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441; King v. Foxwell, 3 Ch. D. 518; overruling Munroe v. Douglas, 5 Mad. 379, 405, so far as inconsistent.

By 24 & 25 Vict. c. 121, where a convention has been entered into with a foreign state willing to adopt the provisions of the Act, an order in Council may direct that no British subject resident in such state shall acquire a domicile there unless he shall have been resident there for a year, and shall have made a declaration of his intention to become domiciled there; and the subjects of the foreign state are to acquire a British domicile only after the same formalities have been gone through.

6

CHAPTER II.

GENERAL CHARACTERISTICS OF TESTAMENTARY

INSTRUMENTS.

A GIFT intended to be testamentary can only be effectually Testamentary gift. made by an instrument duly executed as a will. Thus, a direction to give property to a person after the donor's death, where the donor retains full control of the property in his life, is invalid. Powell v. Hellicar, 26 B. 261; Fletcher v. Fletcher, 4 Ha. 79; Hughes v. Stubbs, 1 Ha. 481; Maguire v. Dodd, 9 Ir. Ch. 452; Farquharson v. Cave, 2 Coll. 356; Gough v. Findon, 7 Ex. 48.

take effect

In the same way a deed not intended to have any Deed to effect till the settlor's death is testamentary. Consett after v. Bell, 1 Y. & C. C. 569; Rigden v. Vallier, 2 Ves, death. Sen. 253; Dillon v. Coppin, 4 M. & Cr. 647; In bonis Morgan, 1 P. & D. 214; Fielding v. Walshaw, 27 W. R.

492.

settle

ment.

A voluntary settlement, though reserving to the settlor Voluntary a life interest and containing a power of revocation, is not testamentary. Thompson v. Browne, 3 M. & K. 32. The case of A.-G. v. Jones, 3 Pr. 368, is overruled; see Majoribanks v. Hovenden, 1 Dru. 11, 27, 29; Sheldon v. Sheldon, 1 Rob. 83; Brown v. Adv.-G., 1 Macq. 79; see too Hope v. Harman, 11 Jur. 1097; Hope v. Hope, 10 B. 581.

Similarly, an instrument coming into operation immediately, and of which no part is revocable, more especially if it involves anything in the nature of consideration, cannot take effect as a will. In bonis Robinson, 1 P. & D. 384;

Deed in

part testa

see In bonis Halpin, I. R. 8 Eq. 567; Thorncroft v. Lashmar, 10 W. R. 783.

On the other hand, if a deed is in part clearly testamentary, mentary. such part may take effect as a will, though other parts are not testamentary. Doe d. Cross v. Cross, 8 Q. B. 714; see Peacocke v. Monk, 1 Ves. 127; Belt 82; Hogg v. Lashley, 3 Hagg. 415, note; Bagnall v. Downing, 2 Lee 3.

What may

take effect

Any instrument executed in the manner required by as a will. the Wills Act may take effect as a will, provided the intention was that it should not operate till after the death of the donor.

Thus, the following instruments being properly executed, have been allowed to take effect as testamentary dispositions :

Orders on a savings bank, and on a banker. In bonis Marsden, 1 Sw. & T. 542; Jones v. Nicolay, 2 Rob. 288. A cheque to take effect after death. Bartholomew v. Henley, 3 Phillim. 317.

A letter. Denny v. Barton, 2 Phillim. 575; In bonis Mundy, 2 Sw. & T. 119; 9 W. R. 171.

A paper containing wishes and a dying request. In bonis Lowry, 5 N. of C. 619; In bonis Mundy, 2 Sw. & T. 119.

A deed of gift to take effect at death. Habergham v. Vincent, 2 Ves. J. 204; 4 B. C. C. 355; Thorold v. Thorold, 1 Phillim. 1; Shergold v. Shergold, cit. ib. 10; In bonis Montgomery, 5 N. of C. 99; In bonis Morgan, 1 P. & D. 214; Fielding v. Walshaw, 27 W. R. 492.

An instrument to take effect two years after my wife's death if she survives me." In bonis Newms, 7 Jur. N. S. 688.

Where there is nothing to show that an instrument has reference to the death of the person executing it, it cannot have effect as a will. Glynn v. Oglander, 2 Hagg. 428; King's Proctor v. Daines, 3 Hagg. 218; Shingler v.

Pemberton, 4 Hagg. 359; Majoribanks v. Hovenden, 1
Dru. 11.

But evidence is admissible to show that a deed or other Evidence

of testa

instrument of gift, which on the face of it is not testa- mentary mentary, was not intended to operate till the death of intention. the person executing it. Cock v. Cooke, 1 P. & D. 241; Robertson v. Smith, 2 P. & D. 43; In bonis Coles, 2 P. & D. 362; In bonis Webb, 3 Sw. & T. 482; 10 Jur. N. S. 709; In bonis English, 3 Sw. & T. 586.

And, conversely, evidence is admissible to show that an instrument on the face of it testamentary was not intended. to be a will. Nicholls v. N., 2 Phillim. 180; Lister v. Smith, 3 Sw. & T. 282; Trevelyan v. T., 1 Phillim. 149; In bonis Nosworthy, 11 Jur. N. S. 570.

to make

An instrument, expressing merely an intention of in- Intention structing a solicitor to prepare a testamentary instrument will. with a view to make a particular legacy, will not take effect as a testamentary instrument, where there is no extraneous evidence of testamentary intention. Coventry v. Williams, 3 Curt. 787.

will.

A duly executed instrument described as instructions Instrucfor a will may have effect as a will if it appears that it tions for was intended to take effect in the absence of a more formal instrument. Bone v. Spear, 1 Phillim. 345; Torre v. Castle, 1 Curt. 303; 2 Moore P. C. 133; Barwick v. Mullings, 2 Hagg. 225; Hattatt v. Hattatt, 4 Hagg.

211.

gent will.

A will may be made contingent upon the happening of Continan event, so that if the event does not happen the will has no effect. Roberts v. Roberts, 2 Sw. & T. 337; 31 L. J. P. 46.

Thus, if the testator makes his will conditional upon his death during a particular period which he survives, the will does not take effect. In bonis Porter, 2 P. & D. 22; In bonis Robinson, 2 P. & D. 171; In bonis Lindsay, 2

Will revocable.

Joint wills.

Mutual wills.

P. & D. 459. See In bonis Thorne, 4 Sw. & T. 36; 34
L. J. P. 131.

On the other hand, if the possibility of death during a particular period is given as the reason or motive why the testator makes his will, it is not contingent upon the happening of the death during that period. In bonis Dobson, 1 P. & D. 88; In bonis Martin, 1 P. & D. 380; In bonis Mayd, 29 W. R. 214.

A testator may give to a third person the option of deciding whether a testamentary instrument executed by him shall take effect as a will or not. In bonis Smith, 1 P. & D. 717.

A will is in all cases revocable, even though the testator may declare it to be irrevocable. Vynior's Case, 8 Co. 82a.

Persons may make joint wills, which are, however, revocable at any time by either of them or by the survivor. Hobson v. Blackburn, 1 Add. 274; In bonis Stracey, Dea. & S. 6; In bonis Lovegrove, 2 Sw. & T. 453.

A joint will may be made to take effect after the death of both testators; and if the joint will is not a disposition by each testator of his own property, but a disposition of joint property after the death of the survivor, the will cannot be proved till the death of the survivor. In bonis Raine, 1 Sw. & T. 144.

In ordinary cases a joint will is looked upon as the will of each testator, and may be proved on the death of one. In bonis Stracey, 1 Jur. N. S. 1197; Dea. & S. 6; In bonis Miskelly, I. R. 4 Eq. 62, where In bonis Raine is disapproved.

It seems that two persons may agree to make mutual wills, which remain revocable during the joint lives by either with notice to the other, but become irrevocable after the death of one of them if the survivor takes advan

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