lands.

What he must

prove.

A PLAINTIFF who seeks to recover possession of land as Devisee a devisee, or through a devisee, must prove the will, the claiming death of the testator, the title of the testator, that he, the plaintiff, is the person named as devisee, and is entitled to an estate in the land under the devise, and that the land claimed is the land devised; also, if he claims through a devisee, his derivative title from such devisee. It is impossible within the scope of this work to enter fully into all these questions. For the law relating to the validity and construction of wills of realty we must refer our readers to the special authorities upon such subjects, and limit this chapter to setting out, and shortly referring to, the terms of the Wills Act, 1837, and discussing a few other points specially relating to actions by devisees for the recovery of land.

A will of realty must always be made and executed and Will realty. be valid according to the law of the country where the Lex loci.

land is situate.

Land may now be taken, held, and disposed of by Aliens. aliens, and a title derived through or under them (a).

(a) 33 Vict. c. 14; 33 & 34 Vict. c. 102; 35 & 36 Vict. c. 39

The sovereign. Interpretation of terms.

What may be devised.

Copyholds.

Wills or extracts must be entered on Court Rolls.

Estates
pur autre vie,

The sovereign can devise realty (b).

For the meaning of particular words in the Wills Act, the reader is referred to the Appendix (c), where the Act is set out. We now proceed to give a summary of that Act (d).

A testator can now by will dispose of all real and personal property of every tenure and kind which would, upon an intestacy, pass to the heir or to the administrator (e).

Copyholds may now be devised without any surrender to the use of the will, and notwithstanding that the testator has not been admitted thereto; and may be so devised whatever the customs of the manor may be (e). Formerly copyholds could not be devised without a surrender to the use of the will, and no one could devise copyholds to which he had not been admitted, except a customary heir. If there has been no surrender to the use of the will, the estate is in the customary heir until the admittance of the devisee (e). The will, or an extract showing the devise, must be entered on the court rolls; and though trusts need not be entered, the entry must say if the estate is subject to the trusts of the will, if any (f).

Estates pur autre vie (g) of any tenure, whether corporeal or incorporeal hereditaments, and whether there be a special occupant or not, can be disposed of by will (h); if freehold and not disposed of by will, they will descend

as an ordinary freehold in fee to the heir; if there be no heir, then the estate passes to the executor or administrator of the person who had the grant, and must be administered by him as personal estate (hh).

and future

Contingent, executory or other future interests can now Contingent be devised, whether the testator be ascertained or not as estates. the person or one of the persons in whom the same respectively may become vested, and whether he may be entitled thereto under the instrument creating the same or under any disposition by deed or will (i); formerly a contingent interest was not devisable if the person who was to take it was not ascertained before the contingency happened (k).

All rights of entry are now devisable (1); and a person Rights of entry.

having possession of land without other title has a devis- Possessory

able interest (m).

title.

A will now speaks from

death.

A will now speaks and takes effect as if executed immediately before the testator's death, unless a contrary testator's intention appears, and therefore property acquired after the execution of the will can be devised (n). Formerly a will of realty could operate only on the property which the testator had at the date of its execution, and not upon any subsequently acquired property (o). Sect. 24, however, merely deals with the disposition of the testator's property, and in no way affects the objects of his bounty, or his testamentary capacity (p).

Infant.

Married

women.

Execution and attestation.

Publication

not requisite.

Witness.

An infant under tweny-one cannot make a will (q). The Wills Act does not give a married woman any greater testamentary power than she had before the Act (7). The Married Women's Property Act, 1882, enables a married woman to dispose by will of any real or personal property, which is her separate property, as if she were a feme sole, without the intervention of any trustee (s); and the Married Women's Property Act, 1893, provides that sect. 24 (t) of the Wills Act shall apply to the will of a married woman made during coverture, whether she has any separate property at the time of making the will or not, and that such will need not be re-executed or re-published after the death of her husband (u).

A will must be in writing, and signed" at the foot or end thereof" (x) by the testator or by some one in his presence and by his direction; and such signature must be made or acknowledged by him in the presence of two witnesses present at the same time, who attest and subscribe the will in his presence; no form of attestation is necessary. This section, so far as relates to the words

at the foot or end thereof," has been amended by the Wills Amendment Act, 1852, which largely extends the meaning of those words (y).

If a will be properly executed no further publication is required (z).

A will is not invalid by reason of any witness being incompetent to prove its execution (a).

A person to whom or to whose husband or wife any Gifts to attesting gift or beneficial devise is made by the will is not thereby witness. prevented from being a witness, but the gift or devise is void (b).

A creditor or the wife or husband of a creditor whose debt is charged on the devised property can, notwithstanding such charge, be a witness (c); so also can an executor (d).

Creditor and

executor can

be witnesses.

powers of

A power of appointment by will must be executed in Execution of accordance with this Act, and no other formality is neces- appointment. sary, even though additional formalities are required by the power (e). If the power is not in terms a power of appointment by will, it will be duly executed by will, if the will answers the description of the instrument required for the execution of the power (f). This section applies to all powers whether created prior or subsequent to this

Act (g).

by marriage.

A will is revoked by subsequent marriage, unless the Revocation will be in exercise of a power of appointment, and the property would not in default of appointment have passed to the heir, executor, administrator or statutory next of kin of the testator (h); if the will exercises the power of appointment and also disposes of other property of the testator not included in the power, that part of the will which exercises the power is good (i).

No will is revoked by any presumption of an intention Not by presumption. on the ground of an alteration in circumstances (k).