invalid to tion between realty attempted to be disposed of by the pass realty.

Foreign heir.

Will of married woman.

To raise election

will and benefits given to him, so much of the will as attempted to dispose of realty being considered nonexistent. Sheddon v. Godrich, 8 Ves. 481.

So, too, when under the old law the testator was incompetent to dispose of property from infancy or coverture no case of election arose. Hearle v. Greenbank, 1 Ves. 298; 3 Atk. 697, 716; Rich v. Cockell, 9 Ves. 370.

But the case is different where the devise is upon condition. Boughton v. Boughton, 2 Ves. Sen. 12.

These rules do not, however, apply to a foreign heir, and therefore if there is clear evidence of an intention to dispose by will of land in Scotland or elsewhere which cannot be so disposed of, the heir is put to his election between the land and the benefits he may take under the will. Brodie v. Barry, 2 V. & B. 127; Dewar v. Maitland, L. R. 2 Eq. 834.

It must be clear that land in Scotland or elsewhere is referred to, and therefore general words will only be held to refer to those lands upon which the will can take effect. Johnson v. Telford, 1 R. & M. 244; Allen v. Anderson, 5 Ha. 763; Maxwell v. Maxwell, 16 B. 106; 2 D. M. & G. 705; Maxwell v. Hyslop, 4 Eq. 407.

But a devise of "all my real estate in any part of the United Kingdom or elsewhere" has been held sufficient to put the Scotch heir to election. Orrell v. Orrell, 6 Ch. 302. It would seem that no case for election arises on the part of next of kin, where the will of a married woman is operative at the time it was made, but afterwards becomes. inoperative. Blaiklock v. Grindle, 7 Eq. 215.

The principle of election being compensation, in order there must to put persons whose property the testator has given be a gift away to their election, there must be a gift to them of disposable free disposable property out of which compensation may property to the per- be made. Thus, an appointment by the testator of pro

of free

property

perty, subject to a special exclusive power of appoint- sons whose ment, to some objects of the power whose property the is given testator attempts to dispose of, is not a gift of free disposable property, in respect of which they will be bound to elect. Fowler's Trust, 27 B. 362; Aplin's Trust, 13 W. R. 1062.

Upon the question, whether, where a stranger appoints a testamentary guardian to children and gives their father a benefit under the will, the father is put to his election, so that he cannot after receiving the legacy withhold compliance with the condition for the education of his children, see Blake v. Leigh, Amb. 306; De Manneville v. De Manneville, 10 Ves. 52, 63.

1. Corporations.

CHAPTER XIII.

WHO MAY BE DEVISEES OR LEGATEES.

1. PRIOR to the Wills Act a devise of lands to a corporation was void, bodies corporate being excepted out of the statutes 32 Hen. 8, c. 1, 34 & 35 Hen. 8, c. 5, sec. 5.

And it seems the stat. 43 Eliz. c. 4, had no effect in passing the legal estate where the devise was to a corporation existing for charitable purposes, notwithstanding Benet Coll. v. Bp. of London, 2 W. Bl. 1182; see Inc. Soc. v. Richards, 1 Dr. & War. 258.

The Wills Act repeals the statutes 32 Hen. 8, c. 1, and 34 & 35 Hen. 8, c. 5, but does not expressly authorise devises to corporations, and since the inability of corporations to hold lands was created by various statutes antecedent to the 34 & 35 Hen. 8, c. 5, the mere repeal of that statute does not give validity to devises to corporations.

Since the Wills Act, however, the inability is not in the power of devising, but in the capacity of corporations to take, and it would seem to follow that corporations with power to hold land, such as companies incorporated under the Public Companies' Acts, 25 & 26 Vict. c. 89, sec. 18, might take by devise except so far as objections might arise on the ground of perpetuity. The question is, however, not likely to be of much practical importance; see Incorp. Soc. v. Richards, 1 Dr. & War. 258; Thompson v. Shakespear, Joh. 612; 1 D. F. & J. 399;

Carne v. Long, 2 D. F. & J. 75; Cocks v. Manners, 12 Eq. 574; Chaudière Mining Company v. Desbarats, L. R. 5 P. C. 277.

2. By the statute 33 Vict. c. 14, real and personal pro- 2. Aliens. perty of every description may be taken, acquired, held, or disposed of, by an alien in the same manner in all respects as by a natural-born British subject.

It has been decided that the Act is not retrospective. And apparently it does not apply to a will made before the passing of the Act, though not coming into operation till afterwards. Sharp v. St. Sauveur, 7 Ch. 343.

In cases before the Act land devised to an alien remains in him till office found, when it devolves to the Crown, and this is the case whether the land is devised to trustees or not. Barrow v. Wadkin, 21 B. 1; Sharp v. St. Sauveur, 7 Ch. 343.

An alien could always take the proceeds of land devised on trust for sale. Du Hourmelin v. Sheddon, 1 B. 79; 4 M. & Cr. 525.

3. Formerly personal property vested in a felon after his 3. Felons. conviction, during the period of his punishment or before his pardon, was forfeited to the Crown. Roberts v. Walker, 1 R. & M. 752,

But property not vested in a felon till after his imprisonment was not forfeited. Stokes v. Holden, 1 Kee. 145; Barnett v. Blake, 2 Dr. & S. 117; Gough v. Davies, 2 K. & J. 623; Re Thompson's Trusts, 22 B. 506; Re Harrington's Trust, 29 B. 24.

Now, by 33 & 34 Vict. c. 23, forfeiture and escheat for treason, felony, and suicide are abolished; and by section 10 all the real and personal property, including choses in action, to which the convict was at the time of his conviction, or shall afterwards become entitled, vests in an administrator appointed under the Act.

By the Civil Procedure Acts Repeal Act, 1879 (42 & 43

4. Attesting wit

nesses.

Vict. c. 59), s. 3, outlawry in consequence of any civil proceeding is abolished.

4. By the 15th section of the Wills Act, a legacy given to an attesting witness, or to the husband or wife of an attesting witness, is void.

The subsequent marriage of an attesting witness to a devisee does not avoid the devise. Thorpe v. Bestwick, 6 Q. B. D. 311.

A person attesting the signature of two marksmen, witnesses to a will, is himself an attesting witness. Wigan v. Rowland, 11 Ha. 157.

But a gift by will to the attesting witness of a codicil is good. Gurney v. Gurney, 3 Dr. 208.

Where, however, a contingent gift by will is made absolute by a codicil which the legatee attests, and the legatee could only have taken under the codicil, the gift is void. Gaskin v. Rogers, L. R. 2 Eq. 284.

And a gift to an attesting witness is void, though there may be a sufficient number of witnesses without him. Randfield v. Randfield, 11 W. R. 847, see 8 H. L. 225; Cozens v. Crout, 21 W. R. 781; see In bonis Sharman, 1 P. & D. 661, and see ante, p. 30.

A gift to a witness attesting the will is good, if the will is afterwards revived by a codicil referring to it. Anderson v. Anderson, 13 Eq. 381.

A gift to an attesting witness as trustee is not void. Cresswell v. Cresswell, 6 Eq. 69.

A gift to a trustee upon trusts declared by parol in favour of an attesting witness is void. In re Fleetwood; Sidgreaves v. Brewer, 49 L. J. Ch. 514; 15 Ch. D. 594.