule prevails without regard to the circumstance, whether the property be in possession or reversion (t). And when she has such a power over the principal, it extends also to its produce and accretions, e. g. the savings of her pin-money (u). Nor does it make any difference whether the property be given to trustees for the

(g) Williams v. Baker, Prerog. Trin. Term. 1839.

(r) 1 Ves. Jun. 46. S. C. 3 Bro. C. C. 8.

(s) Peacock v. Monk, 2 Ves. Sen. 191. Rich v. Cockell, 9 Ves. 369. Wagstaff v. Smith, 9 Ves. 520. 2 Roper on Husband and Wife, 182. See further on this subject, Mr. Belt's note to Fettyplace v. Gorges. Hulme v. Tenant, 1 Bro. C. C. 16. Sockett v. Wray, 4 Bro. C. C. 487. Sturges v. Corp, 13 Ves. 192. Essex v. Atkins, 14 Ves. 542. Heatley v. Thomas, 15 Ves. 596. Dalbiac v. Dalbiac, 16

Ves. 116.

Bullpin v. Clarke, 17

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Madd. 94. Stuart v. Lord Kirkwall, ibid. 389. Aguilar v, Aguilar, 5 Madd. 418. Howard v. Damiani, 2 Jac. & Walk. 458. Acton v. White, 1 Sim. & Stu. 429. Braham v. Burchell, 3 Add. 263, (in Sir J. Nicholl's judgment,) and Mr. Fraser's note to Forse & Hembling's case, 4 Co. 61 b. But if she dies intestate, the fund will belong to her husband jure mariti ; Molony v. Kennedy, 10 Sim. 254.

(t) Sturgis v. Corp, 13 Ves. 190. Headen v. Rosher, 1 M'Cl. & Y. 89. 2 Roper on Husb. and Wife, 184.

(u) Gore v. Knight, 2 Vern. 535. Herbert v. Herbert, Prec. Ch. 44. 1 Eq. Ca. Abr. 66, 68.

wife's separate use, or, without the intervention of trustees, to the wife herself, for her own separate use and benefit (x); for in the latter case a Court of Equity would decree the husband to stand as a trustee to the separate use of the wife (y).

If a wife acquires any property after her husband's death, Property acit cannot pass by a Will made during her coverture, though wife after husquired by the by the consent of her husband: for at the time of making band's death. the Will she was intestable as to that property (2). And the law in this respect remains, it should seem, unaltered, notwithstanding that, by the 24th section of the new Statute of Wills (1 Vict. c. 26), every Will is to be construed to speak and take effect, as if it had been executed immediately before the death of the testatrix, unless a contrary intention shall appear by the Will: for the effect of that is not to make a Will valid which was invalid in its inception, but to give a rule for the construction of a valid testamentary instrument (a).

a wife before marriage.

If a feme sole makes her Will, and afterwards marries, Will made by such subsequent marriage is a revocation, and entirely vacates the Will and although she should survive her husband, a Will made before marriage will not revive upon his death, without a republication (b).

A Will of a feme covert, made during coverture, in virtue of powers vested in her under her marriage settlement, is not revoked by her surviving her husband (c).

A woman whose husband is banished by Act of Parliament may make a Will, and act in every respect as a feme sole (d). So where a married woman, whose husband was a convict,

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Will made by marriage not

wife during

revoked by her surviving her

husband. A woman

whose husband

is banished, or

convict.

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