217. Applicability of attestation to several testamentary papers. will and codicil. 218. Animus attestandi. What constitutes a sufficient attestation. 219. Due execution, when presumed. 221. Presence of testator, what amounts to it. Mental consciousness essential. 222. Sufficient if testator might have seen. 223. Testator and witnesses need not be in the same house. Mere contiguity not sufficient if the testator's view be interrupted. 224. Where testator is unable to move without assistance. blind. 225. Credibility of witnesses. 228. Reference to extrinsic documents allowable. Incorporation of document. 231. Probate of incorporated documents. 232. Testator cannot by his will empower himself to dispose by an unattested codicil. 233. Devisee to be ascertained by future event or act. 234. General charge of legacies extends to legacies given by unattested codicil. 235. "Hereinafter," how construed. 236. Sum charged specifically and exclusively upon land not recoverable by unattested codicil. Section II. As to personal estate and copyholds. 238. Statute 29 Car. II., c. 3, 19, concerning nuncupative wills. 239. What a good execution of a will of personalty. 242. Principles adopted by ecclesiastical courts in adjudicating on the validity of wills. 243. Copyholds not within the statute of frauds. 244. What constitutes a will of personalty and copyholds. 245. Paper rejected on account of an uncompleted form of attestation. 246. Where testator is prevented from performing the concluding act of authentication. What an adequate preventing cause. 247. Contents of paper must be complete. 248. Presumption against unfinished papers. Informal paper intended as present will. Section III. Wills made since the year 1837. 249. Provision requiring the signature to be at the foot or end. 251. This provision repealed by 15 and 16 Vict., c. 24. 252. Alterations introduced by the recent enactments. Two witnesses required. Position of testator's signature. 253. Alteration. Acknowledgment of signature by testator. 254. Simultaneous presence of witnesses. 255. Attestation clause is unnecessary. 256. As to testator signing by the hand of another. a mark. Attesting witnesses not required to be credible. 257. Persons incompetent to give evidence qualified. Doubts whether qualification extends to lunatics, or other persons mentally incapable. 258 Suggestion as to selection of witnesses. 259. How far doctrines of this chapter extend to wills made since 1837. Section IV. Defective execution supplied by reference, express or implied. 260. Whether attestation of codicil applies to previous will. Where codicil refers to will, and both are written on same paper. 261. Where both are written on same paper, but without express reference. 262. Where an attested codicil refers to the will, but not to a prior unattested codicil. 263. Whether the "will" includes a codicil added thereto. 264. A codicil not duly attested is not now included in the term "codicils" where there are duly attested codicils to satisfy its strict meaning. 265. Nor in the term "will." A different rule prevails when there is no duly attested codicil, or duly attested will. To supply defect of execution the defective instrument must be incorporated. 267. Unexecuted alterations, when rendered valid by subsequent codicil. CHAPTER VII. REVOCATION OF WILLS. Section I. By marriage and birth of children, or marriage alone. 268. Effect of marriage alone under old law. in case of a woman. man. 269. 270. 272. Old rule as to marriage and birth of children. 276. Question whether children must spring from subsequent marriage. Effect of provision for future wife or children or both. 277. Effect where will disposes partially only. 278. Will not revoked in favor of a pre-existing child. 279. Death of child in testator's lifetime immaterial. 280. Rule to be deduced from the cases. Parol evidence of intention inadmissible. 281. Wills made since 1837 absolutely revoked by marriage under 1 Vict., c. 26. Wills made before 1 Vict., c. 26, how revoked since that act. Section II. By burning, canceling, tearing or obliterating. 282. Revocation of will of lands by burning, tearing, canceling, or obliterating, under the old law. Revocation of wills of personalty. 284. Evidence of animus admitted. 286. Revocation by partial tearing. 287. Mere attempt to destroy will not necessarily revocatory. 289. Effect where a testator suspends the destroying act before its completion. 290. Presumption as to destruction of wills. 291. Obliterations by a pencil. 294. Effect of partial obliterations. where cancellation is connected with a new disposition. 295. Partial obliteration connected with a new disposition. Effect where a testator having made two inconsistent wills, revokes the latter. 296. Effect of destroying one part of duplicate will. 297. 298. alteration in one duplicate. where same expressions occur in will and codicil, and testator obliterates them in one only. of testator destroying will and leaving codicil undestroyed. 299. Revocation by burning, tearing, or otherwise destroying, under the present law. 300. Obliterations, &c., in a will to be signed and attested. Revival of revoked wills. Points of difference under the new law. Points of similarity. 301. "Tearing." When partial tearing effects total revocation. 302. When not. Meaning of words "otherwise destroying." 303. Parol evidence admissible in cases of conditional revocation. Satisfaction proved by obliteration. 304. Distinction as to acts apparent and acts not apparent on the face of a will. Presumption when attestation is made. 305. Effect under 1 Vict., c. 26, where will is destroyed but not the codicil. 306. Alteration not duly attested by re-tracing names with a dry pen. Rule as to revival of a prior will by revocation of a later abolished. Parol evidence inadmissible to show intention to revive. 307. Revival by re-execution. codicil. Parol evidence, when admissible to determine extent of revival where revocation has been by steps. 308. Destruction must be in the presence of the testator. Section III. By alteration of estate. Under the old law. By acquisition of new estate. 309. Not by change of a contingent remainder to a vested remainder. Partial alienations. 310. Revocations by conveyances in fee simple. 311. As to conveyances of copyholds. 312. Conveyances for a mistaken or unnecessary purpose. Tortious eviction. Exchanges. Revocation of devises of equitable interests by conveyance. 313. Partition no revocation. Manner of partition may cause revocation. 314. Mortgages. inaccurately termed revocation pro tanto. 315. Conveyance upon trust for sale. Bankruptcy. Mortgages by demise. 316. Deed of partition or mortgage with ulterior limitations. Effect of ulterior limitations in mortgage deeds. 317. What expressions newly modify equity of redemption. 318. Mere conveyance of legal estate no revocation in equity. 319. Contra, if deed modifies the equitable ownership. Effect of conveyance upon a purchaser's devise after contract. 320. No revocation if conveyance be in conformity with contract. Clothing the equitable estate with the legal, no revocation. 321. Immaterial whether seizin is charged or not. 322. As to conveyances in execution of marriage articles. 325. Marriage articles. Effect of settling shares of devised lands on one of devisees. 326. Will is revoked by contract to sell, 327. or by other conversion whether voluntary or compulsory, unless the proceeds are to be re-invested to same uses. 329. Bequest of term, how affected by purchase of the fee. Section IV. By void conveyances. 329. Attempt to convey revokes a devise, where. 330. Qualifications of the rule. 331. Deeds of conveyance void on account of fraud revoke a will, where. Rule as to will since 1837. Section V. By a subsequent revoking or inconsistent will or codicil or writing. 332. Before 1838. Devises of lands, how to be revoked. Bequests of personalty, how to be revoked. 333. Difference between devising and revoking clauses of statute of frauds. Revocation connected with new disposition. 334. Revocation of wills of personalty. 335. depending on completeness of revoking will. 336. Distinction between revocation of a gift and of so much of will as contains the gift. 337. Intention to revoke whether present or future. Mere intention to revoke by a future act inoperative. 338. Revocation by inconsistency of disposition. 340. Gift of residue by will revoked by similar gift in codicil. 341. Rule where several wills are subsisting at death. As to contradictory wills of uncertain date. 2 343. Codicil not to disturb will more than is absolutely necessary. 344. Examples of non-revocation by codicil. Charge not revoked by revocation of devise of land charged. 345. Gift in codicil "instead of" gift in will. 346. Specific gift in will not revoked by general gift in codicil. Revocation as to one office does not extend to other offices. Distinction where the first devise is modified only. 349. Clear gift in will not revoked by doubtful expression in codicil. 351. Intention to revoke may be indicated by informal expressions. 358. Implied revocation by the effect of a codicil reviving an earlier will. Revocation of intermediate codicil. 360. Recognition in a codicil of a revoked will may revive it. 364. Constructive republication by codicil. 367. Immaterial that codicil devises part of lands acquired since publication of will. 369. Republication negatived by contracts of codicil itself. 372. Effect of republication upon specific devises under old law. 373. Republication does not shift specific devise to a different property, nor an cure defect of expression in will. |