s. 11.

(Re Saunders, L. R. 1 P. & M. 16). As also the will of a seaman on 1 Vict. c. 26, board a man-of-war permanently stationed in Portsmouth harbour (Re M'Murdo, L. R. 1 P. & M. 540).

Where a man has joined a vessel on service, and has commenced a voyage in it, a will made in the course of that voyage is within the exception, although such will was in fact made on shore (Re Lay, 2 Curt. 375). But where the deceased wrote a letter stating that he had shipped on board a vessel lying in Melbourne harbour on the date of the letter, but it did not appear whether the letter was written before or after he went on board, the letter was not admitted to probate (Re Corby, 18 Jur. 634).

A will made under this section remains operative unless expressly revoked, although the maker of such will lives in England several years after the date of such will (Re Leese, 17 Jur. 216); but probate was refused when the will was in a conditional form, e.g., "Instructions to be followed if I die at sea or abroad" (Lindsay v. Lindsay, L. R. 2 P. & M. 459; Re Porter, Ib. 22; Re Robinson, Ib. 171).

to wills of

12. This act shall not prejudice or affect any of the pro- Act not to visions contained in an act passed in the eleventh year of the affect certain provisions of reign of his Majesty King George the Fourth and the first year 11 Geo. 4 & of the reign of his late Majesty King William the Fourth, 1 Will. 4, c. 20, intituled "An Act to amend and consolidate the Laws relating wit with respect to the Pay of the Royal Navy," respecting the wills of petty petty officers officers and seamen in the royal navy, and non-commissioned and seamen officers of marines, and marines, so far as relates to their wages, pay, prize-money, bounty money, and allowances, or other monies payable in respect of services in her Majesty's navy (r).

(r) This section, and 11 Geo. 4 & 1 Will. 4, c. 20 (which bound the crown: Re Bevan, 14 W. R. 147), have been repealed by 28 & 29 Vict. c. 112, s. 1.

and marines.

13. Every will executed in manner hereinbefore required shall Publication be valid without any other publication thereof.

not to be requisite.

Will not to

of attesting

void.

14. If any person who shall attest the execution of a will shall at the time of the execution thereof or at any time after- be void on wards be incompetent to be admitted a witness to prove the exe- account of cution thereof, such will shall not on that account be invalid. incompetency 15. If any person shall attest the execution of any will to witness. whom or to whose wife or husband any beneficial devise, legacy, Gifts to an estate, interest, gift or appointment, of or affecting any real or attesting personal estate (other than and except charges and directions witness to be for the payment of any debt or debts), shall be thereby given or made, such devise, legacy, estate, interest, gift or appointment shall, so far only as concerns such person attesting the execution of such will, or the wife or husband of such person, or any person claiming under such person or wife or husband, be utterly null and void, and such person so attesting shall be admitted as a witness to prove the execution of such will, or to prove the validity or invalidity thereof, notwithstanding such devise, legacy, estate, interest, gift or appointment mentioned in such will (8).

(8) The effect of the section is to render the devisee incapable of taking, and such a person cannot be reckoned in a class ascertainable at the

1 Vict. c. 26, testator's death or afterwards (Re Coleman and Jarrom, 4 Ch. D. 172). 8. 15. Where, accordingly, there was a devise to A. for life with remainder among her children as tenants in common, and one of A.'s children living at the death was an attesting witness, it was held that his share went to the rest of the class (Fell v. Biddolph, L. R. 10 C. P. 701). The decision was similar where the gift was to a class as joint tenants (Young v. Davies, 2 Dr. & Sm. 167); but was different in Jull v. Jacobs (24 W. R. 947), where the gift was held to be in effect a gift to surviving children by

Attestation

of codicil by legatee.

Will attested by legatee's wife confirmed by codicil.

Gift in trust.

Creditor attesting to be admitted a witness.

Executor to be admitted a witness.

Will to be

revoked by marriage.

name.

Where the execution of a will was attested by two marksmen and signed also by two other persons as witnesses, the court held that the signature of the two latter must be regarded as affixed likewise in attestation of the will, and that the legacy to the wife of one of them failed (Wigan v. Rowland, 11 Hare, 157). And where a devisee attested a will as a third witness, at the request of another person, the testator objecting, it was held that his interest failed (Randfield v. Randfield, 11 W. R. 847). So where the third attestation was at the request of the testator (Cozens v. Crout, 21 W. R. 781). Where a will was executed in the presence of two witnesses, and the signature of a third person, who was residuary legatee, appeared also at foot of the will, the court received evidence that the legatee's name was not written to attest the testator's signature, and ordered it to be omitted in the probate (Re Sharman, L. R. 1 P. & M. 661; see Re Purssglove, 26 L. T. 405; Re Smith, 15 P. D. 2).

A legacy was given by will, and a codicil confirming the will was attested by the legatee: the gift was held to be good (Gurney v. Gurney, 3 Drew. 208; Tempest v. Tempest, 2 K. & J. 635; see Gaskin v. Rogers, 2 Eq. 284). Where a testatrix gave a share of her residue to B., and one of the attesting witnesses to the will was B.'s wife, and by a codicil, attested by other witnesses, the testatrix confirmed her will, the codicil incorporated the will so as to render the gift to B. valid (Anderson v. Anderson, 13 Eq. 381; see Burton v. Newbery, 1 Ch. D. 234).

The marriage, after attestation of a will, of a devisee to the attesting witness, does not affect the validity of the devise (Thorpe v. Bestwick, Q. B. D. 311).

A bequest in trust was not invalidated by the wife of the trustee attesting the signature of the testatrix (Cresswell v. Cresswell, 6 Eq. 69). But where, by a codicil attested by A., personal estate was given to B. upon parol trusts in favour (amongst others) of A.; A.'s interest was held to fail, just as it would have done had the trust been declared in the codicil (Re Fleetwood, Sidgreaves v. Brewer, 15 Ch. D. 594).

Where a solicitor attested a will in which he was named trustee, and by which he was empowered to make professional charges, the above section deprived him of any right to profit costs (Re Pooley, 40 Ch. Div. 1; Re Barber, Burgess v. Vinnicome, 31 Ch. D. 665).

16. In case by any will any real or personal estate shall be charged with any debt or debts, and any creditor, or the wife or husband of any creditor, whose debt is so charged shall attest the execution of such will, such creditor, notwithstanding such charge, shall be admitted a witness to prove the execution of such will, or to prove the validity or invalidity thereof.

17. No person shall, on account of his being an executor of a will, be incompetent to be admitted a witness to prove the execution of such will, or a witness to prove the validity or invalidity thereof.

18. Every will made by a man or woman shall be revoked by his or her marriage (except a will made in exercise of a power of appointment, when the real or personal estate thereby appointed would not in default of such appointment pass to his or

her heir, customary heir, executor, or administrator, or the 1 Vict. c. 26, person entitled as his or her next of kin, under the Statute of

Distributions) (t).

8. 18.

(1) Under the old law the marriage of a testator did not revoke his will; Old law. but under certain circumstances there was an implied revocation by mar

riage and the birth of issue (1 Wms. Exors. 196, 8th ed.)

Under this section a will is not revoked by a marriage with a deceased Marriage with wife's sister; and there is no distinction in such a case between a testator deceased's

who is a natural-born subject and one who is a naturalized British subject wife's sister. (Mette v. Mette, 1 Sw. & Tr. 416). A will executed after a marriage invalid under the Indian Divorce Act, was revoked by a subsequent marriage between the same parties (Warter v. Warter, 15 P. D. 152).

Where by a settlement freeholds were, in default of appointment, limited to A., her heirs and assigns, A.'s will exercising a power was revoked by marriage (Vaughan v. Vanderstegen, 2 Drew. 168; see Logan v. Bell, 1 Č. B. 872).

The reason for the exception is, that a revocation of the will in a case Exception in to which the exception applies, would operate only in favour of those case of wills entitled in default of appointment, and the new family of the testator in execution would derive no benefit from it (Re Fitzroy, 1 Sw. & Tr. 133). of powers.

The exception applies where in any contingency the property, in default of appointment, would not pass to the heir, &c., of the deceased (Re Fenwick, L. R. 1 P. & M. 319). Also, where such persons take under the settlement, and not by descent or under the Statute of Distributions (Re Fitzroy, 1 Sw. & Tr. 133; Re Worthington, 20 W. R. 260). It also applied where next of kin would have taken, not next of kin under the statute (Re McVicar, L. R. 1 P. & M. 671).

Where, after making a will exercising a power and disposing of absolute property, a testator married, the exercise of the power was held to fall within the exception and limited administration was granted (Re Russell, 15 P. D. 111).

19. No will shall be revoked by any presumption of an intention on the ground of an alteration in circumstances (u). (u) See Re Wells, Hardisty v. Wells (42 Ch. D. 646).

No will to be revoked by presumption.

by another

20. No will or codicil, or any part thereof, shall be revoked No will to be otherwise than as aforesaid, or by another will or codicil executed revoked but in manner herein before required (v), or by some writing declar- will or codicil, ing an intention to revoke the same, and executed in the manner or by a in which a will is hereinbefore required to be executed (x), or writing exeby the burning, tearing, or otherwise destroying the same by will, or by the testator, or by some person in his presence and by his direc- destruction. tion, with the intention of revoking the same (y).

cuted like a

(v) The use of the words "last will" in a testamentary paper does not Words "last necessarily import a revocation of all previous instruments, either in the will." case of personalty (Cutts v. Gilbert, 9 Moo. P. C. 131; overruling on this point Plenty v. West, 1 Rob. 204; see Lemage v. Goodban, L. R. 1 P. & M. 61); or in the case of real estate (Freeman v. Freeman, 5 D. M. & G. 704).

An express revocatory clause in general terms revokes all former wills, Express reincluding a prior testamentary appointment (Sotheran v. Dening, 20 Ch. vocatory Div. 99; Harvey v. Harvey, 32 L. T. 141; see Cottrell v. Cottrell, L. R. 2 clause. P. & M. 397, where a revocatory clause in an Italian will was held to revoke an English will so far as regards personal estate and executors). But an express revocatory clause is not essential, either in the case of

1 Vict. c. 26,

s. 20.

Revocation by another

will or codicil.

Revocation by writing

declaring an intention to revoke.

Revocation

by an act of destruction.

ordinary wills (Dempsey v. Lawson, 2 P. D. 98), or in the case of testamentary appointments (Re Tenney, 45 L. T. 78). "The question is, What disposition did the testator intend? not Which or what number of papers did he desire or expect to be admitted to probate?" (Dempsey v. Lawson, 2 P. D. 107). Where, accordingly, upon the construction of a subsequent will, the court considered that it contained all the testamentary dispositions which the testatrix intended at that time to constitute her last will, a prior will was held revoked, although the subsequent will contained no residuary or revocatory clauses (Dempsey v. Lawson, ubi sup.; see Henfrey v. Henfrey, 4 Moo. P. C. 29; McAra v. M‘Cay, 21 L. R. Ir. 138; Palmer v. Peat, 58 L. J. Prob. 44). On the other hand, a prior will was admitted to probate on the ground that the subsequent will did not dispose of the residue (Re Petchell, L. R. 3 P. & M. 153; Re Hartley, 29 W. R. 356). And if, upon the face of a testamentary document read in connection with the facts known to the testator at the time, it is doubtful whether the testator intended wholly to revoke a prior will, parol evidence will be admitted to ascertain the intention (Jenner v. Ffinch, 5 P. D. 206; see Paton v. Ormerod, 1892, P. 247).

A subsequent devise inconsistent with a prior devise was held to revoke such prior devise, even where the subsequent devise was invalid, being to a charity (Baker v. Story, 31 L. T. 631; see, however, Alexander v Kirkpatrick, L. R. 2 H. L. Sc. 397, 403). But where, by a fourth codicil (containing no revocatory clause) the whole personal estate was given to A. upon parol trusts, it was said that if effect could not have been given to the trusts, the original dispositions would have remained unaffected (Re Fleetwood, Sidgreaves v. Brewer, 15 Ch. D. 594). Where an appointment by will was revoked by a codicil which also purported to exercise the same power in an invalid manner, the revocation was held effectual, the doctrine of dependent relative revocation not applying (Quinn v. Butler, 6 Eq. 225; see Re Gentry, L. R. 3 P. & M. 80). A legacy given in clear terms will not be revoked unless the words of revocation are also clear (Re Percival, Boote v. Dalton, 59 L. T. 21; Cleoburey v. Beckett, 14 Beav. 583).

To establish the revocation of a former will relating to personalty by a subsequent will not forthcoming, by parol evidence of execution only, in the absence of any draft or instructions, such evidence must be strong and conclusive as to the contents of the subsequent will (Cutto v. Gilbert, 9 Moo. P. C. 131); but where it was proved that a subsequent will (not forthcoming) contained a clause of revocation, the prior will was revoked (Wood v. Wood, L. R. 1 P. & M. 309; see Brown v. Brown, 8 E. & B. 876, a case of real estate).

If a subsequent testamentary paper is only partly inconsistent with one of an earlier date, the latter instrument is only revoked as to those parts where it is inconsistent, and both papers are entitled to probate (Lemage v. Goodban, L. R. 1 P. & M. 57; Geaves v. Price, 11 W. R. 809; see Re Howard, L. R. 1 P. & M. 636).

A testator left four testamentary instruments duly executed. After the Ecclesiastical Court had held that the second and third alone were valid as to the personal estate (1 Rob. 204), the Court of Chancery, on the certificate of the Common Pleas (6 C. B. 201), decided that, as to the real estate, the last instrument alone constituted the last will (Plenty v. West, 16 Beav. 173).

(x) A testatrix devised real estates, and by a subsequent deed, attested by two witnesses, she conveyed them on other trusts. It was held that the deed, assuming it to be void as a turpis contractus, was not a writing declaring an intention to revoke within this section (Ford v. De Pontes, 30 Beav. 572). A writing, by which a testator merely revokes a prior testamentary disposition, will not be admitted to probate (Re Fraser, L. R. 2 P. & M. 40); secus, if it be of a testamentary character (Re Durance, lb. 406; Re Hubbard, L. R. 1 P. & M. 53; and see Re Hicks, Ib. 683).

(y) A mere abandonment of his will by a testator is not a sufficient revocation. There must be some act done by him, or by some one in his presence, and by his direction (Andrew v. Motley, 12 C. B. N. S. 514).

8. 20. Animus revocandi neccs

sary.

All acts by which a testator may destroy or mutilate a testamentary in- 1 Vict. c. 26, strument are in their nature equivocal: unless the act be done animo revocandi, there is no revocation (Powell v. Powell, L. R. 1 P. & M. 212). Where, therefore, the act of destruction is referable wholly and solely to the intention of setting up some other testamentary paper, the animus revocandi has only a conditional existence, the condition being the validity of the paper intended to be substituted; and where the condition is unful- Dependent filled, there is no revocation (Ib.; Dancer v. Crabb, L. R. 3 P. & M. 98); but the evidence must be clear as to the intention of the act of destruction (Eckersley v. Platt, L. R. 1 P. & M. 281); and subsequent declarations by the testator as to his intention will not be admitted (Re Weston, L. R. 1 P. & M. 633).

relative revocation.

Where a testator tore up his will under a mistaken impression that it Mistake. was invalid, it was held that there was no revocation (Giles v. Warren, L. R. 2 P. & M. 401; Re Thornton, 14 P. D. 82); and so where a man destroyed his will in a fit of delirium tremens (Brunt v. Brunt, L. R. 3 P. & M. 37). But it seems that a testator may subsequently adopt the act so as to effect a revocation. Probate was granted of a will which depended for its validity upon a confirmation by codicil, although the codicil had been destroyed, the destruction being held to have been effected with no intention of revoking the will (James v. Shrimpton, 1 P. D. 433).

It is not the manual operation of tearing the instrument, or the act of Part of will throwing it into a fire, or of destroying it by other means which will may be satisfy the requisites of the law; the act must be accompanied with the revoked by intention of revoking: there must be the animus as well as the act. It is tearing. the animus, also, which must govern the extent and measure of operation to be attributed to the act (Clarke v. Scripps, 2 Rob. 567; Clarkson v. Clarkson, 2 Sw. & Tr. 497; see Doe v. Harris, 6 Ad. & Ell. 209). Thus, where the first seven or eight lines of a will had been cut and torn off, it was admitted to probate in its incomplete state (Re Woodward, L. R. 2 P. & M. 206; Christmas v. Whinyates, 3 Sw. & Tr. 81; see Re Leach, 63 L. T. 111; Re Maley, 12 P. D. 134). But where the third and fourth sheets of a will were alone discovered, a power to appoint by will or by any writing in the nature of a will was not duly executed (Gullan v. Grove, 26 Beav. 64). And where a testator destroyed some sheets of a will and substituted others, but did not re-execute, the whole will was revoked (Treloar v. Lean, 14 P. D. 49).

A testator having made a will executed under seal, and published and Tearing off attested as a sealed instrument, afterwards for the purpose of revoking it seal. tore off the seal and with it part of a word, the tearing off the seal was sufficient to revoke the will (Price v. Powell, 3 H. & N. 341; see Doe v. Harris, 6 Ad. & E. 209). By the usual statement in the witnessing clause at the end of a will that the testator has set his hand to the preceding pages, a testator makes the signatures on those pages a part of his will, and if having so recited he afterwards, animo revocandi, tears off the Tearing off signatures from the preceding pages, it is a good revocation (Williams v. signatures. Tyley, Johns. 530). A will was held revoked by the testator cutting out his signature (Hobbs v. Knight, 1 Curt. 768; Walker v. Armstrong, 21 Beav. 305, on appeal, 4 W. R. 770), or erasing his own signature and those of the witnesses (Re Morton, 12 P. D. 141). But the accidental cutting through the signature of one of the witnesses was not a revocation (Re Taylor, 63 L. T. 230); nor was the erasure by the witnesses of their own signatures (Margary v. Robinson, 12 P. D. 8). Probate was granted in a case where the testator directed the name of an attesting witness to be erased (Re Greenwood, 1892, P. 7).

A testator cut out of his will the names of the attesting witnesses, and Signatures afterwards on the same day replaced the piece so cut out, saying that the replaced. will would do for the present. The court granted probate (Re Eeles, 32 L. J., Prob. 4; see Re De Bode, 5 Not. Cas. 189). Where the signature of the testator to a will had been cut out, but gummed on to its former place, the will was not admitted to probate (Bell v. Fothergill, L. R. 2 P. & M. 148; Magnesi v. Hazelton, 44 L. T. 586); but where a testator partially

S.

EE