1 Vict. c. 26, s. 3. All pro CHAPTER X. WHAT PROPERTY MAY BE DISPOSED OF BY WILL. By the third section of the Wills Act, it is enacted that every person may, by his will, bequeath or dispose of "all perty may real estate and all personal estate which he shall be enbe disposed of by will; titled to, either at law or in equity, at the time of his death, and which, if not so devised, bequeathed or disposed of, would devolve upon the heir-at-law, or customary heir of him, or, if he became entitled by descent, of his ancestor, comprising or upon his executor or administrator; and that the power customary freeholds thereby given shall extend to all real estate of the nature and copy of customary freehold or tenant right, or customary or out surren- copyhold, notwithstanding that the testator may not have before ad- surrendered the same to the use of his will, or notwithmittance; also such standing that, being entitled as heir, devisee or otherwise holds with der and of them as to be admitted thereto, he shall not have been admitted could not before the Act; be devised thereto, or notwithstanding that the same, in consequence 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 pur autre vie, pur autre whether there shall or shall not be any special occupant thereof, and whether the same shall be freehold, customary freehold, tenant right, customary or copyhold, or of any estates vie; other tenure, and whether the same shall be a corporeal or an incorporeal hereditament; and also to all contingent, contingent executory, or other future interests in any real or personal interests; estate, 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 also to all rights of entry for con- rights of ditions broken, and other rights of entry; and also to such of the same estates, interests, and rights respectively, and and property other real and personal estate, as the testator may be acquired entitled to at the time of his death, notwithstanding that after exehe may become entitled to the same subsequently to the will. execution of his will." entry; cution of The effect of this section as regards copyholds is to Devise of copyholds. enable the copyholder to devise his estate without a surrender. Until the devisee is admitted the customary estate descends to the heir. Though the lord will not be compelled to admit the heir if there is a devisee, he cannot seize because the devisee refuses to be admitted if the heir is willing to come in. R. v. Garland, L. R. 5 Q. B. 269; Garland v. Mead, ib. 6 Q. B. 441; see Allen v. Bewsey, 7 Ch. D. 453. liable to It has been suggested that lands of a testator dying Lands without heirs which would therefore not devolve upon "the escheat. heir-at-law of him," but would escheat to the lord, are not within this section, and therefore that a will disposing of lands in such a case must be executed with the formalities required by the Statute of Frauds. Williams' Real Prop., 9th ed., p. 121, note; Dunning's Concise Prec., p. 3. an estate It appears to be doubtful whether an estate pur autre Whether vie limited to a man and the heirs of his body could be pur autre disposed of before the Wills Act, if the entail had not man and been barred. The better opinion seems to be that it could the heirs vie to a of his body not; see Campbell v. Sandys, 1 Sch. & Lef. 294; Hopkins is devis able. Title by possession is devisable. But not the right to sue in testator's name. Property held in joint tenancy. Power to arise upon a contin gency. Power to v. Ramage, Batty, 365; Blake v. Luxton, Coop. 185; Allen v. Allen, 2 Dr. & War. 307, 326; and see Doe v. Luxton, 6 T. R. 293; see 1 Jarman, 56. The Wills Act apparently leaves the point where it was, since sec. 3, which makes devisable all real estate which if not devised would devolve upon the heir-at-law, or customary heir, or upon his executor or administrator, does not in terms extend to real estate, which would descend to the heir special, if not devised. 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; see Gresley v. Mousley, 4 De G. & J. 78. The third section does not make any kind of personalty bequeathable which could not be bequeathed before; thus a testator cannot bequeath a promissory note made to him so as to pass the right to sue on it, which remains in the executor. Bishop v. Curtis, 18 Q. B. 879. Property held by the testator in joint tenancy survives to the other joint tenants and cannot be given by will; thus, for instance, property transferred by the testator into the joint names of himself and his wife where there is nothing to rebut the presumption of advancement cannot be given by will, whether by specific gift or otherwise. Dummer v. Pitcher, 2 M. & K. 262; Coates v. Stevens, 1 Y. & C. Ex. 66; Grosvenor v. Durston, 25 B. 97; Turner v. A.-G., I. R. 10 Eq. 386. A general power to an ascertained person to appoint the use in lands, where the power is to arise only upon a certain contingency, could always be executed before the contingency happened. Dalby v. Pullen, 2 Bing. 144; 9 J. B. Moore, 300; Logan v. Bell, 1 C. B. 872. Prior to the Wills Act it was held that a general power contingent to appoint property operating upon the legal estate given person to the survivor of two persons could not be exercised till over the legal the survivor was ascertained. Doe v. Tomkinson, 2 Mau. estate. S. 165. This doctrine, however, had no application to equitable estates, and is apparently abolished by the Wills Act. Thomas v. Jones, 1 D. J. & S. 63. be exer A power to be exercised by an instrument in writing Power to could always be exercised by will. Lisle v. Lisle, 1 B. cised in C. C. 533. A general power to appoint by deed or instrument, sealed and delivered before a certain period, cannot be exercised by a will which does not take effect till after the period. Cooper v. Martin, 3 Ch. 47. A power to appoint by will to A. and others may be exercised after A.'s death. Paske v. Haselfoot, 2 N. R. 568; 33 B. 125. writing. Where a power of disposition over property is given to Power of disposition a person, the power may be exercised by deed or will, and not cut will not be cut down to a testamentary power without testaclear words. Thus a gift to A. for life, with a power to dispose of the property then or at or after his decease, gives A. a power exercisable by deed or will. Anon., 3 Leon. 71, pl. 108; Ex parte Williams, 1 J. & W. 89; Tomlinson v. Dighton, 1 P. W. 149; 1 Com. 194; In re David's Trusts, Jo. 495; In re Mortlock's Trusts, 3 K. & J. 456; Humble v. Bowman, 47 L. J. Ch. 62; In re Jackson's Will, 13 Ch. D. 189; see, too, Sinnot v. Walsh, 5 L. R. Ir. 27. The cases of Kennedy v. Kingston, 2 J. & W. 431; Reid v. Reid, 25 B. 469; and Freeland v. Pearson, 3 Eq. 658, may be considered overruled. On the other hand, if any words are used which would be appropriate only to a testamentary gift, such as leave or bequeath, the power can only be exercised by will. Doe v. Thorley, 10 East. 438; Walsh down to mentary power. Sec. 10 of the Wills Act. Applies to powers created since the Act. But only to powers testamentary in terms. v. Wallinger, 2 R. & M. 78; Paul v. Hewetson, 2 M. & K. 434. Possibly, if the tenant for life is restrained from alienation, a power at her decease to dispose of property might be construed as testamentary only. Archibald v. Wright, 9 Sim. 161. Under a gift to A. for life, with power to dispose of the property for her own use, with a gift over "in the event of her decease, should there be anything then remaining," the tenant for life has no power of disposition by will. In re Thomson's Estate; Herring v. Barrow, 13 Ch. D. 144; 14 Ch. D. 263. A power to be exercised by an instrument in writing executed with certain formalities is exercisable by will executed with those formalities. Kibbet v. Lee, Hob. 312; Smith v. Adkins, 14 Eq. 402; Orange v. Pickford, 4 Dr. 363. By the 10th section of the Wills Act no appointment made by will in exercise of any power shall be valid unless the same be executed in manner therein before required; and every will so executed shall, so far as respects the execution and attestation thereof, be a valid execution of a power of appointment by will, notwithstanding it shall have been expressly required that a will made in exercise of such power should be executed with some additional or other form of execution or solemnity. The section applies to powers created since as well as to powers created before the Act. Hubbard v. Lees, L. R. 1 Ex. 255. The section, however, only applies to powers which are in terms testamentary, and therefore a power to appoint by instrument in writing executed with certain formalities cannot be exercised by a will executed only with the statutory formalities. West v. Ray, Kay, 385; Taylor v. Meads, 4 D. J. & S. 597. |