1 Vict. c. 26, No devise to executors, except Trustees under an unlimited de- beyond the life of a person bene- child: it was held, that J. F. G. was entitled in fee to half of the testator's freeholds and absolutely to his leaseholds; that the parenthetical expression was merely explanatory, and that this section of the act did not affect the devise and gift. (Green v. Green, 3 De G. & S. 480; 14 Jur. 74; 18 Law J., Chanc. 465.) 30. Where any real estate (other than or not being a presentation to a church) shall be devised to any trustee or executor, such devise shall be construed to pass the fee simple or other the whole estate or interest which the testator had power to dispose of by will in such real estate, unless a definite term of years, absolute or determinable, or an estate of freehold, shall thereby be given to him expressly or by implication. 31. Where any real estate shall be devised to a trustee, without any express limitation of the estate to be taken by such trust may endure trustee, and the beneficial interest in such real estate, or in the surplus rents and profits thereof, shall not be given to any person for life, or such beneficial interest shall be given to any person for life, but the purposes of the trust may continue beyond the life of such person, such devise shall be construed to vest in such trustee the fee simple, or other the whole legal estate which the testator had power to dispose of by will in such 2 Exceptions to dapse real estate and not an estate determinable when the purposes of for life, to take the trust shall be satisfied. 32. Where any person to whom any real estate shall be devised for an estate tail or an estate in quasi entail shall die in the lifetime of the testator leaving issue who would be inheritable under such entail, and any such issue shall be living at the time of the death of the testator, such devise shall not lapse, but shall take effect as if the death of such person had happened immediately after the death of the testator, unless a contrary intention shall appear by the will. 33. Where any person being a child or other issue of the testator to whom any real or personal estate shall be devised or bequeathed for any estate or interest not determinable at or before the death of such person shall die in the lifetime of the testator leaving issue, and any such issue of such person shall be living at the time of the death of the testator, such devise or bequest shall not lapse, but shall take effect as if the death of such person had happened immediately after the death of the testator, unless a contrary intention shall appear by the will (z). (z) It has been held that the words "shall die" mean after the act came into operation. A testator by a will, made before this act came into operation, bequeathed a share of his residuary estate to one of his sons, who was also thereby made one of the devisees in trust and executors of his estate. The son died after this act came into operation leaving issue, and after his death made a codicil to his will, altering a bequest to another child, but in other respects confirming his will: it was held, that the gift to the son did not lapse, but that the same, so far as it was real estate, descended to the heir at law of the son; and so far as it was personal, to his executrix under a will made before this act came into operation. (Winter v. Winter, 5 Hare, 306.) So where a testator by a will made subsequent to this act gave to his son a residuary share of his estate, and the son died after the act came into operation and before the date of the will, leaving children: it was held, that the gift took effect, although, according to the law prior to this statute, there would have been no effectual devise or bequest. (Mower v. Orr, 7 Hare, 473.) A testator devised houses to his eldest son Joseph, who had died previously to the date of the will, leaving a son his heir: it was held, on the construction of this section, that the heir of the devisee was entitled. (Wisden v. Wisden, 2 Sm. & G. 396; 18 Jur. 1090.) V. C. Stuart expressed his opinion "that the words of the 33rd section point at no particular period of death within the testator's lifetime. The words' shall die' speak from the death of the testator, and I can see no words to refer the futurity of the word' shall' to the date of the will. I consider the words of the clause as meaning that any gift to any child, though not living at the testator's death, is within its operation, and therefore I must construe the will as if the deceased child was alive when the will was written, and I shall hold that the son of Joseph takes the devised estate by descent from his father the devisee under the will." (Wisden v. Wisden, 2 Sm. & G. 405.) This section does not prevent the lapse of property appointed by will under a power to appoint in favour of particular objects, where, by the instrument creating the power, the property is disposed of in default of any appointment being made. (Griffiths v. Gale, 12 Sim. 327, 354.) A devise and bequest was made to all the testator's children (without naming them). A subsequent codicil confirmed the gift, as mentioned in the will, "to his surviving children," naming all of them. One died in the testator's lifetime, leaving children who survived the testator: it was held, that the survivorship had relation to the testator's death and not to the date of the will, and that the representatives of the deceased child took nothing under this section. (Fullford v. Fullford, 16 Beav. 563.) The provisions in this act against the lapse of legacies given to children render it necessary for a testator intending that a legacy given to one child shall go over to another in the event of the death of the first legatee, to express that meaning by his will. (Re More's Trust, 10 Hare, 178.) Upon the construction of this section taken alone, a legatee within it will take the same provision under his father's will, and with the same powers and incidents of property, as if he had actually survived the testator, and the issue of such legatee will not take the bequest independently of the legatee. This clause does not substitute for the predeceased devisee or legatee the issue whose existence is the event or condition which excludes the lapse, but renders the subject of the gift the absolute property of the predeceased devisee or legatee, and therefore disposable by his will, notwithstanding his death in the lifetime of the testator. (Johnson v. Johnson, 3 Hare, 157.) The intention of the legislature was to provide against lapse merely, and not to alter the construction to be put on any will. On arriving at the conclusion that there would have been a lapse, then the statute applies, not otherwise. This section does not apply to the case of a gift to a class. According to the rule before the act, under a gift to children as a class, the share to which a surviving child would have been entitled did not lapse in consequence of his death in the testator's lifetime. (Olney v. Bates, 3 Drew. 319; Browne v. Hammond, 1 Johns. 210.) This section applies to a testamentary appointment made in exercise of a general power. A testatrix, by her will in 1840, in exercise of a general power, appointed the proceeds of real estate to her daughter, who died in her lifetime, leaving issue living at the death of the testatrix: it was held, that the personal representative of the daughter was entitled. (Eccles v. Cheyne, 2 Kay & J. 676.) This section was held to extend to a case where the issue of the legatee, who was alive at the date of the will, was not the same issue as was in existence when the legatee died. (In bonis Parker, 1 Sw. & Tr. 523.) A testator gave a legacy to his daughter, a married woman, who predeceased him, leaving issue, and also her husband her surviving. The settlement made on her marriage contained a covenant that all property coming to her, or to her husband in her right, during the coverture, should be settled it was held, that, notwithstanding the fictitious survivorship created by this section for the purpose of preventing a lapse, the legacy was not acquired during the coverture within the meaning of the covenant, and 1 Vict. c. 26, s. 33. 1 Vict. c. 26, s. 33. Act not to extend to wills made before 1838, nor to estates pur was therefore not bound by the settlement. (Pearce v. Graham, 32 Law J., Chan. 359.) 34. This act shall not extend to any will made before the first day of January, one thousand eight hundred and thirtyeight, and that every will re-executed or republished, or revived autre vie of per- by any codicil, shall for the purposes of this act be deemed to sons who before 1838. Act not to extend to Scotland. have been made at the time at which the same shall be so reexecuted, republished or revived; and this act shall not extend to any estate pur autre vie of any person who shall die before the first day of January, one thousand eight hundred and thirty-eight (a). (a) Under this section of the act the effect of the republication of the will by the codicil is the same as if the testator had at the date of the codicil made a will in the words of the will so republished. (Winter v. Winter, 5 Hare, 306; 11 Jur. 10; 16 Law J., Chan. 111.) A codicil, executed in 1839, to a will of 1818, was held to be a republication of that will, and to have the effect of bringing a bequest in the will to a deceased daughter under the operation of the 33rd section of this act, as no intention to the contrary appeared on the face of either instrument. (Skinner v. Ogle, 1 Rob. Eccl. Rep. 363.) 35. This act shall not extend to Scotland. THE WILLS ACT AMENDMENT ACT, 1852. 15 & 16 VICTORIA, C. 24. An Act for the Amendment of an Act passed in the First 15 & 16 Vict. c. 24, s. 1. Vict. c. 26. deemed valid. WHEREAS the laws with respect to the execution of wills require further amendment: be it therefore enacted as follows: 1. Where by an act passed in the first year of the reign of her Majesty Queen Victoria, intituled "An Act for the Amendment of the Laws with respect to Wills," it is enacted, that no will shall be valid unless 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 (a): every will shall, so far only as regards when signature the position of the signature of the testator, or of the person sign- to a will shall be ing for him as aforesaid, be deemed to be valid within the said enactment, as explained by this act, if the signature shall be so placed at or after, or following, or under, or beside or opposite to the end of the will, that it shall be apparent on the face of the will that the testator intended to give effect by such his signature to the writing signed as his will, and that no such will shall be affected by the circumstance that the signature shall not follow or be immediately after the foot or end of the will, or by the circumstance that a blank space shall intervene between the concluding word of the will and the signature, or by the circumstance that the signature shall be placed among the words of the testimonium clause or of the clause of attestation, or shall follow or be after or under the clause of attestation, either with or without a blank space intervening, or shall follow or be after, or under, or beside the names or one of the names of the subscribing witnesses, or by the circumstance that the signature shall be on a side or page or other portion of the paper or papers containing the will whereon no clause or paragraph or disposing part of the will shall be written above the signature, or by the circumstance that there shall appear to be sufficient space on or at the bottom of the preceding side or page or other portion of the same paper on which the will is written to contain the signature; and the enumeration of the above circumstances shall not restrict the generality of the above enactment; but no signature under the said act or this act shall be operative to give effect to any disposition or direction which is c. 24, s. 1. 15 & 16 Vict. underneath or which follows it, nor shall it give effect to any disposition or direction inserted after the signature shall be made. Signature of testator. Act to extend to certain wills already made. Interpretation of "will." Short title of act. (a) 1 Vict. c. 26, s. 9, ante, p. 508. A. wrote out his own will, concluding with an attestation clause, in which his name appeared. He afterwards called in two witnesses, told them the paper was his will, read the latter portion of it to them, including the attestation, and requested that they would sign their names, which they did. His name was not written at the foot or end otherwise than in the attestation clause it was held, that, under this act, the execution was valid. (In bonis Walker, 2 Sw. & Tr. 354; 8 Jur., N. S. 314; 31 Law J., Prob. 62.) A will of an English lady, drawn up by a notary in France, was signed by her, not at the end of the will itself, but at the end of a notarial minute, which immediately followed the will, detailing the circumstances and facts under which the will was made: it was held, that such a signature was a compliance with this statute. (Page v. Donavan, 3 Jur., N. S. 220.—Prec. C.) The words" John Greata, executor," were written before a will was signed, but not above the signature: it was held, that since this act they did not form part of the will. (In bonis Greata, 2 Jur., N. S. 1172.-Prec. C.) 2. The provisions of this act shall extend and be applied to every will already made, where administration or probate has not already been granted or ordered by a court of competent jurisdiction in consequence of the defective execution of such will, or where the property not being within the jurisdiction of the ecclesiastical courts, has not been possessed or enjoyed by some person or persons claiming to be entitled thereto in consequence of the defective execution of such will, or the right thereto shall not have been decided to be in some other person or persons than the persons claiming under the will, by a court of competent jurisdiction, in consequence of the defective execution of such will. 3. The word "will" shall in the construction of this act be interpreted in like manner as the same is directed to be interpreted under the provisions in this behalf contained in the said act of the first year of the reign of her Majesty Queen Victoria (b). (b) 1 Vict. c. 26, s. 1, ante, p. 503. 4. This act may be cited as "The Wills Act Amendment Act, 1852." |