CHAPTER XXV. WILLS. PAGE I. Of the nature and general requisites of a will. II. Who may make a will; what property will pass thereby 1513 III. Signing and attestation 1515 OF THE NATURE AND GENERAL REQUISITES OF A WILL. A WILL or testament is defined to be the legal declaration of a man's intentions, which he wills to be performed after his death. It may relate either to real or to personal property; in the former case it is denominated a devise. At common law no interest in land greater than for a term of years could be disposed of by will, except in Kent and some particular boThe sta- roughs by custom, until the 32 Hen. VIII, c. 1, (explained by 34 & 35 Hen. VIII, c. 5,) empowered persons seised in fee simple to devise the same by will in writing. As the only solemnity which this statute required was that the will should be in writing, it was determined that bare notes taken by another person from the testator's mouth for the purpose of being reduced into form, though not signed or sealed by the testator, constituted a good will.b tute of wills. *1512 Numerous frauds and perjuries having been thereby introStatute of duced, it was enacted by 29 Car. II, c. 3, s. 5, that "all devises frauds. and bequests of any lands or tenements, devisable either by force of the statute of wills, or by this statute, or by the custom of Kent, or of any borough, or any other particular custom, should be in writing, and signed by the party so devising the same, or by some other person in his presence, and by his express directions, and should be attested and subscribed in the presence of the devisor, by three or four credible witnesses, or else they should be utterly void and of none effect." By section 12, estates pur autre vie were devisable by will executed in a similar manner. a 2 Bl. Com. 499. b 1 Sid. 315. 1 And. 34, cited 7 East, 324. Brown's case, Dyer, 72. Cro. Eliz. 2 Bl. Com. 376. 100. Personal property, including leasehold estates, was disposa- Will of ble by will at common law, which did not require such wills personal to be in writing; oral evidence of the verbal disposition of property. such property by the testator being deemed sufficient But verbal or nuncupative wills having been found productive of great impositions, it was provided by the above statute" that no such will (the wills of soldiers and mariners excepted) should be valid, when the estate bequeathed by it exceeded 307., unless certain formalities therein prescribed were complied with. "Thus," says Sir William Blackstone, "the legislature provided against any frauds in setting up nuncupative wills, by so numerous a train of requisites, that the thing itself is fallen into disuse, and is hardly ever heard of." A will disposing of personal property, reduced into writing by the testator himself, or by his direction, or approved of by him, has been held to be an available instrument within the above statute, though not signed or sealed by the testator, nor attested by any witness.e Copyhold lands and customary estates passing by surrender Copyholds. were not within the provisions of the statute of frauds, and consequently a will disposing of such lands required no other solemnity than a will relating to personal property.d By the 1 Geo. I, c. 19, the 33 Geo. III, c. 28, and 36 Geo. Stock in III, c. 24, stock in the funds might be bequeathed by a will the funds. *attested by two witnesses. But notwithstanding these acts, it *1513 has been held that a bequest of stock by any instrument entitled to probate, might be enforced in equity by the legatee against the executor.c Such is a general outline of the law which regulated wills The new previous to the year 1828, but now by 7 W. IV, & 1 Vict. c. act. 26, all antecedent statutes relating to testamentary dispositions are, in general, repealed; and new provisions involving very important alterations, which will be considered hereafter, are substituted. By this statute the distinction which had previously prevailed between wills relating to real and those relating to personal property is abolished, and the following regulations are directed to be observed in making testamentary dispositions of property of every description. The will or codicil Execution must be signed at the foot or end thereof by the testator, or by and attestsome other person in his presence, and by his direction; and the signature must be made or acknowledged by the testator in the presence of two or more witnesses, present at the same time, who must attest and subscribe the will or codicil in the presence of the testator. No particular form is required Sec. 19, 20, 21, 22, 23. Id. Toller, Exec. 2. b 2 Bl. Com. 501. ation of a will. a Roe d. Gilman v. Heyhoe, 2 Bl. 1114. Doe d. Cook v. Danvers, 7 East, 299. 56 G. III, c. 192. Hume v. Randall, 6 Mod. 288. e • Franklin v. The Bank of England, 1 Russ. 575. 9 B. & C. 162. (17 Eng. C. L. 347.) Sec. 9. either in the terms or in the attestation of a will. A will executed in the manner above directed, requires no other publication." SECTION II. Infants. WHO MAY MAKE A WILL; WHAT PROPERTY WILL PASS THEREBY. By the common law, male infants of the age of fourteen years, and females of the age of twelve years, might bequeath their personal property; the statute of wills, however, (34 & 35 Hen. VIII,) confine the power of testamentary disposition to persons who had attained the age of twenty-one years, so *1514 that infants were incapable of devising real property; but by the recent statute, "no will made by any person under the age of twenty one years shall be valid." Married women. At common law a married woman could not in general make a will because all her personal property devolved upon her husband by the marriage; and by the statute of wills, she was expressly incapacitated from devising real property. The recent statute provides that, "no will made by a married woman shall be valid, except such a will as might have been made by a married woman before the passing of this act." The disability of coverture, therefore, remains unaffected by that act. A married woman may be empowered to make a will of her real or personal property, by an express stipulation with her intended husband previous to the marriage; or it seems that she may bequeath any personal property which was originally hers, or the savings out of her personal estate, with the consent of her husband, which consent, however, may be revoked. So, if the husband is banished by act of parliament, or has abjured the realm, the wife may make a testamentary disposition of her real or personal property; and so it seems if he be under sentence of transportation as a felon.g The recent statute provides generally, that every person may devise his property except in the two cases of infants and married women, leaving cases of other personal disabilities as they Sec. 13. And even before this enactment, it was clearly settled that a publication, as distinguished from mere attestation, was not necessary to the validity of a will under the statute of frauds. White v. Birt, 6 Bing. 310. (19 Eng. C. L. 91.) Wright v. Wright, 7 Bing. 457. (20 Eng. C. L. 197.) Ward v. Swift, 1 C. & M. 175. b7 W. IV & 1 Vic. c. 26, s. 7. a Rippon v. Dowding, Amb. 565. • Herbert v. Herbert, Prec. Ch. 44. 'Countess of Portland v. Prodgers, c Id. s. 8. Ex parte Franks, 7 Bing. 762. (20 Eng. C. L. 323.) 1 M. & Scott, 11. See ante, 208. a will. stood at common law; so that it may be laid down as a general Persons rule, that, with the exception of infants, married women, idiots, incapable persons born blind, deaf and dumb, lunatics and persons of making laboring under a mental incapacity, who have not sufficient understanding to manage their own affairs, and who, therefore, at common law were incapable of disposing of their property by will, every person may bequeath or dispose of by will, executed in the manner above described, all real and personal property to which he shall be entitled either in law or in equity What proat the time of his death, and which, if not disposed of by will perty may *would devolve upon his heir at law, or customary heir, or upon his executor or administrator, &c.a It is observable, that under the old law, freehold or copyhold estates acquired after the date of the will did not pass thereby; whereas, by the recent act, every kind of property which the testator may be entitled to at the time of his death, even that which he may have acquired after the execution of his will, will pass, if the intention that it should pass be sufficiently indicated by his will.(1) be be queathed. *1515 SECTION III. SIGNING AND ATTESTATION. sufficient signing. In the preceding pages we have shown what are the general What conrequisites of a will; it is now proposed to consider how these stitutes a requisites must be effected. The statute of frauds required the will to be signed by the party devising. It has been held to be a sufficient compliance with this provision, if the testator signed his name at the beginning of the will, for the statute did not require him to subscribe it; as where he wrote the will himself, beginning "I, Henry Jones," &c.b Where a will which was written on three sides of one sheet of paper, and duly attested by three witnesses, concluded by stating "that the testator had signed his name to the two first sides thereof, and his hand and seal to the last," and it appeared that he had put his name and seal to the last only, but had omitted to sign his name to the two first sides; held, that the will was well executed; as, whatever might have been the testator's former intention, it was abandoned by the final signature made by him at the time of executing the will. But where a will consisted of several sheets, and the testator a7 W. IV & 1 Vic. c. 26, s. 3. b Lemayne v. Stanley, 3 Lev. 1. c Winsor v. Pratt, 5 Moore, 484. 2 B. & B. 650. (6 Eng. Č. L. 299.) (1) (Girard v. The Mayor &c. of Philadelphia, 4 Rawle.) signed two of them, and intended to sign the rest, but was prevented from weakness; it was held, that the will was incomplete, for the testator did not mean the signature of the two first as the signature of the whole. If the testator could not write, *1516 *his mark would be sufficient.b But his seal, without his signature, would not suffice, though the contrary was held in some of the earlier cases.d Signing under the new Act. Attesta tion. Though the signature of the testator, in any part of the will was sufficient to satisfy the statute of frauds, the recent act requires the will to be signed by the testator, or some other person in his presence, or by his direction, at the foot or end thereof. Under this statute, the signature may be either the name of the testator or his mark, as before; but it must be at the end of the will. The statute of frauds required the will to be attested and subscribed in the presence of the devisor; but it was not necessary that the testator should sign in the presence of the witnesses, it was sufficient if he had acknowledged the will or the signature in their presence, either separately or all together;f nor was it necessary that the witnesses should know that the instrument was a will;s though the witnesses were required to sign the will in the presence of the testator, yet it was not necessary that the testator should see them sign, it was sufficient to show that he was so situated that he might have seen them do so; as where he was in one room and the witnesses attested the will in another room, in which he might see them through a broken window; it was held sufficient. So, where the testator was in bed, and might have seen through an open door into the next room. So, where the testatrix sat in her carriage, from which she might see the witnesses through a window in an attorney's office. But, where the attesting witnesses retired from the room where the testator had signed, and subscribed their names in an adjoining room, *1517 *and the jury found that, from one part of the testator's room, a person by inclining himself forwards with his head out at the door might have seen the witnesses, but that the testator was not in such a situation in the room that he might, by so inclining, have seen them; held, that the will was not duly attested. b Right d. Cator v. Price, Doug. 241. Lemayne". Stanley, supra. • Smith v. Evans, 1 Wils. 313. Gregson v. Atkinson, 2 Ves. sen. 458. See 17 Ves. 459. 1 Sugd. Powers, 266. Lea v. Sibb, I Show. 69. Warneford v. Warneford, 2 Stra. 764. e7 W. IV & 1 Vic. c. 26, s. 9. Grayson v. Atkinson, 2 Ves. sen. 454. Westbeach v. Kennedy, 1 Ves. & B. 362. Johnson v. Johnson, 1 C. M. 140. Peate v. Ougley, Comyns, 197. White v. The Trustees of the British Museum, 6 Bing. 310. (19 Eng. C. L. 91.) Shires v. Glasscock, 1 Salk. 668. i Davy v. Smith, 3 Salk. 395. Todd v. The Earl of Winchelsea, M. & M. 12. (12 Eng. C. L. 227.) Casson v. Dale, 1 Bro. Ch. C. 99. * Doe d. Wright v. Manifold, 1 M. & S. 294. "I should have great doubts on this |