County Court, and, of course, the Court of Appeal and the House of Lords).

Different Rules of Evidence. The evidence which is admissible before the Probate Division differs essentially from that admissible before a Court of Construction; and the difference illustrates the distinction between the functions of the two Courts.

The Probate Division in effect asks: Has the testator really and truly used these words and made these provisions? Did he intend to do so? And was he legally capable of doing so? Did he execute the will according to law? Did he know and approve the contents of the will?

While the Court of Construction says in effect: The testator has used these words and made these provisions. What exactly do they mean? What property do they affect?

The first inquiry obviously opens the door to parol evidence on questions affecting the validity of the will, such as fraud, insanity or mistake, including parol evidence of the testator's intentions as expressed at or about the time of making his will; while the second inquiry assumes that the words were deliberately used by a capable testator and represent his intentions, so that no extrinsic evidence of intention can as a rule be admitted to explain them. In the case of Guardhouse v. Blackburn (1866), 1 P. & D. p. 114, Sir J. P. Wilde says: "The function of the Court [of Probate] is not to construe a written paper the validity of which is admitted, but to gather the necessary facts and pronounce on the validity of the paper. ... The truth is that the rules excluding parol evidence have no place in any inquiry in which the Court has not

got before it some ascertained paper beyond question binding and of full effect."

Mixed Real Estate and Personal Estate.-The old jurisdiction of the Probate Division and its predecessors was confined to the grant of probate of a will or of letters of administration so far as regards personal estate only; and the persons interested in the testator's real estate, whether as heir-at-law or otherwise, were not bound by the probate of a will in "common form," but could dispute the validity of the will itself as well as its meaning, so far as it affected the real estate of the testator, in proceedings taken in other Courts for that purpose. They could, for instance, bring ejectment proceedings against the person in possession, and if the will of the testator were pleaded against their claim could reply that it was obtained by undue influence or could make some other objection which would raise an issue to be determined by a jury upon the validity of the will itself.

A recent case of an attempt to do this is Beardsley v. Beardsley, [1899] 1 Q. B. 746.

Although probate in "common form" was not, therefore, conclusive evidence of the validity of the will in all other Courts in the case of realty as it was in the case of personalty, it was provided by the Court of Probate Act, 1857, that where a will is proved in "solemn form," after citation of the heir and other persons interested in the real estate of the testator, probate shall be conclusive evidence of the validity and contents of the will in all proceedings affecting real estate.

Real Estate Only.-Formerly, too, the Probate

Division and its predecessors had no jurisdiction to grant probate of a will of real estate only; an action, however, lay in the Court of Chancery to establish the will formally, the heir-at-law and all persons having a possible interest being usually made parties to it; after a decision in such an action, no party to the action, and no person claiming by derivative title through a party, could dispute the will, and accordingly the decision had an effect somewhat similar to the grant of probate of a will of personalty.

The Land Transfer Act, 1897, has enacted (s. 1 (3)) that in cases of death after the commencement of the Act, i.e., after December 31, 1897, probate and letters of administration may be granted in respect of real estate only, although there is no personal estate.

This section confers upon the Probate Division the jurisdiction which it lacked before, viz., jurisdiction as to real estate; and in consequence thereof the jurisdiction is now complete both as to realty and personalty, so that probate in common form and letters of administration with the will annexed are now conclusive evidence in all other Courts that the will in question is the last will of the testator with regard to real estate as well as personal estate, and the only remedy of a person who wishes to contest a will of which probate has been granted is an action in the Probate Division to revoke the grant.

(6)

CHAPTER II.

TESTAMENTARY INSTRUMENTS.

TESTAMENTARY Instruments will be briefly considered under the two following heads :

(1) Formalities required for due execution.
(2) Form and substance of the operative part.

1. Formalities.

Statutory enactments relating to the execution of Testamentary Instruments.

The Wills Act (4 Will. IV. & 1 Vict. c. 26), s. 9:No will shall be valid unless it shall be in writing and executed in manner hereinafter mentioned; (that is to say) it shall be signed at the foot or end thereof by the testator or by some other person in his presence and by his direction; 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. 1 (interpretation) :—

The word "will" shall extend to a testament, and to a codicil, and to an appointment by will or by writing in the nature of a will in exercise of a power, and also to a disposition by will and testament or devise of the custody and tuition of any child, by

virtue of two specified Acts, and to any other testamentary disposition.

The essentials, therefore, for the execution of a will

are:

(1) Signature by the testator, or by some other person in his presence and by his direction. (2) Such signature must be made or acknowledged in the presence of two or more witnesses present at the same time.

(3) Such witnesses must subscribe the will in the presence of the testator.

(1) Signature by testator.-The decisions as to what is a sufficient signature are too numerous to mention, but it may be stated generally that a testator may make a valid signature (inter alia)

(a) by making his mark;

(b) by signing his initials;

(c) by another person signing by the direction of the testator and in his presence, even although

such person sign his own name and not the testator's;

(d) by someone guiding the testator's hand; (e) by the testator holding or touching the hand of a person who is signing the testator's name.

A seal alone is not sufficient.

Tracing over a signature with a dry pen is not sufficient.

The signature (or acknowledgment) must be made before either witness subscribes.

(2) Signature or acknowledgment in the presence of two witnesses present at the same time.