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made a Will, probate thereof was granted, on proof given that the property bequeathed was acquired by her subsequently to her husband's conviction, though he had received a con

ditional pardon from the governor of the colony whither he The Queen had been transported for life (e). And the Queen consort is consort.

an exception to the general rule; for she may dispose of her

chattels by Will without the consent of her Lord (f). Will of married Where a married woman was a native of Spain, and woman, native domiciled there, and it appeared, upon affidavit, that, by the of, and domiciled in a law of Spain, she had full power and authority to bequeath, foreign country.

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).

SECTION III.

Persons incapable from their Criminal Conduct.

Traitors and elons.

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.

(9) In the goods of Maraver, 1 Hagg. 498. Soe post, Pt. 1. Bk. iv. Ch. IV. § VI.

(1) 2 Black. Comm. 499. Swinb. Pt. 2, s. 12, 13, Godolph. Pt. 1,

(i) 2 Black, Comm. 499. Swinb. Pt. 2, s. 20. See post, Pt. 11. Bk. III, Ch. Iy, 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.

(1) Swinb. Pt. 2, s. 12, pl. 3, Godolph. Pt. 1, c. 12, pl. 1.

c. 12.

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) Before the stat. 53 Geo. III. c. 127, there was some doubt Persons excom

municate. whether 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, Persons guilty

of crimes short who are by the civil law precluded from making Testaments, of felony. (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,
s. 21, pl. 7.

(o) Shaw v. Cutteris, Cro. Eliz.
851. 4 Burn's Ecc. L. 62. Wentw.
c. 1, 37, 14th edition.

(p) Swinb. Pt. 2, s. 22. Wentw. c. 1, p. 38. 4 Burn's Ecc. L. 62.

(9) 2 Black. Comm. 499.

58

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 bequeathed 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.

1 Vic.

(a) Post, sect. vi.

two witnesses

These enactments are contained in the following sections of the Statute of Victoria.

Sect. 9. “No Will, (or codicil, or other testamentary dis- Every Will position] (b) shall be valid, unless it shall be in writing, and writing and executed in manner hereinafter mentioned; (that is to say,) signed by the it shall be signed at the foot or end thereof by the testator, presence of or by some other person in his presence and by his direction; at one time : 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, exceptions as

to Wills of that any soldier being in actual military service (c) or any soldiers and mariner or seaman being at sea (d), may dispose of his mariners : personal estate as he might have done before the making of this Act."

The construction of this section will be considered here. after (e) together with the subject of nuncupative Wills.

Sect. 13. “Every Will executed in manner heretofore publication not required, shall be valid without any other publication requisite. thereof." It must, however, be observed, that this statute does not The statute

does not extend 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 Presumption as is properly executed according to the former law, but not when a Will executed pursuant to the new Act, and the case is altogether without date

1838.

to the time

(6) See the Interpretation clause, or republished or revived by any sect. 1, Preface. See also 3 Curt. codicil is, for the purposes of the 478, 479.

Act, to be deemed to have been (c) See post, p. 102.

made at the time the same was (d) See post, p. 102.

so re-executed, republished, or (e) See post, p. 101, et seq.

revived: (Sect. 34.) (5) But every Will re-executed

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).

SECTION I.

Of the Signature by the Testator.

1. As to Wills made before Jan. 1, 1838 : Signature or seal by the testator not necessary : presumption of law against a Will not signed :

The signature or seal of the testator is not necessary for the validity of a Will of personalty (1), if made before January 1, 1838, whether the instrument be in the handwriting of the testator, or in another man's hand.

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. $ 1.

(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

a proxy of consent. But it should seem that proof of handwriting alone is not sufficient to set up a disputed instrument, without some concomitant circumstance, as the place of finding, or the like : See Machin v. Grindon, 2 Cas. temp. Lee, 406. Constable v. Steibel, 1 Hagg. 60. Saph v. Atkinson, 1 Add. 213. Crisp v. Walpole, 2 Hagg. 531. Rutherford v. Maule, 4 Hagg. 213. Bussel v. Marriott, 1 Curt. 9. Wood v. Goodlake, 2 Curt. 82, 176, 180. Hitchings r. Wood, 2 Moore, P. C. C. 335, 443, 444. Post, Pt. I. Bk. Iv. Ch. III. s v.

(k) Post, p. 74.

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