1 Vict. c. 26, 8. 4.

As to the fees and fines payable by

mary and copy

hold estates.

See further as to what property may be devised or bequeathed, 1 Jarm. Wills, 40 et seq.

4. Provided always, and be it further enacted, that where devisces of custo- any real estate of the nature of customary freehold or tenant right, or customary or copyhold, might, by the custom of the manor of which the same is holden, have been surrendered to the use of a will, and the testator shall not have surrendered the same to the use of his will, no person entitled or claiming to be entitled thereto by virtue of such will shall be entitled to be admitted, except upon payment of all such stamp duties, fees and sums of money as would have been lawfully due and payable in respect of the surrendering of such real estate to the use of the will, or in respect of presenting, registering or enrolling such surrender, if the same real estate had been surrendered to the use of the will of such testator: provided also, that where the testator was entitled to have been admitted to such real estate, and might, if he had been admitted thereto, have surrendered the same to the use of his will, and shall not have been admitted thereto, no person entitled or claiming to be entitled to such real estate in consequence of such will shall be entitled to be admitted to the same real estate by virtue thereof, except on payment of all such stamp duties, fees, fine and sums of money as would have been lawfully due and payable in respect of the admittance of such testator to such real estate, and also all such stamp duties, fees and sums of money as would have been lawfully due and payable in respect of surrendering such real estate to the use of the will, or of presenting, registering or enrolling such surrender, had the testator been duly admitted to such real estate, and afterwards surrendered the same to the use of his will; all which stamp duties, fees, fine or sums of money due as aforesaid shall be paid in addition to the stamp duties, fees, fine or sums of money due or payable on the admittance of such person so entitled or claiming to be entitled to the same real estate as aforesaid (e).

Wills or extracts of wills of customary freeholds

and copyholds to be entered on the

court rolls;

(e) See 4 & 5 Vict. c. 35, ss. 88, 89, 90, as to admissions. The cases as to the admittance of devisees of copy holds and the fines payable are collected in Fisher's Digest, 1848-1855. As to the fines on admission payable by trustees of copy holds, see Lewin on Trusts, 191, 5th ed. Bence v. Gilpin, L. R., 3 Ex. 76; Bristow v. Booth, L. R., 5 C. P. 80; Everingham v. Ivatt, L. R., 7 Q. B. 683.

5. When any real estate of the nature of customary freehold or tenant right, or customary or copyhold, shall be disposed of by will, the lord of the manor or reputed manor of which such real estate is holden, or his steward, or the deputy of such steward, shall cause the will by which such disposition shall be made, or so much thereof as shall contain the disposition of such real estate, to be entered on the court rolls of such manor or reputed manor; and when any trusts are declared by the will of such real estate it shall not be necessary to enter the declaration of such trusts, but it shall be sufficient to state in the entry on the court rolls that such real estate is subject to the and the lord to be trusts declared by such will; and when any such real estate

entitled to the

same fine, &c.

could not have been disposed of by will if this act had not been

8. 5.

when such estates are not now dewould have been

made, the same fine, heriot, dues, duties and services shall be 1 Vict. c. 26, paid and rendered by the devisee as would have been due from the customary heir in case of the descent of the same real estate, and the lord shall, as against the devisee of such estate, have the same remedy for recovering and enforcing such fine, heriot, duties and services as he is now entitled to for recovering and enforcing the same from or against the customary heir in case of a descent.

visable as he

from the heir in

case of descent.

vie.

6. If no disposition by will shall be made of any estate pur Estates pur autre autre vie of a freehold nature, the same shall be chargeable in the hands of the heir, if it shall come to him by reason of special occupancy, as assets by descent, as in the case of freehold land in fee simple; and in case there shall be no special occupant of any estate pur autre vie, whether freehold or customary freehold, tenant right, customary or copyhold, or of any other tenure, and whether a corporeal or incorporeal hereditament, it shall go to the executor, or administrator of the party that had the estate thereof by virtue of the grant; and if the same shall come to the executor or administrator, either by reason of a special occupancy or by virtue of this act, it shall be assets in his hands, and shall go and be applied and distributed in the same manner as the personal estate of the testator or intestate (ƒ).

(ƒ) The words "in case there shall be no special occupant" in this section include both the case where there is no special occupant named in the grant, as also the case where the heir is named as special occupant but the grantee dies without leaving an heir. (Plunket v. Reilly, 2 Ir. Ch. R. 585.) So where leasehold estates pur autre vie were devised in trust for A., his heirs, sequels in right, executors, administrators and assigns. A. survived the devisor, and, being illegitimate, died without heirs and intestate, living the cestui que vie: it was held, that the devised estates passed under this act to A.'s administrator, the nominee of the crown. (Reynolds v. Wright, 2 De G., F. & J. 589.)

A testator gave a rent-charge to A. for life, and directed that after her death it should be continued and equally divided between B., C. and D. during their lives and the life of the longest liver. B. predeceased A.; and it was held, that the interest in the rent-charge which passed on A.'s death, to B.'s executors, was an estate pur autre vie within this section. (Chatfield v. Berchtoldt, L. R., 7 Ch. 192.) As to estates pur autre vie, see 1 Wms. Exors. 643-648, Tudor's L. C., Conv. 40-46.

7. No will made by any person under the age of twenty-one No will of a peryears shall be valid (g).

(g) Sect. 24 makes a will speak from the testator's death; but this does not extend to the testator's capacity, and the will of an infant would not become operative by his attaining his majority. (Sugd. R. P. Stat. 330.) The power given by 12 Car. 2, c. 24, s. 8, to infants to appoint guardians of their children by will appears to be repealed (ib.). As to an infant appointing a guardian by deed, see Morgan v. Hatchell, 19 Beav. 86. A will made by an infant seaman was held valid under sect. 11. (Re M'Murdo, L. R., 1 P. & M. 540.)

son under age valid;

except such as

8. Provided also, and be it further enacted, that no will nor of a feme made by any married woman shall be valid, except such a will except as might have been made by a married woman before the pass- might now be ing of this act (h).

(h) For the law as to the testamentary capacity of married women

made.

1 Vict. c. 26,

8. 8.

Previons testa

married women

preserved.

before the passing of the act, see 1 Wms. Exors. 51-61. And as to a married woman's power of disposing by will of her separate estate, see ante, p. 378.

"By the law, as it stood at the time when this act was passed, an infant mentary status of might make a valid will of personal estate, but married women had no testamentary capacity, except by virtue of a delegated authority. By means of a power or under a trust, as in case of separate estate, a married woman might, by a writing in the nature of a will, dispose of real or personal estate; and, with the licence and consent of her husband, she might make a will, properly so called, of personal property. It was the intention of the legislature, by this statute, to render infants absolutely incapable of making a will; but it has, I think, preserved the testamentary status of married women equally as it stood under the existing law. Therefore a married woman's devise of real estate must still be made by means of a trust or power created for the purpose, and her capacity to bequeath personal estate must still be derived from the licence or authority of her husband." (Per Lord Westbury, C., Thomas v. Jones, 1 De G., J. & S. 81.) "The construction I give to the 8th section is, that it disables a married woman from doing anything which, before the passing of the act, she could not have done by reason of her coverture; it preserves the incapacity of coverture, as it stood before the act; but, as regards any incapacity arising from matters independent of coverture, applicable to men and women alike, the statute was not intended to draw a distinction between married women and other persons." (Per Wood, V.-C., Thomas v. Jones, 2 J. & H. 483.)

Effect of sect. 24 on the wills of married women.

Property acquired by wife after hus

band's death.

Effect of sect. 27 on the wills of married women.

Thomas v. Jones.

It seems that section 24 does not make the simple will of a married woman valid without re-execution if she survives her husband. (Re Wollaston, 12 W. R. 18, and see the remarks of Shadwell, V.-C., Price v. Parker, 16 Sim. 202, and of Wood, V.-C., Thomas v. Jones, 2 J. & H. 482.) A married woman, entitled to separate property, executed when under coverture a will with her husband's assent, in which she disposed of her separate property, and then bequeathed the residue of the real and personal estate which she should possess or have power to dispose of at the time of her death to her niece; she survived her husband, who left to her considerable personal property, but she did not re-execute her will. Lord Penzance expressed an opinion that the testatrix had effectually disposed of the property acquired from her husband. (Noble v. Phelps, L. R., 2 P. & M. 276), and Bacon, V.-C., subsequently decided that the will was operative to pass the whole of her personal estate. (Noble v. Willock, 21 W. R. 353; 27 L. T., N. S. 781.)

It has been decided that, notwithstanding this section, a general gift in the will of a married woman will (under sect. 27), operate to pass property over which she has only a testamentary power. Wood, V.-C., apprehended that this act means simply this, the capacity of a married woman to execute a testamentary instrument shall be regulated by those rules which existed before the passing of the act. Before the passing of the act she was competent to dispose of property over which she had a power of appointment, exercisable during coverture. Her capacity in that respect shall remain unaltered, but the provisions of the act as to the mode in which a power shall be exercised by will, and all the other provisions of the act, will apply to any testamentary instrument which a married woman would have been competent to execute previous to the passing of the act, just as it would apply to any testamentary instrument executed by any person sui juris. (Bernard v. Minshull, Johns. 297.)

This section does not preserve in the case of married women any incapacities not specially dependent on coverture, which are removed generally by other sections of the act-as, for example, those relating to afteracquired property or power. Therefore, where a general power was vested in the survivor of A., B. and C., (a married woman with testamentary capacity,) and C. ultimately became the survivor: it was held (under sections 24, 27) that the power was well exercised by a residuary devise in the will of C., made while under coverture and during the life of B. (Thomas v. Jones, 2 J. & H. 475; 1 De G., J. & S. 63.) It was said by Lord Westbury, "a distinction exists between the testamentary power of a

8. 8.

feme covert, and the effect and operation of her testamentary appointment. 1 Vict. c. 26, No greater testamentary power is to be obtained from the act than would otherwise have existed. But an effect and operation may be given under the statute to a testamentary instrument executed by a married woman, which may make that instrument a valid exercise of an existing testamentary power which, before the statute, it would not have been held to be... But the appointment and the will are still to be confined within the limits of the authority of the matter existing at the time of the death. It is not, however, necessary that the authority should exist at the time of the execution of the instrument, if it be afterwards acquired and be subsisting at the time of the death of the testatrix." (1 De G., J. & S. 81, 82. See the remarks of Lord Penzance on this case, Noble v. Phelps, L. R., 2 P. & M. 284.)

Trust funds were limited by settlement to a married woman absolutely if she survived her husband, but if she predeceased him, she was to have a general power of appointment by will. During the coverture she made her will disposing of the property; she survived her husband, but did not re-execute her will, and administration was granted limited to such personal estate as by the settlement the testatrix had a right to dispose of: held, that the power had not arisen, and the will was therefore inoperative. (Trimmell v. Fell, 16 Beav. 537; Price v. Parker, 16 Sim. 198; see Jones v. Southall, 30 Beav. 187; Blaiklock v. Grindle, L. R., 7 Eq. 215.)

As to the revocation of the will of a married woman, made under a power, by a subsequent will made by her during a second coverture, see Hawksley v. Barrow, L. R., 1 P. & M. 147.

Will of married woman in execution of power which never

arises.

was testable, nor

In the case of a will executed by a married woman, under a power, the Court of Probate Court of Probate must determine whether or not there is a will (Re will not decide Hallyburton, L. R., 1 P. & M. 90), and should see that every properly whether testatrix executed testamentary paper, which may be material for the consideration whether power of the Court of Chancery, is included in the probate. (Re Fenwick, was duly exeL. R., 1 P. & M. 319.) But the Court of Probate will not determine cuted, nor queswhether or not the testatrix was testable (Barnes v. Vincent, 5 Moore, tion. P. C. 201); nor whether the power has been duly executed (Paglar v. Tongue, L. R., 1 P. & M. 158); nor will it decide questions of construction (Re De Pradel, L. R., 1 P. & M. 454), all of which are questions for the

tions of construc

Court of Chancery. Probate will be granted limited to the property which Form of probate. the deceased had power to dispose of, and has disposed of, accordingly, and her husband or her next of kin will be entitled to a grant of administration cæterorum. (1 Wms. Exors. 369; Re Crofts, L. R., 2 P. & M. 18; Re Graham, Ib. 385; Noble v. Phelps, Ib. 276, where see form of probate.)

signed by the tes

nesses at one

9. No will shall be valid unless it shall be in writing (i) and exe- Every will shall cuted in manner hereinafter mentioned; (that is to say,) it shall be in writing and be signed at the foot or end thereof(j) by the testator or by some tator in the preother person in his presence and by his direction (k); and such sence of two witsignature shall be made or acknowledged by the testator in the time. 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 (m), but no form of attestation shall be necessary (n).

(i) See Harter v. Harter, L. R., 3 P. & M. 11.

(j) As to the position of the signature of the testator, see 15 & 16 Vict.

c. 24, s. 1, post, and cases there quoted.

(k) A signature by the testator of his name after the attestation by the Signature by teswitnesses, although in their presence, is not a compliance with the statute. tator. (In bonis Olding, 2 Curt. 865; In bonis Byrd, 3 Curt. 117.) A will was held to have been signed before the witnesses subscribed, although the confused recollection of the witnesses raised a doubt upon the point. (Cooper v. Bockett. 3 Curt. 648; Brenchley v. Still, 2 Rob. 162; Thompson v. Hall, 16 Jur. 1144.) A mark by the testator for a signature was

8. 9.

1 Vict. c. 26, held sufficient, although the name did not appear (In bonis Bryce, 2 Curt. 325); and even where a wrong name was added to the mark, but there was no doubt as to the identity of the testator, the execution was held good. (In bonis Clarke, 1 Sw. & Tr. 22; In bonis Douce, 2 Sw. & Tr. 593.)

By some other person by testator's direction.

Signature made in presence of wit

nesses.

Acknowledgment of signature in presence of witnesses.

An attesting witness may sign the will for the testator by his direction, for there is nothing in the act which prevents the person signing for the testator being one of the witnesses to attest and subscribe the will. (In bonis Bailey, 1 Curt. 914.) The witness, in fact, attests the direction of the testator, and that direction amounts to an acknowledgment. (Smith v. Roberts, 1 Rob. 262.) A party signing a will for a testator, who was too ill to sign, by his direction signed it in his own name, but expressed it to be on behalf of the testator. This was deemed sufficient. (Clark's case, 2 Curt. 329.) A., in the presence of a testator, and by his direction, impressed the testator's usual signature at the foot of a codicil, by means of a stamp upon which such signature had been engraved: it was held, that the will was duly signed. (Jenkyns v. Gaisford, 11 W. R. 854; see further, 1 Wms. Exors. 73-80.) There must be some act or word on the part of the testator to show that the signature was made at his request. (Re Marshall, 13 L. T., N. S. 643.)

(7) The testator's signature must be made or acknowledged in the presence of the witnesses. Where the witnesses had seen the testatrix write what the Court presumed to be her signature, it was held sufficient, although they did not see the signature, and she did not acknowledge it to them. (Smith v. Smith, L. R., 1 P. & M. 143.)

It is not necessary that the party should say in express terms to the witnesses, "that is my signature;" it is sufficient if it clearly appears that the signature was existent in the will when it was produced to the witnesses, and was seen by them when they did, at the testator's request, subscribe the will. (Keigwin v. Keigwin, 3 Curt. 607; In bonis Ashmore, 3 Curt. 756; Hudson v. Parker, 1 Rob. 25.) And the Court may judge from the circumstances whether the signature was in the will at the time of the attestation. (Gwillim v. Gwillim, 3 Sw. & Tr. 200; Re Huckvale, L. R., 1 P. & M. 375.)

Where a will is signed by the testator before the witnesses are called in, the mere circumstance of calling in witnesses to sign, without giving them any explanation of the instrument which they are signing, does not amount to an acknowledgment of the signature by the testator. (Ilott v. Genge, 4 Moore, P. C. 265; Re Swinford, L. R., 1 P. & M. 630; Pearson v. Pearson, 19 W. R. 1014.) And even where the testator, in the joint presence of the witnesses, acknowledged the paper to be his will, but they did not see him sign the paper, nor did they at the time of subscribing see his signature, the writing being purposely concealed from them: this was held to be a void will (Hudson v. Parker, 1 Rob. 14); but see Beckett v. Howe (L. R., 2 P. & M. 1), where an acknowledgment was held sufficient, although the testator did not sign in the presence of the witnesses, nor did they see his signature.

The court rejected probate of a will entirely in the testator's handwriting, with perfect testimonium and attestation clauses, where the witnesses deposed to the effect that the deceased asked them to sign a paper which was folded down so that they saw no writing whatever upon it, and that the deceased did not write his name or acknowledge any signature in their presence. (Shaw v. Neville, 2 Adm. & Eccl. R. 203; 1 Jur., N. S. 408.) A testator produced a will entirely in his own handwriting, and having his name signed at the end thereof, to three persons, and requested them to put their names underneath his: it was held a sufficient acknowledgment of the signature, the court being satisfied (although there was no express evidence of the fact) that the signature was in the testator's handwriting. (Gaze v. Gaze, 3 Curt. 451.)

Where the name of the deceased was signed to his will at his request by the drawer, and on a subsequent day in the presence of witnesses, the deceased placed his seal on the paper, and delivered it as his act and deed, it was held not to have been duly acknowledged. (In bonis Sumners, 2