as from

death of

Residuary

devise

what it will include.

Will speaks a residuary legatee and devisee, and should bear Testator: carefully in mind that his Will, will in pursuance of Section 24 of the Wills Act be construed to speak from the death of the Testator, and that in pursuance of Section 25 of the same Act, a residuary devise will include estates comprised in lapsed, and void devises. The effect of the joint operation of these two Sections upon a Testator's Will is such, that in many cases, his property will go in quite a different manner than that which he intended.

1 Wm, IV. C. 40

Effect of

marriage on

Will.

Execution of Wills.

testing wit

nesses void.

By virtue of the Act 1 Wm. IV. c. 40. The executors are made trustees for the next-of-kin of any undisposed of residue. Section 18 of the Wills Act has often a very serious effect, by reason of the negligence of Testators who marry after having made their Wills without making fresh ones or codicils confirming the old ones.

As to the execution of Wills see Section 9 of the Wills Act and the Wills Amendment Act, 15 and Gifts to at- 16 Vic. Cap. 24. Gifts to attesting witnesses, or their husbands, or wives are void. Sec. 15 Wills Act. See Sec. 16 as to creditors and Sec. 17 as to executors being witnesses. Persons of position; or, at all events, well known and respectable persons, should be

Creditors

and executors as witnesses.

Who should

be witnesses selected as witnesses.

Wills in

favor of illegitimate children.

If a Solicitor be instructed to make the Will of a who may person may have illegitimate children to provide for; he should take care to name them in

the Will, and describe them as the children, or, reputed children of the Testator.

ing such wills.

The law on this subject, may be learned from the Law affectjudgment, given on the 26th January, 1874, by the Lord Chancellor and the Lords Justices, in the case of Occleston v. Fullalove, reported in "The Times," of Tuesday, January 27th, 1874.

illegitimate

This case decides, that a man may provide for After-born future illegitimate children, who after the date of children. the Testator's Will, shall obtain a reputation of being his children; and of whom he shall acquire the reputation of being the father. All the authorities, bearing on the subject, are cited in the judgment, but notwithstanding such judgment, the author would advise every Testator having illegitimate children, born after the date of his Will, to provide for such illegitimate children, by a codicil, in which they should be properly named and described.

That a father is morally bound to provide for such children, needs no argument; but, should any person be of a different opinion, the author would simply suggest, to such person, a perusal of the i. Tim 5 c. 8 v. and the judgment of Lord Justice James in the case of Occleston v. Fullalove above referred to.

Points to be observed on making provision for illegiti

dren.

Testators having illegitimate children to provide for; and, who recognising their duty, desire to mate chil provide for them by Will, would do well to direct their executors to make them wards of the Court of

Chancery, and to pay the whole of their fortunes into Court to their credit. Such Testators should also nominate the persons whom they would wish the Court to appoint guardians of such children. The Court of Chancery would respect such nomination, and, if proper, would appoint the Testators' nominees, guardians.

66

Since the decision of the Court of Appeal in Occleston v. Fullalove, the Master of the Rolls has given judgment in re Goodwin's Trusts, in which he is reported to have said "I think the decision in "Occleston v. Fullalove amounts to this-that a gift by a Testator or Testatrix to his or her own children by a particular person is perfectly valid, "if the child has acquired the reputation of being "such a child before the death of the Testatrix." In re Goodwin's Trusts, decided in the Rolls Court, Jan. 31, 1874."

66

See "

APPENDIX.

ANNO PRIMO

VICTORIE REGINE.

CAP. XXVI.

AN ACT FOR THE AMENDMENT OF THE LAWS WITH
RESPECT TO WILLS.

[3rd July 1837.]

certain

Words in

this Act:

Be it enacted by the Queen's most Excellent Majesty, by and Meaning of with the Advice and Consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the Authority of the same, That the Words and Expressions hereinafter mentioned, which in their ordinary Signification have a more confined or a different Meaning, shall in this Act, except where the Nature of the Provision or the Context of the Act shall exclude such Construction, be interpreted as follows; (that is to say,) 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 an Act passed in the Twelfth Year of the Reign of King Charles the Second, intituled An Act c, 24.

"Will;"

12 Car, 2.

14 & 15 Car, 2. (I.)

"Real Estate;"

for taking away the Court of Wards and Liveries, and Tenures in Capite and by Knights Service and Purveyance, and for settling a Revenue upon His Majesty in lieu thereof, or by virtue of an Act passed in the Parliament of Ireland in the Fourteenth and Fifteenth Years of the Reign of King Charles the Second, intituled An Act for taking away the Court of Wards and Liveries and Tenures in Capite and by Knights Service, and to any other Testamentary Disposition; and the Words "Real Estate" shall extend to Manors, Advowsons, Messuages, Lands, Tithes, Rents, and Hereditaments, whether Freehold, Customary Freehold, Tenant Right, Customary or Copyhold, or of any other Tenure, and whether corporeal, incorporeal, or personal, and to any undivided Share thereof, and to any Estate, Right, or Interest (other than a Chattel Interest) therein; and the "Personal Words "Personal Estate" shall extend to Leasehold Estates and other Chattels Real, and also to Monies, Shares of Government and other Funds, Securities for Money (not being Real Estates), Debts, Choses in Action, Rights, Credits, Goods, and all other Property whatsoever which by Law devolves upon the Executor or Administrator, and to any Share or Interest therein; and every Word importing the Singular Number only shall extend and be applied to several Persons or Things as well as One Person or Thing; and every Word importing the Masculine Gender only shall extend and be applied to a Female as well as a Male.

Estate;"

Number;

Gender.

Repeal of the Statutes

32 H. 8. c. 1.

H. 8. c. 5.

II. And be it further enacted, That an Act passed in the Thirtyof Wills, second Year of the Reign of King Henry the Eighth, intituled The and 34 & 35 Act of Wills, Wards, and Primer Seisins, whereby a Man may devise Two Parts of his Land; and also an Act passed in the Thirty-fourth and Thirty-fifth Years of the Reign of the said King Henry the Eighth, intituled The Bill concerning the Explanation of Wills; and also an Act passed in the Parliament of Ireland in the Tenth Year of the Reign of King Charles the First, intituled