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40 & 41 Vict. c. 34, s. 1.

Application of acts in schedule.

Act not to extend to Scotland.

40 & 41 VICTORIE, CAP. 34.

An Act to amend the Acts seventeenth and eighteenth Victoria, chapter one hundred and thirteen, and thirtieth and thirty-first Victoria, chapter sixty-nine.

Be it enacted as follows:

[2nd August, 1877.]

1. The acts mentioned in the schedule hereto shall, as to any testator or intestate dying after the thirty-first December one thousand eight hundred and seventy-seven, be held to extend to a testator or intestate dying seised or possessed of or entitled to any land or other hereditaments of whatever tenure which shall at the time of his death be charged with the payment of any sum or sums of money by way of mortgage, or any other equitable charge, including any lien for unpaid purchase money; and the devisee or legatee or heir shall not be entitled to have such sum or sums discharged or satisfied out of any other estate of the testator or intestate unless (in the case of a testator) he shall within the meaning of the said acts have signified a contrary intention; and such contrary intention shall not be deemed to be signified by a charge of or direction for payment of debts upon or out of residuary real and personal estate or residuary real estate (a).

(a) See as to this section the notes to 17 & 18 Vict. c. 113, and 30 & 31 Vict. c. 69, supra; Re Anthony, Anthony v. Anthony, 1892, 1 Ch. 456). This act has extended the provisions of the former acts to leaseholds (Drake v. Kershaw, 37 Ch. D. 674); and in the case of a vendor's lien to intestates (Broadbent v. Groves, 24 Ch. D. 100). It has been observed that the expression of a contrary intention referred to in this act is limited to the case of a testator, the expression "by deed or other document" of such an intention not being mentioned (Ib.)

2. This act shall not extend to Scotland.

SCHEDULE.

17 & 18 Vict. c. 113.. An Act to amend the law relating to the administration of the estates of deceased persons.

30 & 31 Vict. c. 69

An Act to explain the operation of the Act 17 & 18 Vict.

c. 113.

AMENDMENT OF THE LAWS RESPECTING WILLS.

1 VICTORIÆ, CAP. 26.

An Act for the Amendment of the Laws with respect to

Wills.

[3rd July, 1837.]

s. 1.

in this act;

BE it enacted, that the words and expressions hereinafter men- 1 Vict. c. 26, tioned, which in their ordinary signification have a more confined or a different meaning, shall in this act, except where the Meaning of nature of the provision or the context of the act shall exclude certain words such construction, be interpreted as follows; (that is to say,) the word "will" shall extend to a testament, and to a codicil, "Will:" 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 for taking away 12 Car. 2, the Court of Wards and Liveries, and Tenures in capite and by c. 24. 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 14 & 15 Car. 2, taking away the Court of Wards and Liveries, and Tenures in (I.) capite and by Knights Service," and to any other testamentary disposition; and the words "real estate" shall extend to manors, "Real advowsons, messuages, lands, tithes, rents and hereditaments, estate:" 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 words "personal estate" shall extend to lease- "Personal hold estates and other chattels real, and also to moneys, shares estate:" 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 Number: extend and be applied to several persons or things as well as one person or thing; and every word importing the masculine Gender: gender only shall extend and be applied to a female as well as a male.

2. An Act passed in the thirty-second year of the reign of Repeal of the King Henry the Eighth, intituled "The Act of Wills, Wards Statutes of and Primer Seisins, whereby a Man may devise Two Parts of 32 Hen. 8,

Wills,

1 Vict. c. 26,

8. 2.

c. 1, and 34 &

35 Hen. 8, c. 5.

10 Car. 1,

sess. 2, c. 2(I.)

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 "An Act how Lands, Tenements, &c., may be disposed by Will or otherwise, and concerning Wards and Primer Seisins;" and also so much of an act passed in the twenty-ninth year of the reign of King Charles the Second, intituled "An Act for Prevention of Frauds and Perjuries," and of an act passed in the parliament of Ireland in the seventh year of the reign of King William the Third, intituled "An Act for Prevention of 29 Car. 2, c. 3; Frauds and Perjuries," as relates to devises or bequests of lands

Sects. 5, 6, 12,

19, 20, 21 and 22 of the Statute of Frauds,

7 Will. 3, c. 12 (I.).

Sect. 14 of
4 & 5 Anne,

c. 16.

Sect. 9 of 14 Geo. 2, c. 20.

or tenements, or to the revocation or alteration of any devise in writing of any lands, tenements or hereditaments, or any clause thereof, or to the devise of any estate pur autre vie, or to any such estate being assets, or to nuncupative wills, or to the repeal, altering or changing of any will in writing concerning any goods or chattels or personal estate, or any clause, devise, or bequest therein; and also so much of an act passed in the fourth and fifth years of the reign of Queen Anne, intituled "An Act for the Amendment of the Law and the better Advancement of Justice," and of an act passed in the parliament of Ireland in the sixth year of the reign of Queen Anne, 6 Anne, c. 10 intituled "An act for the Amendment of the Law and (I.). the better Advancement of Justice," as relates to witnesses to nuncupative wills; and also so much of an act passed in the fourteenth year of the reign of King George the Second, intituled "An Act to amend the Law concerning Common Recoveries, and to explain and amend an Act made in the twenty-ninth year of the reign of King Charles the Second, intituled An Act for Prevention of Frauds and Perjuries,"" as relates to estates pur autre vie; and also an act passed in the twenty-fifth year of the reign of King George the Second, 6 intituled "An Act for avoiding and putting an end to certain Doubts and Questions relating to the Attestation of Wills and Codicils concerning Real Estates in that part of Great Britain called England, and in his Majesty's Colonies and Plantations in America," except so far as relates to his Majesty's colonies and plantations in America; and also an act passed in the parliament of Ireland in the same twenty-fifth year of the reign of King George the Second, intituled "An Act for the avoiding and putting an end to certain Doubts and Questions relating to the Attestation of Wills and Codicils concerning Real Estates;" and also an act passed in the fifty-fifth year of the reign of King George the Third, intituled "An Act to remove certain Difficulties in the Disposition of Copyhold Estates by Will," shall be and the same are hereby repealed, except so far as the same acts or any of them respectively relate to any wills or estates pur autre vie to which this act does not extend.

25 Geo. 2, c.

(except as to colonies).

25 Geo. 2, c. 11 (I.).

55 Geo. 3, c. 192.

will,

s. 3.

customary

before admit

them as cannot now be

devised;

3. (a) It shall be lawful for every person to devise, bequeath or 1 Vict. c. 26, dispose of, by his will executed in manner hereinafter required, all real estate and all personal estate which he shall be entitled All property to, either at law or in equity, at the time of his death, and may be diswhich, if not so devised, bequeathed or disposed of, would posed of by devolve upon the heir-at-law or customary heir of him, or, if he became entitled by descent, of his ancestor, or upon his executor or administrator (b); and that the power hereby given shall comprising extend to all real estate of the nature of customary freehold or freeholds and tenant right or customary or copyhold (c), notwithstanding that copyholds the testator may not have surrendered the same to the use of without surhis will, or notwithstanding that, being entitled as heir, devisee ren or otherwise to be admitted thereto, he shall not have been tance, and admitted thereto, or notwithstanding that the same, in conse- also such of quence of the want of a custom to devise or surrender to the use of a will or otherwise, could not at law have been disposed of by will if this act had not been made, or notwithstanding that the same, in consequence of there being a custom that a will or a surrender to the use of a will should continue in force for a limited time only, or any other special custom, could not have been disposed of by will according to the power contained in this act, if this act had not been made; and also to estates estates pur pur autre vie, whether there shall or shall not be any special autre vie ; occupant thereof, and whether the same shall be freehold, customary freehold, tenant right, customary or copyhold, or of any other tenure, and whether the same shall be a corporeal or an incorporeal hereditament; and also to all contingent, executory contingent or other future interests in any real or personal estate (d), whether the testator may or may not be ascertained as 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 by which the same respectively were created or under any disposition thereof by deed or will; and rights of also to all rights of entry for conditions broken, and other entry; and property rights of entry; and also to such of the same estates, interests acquired after and rights respectively, and other real and personal estate, as execution of the testator may be entitled to at the time of his death, notwithstanding that he may become entitled to the same subsequently to the execution of his will.

interests;

the will.

site;

(a) A will of realty is governed by the lex loci rei sitæ (1 Jarm. Wills, Wills of realty 1); and this rule, so far as regards the validity of the dispositions in the governed by will, applies to leaseholds (Freke v. Carbery, 16 Eq. 461; Duncan v. Law- the lex loci rei son, 41 Ch. D. 394). In the case of personalty, the law of the country in wills of perwhich the deceased was domiciled at his death not only decides the course of distribution or succession, but regulates the decision as to what consonalty by the lex domicilii. stitutes the last will (Lynch v. Paraguay, L. R. 2 P. & M. 268; Abd-ulMessih v. Farra, 13 App. Cas. 437). Foreign personal assets, however, are governed by the law of their own locality for the purpose of legal representation, collection, and administration, as distinguished from distribution among the successors (Blackwood v. The Queen, 8 App. Cas. 82; Commissioner of Stamps v. Hope, 1891, A. C. 476; see Re Kloebe, Kannreuther v. Geiselbrecht, 28 Ch. D. 175). The provisions of 1 Vict. c. 26

S.

D D

8. 3.

Aliens.

1 Vict. c. 26, apply only to persons having an English domicile (Croker v. Hertford, 4 Moore, P. C. 339; Bremer v. Freeman, 10 Moore, P. C. 306). But as to the form in which wills of personalty may be executed by British subjects dying after 6th August, 1861, see now 24 & 25 Vict. c. 114, post, p. 438. As to conventions between this country and foreign countries for the purpose of determining the domicile of deceased persons, see 24 & 25 Vict. c. 121, post, p. 440; and as to domicile generally, see Dicey on Domicile. Aliens may dispose of personalty by will (1 Wms. Exors. 12). Aliens were formerly incapable of devising realty (Fourdrin v. Gowdey, 3 M. & K. 383). As to aliens claiming under a devise, see Davies v. Lynch (I. R. 4 C. L. 570). But now real and personal property of every description may be taken, acquired, held, and disposed of by an alien in the same manner in all respects as by a natural-born British subject; and a title to real and personal property of every description may be derived through, from, or in succession to an alien, in the same manner in all respects as through, from, or in succession to a natural-born British subject (33 & 34 Vict, c. 14, s. 2). This last section is not retrospective (Sharp v. St. Sauveur, 7 Ch. 343); and does not confer upon aliens the privileges of 24 & 25 Vict. c. 114, post, p. 438 (Bloxam v. Favre, 9 P. Div. 130).

The sovereign.

Infants, married women, soldiers and seamen, lunatics. Chose in action.

Devisable interests in

land.

Testator

As to the power of the sovereign to dispose of personalty by will, see 39 & 40 Geo. 3, c. 88, s. 10; and to devise realty, see 39 & 40 Geo. 3, c. 88, s. 10. See further, A. G. v. Windsor (8 H. L. C. 369); Re Geo. 3 (3 Sw. & Tr. 199).

See as to the wills of infants, sect. 7 of this act; of married women, sect. 8; of soldiers and seamen, sects. 11 and 12; of lunatics, Smith v. Tebbitt, L. R. 1 P. & M. 398; Banks v. Goodfellow, L. R. 5 Q. B. 549; Pope on Lunacy, 2nd ed. 352.

(b) It was never intended that this section should make any kind of personalty bequeathable which was not bequeathable before. Therefore a testator cannot bequeath a promissory note, made to him, so as to pass the right to sue on it: such right is in the executor (Bishop v. Curtis, 18 Q. B. 879).

A person in possession of land without other title has a devisable interest (Asher v. Whitlock, L. R. 1 Q. B. 1; Clarke v. Clarke, I. R. 2 C. L. 395). Even before the passing of this act a person who had sold an estate under circumstances which entitled him in equity to have the sale set aside had in the estate an interest of such a nature as to be devisable (Gresley v. Mousley, 4 Do G. & J. 78).

A doubt has been suggested whether this act extends to the case of a dying without testator dying without heirs, and whether, therefore, in order to prevent an escheat, three witnesses should not in such a case attest the will as under the old law (Williams, R. P. 125, note (u), 12th ed.)

heirs.

Copyholds-
Estate re-

mains in heir
till admittance

of devisee.

(c) The effect of this section in the case of copyholds is to enable a copyholder to devise his estate in every case, dispensing with a surrender to the use of the will, but leaving the estate in the customary heir till the admittance of the devisee (Garland v. Mead, L. R. 6 Q. B. 441). Where a copyholder devised his estate to trustees, appointing them guardians of his customary heir, who was an infant, and the trustees without disclaiming tendered the infant heir for admittance, and the lord would not admit on account of the devise, the Court of Queen's Bench refused (as a matter of discretion) to grant a mandamus to compel the lord to admit the heir (R. v. Garland, L. R. 5 Q. B. 269); but subsequently held, that the lord could not seize quousque for want of a tenant (Garland v. Mead, L. R. 6 Q. B. 441). The section enables a testator to devise copyholds free from the widow's right to freebench (Lacey v. Hill, L. R. 19 Eq. 346). (d) Before this act, contingent and executory estates and possibilities and executory accompanied with an interest were devisable (Selwin v. Selwin, Burr. 1131; Moore v. Hawkins, 2 Eden's C. C. 342; Roe v. Griffiths, 1 Bl. Rep. 605; Roe v. Jones, 1 Hen. Bl. 30; Jones v. Roe, 3 East, 88; 17 Ves. 182; Scawen v. Blunt, 7 Ves. 300). Such an interest, however, was not devisable at law where the person who was to take was not in any degree ascertainable before the contingency happened; as where there was a devise to two.

Contingent

interests.

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