The Queen consort. Will of married of, and domi ciled in a foreign country. made a Will, probate thereof was granted, on proof given that an exception to the general rule; for she may dispose of her chattels by Will without the consent of her Lord (ƒ). Where a married woman was a native of Spain, and woman, native domiciled there, and it appeared, upon affidavit, that, by the law of Spain, she had full power and authority to bequeath, as a feme sole, the property she brought her husband on her marriage, probate was granted of her Will, made according to the law of that country (g). Traitors and elons. SECTION III. Persons incapable from their Criminal Conduct. Persons incapable of making Testaments on account of their criminal conduct, are, in the first place, all traitors and felons, from the time of their conviction: for then their goods and chattels are no longer at their own disposal, but forfeited to the King (h). Neither can a felo de se make a Will of goods and chattels; for they are forfeited by the act and manner of his death (i); although he may make a devise of his lands, for they are not subjected to any forfeiture (k). But if a convict traitor or felon obtain the King's pardon, and be thereby restored to his former estate, then may he make his Testament, as if he had not been convicted (1). (e In the goods of Martin, 2 Robert. 405. (f) 2 Black. Comm. 498. (g) In the goods of Maraver, 1 Hagg. 498. Soe post, Pt. 1. Bk. IV. Ch. IV. § VI. (h) 2 Black. Comm. 499. Swinb. Pt. 2, s. 12, 13. Godolph. Pt. 1, c. 12. (i) 2 Black, Comm. 499. Swinb. Pt. 2, s. 20. See post, Pt. II. Bk. III. Ch. IV. as to the executors or administrators of the deceased traversing an inquisition or presentment of felo de se. (k) 3 Inst. 55. 4 Burn. Ecc. L. 62. (4) Swinb. Pt. 2, s. 12, pl. 3, Godolph. Pt. 1, c. 12, pl. 1. And if he hath goods, as executor to another, the same are not forfeited by conviction: whence it follows, that of such goods he may make his Will (m). Outlaws also, though it be but for debt, are incapable of Outlaws. making a Will, as long as the outlawry subsists; for their goods and chattels are forfeited during that time (n). But a man outlawed in a personal action may, it is said, in some cases make executors: for he may have debts upon contract which are not forfeited to the King: and those executors may have a Writ of Error to reverse the outlawry (0) municate. Before the stat. 53 Geo. III. c. 127, there was some doubt Persons excomwhether an excommunicate person could make a Will (p); but, by that statute, excommunication is not to be pronounced, except in certain cases; and by Section 3, in those cases, parties excommunicated shall incur no civil incapacity whatever. As for persons guilty of other crimes, short of felony, who are by the civil law precluded from making Testaments, (as usurers, libellers, and others of a worse stamp,) by the common law their Testaments are good (q). (m) Godolph. Pt. 1, c. 12, s. 2, 4 Burn's Ecc. L. 61. (n) 2 Black. Comm. 499. Godolph. Pt. 1, c. 12, s. 8. Swinb. Pt. 2, s. 21, pl. 4. But it seemeth, that he who is outlawed in an action personal, may make his Testament of his lands; for they are not forfeited: Swinb. Pt. 2, (0) Shaw v. Cutteris, Cro. Eliz. (p) Swinb. Pt. 2, s. 22. Wentw. Persons guilty of crimes short of felony. 58 1 Vic. CHAPTER THE SECOND. OF THE FORM AND MANNER OF MAKING A WILL OR CODICIL. BEFORE the passing of the statute 1 Vict. c. 26, (Act for the Amendment of the Laws with respect to Wills,) no solemnities of any kind were necessary for the making of a Will of personal estate. The fifth section of the Statute of Frauds, which required the formalities of signature and attestation for a devise of lands, did not extend to Wills of personal property. The nineteenth section made it necessary that they should, generally speaking, be reduced into writing in the testator's lifetime; inasmuch as it was thereby enacted, that no nuncupative Will (where the estate thereby be queathed exceeded the value of 301.) should be good, except under certain circumstances which will be hereafter pointed out (a). But no other formality whatever was necessary to give them effect and operation. Whence it often happened that a Will, intending to dispose of both real and personal estate, was inoperative as to the former, and at the same time a perfect disposition of the latter. The new statute repeals the Statute of Frauds so far as relates to Wills (viz. sects. 5, 6, 12, 19, 20, 21, 22, and 23,) and contains enactments, the result of which is, that, on or after the first day of January, 1838, the solemnities prescribed by the Act are required to render valid any Will or other testamentary disposition of every description of property without distinction; so that the same formalities of execution and attestation are necessary, whether the instrument disposes of real or of personal estate. (a) Post, sect. vI. These enactments are contained in the following sections of the Statute of Victoria. Sect. 9. "No Will, [or codicil, or other testamentary disposition] (b) shall be valid, unless it shall be in writing, and executed in manner hereinafter mentioned; (that is to say,) it shall 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 shall be made or acknowledged by the testator in the presence of two or more witnesses present at the same time, and such witnesses shall attest and shall subscribe the Will in the presence of the testator; but no form of attestation shall be necessary." Sect. 11. "Provided always, and be it further enacted, that any soldier being in actual military service (c) or any mariner or seaman being at sea (d), may dispose of his personal estate as he might have done before the making of this Act." The construction of this section will be considered hereafter (e) together with the subject of nuncupative Wills. Sect. 13. "Every Will executed in manner heretofore publication not requisite. required, shall be valid without any other publication thereof." does not extend 1838. It must, however, be observed, that this statute does not The statute extend to any Will made before January 1, 1838 (f). With to Wills made respect, therefore, to Wills made at an earlier date, and those before Jan. 1, within the exception as to soldiers and mariners, it is necessary to consider the law as established at the time of the passing of the Act. It may here be remarked, that where a Will without date is properly executed according to the former law, but not executed pursuant to the new Act, and the case is altogether (b) See the Interpretation clause, sect. 1, Preface. See also 3 Curt. 478, 479. (c) See post, p. 102. (e) See post, p. 101, et seq. or republished or revived by any Presumption as to the time when a Will without date was inade. bare of circumstances which can afford the Court any information as to the time when the Will was made, it has been held, that the presumption is, that it was made before the Act came into operation; inasmuch as every one is presumed to know the law, and the Court, in the absence of evidence tending to a contrary conclusion, is bound to presume that the Will was executed according to the law as it stood at the time the instrument was written (g). 1. As to Wills made before SECTION I. Of the Signature by the Testator. The signature or seal of the testator is not necessary for Jan. 1, 1838: the validity of a Will of personalty (h), if made before January 1, 1838, whether the instrument be in the handwriting of the testator, or in another man's hand. Signature or If it be in the testator's own writing, though it has neither his name or seal to it, it is good, provided sufficient proof can be had that it is his handwriting (i). The presumption of law indeed (upon the principle hereafter to be mentioned (k), respecting a Will having an attestation clause, and no wit (9) Pechell v. Jenkinson, 2 Curt. 273. As to the presumption in the case of alterations appearing on the face of a Will, see post, Pt. 1. Bk. II. Ch. III. § I. (h) Godolph. Pt. 1, c. 1, s. 7. Salmon v. Hays, 4 Hagg. 382. (i) Godolph. Pt. 1, c. 21, s. 2. Worlich v. Pollet, and other cases cited in Limbery v. Mason, Com. Rep. 452. 2 Bl. Com. 501. Rymes v. Clarkson, 1 Phillim. 22. In the goods of Cosser, 1 Robert. 633, in which last case the name of the testator appeared in no part of the writing, but administration cum testamento annexo was granted, on proof of handwriting and custody, and on |