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16; In bonis Ryde, 2 P. & D. 86; Hood v. Lord Barrington, 6 Eq. 218; In bonis Ewing, 50 L. J. T. 11.

As to Irish probates, see 20 & 21 Vict. c. 79, s. 95. Whether The question whether documents not in themselves of a incorpo

testamentary character but incorporated with the will should be should be included in the probate is mainly one of conincluded in venience. probate.

If the document is valid in itself independently of the will, it would seem that it need not be included in the probate, if there is a difficulty in procuring its production, Sheldon v. Sheldon, 1 Rob. 81; In bonis Sibthorp, 1 P. & D. 106.

If the document derives its validity from the will it ought, as a general rule, to be included in the probate. Sheldon v. Sheldon, supra.

If the document incorporated with the will is itself testamentary it should be included in the probate.

Thus, where an English will refers to and incorporates a foreign will the foreign will must be included in the probate, though the executors of the English will may have nothing to do with the property disposed of by the foreign will. In bonis Harris, 2 P. & D. 83; In bonis Lord Howden, 43 L. J. P. 26.

On the other hand, where the English will, though confirming a foreign will, expressly declares that the English will is to take effect independently of the foreign will, the latter need not be included in the probate. In bonis

Astor, 1 P. D. 150. Where Probate of a will must be applied for in the Probate will must be proved. Division, and no proceedings can be taken under a will of

personal property till the will has been proved, unless, perhaps, probate is alleged and admitted on the pleadings.

Pinney v. Hunt, 6 Ch. D. 98. Probate, By 20 & 21 Vict, c. 77, s. 62, it is provided that where

the will is proved in solemn form, or its validity declared

how far evidence

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in a contentious matter, the probate shall be conclusive as to

realty. evidence of the validity and contents of the will in all proceedings affecting real estate.

Section 64 provides in effect that if probate of a will not proved in solemn form is intended to be used in an action as evidence of a testamentary disposition affecting realty, ten days' notice before the trial of the intention to use the probate as evidence may be given ; and if the opposite party does not, within four days after receiving such notice, give notice that he disputes the validity of the will, the probate will be prima facie evidence of the will, its validity and contents. Barraclough v. Greenhough, L. R. 2 Q. B. 612. Where the will has not been proved there can be no Action

to establish doubt that an action will lie in the Chancery Division to will of establish it, so far as it relates to real estate. For the old real estate. practice on this subject, see a valuable note in Mr. Dunning's Concise Precedents, p. 510, et seq. Probate is conclusive upon the question whether the will Chancery

Division does or does not express the true will of the testator. will not

If the whole or any part of a will is procured by fraud set aside the objection must be taken when probate is applied for. fraud of

legatee. After probate of a will has been granted no proceedings can be taken in the Chancery Division to have the legatee of the whole or any part of the property bequeathed declared a trustee on the ground of fraud. Allen v. M-Pherson, 1 H. L. 191; Meluish v. Milton, 3 Ch. D. 27.

It would seem that the same principle would apply even in such a case as that already cited of Mitchell v. Gard, 3 Sw. & T. 75, supra, p. 22; and see Betts v. Doughty, 5 P. D. 26; In re Birchall; Wilson v. Birchall, 29 W.R. 461.

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CHAPTER X.

WHAT PROPERTY MAY BE DISPOSED OF BY WILL.

All pro

1 Vict. By the third section of the Wills Act, it is enacted that c. 26, s. 3.

every person may, by his will, bequeath or dispose of “all perty may, real estate and all personal estate which he shall be enof 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 der and before ad- surrendered the same to the use of his will, or notwithmittance; also such' standing that, being entitled as heir, devisee or otherwise of them as to be admitted thereto, he shall not have been admitted be devised thereto, or notwithstanding that the same, in consequence before the

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,

whether there shall or shall not be any special occupant vie;

thereof, and whether the same shall be freehold, customary freehold, tenant right, customary or copyhold, or of any

Act;

estates pur autre

of

other tenure, and whether the same shall be a corporeal or an incorporeal hereditament; and also to all contingent, contin

gent 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

entry; of the same estates, interests, and rights respectively, and and proother real and personal estate, as the testator may be acquired

perty 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." The effect of this section as regards copyholds is to Devise of

copy holds. enable the copyholder to devise bis 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. Bewaey, 7 Ch. D. 453. It has been suggested that lands of a testator dying Lands

liable to 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.

It appears to be doubtful whether an estate pur autre Whether vie limited to a man and the heirs of his body could be 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

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an estate pur autre

vie to a

able,

is devis

name.

of his body not; see Campbell v. Sandys, 1 Sch. & Lef. 294; Hopkins is devis

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. Title by

A person in possession of land without other title has a possession

devisable interest. Asher v. Whitlock, L. R. 1 Q. B. 1; able.

Clarke v. Clarke, I. R. 2 C. L. 395; see Gresley v. Mousley,

4 De G. & J. 78. But not The third section does not make any kind of personthe right to sue in alty bequeathable which could not be bequeathed before; testator's

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 Property held by the testator in joint tenancy survives held in joint

to the other joint tenants and cannot be given by will; tenancy.

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. Power to A general power to an ascertained person to appoint the

use in lands, where the power is to arise oply upon a gency. 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. Power to

Prior to the Wills Act it was held that a general power contingent person

to appoint property operating upon the legal estate given

arise upon

a contin

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